The Daily Digest, 4/19/11

The New York Times on Sunday ran a provocative op-ed co-authored by one of my colleagues at Vanderbilt, Nancy King. In that editorial, the authors call for reform to the endless process of habeas review, arguing that claims are reviewed, then re-reviewed again and again in a waste of judicial resources. The op-ed has touched off a hailstorm across the country.

The procedural review in the case today, a denial of a habeas petition, fits King’s characterization. The case today has gone up and down through a procedural maze, with 26 claims presented in this federal habeas petition.

One of the twenty-six claims raised dealt with ineffective assistance of counsel for failing to investigate or present a witness neuropsychologist, and failing to investigate and present evidence of organic brain disorder. The court characterized the first as trial strategy, within the sound discretion of trial counsel, and the second as a claim not previously raised and exhausted and therefore procedurally barred from further review.

Ineffective Assistance of Counsel, Habeas, Failure to Investigate, Failure to Call Expert Witness

Jones v. McNeil, 2011 WL 845884 (S.D.Fla. 2011)
Petitioner was convicted of two counts of first-degree murder, for which the jury recommended the death penalty. The presiding judge adopted those sentencing recommendations. As to each murder, the trial judge found four aggravating factors and nothing in mitigation. After numerous other appeals, this matter came before the United States District Court of the Southern District of Florida on petition for writ of habeas corpus. The petition raises twenty-six separate claims and sub-claims for habeas relief. The court denied each claim for habeas relief, and the Petition was denied. In his sixth claim for habeas relief, Petitioner claims that his counsel was ineffective for failing to investigate and present mitigation evidence that would have “resulted in a life recommendation from the jury.” His sub-claims include that his counsel failed to properly prepare experts and to present testimony of an expert neuropsychologist, and failed to investigate organic brain damage/fetal alcohol syndrome. Appellant’s trial counsel testified that he had appellant evaluated by six different experts: a neuropsychologist, a neurologist, and four psychologists. He then specifically chose to rely on two based on the quality and quantity of their work. Accordingly, as the trial court found, defense counsel’s decisions regarding which experts should testify was both reasonable and strategic in nature, and he cannot now be deemed ineffective for failing to call additional mental health witnesses to testify. On Petitioner’s other sub-claim that “[t]rial counsel also unreasonably failed to investigate and pursue the issue of organic brain damage and the concomitant effects of extensive alcohol usage by [Petitioner’s] mother while she was pregnant” the Court found that Petitioner did not argue this claim before the Florida Supreme Court, so that claim is unexhausted and procedurally barred from further review.

About Nita A. Farahany

Professor of Law and Philosophy, Professor of Genome Sciences and Policy
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