Genius v. Pepe

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1904

EVERARD GENIUS,

Petitioner, Appellant,

v.

PETER PEPE, JR.,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Torruella, Chief Judge,

Aldrich, Senior Circuit Judge,

and Stahl Circuit Judge.

Robert L. Sheketoff with whom Sheketoff & Homan was on reply

brief for Petitioner. Everard Genius on brief pro se.

Gregory I. Massing, Assistant Attorney General, with whom Scott

Harshbarger, Attorney General, was on brief for Respondent.

March 21, 1995

ALDRICH, Senior Circuit Judge. Petitioner, Everard

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),

387 Mass. 695 (1982), 442 N.E.2d 1157; Commonwealth v.

Genius, (Genius II), 402 Mass. 711 (1988), 524 N.E.2d 1349.

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

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

F.2d 1245, (5th Cir. 1987). In Profitt the court held

counsel incompetent for ignoring the fact that defendant had

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

I, the court said,

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]

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

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

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.

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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