The New York Law Journal reports today (subscription only) that Judge Weinstein in EDNY has granted habeas relief on IAC grounds based on counsel's failure to adequately investigate petitioner's mental health issues prior to trial. The mental health issues were relevant both to petitioner's competency to stand trial and whether or not to pursue an EED defense at trial.
I keep forgetting, but I believe that is number 7 this year in the district courts (I just added it up, and yes it's now 7). A little ahead of last year's pace.
The name of the case is Graham v. Portuondo. It can be found at 2010 U.S. Dist. LEXIS 82785.
The case has an interesting history. And also is a striking example of the difference that an attorney can have on a case.
When first faced with the petition, Judge Weinstein ordered a hearing and had petitioner proceed pro se at the hearing. After the hearing, the DJ concluded that trial counsel did nothing wrong. However, on appeal, the Second Circuit vacated the judgment, saying that it was clear error for the DJ to fail to assign counsel for the hearing.
On remand, the DJ held a new hearing at which petitioner was represented by counsel. And, lo and behold, the newly appointed counsel was able to unearth "decisive, voluminous" records documenting petitioner's mental issues in the months leading up to the incident. Trial counsel never made any attempts to obtain these. As a result, Judge Weinstein concluded, "Based on the full record, it is now found beyond a reasonable doubt that petitioner's state trial counsel never sought petitioner's psychiatric records, that such records would have been readily obtainable had he sought them" and that he never made any attempts to consult an expert. The judge stated that a finding of deficient performance was "clear" and that a finding of prejudice was "equally clear."
Without good counsel, petitioner loses at the hearing. With good counsel, it becomes "clear" that petitioner should win. Pretty big difference.
Score one for good lawyers everywhere (who, by the way, in this case were Andrea Hirsch* and Alan Nelson).
*Disclosure/Disclaimer: Ms. Hirsch is a member of the board of the office in which I work.
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