PJ Keller seems more in touch with reality than the other eight judges on the issue in Imoudu. It is scary that Meyers and company ignore that strategy is involved in deciding whether to pursue an insanity defense and that a writ applicant must demonstrate a reasonable probability that a full presentation of his defense would have succeeded, and, most importantly, that Imoudu had the burden of proof and persuasion on his knowledge of right/wrong. The outcome of an insanity defense is highly unpredictable though the odds are certainly against its success no matter how much expert opinion becomes involved. Both sides like to plea bargain under those circumstances. This opinion may have far-reaching effects on perceptions of "involuntariness" and the prejudice prong. It also has to be labeled the "psychiatrist relief act."

No disrespect to Presiding Judge Keller, but I'm not sure this opinion is so wrong. To have a valid strategy, don't you first have to investigate so that you have the knowledge to decide what strategy to pursue? This opinion seems in line with the death penalty IAC cases.

JAS

If your investigation would not have turned up anything particularly useful or so undermine the wisdom of the decision to admit guilt (something which would be required in order to raise the defense) that you look like a fool, then how does the chosen strategy become unconstitutional? I agree the first prong of Strickland demanded further investigation. But this opinion effectively says you cannot plea bargain any case where there is evidence of mental disease without a full-blown examination (to justify the attorney's choice). My point is that experts should not control the attorney's course of action, especially when we are examining the decision in hindsight. The mitigation defense in capital cases is not the same as the insanity defense. Keller is right when she says very few mentally ill persons fail to know right from wrong. I see a lot of mischief in this decision. But, I hope I am wrong.

The CCA no longer applies a different standard between trial cases and guilty pleas. As a prosecutor, this is frustrating. Part of the guilty plea now has to be some long series of questions, seeking to guess what the defendant might raise in 10 years as complaints against his lawyer.

There was a competency exam. The state can't force an insanity exam. So, I guess the prosecutor could have asked, "So, even though there were questions concerning competency, are you satisfied that your mental state at the time of the crime was not insane?" "Do you want an expert to check that out before you plead guilty?" "Ten years from now, when you are tired of prison, will you be changing your mind and arguing that an expert should have rendered an opinion that you are not guilty be reason of insanity?"

It has gotten to the point that there should almost be some sort set of questions that, if asked and answered at plea, would inoculate against a postconviction writ.

So, if there is now a trial and defendant gets 50 years in prison, was Keller then right?

And, finally, since there is so much outcry against prosecutors in cases involving misconduct, where are the Innocence people when these defense attorneys are incompetent?

quote:

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Originally posted by JB:
And, finally, since there is so much outcry against prosecutors in cases involving misconduct, where are the Innocence people when these defense attorneys are incompetent?

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It's still the prosecutors' fault, of course. In our rush to convict innocent people and railroad all those poor criminals, we're just forcing the defense attorneys to be incompetent.

I've said it before and I'll say it again -- there need to be some actual consequences to being found ineffective.

Of course, JB and AndreaW, that's the rub!

JAS

But did they get the prejudice prong analysis wrong? It seems that they judged the likely success of the evidence on whether it may have raised a reasonable doubt in the mind of the jurors. But insanity is an affirmative defense. Shouldn't they have considered whether, given the evidence, it could have established insanity at the time of the offense by a preponderance of the evidence?

With an eight-to-one majority, I doubt this makes much of a difference.

Even better would have been if they had rationally explained why their weighing of the evidence was more reliable than the district judge, who normally gets great deference.

So a pre-trial examination for competency to stand trial renders it unnecessary to investigate for insanity at the time of the offense? Whatever the result might have been if raised, on these facts, the issue required investigating. I think the case law is clear: investigate or be found ineffective. Failure to investigate an obvious defense leaves me wondering what else counsel failed to investigate. It's not that counsel looked into it--there is no evidence counsel even considered it!

JAS

Oh, I agree. I think he should've investigated it as well. I don't have a problem with the result.

I'm just saying that the standard for evaluating whether there was prejudice might've been a closer call. The likelihood of success of the claim gets slimmer if the Court is evaluating whether the uncovered evidence is strong enough to establish something by a preponderance of the evidence than simply raise a reasonable doubt.

And there might've even been some room for some Mirzayance (if I spelled that right) action, too. If the evidence couldn't meet the lower standard of competency at trial, the attorney may not have been unreasonable for thinking he couldn't also reach the higher standard based upon what he saw at the hearing.

I was just throwing that out there because it looked to me like it had been overlooked. But I do agree with you, the failure to investigate is pretty serious stuff and hard to overcome.

Defendant got a pretty good deal for killing someone. I hope someone tracks whether he does any better after a trial.

JB-
Bexar Co. Appeals will keep you posted on Mr. Imoudu's retrial-

Thanks. I hear that Shannon will send you free stuff for updating a post.

That's right. First free gift? JB's cell phone number.

Second free gift? Shannon's wife's cell phone number. And his MySpace link.