Robidoux v. O'BRIEN

United States Court of Appeals
For the First Circuit

No. 10-1239

JACQUES ROBIDOUX,

Petitioner, Appellant,

v.

STEVEN J. O'BRIEN, Superintendent,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Boudin, Circuit Judge,

Souter,* Associate Justice,

and Selya, Circuit Judge.

Janet Hetherwick Pumphrey for appellant.
Susanne G. Reardon, Assistant Attorney General, Criminal
Bureau, with whom Martha Coakley, Attorney General, was on brief
for appellee.

June 28, 2011

*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 BOUDIN, Circuit Judge. Jacques Robidoux was convicted in

Massachusetts state court for the murder of his eleven-month-old

son for which he is serving a life sentence. He now seeks review

of the district court's denial of his federal petition for habeas

corpus. 28 U.S.C. § 2254 (2006). The central question is whether

his trial counsel, Francis O'Boy, provided competent

representation. A brief summary of background events and earlier

proceedings is a preface to several difficult legal issues.1

Robidoux's father led a religious sect that included

Robidoux and his wife, Karen. One of his father's beliefs was that

a number of ordinary institutions, including the legal system, the

medical system, and mainstream religion, were invalid--indeed,

among "Satan's seven counterfeit systems"--and members of the sect

were instructed to eschew doctors and medicines.

On April 29, 1998, Robidoux's son, Samuel, was born

without complication to his wife Karen. Samuel was healthy: he was

described by family members as "active" and "robust"; in January

1999, when he was eight months old, he was reported to eat

"willingly anything that was put in front of him"; and he was able

to sit and had begun walking by grabbing onto furniture.

1
The facts are drawn mostly from the Massachusetts Supreme
Judicial Court's ("SJC") decision upholding Robidoux's conviction,
Commonwealth v. Robidoux, 877 N.E.2d 232 (Mass. 2007), supplemented
where necessary with facts from the record that are consistent with
the SJC's findings. See Lynch v. Ficco, 438 F.3d 35, 39 (1st
Cir.), cert. denied, 549 U.S. 892 (2006).

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 In early March 1999, one of Robidoux's sisters claimed to

receive a "leading"--what the sect deemed a revelation from God to

live life in a certain manner--that Karen was to nurse Samuel for

ten minutes on each breast every hour and eliminate all other

sources of food from Samuel's diet. This regime, endorsed by

Robidoux's father, was adopted by Robidoux and his wife.

In consequence, Samuel began to fail from lack of proper

nourishment. Samuel's deterioration was manifest--and its dreadful

character and his suffering were portrayed at the later trial--but

Robidoux and Karen did not take Samuel to a doctor or relax his

dietary restrictions. Rather, Robidoux called a special meeting of

the sect in late April 1999 to pray in the hope of improving

Samuel's condition.

The next day, Robidoux informed the sect of Samuel's

death. He concealed the body in the bulkhead of a sister's home

and months later buried it in Baxter State Park in Maine. The

police learned of events from an ex-member of the sect and

recovered Samuel's remains about a year after the secret burial.

A state grand jury in Massachusetts indicted Robidoux for first-

degree murder; his wife was indicted for second-degree murder.

Robidoux was tried, separately from Karen, in a nine-day trial in

June 2002. O'Boy, who had practiced law in Massachusetts for

nearly forty years, served as trial counsel for Robidoux.

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 At trial, O'Boy's main defense was to argue that

starvation was not the proven cause of death. Robidoux's expert

witness, a pediatric forensic pathologist, testified that Samuel

may have died from any number of causes other than starvation. For

the state, Maine's chief medical examiner testified that Samuel's

cause of death was severe malnutrition due to starvation; a

forensic anthropologist pointed to abnormalities in Samuel's bones

consistent with malnutrition; and a pediatrician described Samuel's

deterioration as consistent with malnutrition.

Robidoux himself chose to testify, admitting some facts

helpful to the prosecution but also offering statements that might

induce some sympathy. He admitted seeing adverse changes in Samuel

after the dietary restrictions began and conceded that Samuel's

deteriorating health was "based on his not getting enough

nourishment." However, Robidoux denied any intent to harm the

child, saying that the death was a "product of mistakes and

misunderstandings," and he took responsibility for Samuel's death,

saying that "[t]he buck stops here."

During his closing argument, O'Boy attempted to turn

Robidoux's candor to the defense's advantage, arguing that Robidoux

was courageously attempting to "take the bullet for the rest of the

family." O'Boy implored the jury not to let Robidoux become the

scapegoat for the prosecution, but rather to "judge the man." He

concluded his closing statement suggesting that Robidoux did not

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cause Samuel's death, that the cause of death remained debatable,

and that, given his candor, Robidoux was no hardened criminal.

On June 14, 2002, one day after the case went to the

jury, the jury found Robidoux guilty of first degree murder by

reason of extreme atrocity or cruelty, and on that same day, the

trial court sentenced Robidoux to life imprisonment. Robidoux

ultimately filed two post-trial motions for relief; both were

denied by the trial judge.

The first, prepared shortly after the verdict by O'Boy,

was a motion for a required finding of not guilty or for a new

trial; it alleged, inter alia, that the judge failed properly to

charge the jury on Massachusetts' "third prong" malice element,

discussed below. The second motion, prepared in 2005 by new

counsel for Robidoux, was also for a new trial, and charged, inter

alia, that O'Boy had provided inadequate representation. The

second motion included three affidavits pertinent here.

One was by a psychologist who gave his opinion that

Robidoux was unable to appreciate or understand that it was wrong

to deprive his son of solid food, although he admitted that he had

never interviewed Robidoux.2 A second affidavit was by Robidoux

himself, who stated that O'Boy "discussed with [him] the various

2
The psychologist's opinion was based on an examination of
Karen and his research of cults generally in preparation for
Karen's trial. Karen later was acquitted of second-degree murder,
after arguing that she had been psychologically battered within the
sect, but was convicted of assault and battery.

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ways to try [his] case, including the insanity defense," but that

there was "simply no way that [Robidoux] would talk to a doctor or

a psychotherapist" prior to the trial because of his religious

beliefs.

The third affidavit was by the director of the New

England Institute for Religious Research, who had been the court-

appointed guardian ad litem in the care and protection case brought

by Massachusetts against the sect. Based on interviews with

Robidoux and other materials, the affiant gave his opinion that

undue influence was being exercised over Robidoux by his father and

other sect members that made it impossible for counsel to present

an adequate defense.

In rejecting the motion, the state trial judge found that

trial counsel had properly defended the case. The judge said that,

based on her own observation of Robidoux in court and the cogency

of his answers and trial testimony, he was entirely competent to

stand trial. The trial judge also had earlier said that Robidoux's

rambling eve-of-trial motion to represent himself--described in

more detail below--was a tactic to secure a delay. On direct

appeal, the SJC upheld Robidoux's conviction.

Robidoux then sought federal habeas relief, 28 U.S.C.

§ 2254, which the federal district court in turn denied. Robidoux

v. O'Brien, Civ. No. 08-11046-RGS, 2010 WL 559107 (D. Mass. Feb.

11, 2010). However, the court granted a certificate of

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appealability, 28 U.S.C. § 2253(c), as to whether O'Boy had

provided ineffective assistance in failing "to request a mental

evaluation and a competency hearing"; on Robidoux's motion, we

expanded the certificate to include trial counsel's failure to

press a defense based on insanity or diminished capacity.

All three of these issues were addressed by the SJC on

the merits and the claims were rejected; indeed, the SJC affirmed

that Robidoux had been competent to stand trial. Customarily,

where the state court has addressed the constitutional issues and

applied standards at least as generous to the defendant as those

imposed by the federal constitution, federal review is limited in

two respects by the current habeas statute.

First, as to law or the application of legal standards to

settled facts, habeas relief cannot be granted unless the defendant

shows that the state court's decision was "contrary to" or

"involved an unreasonable application of" clearly established

federal law. 28 U.S.C. § 2254(d)(1). Second, if the issue is one

of fact, the defendant must show that it "was based on an

unreasonable determination of the facts" in light of the record

before it. Id. § 2254(d)(2); see also 28 U.S.C. § 2254(e)(1)

(clear and convincing evidence standard).3

3
We have previously declined to delve into the relationship
between subsections (d)(2) and (e)(1), Forsyth v. Spencer, 595 F.3d
81, 84 n.3 (1st Cir. 2010), as has the Supreme Court, Wood v.
Allen, 130 S. Ct. 841, 848-49 (2010); cf. Rice v. Collins, 546 U.S.
333, 339 (2006), and again have no need to do so.

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 Robidoux's competency. Each of the three certified

questions on appeal concerns O'Boy's representation rather than

Robidoux's competence to stand trial. And, while the second motion

in state court focused primarily on O'Boy's failure to pursue an

insanity defense, Robidoux's brief in this appeal has shifted the

emphasis to O'Boy's failure to seek a competency hearing.

Robidoux's competency itself is not the issue before us, save as

evidence as to how it may bear on O'Boy's responsibilities or might

furnish a basis for finding a lack of prejudice.

The governing federal standard for all three of

Robidoux's claims is that set forth in Strickland, which requires

proof both that counsel fell below minimum standards of

representation and that there is a reasonable probability that the

deficiency altered the outcome of the case. See Strickland v.

Washington, 466 U.S. 668, 687-96 (1984). The choice whether to

pursue an insanity or diminished capacity defense turns in part on

defense counsel's choice of strategy, and for obvious reasons

counsel's strategy judgments are ordinarily given special

deference. See id. at 689; Genius v. Pepe, 147 F.3d 64, 66 (1st

Cir. 1998), cert. denied, 526 U.S. 1121 (1999).

By contrast, where there are substantial indications that

the defendant is not competent to stand trial, counsel is not faced

with a strategy choice but has a settled obligation under

Massachusetts law, Commonwealth v. Simpson, 704 N.E.2d 1131, 1136

-8-
(Mass. 1999); Commonwealth v. A.B., 887 N.E.2d 1107, 1112 (Mass.

App. Ct. 2008), and under federal law as well, see, e.g., Jermyn v.

Horn, 266 F.3d 257, 283 (3d Cir. 2001); United States v.

Boigegrain, 155 F.3d 1181, 1188 (10th Cir. 1998), cert. denied, 525

U.S. 1083 (1999), to raise the issue with the trial judge and

ordinarily to seek a competency examination.

This is perhaps surprising, if stated as an invariable

rule, because that course could sometimes be adverse to the

client's interest; the obvious instance is the case of an

incompetent defendant with an excellent merits defense.

Nevertheless, this obligation has been deemed necessary to the

dignitary interests of defendants and the integrity of the trial

process, see ABA Criminal Justice Mental Health Standards

§ 7-4.2(c), at 176 (1989), and if there are exceptions, none has

been invoked here.

Yet "competency" in this context is a comparatively

narrow concept and must not be confused with broader or different

uses of the term. It is not the same as whether the defendant has

an insanity or diminished capacity defense on the merits or whether

his ideas about how to live or what to believe are common in the

community or seem sensible to others. Rather the competency

insisted on by the courts is a functional concept focusing on the

defendant's part in the trial.

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 The two settled requisites of competency are that the

defendant understand the nature of the proceedings against him and

that he be able to cooperate with counsel in his defense. Cooper

v. Oklahoma, 517 U.S. 348, 354 (1996); Drope v. Missouri, 420 U.S.

162, 171-72 (1975). The "understanding" required is of the

essentials--for example, the charges, basic procedure, possible

defenses--but not of legal sophistication. One of the jobs of

counsel--and, in limited respects, the judge--is to explain matters

to the defendant, and it is that understanding that is required.

There is only a single piece of direct evidence to

suggest that Robidoux might not have understood what he was told.

Robidoux tendered on the first day of trial and withdrew the next

day a long, rambling and (judged by conformity to legal principles)

almost incoherent request to proceed pro se and to change his plea

based on some sort of lack of jurisdiction argument. However, the

core argument in the motion is one familiar to federal judges,

namely, that somehow the government and courts have no legitimate

authority over the defendants.4

This is a misunderstanding of the law, but it seems to be

a common illusion among certain groups alienated from society and

4
E.g., United States v. Drachenberg, 623 F.3d 122, 124 (2d
Cir. 2010); United States v. Gerhard, 615 F.3d 7, 25 (1st Cir.
2010), cert. denied, 131 S. Ct. 1536 (2011); United States v.
Cooper, 170 F.3d 691, 691 (7th Cir. 1999); United States v. Mundt,
29 F.3d 233, 237 (6th Cir. 1994); United States v. Collins, 920
F.2d 619, 629 (10th Cir. 1990) (citing cases), cert. denied, 500
U.S. 920 (1991).

-10-
is often reflected in doctrinal writings parroted in pleadings. It

does not prevent a defendant from knowing that the government has

put him on trial, recognizing the procedures to be used, or

appreciating advice that lack of authority claims will not

constitute an effective defense. Thus,

[m]any litigants articulate beliefs that have
no legal support--think of tax protesters who
insist that wages are not income, that taxes
are voluntary, or that only foreigners must
pay taxes . . . . Sometimes these beliefs are
sincerely held, sometimes they are advanced
only to annoy the other side, but in neither
event do they imply mental instability or
concrete intellect . . . so deficient that
trial is impossible.

United States v. James, 328 F.3d 953, 955 (7th Cir. 2003); accord

United States v. Landers, 564 F.3d 1217, 1222 (10th Cir.), cert.

denied, 130 S. Ct. 198 (2009).

Robidoux proved in court to be intelligent and articulate

in colloquies with the judge and as a witness. Nothing in his

affidavit shows that he did not understand the proceedings; his

post-trial psychologist's affidavit bears only on the insanity

defense; and the third affidavit simply expresses the view that

Robidoux may have been unduly influenced in deciding on his defense

strategy by others in the sect who contacted him in prison.

As for cooperating with counsel, this does not require

that the defendant go along with his lawyer's advice, nor do we

know that anything Robidoux did was against that advice. His brief

now suggests that his testimony undercut O'Boy's causation defense;

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but his testimony was not critical to prove what had happened, and

his admission to "mistakes" and acceptance of "responsibility" for

the death appear a shrewd way of indirectly seeking to negate the

intent element of the crime, in addition to expressing remorse.

What is more, the question is not whether we think that

counsel should have raised the competency issue but whether the SJC

was "unreasonable" in concluding that in the circumstances he did

not have to do so. 28 U.S.C. § 2254(d)(2). We can hardly find the

SJC decision unreasonable when there is little evidence anywhere

that Robidoux failed to understand the proceedings and virtually

none that he was unable to cooperate with counsel.

Affirmance could also rest on an alternative ground.

Even if O'Boy should have raised the competency issue, the SJC

found that Robidoux was competent, so it is difficult to see how

counsel's supposed error could have satisfied the prejudice

requirement of Strickland. Robidoux says that a finding of

competence is not subject to deference because it was not based on

an evidentiary hearing but rather on the trial judge's statement

and the SJC's inferences, but this is a dubious position.

Case law is divided on whether, when, and to what extent

lack of an evidentiary hearing in the state court might undercut

the deference to state fact-finding that is due under the habeas

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statute.5 Section 2254(d)(2)'s current language contains no

requirement of a hearing.6 We found no direct First Circuit

precedent, but the answer must be that evidentiary hearings cannot

always be required--they are not always required in federal courts

either, e.g., United States v. Marquardo, 149 F.3d 36, 46 (1st Cir.

1998) (contempt proceeding)--and it is far from clear that the

state finding here is made unreasonable by the lack of one.

We need not resolve this point because Robidoux's counsel

has not gone beyond the flat assertion, which we reject, that a

state court finding gets no deference absent an evidentiary

hearing. It is enough to note that the trial judge was familiar

with Robidoux's conduct, conducted colloquies with him in the

courtroom, watched him as a witness at trial, and was aware that he

had no known diagnosed history of mental illness. Nor had there

been any complaints from O'Boy.

Insanity defense. Next challenged is O'Boy's failure to

raise the insanity defense. Unless incompetent, Robidoux was

5
Compare Wilson v. Workman, 577 F.3d 1284, 1292 (10th Cir.
2009) (en banc), and Taylor v. Maddox, 366 F.3d 992, 1001 (9th
Cir.), cert. denied, 543 U.S. 1038 (2004), with Lambert v.
Blackwell, 387 F.3d 210, 238 (3d Cir. 2004), cert. denied, 544 U.S.
1063 (2005), and Mendiola v. Schomig, 224 F.3d 589, 592-93 (7th
Cir. 2000), cert. denied, 533 U.S. 949 (2001).
6
Prior language granted the presumption of correctness only to
facts determined "after a hearing on the merits of a factual
issue," 28 U.S.C. § 2254(d) (1994), superseded by Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 104,
110 Stat. 1214 (1996). See generally Valdez v. Cockrell, 274 F.3d
941, 949-50 (5th Cir. 2001), cert. denied, 537 U.S. 883 (2002).

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entitled to decline to assert the defense and to refuse any

psychiatric examination to support it. Commonwealth v. Murphy, 813

N.E.2d 820, 834-35 (Mass. 2004); Commonwealth v. Federici, 696

N.E.2d 111, 114-15 (Mass. 1998). Robidoux made clear that he did

not wish to be examined by doctors. Whether he ever told his

lawyer expressly not to assert an insanity defense is less clear.

Robidoux's refusal to be examined would in any event

allow, and likely lead, the trial judge to bar Robidoux's counsel

from offering an expert witness of his own. Mass. R. Crim.

P. 14(b)(2), (c)(2); Commonwealth v. Guadalupe, 516 N.E.2d 1159,

1161-62 (Mass. 1987). If not forbidden, counsel might still have

asserted the insanity defense without an expert, Commonwealth v.

Gaboriault, 785 N.E.2d 691, 700 (Mass. 2003); Commonwealth v.

Mattson, 387 N.E.2d 546, 550 (Mass. 1979), and urged that Robidoux

did not appreciate that his withholding of solid food was

"wrongful." Under Massachusetts law:

A person is not responsible for criminal
conduct if at the time of such conduct as a
result of mental disease or defect he lacks
substantial capacity either to appreciate the
criminality [wrongfulness] of his conduct or
to conform his conduct to the requirements of
law.

Commonwealth v. Mercado, 896 N.E.2d 1262, 1265 n.2 (Mass. 2008)

(quoting Commonwealth v. McHoul, 226 N.E.2d 556, 557-58 (Mass.

1967)).

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 But insanity is normally rooted in some recognized mental

illness. Nothing indicated that Robidoux had ever been so

diagnosed or even cleanly fit into a standard, recognized category

of mental illness. The American Psychiatric Association's

Diagnostic and Statistical Manual of Mental Disorders (4th ed.

1994), has ambiguous language on delusional disorder that might or

might not be useful to Robidoux, id. at 297.1, but it is unclear

that the volume would even be admissible without an expert.

In this court, Robidoux's counsel now argues that

insanity was patent based on two of Robidoux's religious illusions:

that God and prayer, not ordinary nourishment, would protect Samuel

and--in a similar but less disastrous prior episode--that God,

rather than gasoline refills at pumps, would fuel the cars in a

caravan that Robidoux led on a religious trek that ended in a

fiasco of stalled cars. Experience gives good reason to think that

such illusions are rarely an effective argument for insanity.

In our diverse religious cultures, Christian Scientists

are often committed to resist conventional medical treatment in

situations even where the results can be dire, and Jehovah's

Witnesses may oppose blood transfusions even where doctors say this

is essential. Judges and juries rarely treat these beliefs as

representing insanity, and the case law contains numerous

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rejections of the use of religious belief as a complete defense in

the resulting criminal or civil case.7

There is one case, akin in structure but not in its

facts, that is worth comment even though not cited to us. In

Wilson v. Gaetz, 608 F.3d 347 (7th Cir. 2010), Judge Posner found

that the facts attending a case were so powerfully indicative of a

possible insanity defense that counsel had been deficient under

Strickland in not pursuing the issue; the case was remanded to

consider whether prejudice had been shown. Id. at 356-57. The

analysis is cogent and powerful, although even on the extreme facts

there was still a dissent.8

The defendant in Wilson was a classic paranoid

schizophrenic who refused to leave home under the delusion that

there was a vast religious conspiracy against him and killed his

employer, professing that the employer was implicated in the

conspiracy. 608 F.3d at 348-50, 354. Because the defendant had

been subject to a competency hearing, expert evidence was

7
See generally 1 W. LaFave, Substantive Criminal Law
§ 3.3(a)(1), at 284 n.9 (1986) (citing criminal cases); 2 id.
§ 7.12(a), at 281 n.28 (same). In Massachusetts, there is at least
one such criminal case, Commonwealth v. Twitchell, 617 N.E.2d 609
(Mass. 1993), and there are several such civil cases, e.g., Matter
of McCauley, 565 N.E.2d 411 (Mass. 1991); Custody of a Minor, 379
N.E.2d 1053 (Mass. 1978).
8
Judge Posner provides, with customary thoroughness, extensive
discussion of and citations to the so-called "deific decree"
defense--misnamed because it is not a formal defense but the use of
religious delusions in connection with some recognized issue
(intent) or defense (insanity). Wilson, 608 F.3d at 354.

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available; but counsel, who did offer an insanity defense,

mishandled it by focusing on it too late and by failing to get more

precise expert testimony or to interview the defendant's family

members familiar with his extensive mental health history. Id. at

351-52.

By contrast, O'Boy had no history of diagnosed mental

illness to work with and no expert psychiatric evidence (nor much

chance of getting it so long as Robidoux refused to be examined).

On appeal, his new counsel argues that this refusal was itself

evidence of insanity; but a mistaken religious belief with adverse

consequences for the believer is hardly by itself insanity. The

SJC judgment of adequate representation was not unreasonable, and

again nothing establishes that offering the defense would have

worked. Cf. Lundgren v. Mitchell, 440 F.3d 754, 773 n.6 (6th Cir.

2006) (discussing "deific decree" insanity defense cases and

concluding that the defense almost never works).

Diminished capacity. The third ineffective assistance

claim is that O'Boy failed unreasonably to argue diminished

capacity. There is no formal diminished capacity defense in

Massachusetts, but it is settled that the defendant may offer

evidence and argument bearing on his ability to form the necessary

intent for the crime in response to the government's affirmative

case. Commonwealth v. Companonio, 833 N.E.2d 136, 141 n.7 (Mass.

2005).

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 Here, Robidoux's good faith religious belief might appear

at first blush to be a colorable basis for arguing to the jury that

he did not have "intent" in the sense of a conscious awareness that

he was following a course likely to lead to his son's death. Thus,

prosecutions for withheld medical care based on religious belief

may result in conviction for manslaughter rather than murder.

However, such a no-intent argument assumes that the jury would

accept that Robidoux was unaware of the risk that his behavior

posed to his son, but the prosecution had evidence that Robidoux

did understand that risk.

Most telling was a diary entry that Robidoux wrote

accepting that his son was getting worse on the prescribed diet but

saying that if the son died he would be resurrected after death.

The other, connected to his wife's trouble in producing milk, was

firm evidence from several sources that Robidoux knew that his son

was not getting enough nourishment. A jury could well have

concluded that Robidoux understood causation but believed that God

had forbidden Samuel solid food even if this would cause Samuel's

death--a view that would do nothing to negate intent.

Worse still, Massachusetts now has a murder statute that

leans heavily on intent, Mass. Gen. Laws ch. 265, § 1 (2008), but

its judicial decisions have added a gloss dangerous to Robidoux.

That gloss, e.g., Commonwealth v. Earle, 937 N.E.2d 42, 47-51

(Mass. 2010); cf. Commonwealth v. Chance, 54 N.E. 551, 554-55

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(Mass. 1899) (Holmes, C.J.), is incorporated in standard jury

instructions, which provide an alternative "third prong" malice

basis for scienter in murder cases:

Malice, for purposes of this theory of murder
also includes: 3) an intent to do an act,
which, in the circumstances known to the
defendant, a reasonable person would have
known created a plain and strong likelihood
that death would follow. Under this third
meaning of malice, you must determine whether,
based on what the defendant actually knew at
the time he acted, a reasonable person would
have recognized that his conduct created a
plain and strong likelihood that death would
result. In determining whether the
Commonwealth has proved this third meaning of
malice, you must consider the defendant's
actual knowledge of the circumstances at the
time he acted.

Mass. Model Jury Instructions on Homicide 12 (1999). A jury could

easily conclude that this language inculpates someone like

Robidoux, who might believe that his action would not cause death

but is objectively unreasonable in so believing. O'Boy tried

several times but (almost inevitably) failed to get a modified

instruction from the trial judge.

By making the argument in his own terms ("mistakes were

made"), Robidoux may have hoped that he could negate murderous

intent in the jury's mind; and by his oblique use of this testimony

in his own closing, O'Boy might well have thought that he could

reinforce the point without running directly into the factual

evidence harmful to Robidoux and the even more dangerous

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instruction. Anyway, O'Boy's subtler approach was not incompetent,

and the more direct argument would likely not have succeeded.

On appeal, Robidoux's diminished capacity argument is not

quite the obvious one set forth above but is an even less promising

variant: that by arguing diminished capacity, Robidoux might have

been convicted of second rather than first-degree murder. The

argument depends on an SJC decision, Commonwealth v. Gould, 405

N.E.2d 927, 928 (Mass. 1980), that treated delusions short of an

insanity defense as relevant to "extreme atrocity or cruelty,"

which if negated might result in only second-degree murder.

But that case involved expert testimony and familiar

evidence of conventional mental illness, Gould, 405 N.E.2d at 929-

31, which is exactly what is lacking in this case. Further,

Robidoux testified that he had witnessed Samuel's suffering--

indeed, that his wife toward the end could not bear to undress

Samuel to bath him because his body was so emaciated. Any emphasis

on Gould and on atrocity could easily have made matters worse by

emphasizing the painful nature of Samuel's death to the jury.

One final argument cuts across the others: that his wife

got a deferral of her own trial based on temporary incompetence

and, after being "deprogrammed," ultimately was acquitted on a

second-degree murder charge and convicted only of assault and

battery. This, Robidoux argues on appeal, shows that his own

counsel should have urged his incompetence and would through better

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trial tactics have likely succeeded in warding off a murder

conviction.

The information available is too meager for comparison,

and we know almost nothing about Karen Robidoux's symptoms that

triggered the incompetence finding or about the details of her

defense at trial. It appears that she presented an argument akin

to battered wife syndrome; Robidoux himself, occupying something of

a leadership position in his sect (albeit behind his father),

hardly seems a candidate for such an argument. Cult-brainwashing

arguments rarely succeed. Cf. United States v. Hearst, 412 F.

Supp. 863, 870 (N.D. Cal. 1975); United States v. Hearst, 563 F.2d

1331 (9th Cir. 1977), cert. denied, 435 U.S. 1000 (1978).

Finally, Robidoux's brief suggests that he is the only

one to pay a heavy price for what was a collective activity; in

addition to his wife's lesser conviction, the sister who reported

the revelation was allowed to plead to being an accessory before

the fact of assault and battery on a child and his father was never

charged. But Robidoux was arguably the authority figure within his

own family, and he concealed the body in the wall of his sister's

house. Anyway, discrepant outcomes among defendants are common.

One of the perils of being a defense lawyer is that a

common resort, after a defeat in a criminal case and an

unsuccessful appeal, is a charge that counsel was not competent.

This risk, like medical malpractice, comes with the territory.

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But, having considered the very able briefing and argument by

Robidoux's present counsel, we agree that his trial counsel was not

deficient and that no available alternative strategy created a

reasonable probability of success.

Affirmed.

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