Genius v. Pepe ( 1995 )

USCA1 Opinion

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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        No. 94-1904

                                   EVERARD GENIUS,

                                Petitioner, Appellant,

                                          v.

                                   PETER PEPE, JR.,

                                Respondent, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Robert E. Keeton, U.S. District Judge]
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                                        Before

                                Torruella, Chief Judge,
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                            Aldrich, Senior Circuit Judge,
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                               and Stahl Circuit Judge.
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            Robert  L. Sheketoff  with whom  Sheketoff  &  Homan was  on reply
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        brief for Petitioner.  Everard Genius on brief pro se.
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            Gregory I.  Massing, Assistant Attorney  General, with whom  Scott
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        Harshbarger, Attorney General, was on brief for Respondent.
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                                    March 21, 1995
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                      ALDRICH, Senior Circuit Judge.  Petitioner, Everard
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            Genius, hereinafter defendant, presently convicted  of first-

            degree  murder  in May  1979,  has  twice failed  before  the

            Supreme Judicial Court.   Commonwealth v. Genius, (Genius I),
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            387  Mass.  695  (1982),  442 N.E.2d  1157;  Commonwealth  v.
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            Genius,  (Genius II), 402 Mass. 711  (1988), 524 N.E.2d 1349.
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            He  now appeals  from a  district court  order, backed  by an

            extensive opinion, denying  his petition  for habeas  corpus.

            The facts are fully set forth by the Massachusetts Court and,

            again,  by the  district  court.    We  deal  with  only  one

            contention,  that  the  district  court  erred  in  rejecting

            defendant's claim that he  was denied effective assistance of

            counsel in that counsel did not pursue the defense of lack of

            criminal responsibility (insanity).  We reverse.

                      Defendant  killed  his  girlfriend  with  ten  stab

            wounds.   The  Commonwealth charged  premeditation  and  also

            extreme atrocity, both of  which could lead to murder  in the

            first degree.  Defendant claimed that the victim turned a gun

            on  him  and  that he  remembered  nothing  else.   A  court-

            appointed  psychiatrist,  a  Doctor  Koson,   testified  that

            defendant   was  mentally   deficient,  but   not  criminally

            irresponsible.    Defendant's  counsel  accepted this.    The

            present   proceeding  is  based   upon  defendant's  recently

            obtained psychiatric  report from  a Doctor Weiss  that would

            support  an insanity  defense.   The Superior  Court, "deeply



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            concerned," granted a pro  se motion for new  trial following

            Genius I,  but was reversed in  Genius II.   This petition is
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            the next step.1

                      Turning  to the  merits  of the  original case,  in

            Doctor Koson's opinion defendant was  not insane, and did not

            have  a mental  defect,  but his  mentality was  sufficiently

            diminished at the time  as to detract,  if the jury saw  fit,

            from  the extreme atrocity  that would make  for first degree

            murder in the absence  of proof of premeditation.   Defendant

            says  he  had   nothing  to  lose   by  having  an   insanity

            examination.   Admittedly,  the Commonwealth would  have been

            required  to pay  for it,  M.G.L. c.  261,   27C(4),  and the

            report  would have  been  privileged and  unavailable to  it.

            M.G.L.  c. 233,    20B.   If the  report proved  affirmative,

            defendant was ahead.  If it proved negative, he need  not use

            it.

                      The  district  court  responded  to  this  with the

            generalization that preparation  is always in  the discretion

            of counsel, who cannot  be faulted for not  going on and  on,

            unless there was an indication that there might be a benefit.

            But there  may have been  one.  Cf.  Profitt v. Waldron,  831
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            F.2d  1245, (5th  Cir.  1987).   In  Profitt the  court  held
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            counsel incompetent for ignoring  the fact that defendant had



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            1.  There  is  no  question   of  failure  to  exhaust  state
            remedies.

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            been  in a mental institution.   Here defendant  did not have

            that history, but he  did have something of consequence.   To

            meet  the  fear that  he was  not  competent to  stand trial,

            defendant  had  been sent  to  Bridgewater and  the  fear was

            confirmed  on February  20.    It  was  not  until  May  that

            competency  was found.  While incompetency  to stand trial is

            not  equivalent to insanity, it  is a serious condition, that

            should have  flagged the  possibility.  Where  insanity would

            have  been a  complete  defense, it  was  inexcusable not  to

            pursue it.

                      Unless, of course,  there was a reason.   In Genius
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            I, the court said,
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                      We  conclude that  this was  a reasonable
                      tactical    choice    considering    that
                      defendant's own expert testified that the
                      defendant  was criminally  responsible on
                      May 29,  1979.  To argue  against his own
                      witness   on   the   issue  of   criminal
                      responsibility  would well  have undercut
                      his expert's credibility on  the Gould[2]
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                      issues.  In the circumstances we find  no
                      ineffective  assistance   of  counsel  in
                      counsel's  failure  to   argue  lack   of
                      criminal responsibility.

            387 Mass. at  697.  We disagree.  To  forego even exploring a

            possible complete defense because  offering it might weaken a

            partial one  (reducing  murder one  to murder  two) seems  an

            extraordinarily unbalanced choice.   Whether counsel made  it

            deliberately  (as  to  which there  was  no  evidence) or  by


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            2.  Commonwealth v. Gould, 380  Mass. 672, 680-86; 405 N.E.2d
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            927 (1980).

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            default, we cannot find it within  the most tolerant standard

            of  competence.  And  particularly so when  there already was

            some evidence of insanity in the record.  Genius I, 387 Mass.
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            at 697.

                      As to prejudice from counsel's neglect, we have but

            to look at  the statement  of the Superior  Court judge  (the

            same  one who had tried the case)  that he was granting a new

            trial because  the  report of  Doctor  Weiss gave  him  "deep

            concern."

                      The judgment  is reversed and the  case remanded to

            the district court for action consistent with this opinion.































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