Ineffective Assistance of Counsel Claims Based on Failure to Present Neuroscientific Evidence: Update on 2021 Cases

Image: Ninth Circuit Court of Appeals (legal-planet.org)

In recent cases where criminal defendants brought ineffective assistance of counsel (IAC) claims based on lack of or insufficient investigation into mental health issues, defendants rarely succeeded. In cases where courts found IAC claims to have merit, trial attorneys conducted little to no investigation of the defendant’s mental health background. But most IAC claims were not successful for one of two predominant reasons. First, some courts found that trial counsel did not perform objectively unreasonably where attorneys investigated or presented some mental health evidence or strategically decided against presenting it. Second, several courts presumed deficient counsel but found that the presence of mental health evidence would not be likely to change the outcome of the trial.

In criminal trials, defendants may bring forth evidence of mental illness or disorder in both the guilt phase and the penalty phase. In the guilt phase, defense counsel can use evidence of mental disease or defect to negate mens rea elements for certain crimes. In the penalty phase, defense counsel may use evidence of the defendant’s mental health as mitigating evidence. In cases where defendants believe their attorneys did not adequately present mental health evidence in either or both stages, they may raise a claim of ineffective assistance of counsel (IAC) on appeal.

IAC claims are governed by Strickland v. Washington. For a defendant to show their counsel was constitutionally deficient, thus violating their Sixth Amendment right to counsel, they must prove (1) counsel acted in an objectively unreasonable manner, and thus provided deficient representation, and (2) this deficiency prejudiced the defendant. In 2021, many defendants sought post-conviction or federal habeas relief based on the claim that their counsel acted deficiently by inadequately investigating and presenting brain evidence in the past year, but few succeeded.

Several successful IAC claims involved the lack of adequate presentation of juvenile brain development. In C[FXS1] onley v. State, the defendant, 17 years old at the time of the crime, killed his ten-year-old brother and was sentenced to life in prison without the opportunity for parole. The Court of Appeals of Indiana found deficient representation where counsel neglected to “raise and advance the ongoing jurisprudential shift toward imposing constitutional limits on sentences assessed to juvenile defendants.” The court found that counsel’s failure to discuss Roper and Graham likely prejudiced the trial court’s decision to give the defendant the most severe sentence available to a juvenile. The defendant was therefore granted relief in the form of a new sentencing hearing.

T[FXS2] he Ninth Circuit also found ineffective assistance of counsel in L[FXS3] opez v. Attorney General for Nevada, a case where the defendant was found guilty for first degree murder of a stranger. While counsel retained a clinical psychologist who evaluated the defendant, counsel did not call the doctor to the stand nor use his report during the sentencing phase of the defendant’s trial. The psychological report would have provided context about the defendant’s childhood and stage of brain development at the time of the crime. The Ninth Circuit found defense counsel to be constitutionally deficient, stating that “expert medical testimony at the sentencing phase carries important weight with the jury” such that it was unreasonable for counsel to forgo calling the psychologist, focusing instead on the defendant’s family history. Viewing the weight of the forgone evidence in totality of the aggravating and mitigating factors, the court found counsel’s representation likely prejudiced the defendant’s sentence.

Another successful claim was brought in the Ninth Circuit regarding the sentence — and possibly the conviction — of an 18-year-old defendant in N[FXS4] oguera v. Davis. Counsel’s failure to present evidence of the defendant’s ADHD, organic brain damage, predisposition to paranoid beliefs, propensity for poor judgment, and lack of impulse control was both deficient and prejudicial, as there was a reasonable probability the jury may have decided a different sentence or, according to a concurring opinion, found him guilty of second-degree murder or manslaughter.

In another case the court recognized the defendant might have a IAC claim, but that an evidentiary hearing was necessary to determine the veracity of the claim. In United States v. Melhuish, the defendant was charged with assaulting a Border Patrol agent. A state expert found the defendant to be incompetent to stand trial, but defense counsel objected, stating the defendant was ready to proceed. The trial court agreed, and the defendant was convicted after presenting a self-defense claim, stating she had reasonably attempted to perform a citizen’s arrest on the officer. [FXS5] The Second Circuit remanded the case for an evidentiary hearing to clarify the record on whether this defense was deficient, as evidence of the defendant’s behavior and mental health history would have been helpful for a successful insanity defense.

In most cases, however, courts have not granted criminal defendants relief based on their IAC claims. First, some defendants wanted their lawyers to obtain brain scans and other related neuropsychological testing. But courts consistently rejected IAC claims when the defendant wished to partake in and present a neuropsychological report and evaluation. The United States District Court for the Eastern District of Kentucky rejected the claim in Stacy v. Kentucky that counsel was ineffective by failing to have a neuropsychologist investigate his mental health issues and conduct an fMRI [FXS6] [BB7] because counsel made a strategic decision not to present a mental health defense. In Howard v. State, the Court of Appeals of Nevada rejected his claim that counsel was ineffective for failing to present a neuropsychological report because the trial court was already aware of the defendant’s mental health issues, therefore counsel’s representation was not objectively unreasonable. Additionally, the Florida Supreme Court rejected the defendant’s claim in Morris v. State that counsel was deficient for failing to “order a full psychosocial evaluation and obtain key mental health evidence” because counsel reasonably relied on mental health experts’ advice that mental health evidence in his case would do more harm than good.

Several defendants have sought relief based on counsel’s failure to adequately address juvenile brain development but have lost their appeals. The Court of Appeals of Michigan in People v. Osborne, for example, did not fault the 17-year-old defendant’s trial counsel for focusing on two specific Miller factors, as this was reasonable trial strategy; nor did the court find counsel deficient for failing to bring a child adolescence expert, as counsel referred to a specific expert’s reports that the trial counsel recognized and was familiar with. Similarly, the Court of Appeals of Washington rejected an IAC claim in In re McIntyre. Although the defendant’s trial attorney failed to invoke relevant precedent stating “youthfulness may be considered to support a departure from the standard sentencing range,” the court found counsel sufficiently argued that the defendant suffered neurological deficits from a traumatic brain injury[FXS8] . A similar claim failed in the Eastern District of Michigan in Debruyn v. Nagy. While defense counsel did not present an insanity defense nor call an expert witness to testify, the court found sufficient defense counsel’s presentation of the defendant’s family history, argument that the defendant’s 18-year-old brain was not fully developed, and the inclusion in the presentence investigation report of the defendant’s “substantial psychiatric history.”

Defendants have claimed that counsel’s failure to investigate and present evidence of the defendant’s substance use and abuse entitled them to relief, but to no avail. The Eleventh Circuit rejected the claim in Barber v. Commissioner, stating the evidence the defendant proffered on his appeal would have been largely cumulative where a clinical psychologist already testified about cocaine and alcohol dependency effects at the sentencing hearing. The Tenth Circuit rejected an argument that defense counsel was inefficient for inadequately arguing to raise a voluntary intoxication instruction in Gravitt v. Bear. While defense counsel did not call an expert to testify about substance use, the court believed counsel’s experience in criminal defense led him to reasonably conclude he did not need an expert witness to successfully argue for the jury instruction. The United States District Court for the District of Arizona also rejected petitioner’s claim to relief in Rienhardt v. Shinn. The defendant argued his attorney should have raised an intoxication defense based on his substance use, but the defense was unavailable under state law.

Some courts have rejected IAC claims based on failure to challenge and investigate the defendant’s competency as well. The United States District Court for the Eastern District of Missouri rejected the defendant’s claim in Barrientez v. Blair that trial counsel was ineffective for failing to conduct a competency investigation after a post-robbery car accident cause the defendant to struggle with memory problems because there was nothing on the record indicating the defendant had any mental health issues during the trial. Likewise, the Court of Appeals of Michigan found counsel was not ineffective for failing to challenge the defendant’s competency in People v. Vontz because the defendant showed no signs of mental health issues during his trial, evidence by the fact that he wrote notes to his attorney and developing his defense.

Several courts have rejected IAC claims based on failure to present evidence of prenatal alcohol exposure. The United States District Court for the Western District of Texas rejected the defendant’s claim in Tabler v. Lumpkin because three experts testified about the defendant’s head injury and mental health issues, therefore not presenting evidence of Klinefelter’s Syndrome and Fetal Alcohol Spectrum Disorder was not deficient nor prejudicial to the defendant. The United States District Court for the District of Arizona rejected a similar claim in Cruz v. Shinn. While defense counsel omitted “evidence of a neurodevelopmental disorder and brain damage, most likely caused by prenatal alcohol exposure,” the court found no prejudice resulted from the omission, as most evidence would have been cumulative.

Many defendants have sought relief based on their counsel’s failure to investigate and present evidence of neurodevelopmental disorders and brain damage, but courts across the country have rejected these claims for various reasons. For instance, the Alabama Court of Criminal Appeals rejected the defendant’s argument in Harris v. State that defense counsel should have spoken about how a head injury would have predisposed him to crime. As this evidence would have contradicted the defense’s strategy of focusing on the statutory mitigating factor that the defendant had no prior criminal activity, the court found counsel’s decision not to be objectively unreasonable. [FXS9] Additionally, in Sanchez v. Davis, the Ninth Circuit rejected the defendant’s claim that counsel was ineffective for failing to raise mental impairment as mitigation because the attorneys did, in fact, conduct tests and did not have other information about the defendant’s brain damage that he brought up on appeal. The defendant in King v. State also claimed his trial counsel was ineffective for failing to investigate and present evidence of organic brain damage, but his claim was procedurally barred, and therefore he received no post-conviction relief.

The Appellate Court of Illinois rejected the defendant’s claim in People v. Smith as well where the defendant was shot in the head two weeks before the murder, resulting in a PTSD diagnosis. The court reasoned that there was no indication of when the defendant was diagnosed with PTSD, and therefore there was no proffered expert to testify about how the disorder would have affected him at the time of the shooting. The dissent disagreed, stating that evidence of head trauma within two weeks of the shooting would have necessarily impaired the defendant’s decision making, and reasonably could have changed the outcome of the trial.

Taking these cases as a whole, we observe that while the Ninth Circuit has been particularly receptive this past year to IAC claims based on deficiency in presenting mental health and brain evidence, the high bar set by Strickland and AEDPA has been increasingly difficult for defendants to overcome.

C[FXS10] itations: Barber v. Commissioner, Alabama Department of Corrections, 861 Fed.Appx. 328 (11th Cir. 2021); Barrientez v. Blair, 2021 WL 1057290 (E.D. Mo. 2021); Conley v. State, 164 N.E.3d 787 (Ind. Ct. App. 2021); Cruz v. Shinn, 2021 WL 1222168 (D. Ariz. 2021); Debruyn v. Nagy, 2021 U.S. Dist. LEXIS 78922 (E.D. Mich. 2021); Gravitt v. Bear, 2021 U.S. App. LEXIS 23448 (10th Cir. 2021); Harris v. State, — — So.3d — — (Ala. Crim. App. 2021); Howard v. State, 2021 Nev. App. Unpub. LEXIS 409 (2021); In re McIntyre, 2021 BL 270001 (Wash. Ct. App. 2021); King v. State, 2021 WL 982503 (Tenn. Ct. App. 2021); Lopez v. AG for Nev., 845 Fed.Appx. 549 (9th Cir. 2021); Morris v. State, 317 So.3d 1054 (Fla. 2021); Noguera v. Davis, 5 F.4th 1020 (9th Cir. 2021); People v. Osborne, 2021 WL 941437 (Mich. Ct. App. 2021); People v. Smith, 2021 IL App (1st) 18117-U (Ill. App. Ct. 2021); People v. Vontz, 2021 BL 237494 (Mich. Ct. App. 2021); Rienhardt v. Shinn, 2021 WL 5203110 (D. Ariz. 2021); Sanchez v. Davis, 994 F.3d 1129 (9th Cir. 2021); Stacy v. Ky., 2021 U.S. Dist. LEXIS 70237 (E.D. Ky. 2021); Tabler v. Lumpkin, 2021 WL 2383726 (W.D. Tex. 2021); United States v. Melhuish, — — F.4th — — (2d Cir. 2021), Strickland v. Washington, 466 U.S. 668 (1984).

Keywords: Alabama, Arizona, Florida, Illinois, Indiana, Kentucky, Michigan, Missouri, Nevada, Tennessee, Washington, 6th Amendment, ADHD, adolescent brain, brain development, capacity, capital punishment, competency, criminal responsibility, criminal sentencing, death sentence, expert testimony, Fetal Alcohol Spectrum Disorder, frontal lobe, habeas corpus, impulsivity, ineffective assistance of counsel, juvenile, life sentence, LWOP, mental health, mental illness, Miller v. Alabama, mitigating evidence, neuroscience in the courts, organic brain damage, post-traumatic stress disorder (PTSD), Roper v. Simmons, second-degree murder, sentencing

This post is the 120th post as part of an ongoing Center for Law, Brain & Behavior (CLBB) series tracking the latest developments in law and neuroscience cases. To see previous posts about recent cases, see the full case archive on the CLBB website. To see updates on legal scholarship, see the Neurolaw News, hosted by the MacArthur Foundation Research Network on Law and Neuroscience. This project is made possible through support of the Dana Foundation.

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