Defense Counsel’s Failure to Investigate Defendant’s Mental Fitness for Trial Supports Ineffective Assistance Claim

In Newman v. Harrington, No. 12-3725 (7th Cir. 8/9/13), the Court affirmed a district court ruling on a habeas petition which found that the failure of defense counsel to investigate known deficiencies concerning his client’s mental capacity, and to raise the issue of defendant’s fitness to stand trial with the State trial court, constituted ineffective assistance.

Newman, a homicide defendant, was 16 when he shot and killed the victim.  Newman’s mother hired an attorney to defend her son and, at their first meeting, provided counsel with extensive material documenting her son’s long history of mental and cognitive deficits.  Further, Newman responded to the trial judge’s questions concerning his right to testify at trial with simple “yes” or “no” answers.  During this colloquy, Newman failed to display any meaningful understanding of the proceedings.  Thus, both defense counsel and the trial judge had reasons to question Newman’s fitness for trial, but there was no pre-trial fitness hearing.  Newman went to trial, was convicted, and received a custodial term of 47 years that was affirmed on appeal.

The following year, Newman sought State-court post-conviction relief.  His petition was supported by, among other things, an evaluation by a clinical psychologist which stated that Newman had cognitive deficits, was mildly to moderately retarded, was never fit to stand trial, and that his many mental health issues were obvious to anyone who attempted to speak with him.  Further, his IQ was 54, and his intellectual abilities were in the “extremely low” range.  His reading and math skills ranged from those of a child of 4 to one of 7.  Newman could not tell time, could not deal with abstract concepts, and had a poor memory. 

Questioning by the psychologist that focused specifically upon Newman’s fitness to stand trial revealed that he did not know what was happening in his case, did not understand why he was in court and, when he was there, did not appreciate what was occurring.  He did not understand basic legal concepts (e.g., “witness”, “evidence”), or the roles of the parties to the proceeding.  He also could not assist in his defense by recalling important facts, and did not understand his sentence.  Against this backdrop, this psychologist who evaluated Newman after his conviction opined that Newman was unfit for trial at the time of her evaluation, and at the time of the prior proceedings. Newman’s post-conviction application was supported by a numerous other records and affidavits in addition to the psychologist’s report, all of which detailed his long history of cognitive deficits. 

Notwithstanding the extensive record, the trial court denied post-conviction relief without an evidentiary hearing.  The Court found, among other things, that Newman failed to demonstrate a bona fide doubt as to his fitness to stand trial at the time of trial.

Newman then petitioned for Federal habeas relief, and the district court conducted an extensive evidentiary hearing.  This hearing included testimony from several of Newman’s teachers, his mother, the psychologist who evaluated him for the post-conviction proceedings, his trial counsel, and a State psychologist.  Much, if not all, of the testimony supported the psychologist’s findings.  Newman’s own testimony allowed the district judge to observe him personally, leading that judge to conclude that his “mental acuity [was] noticeably lower than any other witness who” ever testified in that court. 

Newman’s trial counsel, who also testified, apparently drew his own conclusions concerning his client’s fitness for trial.  In his view, the records received from Newman’s mother raised some concerns as to this issue, but talking to Newman dispelled them.  Counsel attributed Newman’s perceived issues to ADD or ADHD, and viewed his test scores as “not bad” or “pretty good”.  In sharp contrast, Newman’s psychologist testified that the score was typical of someone who was mentally retarded.

The State’s psychologist testified that Newman was malingering.  However, he only interviewed Newman once, did not administer any tests, and did not interview anyone who knew Newman at the time of trial.  Finally, he offered no reason for disregarding any of the material evidencing Newman’s deficits.

The district court found that the State court’s view of the facts, and its application of the two-part ineffective assistance test set forth in Strickland v. Washington, were both unreasonable.  The district court also found that defense counsel was deficient in failing to investigate further Newman’s mental health issues and seek a fitness hearing.  Finally, the district court credited the testimony presented by Newman over that presented by the State.  Against this backdrop, the court granted Newman habeas relief, and the Seventh Circuit affirmed.  Both Federal courts found that Newman had been prejudiced by his trial counsel’s conduct, and that there was a reasonable probability that he would have been found unfit to stand trial had the trial court conducted a proper fitness hearing.

The case is striking for several reasons.  First, trial counsel obviously did not have the expertise necessary to make any kind of meaningful determination as to his client’s fitness to proceed.  In such situations, counsel must seek advise from trained experts.  The experts can provide counsel with a “verbal” report concerning the defendant’s mental status, and then follow that up with a written report if counsel believes that would be helpful under the circumstances.  Further, the opinion shows what can be accomplished when all of the available information concerning the defendant’s mental health issues is properly presented to a court.  The Seventh Circuit’s opinion creates the impression that trial counsel simply ignored most, if not all, of the material given to him concerning his client’s deficits.  In sharp contrast, post-conviction counsel marshaled all of the available information into a powerful – and winning – presentation.

Additionally, I have heard several judges say that subsequent evaluations of a prior lack of fitness to stand trial are almost valueless.  The Newman opinion demonstrates that this is not necessarily so, and should be cited to any judge who voices a contrary view.

When there is even a suggestion of a mental health problem in a criminal case, defense counsel must obtain all available information concerning this issue.  Close family members frequently will have significant information in their possession that should be turned over to counsel as promptly as possible.  Counsel also should obtain a list of any treatment providers that the defendant has seen, have the defendant execute releases for their records, and then obtain those records from the providers.  Counsel must also advise the defendant and/or their family that they may have to pay for forensic evaluations. If the family cannot pay for this, it may be possible to obtain funding from other sources.  In some States, such funding sometimes can be obtained from a public defender’s office, even in cases with defendants represented by private counsel.

Given the fact that a criminal defendant has to understand what is transpiring in their case, must be able to assist in their defense, and must make decisions as to how to proceed, counsel cannot render effective representation for a client that has psychological or psychiatric problems until all of this has been accomplished.



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