United States v. Brandon Laureys , 866 F.3d 432 ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 9, 2017 Decided August 8, 2017
No. 15-3032
UNITED STATES OF AMERICA,
APPELLEE
v.
BRANDON LAUREYS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cr-00106-1)
S. Rebecca Brodey, appointed by the court, argued the cause
for appellant. With her on the briefs was L. Barrett Boss,
appointed by the court.
James A. Ewing, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief was Elizabeth Trosman,
Assistant U.S. Attorney. Suzanne G. Curt, Assistant U.S.
Attorney, entered an appearance.
Before: ROGERS, TATEL and PILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Brandon Laureys was convicted by
2
a jury of attempted coercion and enticement of a minor and
travel with intent to engage in illicit sexual conduct, arising from
an online encounter with an undercover detective with whom
Laureys enthusiastically envisioned sexual encounters with a
nine year-old girl. This court rejected Laureys’ challenge to his
convictions on the ground that there was insufficient evidence
of intent but remanded his claim of ineffective assistance of
counsel to the district court. United States v. Laureys, 653 F.3d
27, 35 (D.C. Cir. 2011). Laureys now appeals the denial of that
claim. Because we conclude that trial counsel’s failure to obtain
expert mental health testimony was constitutionally deficient,
we reverse the judgment of conviction and remand for a new
trial.
I.
The evidence underlying Laureys’ convictions is set forth
in Laureys, 653 F.3d at 29–31. That evidence, and the evidence
presented on remand, is summarized here as relevant to trial
counsel’s attempt to obtain an expert mental health witness.
A.
Briefly, the evidence at trial showed that on November 14,
2008, Laureys initiated an online chat with
“DaughterLover_Maryland,” a user of the website
IncestTaboo.com who introduced himself as a 38 year-old man
named “Jim.” In reality, “Jim” was D.C. Metropolitan Police
Detective Timothy Palchak. After some discussion of their
predilection for young girls, Palchak told Laureys he had a
sexual relationship with his girlfriend’s nine year-old daughter.
Laureys expressed interest in joining them both for sex (“you
gotta invite me over . . . let me help with the little girl . . . train
the little gir[l, man] . . . make her into a good little whore”).
Chat Transcript at 2.
3
Palchak asked Laureys how close he was to D.C., and
Laureys responded that he was “real close” and could come to
“hang out and perv out together.” Id. In response to Palchak’s
stated desire to be safe “before we play,” Laureys suggested “let
her meet me and everything first . . . make sure she wants to do
it haha . . . could start with just letting me watch her an[d you]
. . . til she feels more comfortable.” Id. at 2–3. Palchak offered
to “get a beer first to make su[re we] are comfortable then have
fun at my place,” id. at 4, but Laureys instead suggested meeting
at a park as it would be cheaper. Palchak then emailed Laureys
a picture of a young girl, to which Laureys responded “you
fucking NEED to let me hang out with her man,” id. at 5. After
exchanging information about their physical characteristics,
Laureys warned that he could not stay long because his
girlfriend was coming into town.
Palchak and Laureys thereafter communicated twice by
phone, and according to Palchak, they again exchanged
information about their own physical characteristics and Laureys
described the car he would be driving. When that car arrived at
Palchak’s location, Laureys was arrested and later indicted for
one count of attempted coercion and enticement of a minor, in
violation of 18 U.S.C. § 2422(b), and one count of travel with
intent to engage in illicit sexual conduct, in violation of 18
U.S.C. § 2423(b).
B.
In June 2009, Laureys’ trial counsel contacted Dr. Fred
Berlin, a specialist in sexual disorders at Johns Hopkins
University School of Medicine, about potentially serving as an
expert witness at Laureys’ trial. In a letter of July 7, 2009, to the
trial judge seeking court funding for Dr. Berlin’s services, trial
counsel hinted at what would become the basis of Laureys’
defense at trial — that Laureys was merely fantasizing about sex
with the minor in his chat and wanted to meet with Palchak to
4
continue fantasizing offline, stating that “[t]he basic question
we are addressing [with Dr. Berlin] is the actual (subjective)
intent of my client when he engaged in on-line dialogue and
subsequently traveled to the District from Maryland . . . .” Soon
after, trial counsel conducted online research into sexual
compulsion, internet addiction, and chat room deviance. In
subsequent queries to other potential experts, trial counsel raised
the possibility of a diminished capacity defense based on
Laureys’ purported inability to form the specific intent to entice
a child because he suffered from “cybersex addiction.” This
diminished capacity defense would differ from the fantasy
defense in one key aspect, because the latter posited that
Laureys lacked the requisite intent while the former posited that
his cybersex addiction and sexual compulsivity prevented him
from forming the requisite intent.
After two potential expert witnesses either declined to
participate or failed to respond, trial counsel focused exclusively
on Dr. Berlin and his ability to support the diminished capacity
defense, despite having no sense of what Dr. Berlin’s ultimate
diagnosis of Laureys might be. Communication between trial
counsel and Dr. Berlin was sparse. For instance, a month after
Dr. Berlin examined Laureys at the D.C. Central Detention
Facility, trial counsel notified Dr. Berlin that trial was scheduled
to start in less than two weeks, despite his having known of that
schedule for more than a month prior to the examination. Dr.
Berlin’s office responded that he would be unprepared to testify
so soon. Trial counsel sent additional background material to
Dr. Berlin the following day, but Dr. Berlin’s office responded
to ask whether a continuance had been granted because
otherwise Dr. Berlin would not keep working on the case. Trial
counsel responded “2/16/10 more later...” but Dr. Berlin’s office
would eventually claim not to have received this email.
5
At an October 29, 2009, status conference at which
Laureys’ trial was continued until February, the trial judge
expressed significant doubts about the diminished capacity
defense envisioned by trial counsel. Suggesting that the defense
was more relevant to sentencing than guilt or innocence, the
judge offered a rather ominous warning that he had seen many
cases in which a defense was prepared only to be abandoned at
the last moment, leaving no defense at all. Trial counsel
acknowledged uncertainty about whether Dr. Berlin might
ultimately be helpful to his client, but he said his own “focus has
been on exploring the issue of sexual compulsivity and Internet
addiction” and how that might negate a showing of specific
intent. 10/29/09 Tr. 6:1–19; see also id. at 3:10–13.
Trial counsel’s next contact with Dr. Berlin was three
months later, when he advised by email in January 2010 that
trial was scheduled to begin in two weeks and was unlikely to be
continued. Dr. Berlin’s office responded that he could not
possibly testify in February, having not previously been
informed of the earlier continuance, and due to his having not
received requested background material, Dr. Berlin had not been
able to come to any conclusions about Laureys. When so
informed, the trial judge again questioned whether trial counsel
was “chasing the will of the wisp” with this strategy, 2/1/10 Tr.
3:25, but again continued trial. At that hearing, trial counsel
indicated that a trial would occur with or without Dr. Berlin,
because Laureys would still testify about his own mental state,
but Dr. Berlin’s testimony would make the defense that much
stronger.
At a February 22, 2010, status conference, trial counsel
sought a new trial date that would allow Dr. Berlin sufficient
time to conclude his analysis. Dr. Berlin refused to offer a
preliminary medical opinion about Laureys in time for the status
conference, explaining that professional ethics forbade him from
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formulating any opinion about Laureys’ mental condition before
he had a chance to review all of Laureys’ records. Yet trial
counsel expressed his own hope that Dr. Berlin would testify
that “Laureys would be incapable of formulating the specific
intent to do the acts which he’s alleged to have done; that he’s
an Internet sexual compulsive and that he doesn’t have a yes/no
mechanism.” 2/22/10 Tr. 3:25–4:24. For a third time, the trial
judge expressed concern to trial counsel that Dr. Berlin “is not
going to give you the result you want,” id. at 9:22–24, but trial
counsel insisted that the “Internet sexual compulsive” diagnosis
exists, speculating that Dr. Berlin would offer a helpful opinion
along those lines, id. at 11:1–23. Trial was then set for May 25,
2010.
One week later, trial counsel informed Dr. Berlin of the new
trial date, as well as an expert report deadline of April 7, 2010.
On March 15, 2010, Dr. Berlin responded that given his other
commitments he could not review the voluminous materials in
time to prepare an opinion for Laureys’ trial. At an April 7,
2010, status conference, the trial judge stated that he would
continue trial until August 2010 if Dr. Berlin provided
something in writing to confirm that “Internet sexual
compulsive” is a recognized disorder, regardless of whether Dr.
Berlin ultimately concluded that Laureys fit that diagnosis.
4/7/10 Tr. 2:16–4:6. Trial counsel advised Dr. Berlin of the
judge’s requirement by letter of same day, laying out the
diminished capacity defense that trial counsel “believe[d] we are
working towards” — Laureys suffers from “a sexual
compulsivity disorder either triggered or aggravated by internet
addiction, compromised impulse control, bi-polar disorder, or
whatever appropriate medical terminology would describe such
a mental state.” In that letter trial counsel also informed Dr.
Berlin that the trial judge was “dubious of [the] ultimate legal
value [of the planned diminished capacity defense] in the trial
setting.” Dr. Berlin responded on April 12 that he agreed with
7
the trial judge’s doubts because it was very unlikely that a
successful mental health defense existed in Laureys’ case, and
that with enough preparation time, Dr. Berlin might be able to
offer useful information at a sentencing hearing.
The week before trial, trial counsel made a last-ditch
attempt to secure a different psychiatric expert, Dr. Neil
Blumberg, who advised he would be unable to offer any
professional assistance, and in May 2010, Laureys proceeded to
trial without any expert witness. Abandoning the diminished
capacity defense altogether, trial counsel instead focused on
establishing that Laureys was merely engaging in fantasy with
Detective Palchak. The testimony offered by Laureys himself
in support of this fantasy defense was “disturbing and graphic,”
Laureys, 653 F.3d at 37 (Henderson, J., concurring in part and
dissenting in part), and Laureys now agrees that it constituted
the most damning evidence against him, see Appellant Br.
28–29. Despite some indication that the nine year-old girl
would not be present at the encounter with Palchak — leading
the trial judge to suggest his own reasonable doubt as to the
travel count under Section 2423(b) — the jury found Laureys
guilty on both counts, and he was sentenced to twenty years’
imprisonment.
C.
On remand following Laureys’ unsuccessful initial appeal
of his convictions, Dr. Berlin testified to his belief that trial
counsel wanted him to come to a particular diagnosis, as
reflected in both trial counsel’s correspondence and statements
to the trial judge, that Laureys lacked the capacity to form the
specific intent to entice a minor due to some combination of
sexual compulsivity disorder, internet addiction, bipolar
disorder, or lack of impulse control. He also testified that
although he could not testify to Laureys’ inability to form
specific intent, he could have provided information for the jury
8
about the prevalence of fantasy in internet chat rooms, how the
internet facilitates sexual behaviors for vulnerable persons,
Laureys’ mental health issues and how they affect his behavior,
and the meaning of certain internet slang terms used to describe
sexual activity. In particular, Dr. Berlin observed that online
fantasizing can seem very real, but a layperson would not
necessarily know that, and that a person could be aroused by
talking about child sex without then proceeding to seek sex with
children.
Dr. Berlin also rebutted certain quasi-expert assertions
made at trial by Detective Palchak, such as that there are only
three categories of chat participants who engage in child-sex
fantasy: (1) those who masturbate while chatting online, (2)
those who want to go offline for phone sex, and (3) those who
actually want to meet and engage in sex with a child. If those
three categories were exhaustive, Laureys would fall into the
third, because he left his house and drove to the District of
Columbia for a sexual encounter. But Dr. Berlin would have
testified that Palchak’s list of categories was not exhaustive, and
that significant numbers of chat participants are interested in
meeting one another to have adult sex while fantasizing about
children. And, whereas Palchak testified that people interested
only in fantasy chat will reveal that right up front, Dr. Berlin
would have testified that, in fact, it can be very difficult to
distinguish chats in which adults are arranging for sex with
children from chats in which adults are arranging to meet one
another and pretending that a child will join them. Finally, Dr.
Berlin testified that Laureys’ history of promiscuity with adult
men, as well as a series of Laureys’ prior chat transcripts in
which a discussion of child sex was followed by an invitation to
meet the other adult male participant, led Dr. Berlin to conclude
there was a high likelihood that Laureys was interested in having
sex with Palchak while fantasizing about children. All of that
testimony would have bolstered Laureys’ testimony that he
9
sought to meet with Palchak to “engage in homosexual activity
while indulging in [taboo] fantasies.” 5/26/10 Tr. 302:5–11.
Trial counsel testified that he always believed a mental
health expert was necessary to Laureys’ defense, but claimed
that he did not seek any particular diagnosis or conclusion from
Dr. Berlin or intend to limit his potential testimony in any way.
Counsel acknowledged that many of the mental health topics
addressed at trial by Laureys’ own testimony would have been
better addressed by an expert witness.
The district court denied Laureys’ claim of ineffective
assistance, concluding that “any ‘failure’ to obtain Dr. Berlin’s
testimony as to Laureys’ mental condition was not for lack of
effort . . . , but rather was due to a combination of mutual
misunderstandings and Dr. Berlin’s exceptionally busy
schedule.” United States v. Laureys, 103 F. Supp. 3d 69, 75
(D.D.C. 2015).1 The district court rejected Laureys’ argument
that trial counsel unreasonably failed to secure a substitute
expert in Dr. Berlin’s place because Dr. Berlin left trial counsel
with little opportunity after declining to participate only seven
weeks before trial, and, in any event, trial counsel did make an
unsuccessful attempt to secure a substitute a week before trial.
Id. at 77 & n.7. Finally, the district court concluded that
Laureys also failed to establish prejudice resulting from the lack
of a mental health expert, pointing to a lack of evidence that
Laureys would have declined to testify if Dr. Berlin had done so
instead. Id. at 77. Laureys appeals.
1
The trial judge had retired by this time, and another
district court judge was assigned to Laureys’ case.
10
II.
To establish a denial of effective assistance of counsel,
Laureys had to show both that trial counsel’s performance “fell
below an objective standard of reasonableness” and thus “was
not within the range of competence demanded of attorneys in
criminal cases,” Strickland v. Washington, 466 U.S. 668, 687–88
(1984) (internal quotation marks omitted); and that he suffered
prejudice because “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different,” id. at 694. This court reviews de
novo the district court’s determination that Laureys was not
denied his Sixth Amendment right to the effective assistance of
counsel. United States v. Abney, 812 F.3d 1079, 1086–87 (D.C.
Cir. 2016) (discussing, inter alia, Strickland, 466 U.S. at698–700; Payne v. Stansberry, 760 F.3d 10, 13 (D.C. Cir. 2014);
United States v. Rodriguez, 676 F.3d 183, 189–92 (D.C. Cir.
2012), and the decisions of our sister circuits). The district
court’s factual findings are reviewed for clear error. Payne, 760
F.3d at 13.
A.
“[P]sychiatry has come to play [a pivotal role] in criminal
proceedings,” such that in cases turning on the defendant’s
mental state, “the assistance of a psychiatrist may well be crucial
to the defendant’s ability to marshal his defense.” Ake v.
Oklahoma, 470 U.S. 68, 79–80 (1985). Congress has similarly
provided that indigent defendants are entitled to the assistance
of a mental health expert if “necessary for adequate
representation.” See 18 U.S.C. § 3006A(e). Unsurprisingly
then, courts have found ineffective assistance arising from
counsel’s failure to offer expert mental health testimony where
it was necessary to an adequate defense. See, e.g., Gray v.
Branker, 529 F.3d 220, 229–32 (4th Cir. 2008); Dando v.
Yukins, 461 F.3d 791, 798–800 & n.3 (6th Cir. 2006); Ainsworth
11
v. Woodford, 268 F.3d 868, 875–76 (9th Cir. 2001); Mauldin v.
Wainwright, 723 F.2d 799, 800–01 (11th Cir. 1984).
Here, trial counsel recognized from his very first meeting
with Laureys that a mental health expert would be necessary to
his defense, and rightly so. Laureys has steadfastly maintained
his innocence, despite the existence of a chat transcript in which
he discussed child sex in graphic detail, because he insists that
he was only engaging in fantasy and that his actual intent was to
engage in an adult sexual encounter while fantasizing about a
child. Such a defense might seem unimaginable to the average
juror absent a clinical presentation regarding, for instance, the
prevalence of fantasy in internet chat rooms, or the use of
fantasy chat as a coping mechanism to deal with inappropriate
or unlawful sexual urges. Therefore, with trial counsel having
correctly identified the need for a mental health expert, the
question is whether his failure to provide that expert at trial “fell
below an objective standard of reasonableness,” Strickland, 466
U.S. at 687–88.
The district court held it did not because, due to a
combination of mutual misunderstandings and Dr. Berlin’s busy
schedule, Dr. Berlin was simply unavailable to testify. Laureys,
103 F. Supp. 3d at 75; see also Laureys, 653 F.3d at 36(Henderson, J., concurring in part and dissenting in part). Given
the trial judge’s willingness to accommodate Dr. Berlin’s
schedule, however, the finding that Dr. Berlin was unavailable
was clearly erroneous. The trial judge made clear that he was
prepared to once again continue Laureys’ trial if Dr. Berlin
would submit a written statement confirming that “Internet
sexual compulsive” is a recognized psychiatric diagnosis,
regardless whether Dr. Berlin ultimately determined Laureys fit
that diagnosis. Dr. Berlin declined to do so, informing trial
counsel by letter of April 12, 2010, that there was likely not a
viable mental health defense for Laureys even with enough time
12
to prepare for trial. Timing or lack of preparation was not the
deal breaker for Dr. Berlin, but rather his own doubt that he
could provide what trial counsel was seeking.
The record amply demonstrates that what trial counsel was
seeking was an internet compulsivity diagnosis that trial counsel
had arrived at through his own online research, which would
support a defense of diminished capacity. As Laureys contends,
and as Dr. Berlin testified on remand, trial counsel led Dr. Berlin
to believe that counsel was interested in establishing only this
diminished capacity defense. When Dr. Berlin did not “come
. . . to the conclusion that the trial counsel had hoped [he] would
come to,” 12/16/14 Tr. 13:11–13, Dr. Berlin bowed out of the
proceeding altogether, leaving Laureys without the benefit of the
clinical testimony that Dr. Berlin could have offered, which, as
trial counsel acknowledged on remand, would have informed the
jury’s assessment of the fantasy-only defense and helped
buttress Laureys’ own testimony. The government insists that
if there had been a valid diminished capacity defense as
envisioned by trial counsel, it would have been “much more
powerful than the credibility-based ‘fantasy’ defense” ultimately
relied upon at trial. Appellee Br. 47. Even assuming the
government is correct, it somewhat misses the point. Trial
counsel focused Dr. Berlin on an invalid diminished capacity
defense to the exclusion of all other possible defenses.
Trial counsel’s denial that he directed Dr. Berlin to come to
any particular diagnosis or conclusion, instead mentioning
diminished capacity as only one possible defense theory, is
belied by all of his communications with Dr. Berlin and the trial
judge on this topic. Trial counsel implied at one point in his
testimony that it was up to Dr. Berlin to come to whatever
helpful conclusion he could, inasmuch as Dr. Berlin was more
experienced than trial counsel and was familiar with the court
process and what lawyers are seeking. From the perspective of
13
Dr. Berlin and the trial judge, however, trial counsel’s
communications were far too specific to be understood as
seeking any clinical testimony that would benefit his client.
Indeed, when afforded the opportunity on remand, trial counsel
could point to no evidence that he had sought from Dr. Berlin
any such beneficial testimony, rather than testimony on
diminished capacity. Even if it was not actually trial counsel’s
intent to limit Dr. Berlin’s inquiry, his single-minded pursuit of
a particular diagnosis had the effect of denying his client Dr.
Berlin’s services.
Furthermore, trial counsel also unreasonably failed to
secure a different mental health expert when it became doubtful
that Dr. Berlin would testify. Just as trial counsel placed all of
his hopes on a particular defense, he placed all of his hopes on
obtaining expert testimony from Dr. Berlin, despite Dr. Berlin’s
continued scheduling conflicts, his persistent refusal to speculate
about the requested diminished capacity diagnosis, and the trial
judge’s repeated skepticism that Dr. Berlin would come through
as trial counsel envisioned. In rejecting this part of Laureys’
ineffectiveness claim, the district court placed dispositive weight
on the fact that Dr. Berlin dropped out only seven weeks before
trial, leaving trial counsel little opportunity to replace him.
Laureys, 103 F. Supp. 3d at 77. But that assumes it was
reasonable to rely solely on Dr. Berlin in the first place. Had Dr.
Berlin opined, even tentatively, that trial counsel’s planned
defense could be viable, it might have been reasonable to focus
on him to the exclusion of all other experts. Just weeks before
trial, however — due to his own apparently exclusive and
erroneous focus on expert testimony about Laureys’ diminished
capacity — trial counsel still had no idea whether Dr. Berlin
would be available to testify or what his opinion might turn out
to be. In these circumstances, a prudent attorney would at a
minimum have sought an alternative source.
14
Trial counsel acknowledged that he had initially identified
another potential expert, Dr. David Greenfield, and even
submitted a request for court funding for his expert services, but
counsel did not further explore Dr. Greenfield’s availability after
deciding to rely on Dr. Berlin. Trial counsel did not reach out
again to Dr. Greenfield after Dr. Berlin first tentatively and then
definitively bowed out, and although he did make an
unsuccessful “last stab attempt” to secure Dr. Neil Blumberg a
week before trial, 12/16/14 Tr. 141:17–22, nothing in the record
suggests that he requested another continuance to allow him to
secure a different expert when that failed. Instead, counsel took
the case to trial with only Laureys, who suffers from a serious
mental illness, left to explain his own intent.
The record does attest to aspects of trial counsel’s
representation of Laureys that were undeniably conscientious,
such as securing court approval for expert witness funding and
arranging for Dr. Berlin to interview Laureys at the D.C. Jail.
It confirms as well that trial counsel had contacted other
potential expert witnesses. This is not a case, then, where trial
counsel did not attempt to obtain a mental health expert. Rather,
trial counsel’s grievously misguided effort to employ a mental
health expert in his client’s defense was so flawed as to be “the
sort of serious blunder that will singlehandedly support a
Strickland claim.” United States v. Hurt, 527 F.3d 1347, 1356
(D.C. Cir. 2008). The record shows that in pursuing his own
idea of a diminished capacity defense, trial counsel lost sight of
how Dr. Berlin could have placed his client’s conduct in a
clinical context and mitigated the effects of evidence offered by
the government and by Laureys himself. Indeed, there was
some indication that trial counsel failed altogether to appreciate
the benefits of the relevant and appropriate mental health
testimony explaining pedophilic fantasy, which could have
bolstered Laureys’ fantasy defense. See United States v. Hite,
769 F.3d 1154, 1170 (D.C. Cir. 2014). On remand, trial counsel
15
acknowledged that he never asked Dr. Berlin whether he could
explain pedophilia to the jury, and he was unable to show that he
had asked Dr. Berlin to explain the internet fantasy-chat
subculture. Counsel admitted that he had never handled an
insanity defense, and yet he appears to have considered himself
qualified, as a layperson, to effectively diagnose his client as an
“Internet sexual compulsive” and pursue confirmation of a
diminished capacity diagnosis with potential experts. Nothing
in the record even confirms that “Internet sexual compulsive” is
a mental disorder recognized by the American Psychiatric
Association.
The government’s response that Dr. Berlin’s testimony
would have “actively harmed” Laureys, Appellee Br. 46, not
only overlooks how clinical testimony would have provided
information to help the jury place Laureys’ conduct in context,
it ignores altogether how Dr. Berlin could have rebutted
Detective Palchak’s quasi-expert opinions and effectively
limited the harmful effect of much of Laureys’ testimony. Trial
counsel’s failure to secure expert testimony cannot properly be
excused as a “reasonable, calculated choice,” but see Appellee
Br. 48 (quoting United States v. Mohammed, 693 F.3d 192, 204
(D.C. Cir. 2012)), and even trial counsel did not claim that it
was.
In sum, trial counsel’s error led to the complete failure to
provide expert mental health testimony that trial counsel himself
recognized was necessary, thereby depriving Laureys of an
adequate defense. This was a slow-moving train wreck, one set
in motion long before Dr. Berlin’s eventual exit; indeed, it
played out as the trial judge had predicted seven months before
trial. It was thus unreasonable for trial counsel, so warned, to
have done so little to avert it.
16
B.
Turning to prejudice, there is no question that Laureys’
defense, and his own testimony, would have been significantly
bolstered by expert testimony regarding fantasy chat and, more
specifically, the existence of a subculture of men who meet first
online and then offline for sex with one another spurred on by
child sex fantasies, such that a “reasonable probability” of a
different outcome at trial exists. Strickland, 466 U.S. at 694.
The court recently determined Strickland prejudice was
established where trial counsel failed to offer expert psychiatric
testimony necessary to establish a duress defense. United States
v. Nwoye, 824 F.3d 1129, 1139–40 (D.C. Cir. 2016). In
particular, expert testimony on the battered woman syndrome
would have bolstered the defendant’s testimony that she
participated in an extortion scheme only at the direction of her
abusive boyfriend, especially because a juror might otherwise
question why she did not just leave her abuser instead. Id.Here, Laureys testified to his own intent in chatting with and
traveling to meet Palchak, but without expert assistance, a juror
could reasonably conclude that anyone who engaged in such
frankly disturbing chat must have done so actually intending to
have sex with a child. The government labels the notion that
people engage in online sexual fantasy as “common
knowledge,” Appellee Br. 49, but the notion that people engage
in graphic, very realistic fantasy about sex with children, both as
a means of coping with such urges and as a prelude to adult
homosexual encounters, can hardly be considered within the ken
of the average juror. As this court has noted, Dr. Berlin’s
clinical testimony regarding internet sexual fantasy involving
children “can shed light on what may be an unfamiliar topic to
most jurors.” Hite, 769 F.3d at 1169–70. And although the jury
could still have reasonably concluded that Laureys was not
merely fantasizing and planning for adult sex with Palchak, that
is a different question than whether a reasonable probability
17
exists that a jury so informed by expert testimony would have
concluded otherwise. See Nwoye, 824 F.3d at 1140.
The lack of a mental health expert also prejudiced Laureys
by leaving him unable to rebut dubious, quasi-expert testimony
by Detective Palchak. The jury heard from Detective Palchak
that only three categories of chat participants exist: those who
only chat online, those who want to then have phone sex, and
those who seek to meet in order to have sex with a child. This
would lead the jury to believe that Laureys must have fallen into
the third category because it was undisputed that Laureys did
seek to meet with Palchak following their online chat. Dr.
Berlin’s testimony made clear that Detective Palchak’s
taxonomy was incomplete, in that another category is known to
exist for participants who seek to meet to have an adult sexual
encounter with one another. Similarly, Dr. Berlin could have
rebutted Detective Palchak’s damaging testimony that
“[t]ypically people who are interested in fantasy tell you right up
front, I’m into fantasy, not realtime,” 5/26/10 Tr. 243:15–16,
which suggested to the jury that Laureys must not have been
interested in fantasy because he made no such up-front
disclaimer.
The government nonetheless maintains that Laureys
suffered no prejudice because he would have offered his own
lurid, confused testimony regardless of whether a mental health
expert also testified. Appellee Br. 50 n.22; see also Laureys,
103 F. Supp. 3d at 77. Although the record does indicate that,
according to trial counsel, Laureys would have testified either
way, that is not the relevant question. Trial counsel conceded
that many topics addressed by Laureys’ testimony would have
been better addressed by Dr. Berlin, such as the existence of an
online fantasy subculture, phone sex, deviant sex fantasies, and
Laureys’ diagnosis of himself as a sex addict. It is thus
reasonable to expect that trial counsel would have limited
18
Laureys’ damaging testimony to the extent Dr. Berlin had
already testified on those topics. And even if through effective
cross-examination the government were able to draw Laureys
out on those topics, Dr. Berlin’s detached, clinical perspective
would have at least framed Laureys’ testimony in a crucial way,
allowing the jury to understand Laureys’ condition as a doctor
would, rather than as the “clearly quite disturbed” defendant
understood himself. 12/16/14 Tr. 33:9–11; see Appellant Br.
43–44; Reply Br. 11. That difference in perspective might not
have been dispositive, but in such a difficult, troubling case in
which even the trial judge expressed doubt about Laureys’ intent
in traveling to D.C., see also Laureys, 653 F.3d at 43–44
(Brown, J., dissenting in part), the significance of Dr. Berlin’s
perspective cannot be underestimated.
Because we conclude that Laureys has met his burden to
establish that he was denied his right to the effective assistance
of counsel by trial counsel’s failure to secure expert mental
health testimony, the court has no need to address his additional
claims of ineffective assistance. Accordingly, we reverse the
judgment of conviction and remand this case for a new trial.