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Not presenting insanity defense was effective assistance

Defense counsel provided effective assistance by not asserting an insanity defense. Petitioner is denied habeas corpus relief.

“Under Strickland v. Washington, 466 U.S. 668, 687 (1984), a petitioner must prove both that his counsel’s performance was deficient and that he was prejudiced by such deficient performance. The petitioner has failed to meet either burden. …

“The petitioner contends that the failure of trial counsel to assert an insanity defense was not only unreasonable but indefensible. The Court finds that trial counsel’s approach to the case was neither unreasonable nor indefensible, and their performance throughout the litigation of this case demonstrated not only their zealous commitment to their client but their competence in seeking to achieve their client’s objectives. The decision not to assert an insanity defense was no exception.”

“Petitioner asserts that he could prove at an evidentiary hearing that trial counsel ‘had no strategic reason not to comply with the insanity statutes[.]’ … In fact, there were at least four significant strategic advantages that the petitioner derived by not asserting an insanity defense. …

“First, by not asserting an insanity defense, the petitioner avoided being subjected to a psychiatric or psychological examination by the Commonwealth’s own expert, pursuant to Va. Code § 19.2-168. This was exceptionally significant. Indeed, within days of receiving what it initially believed was an insanity defense notice, the Commonwealth arranged for Dr. Stanton Samenow to conduct the evaluation of the petitioner and noted the date when he would be available to testify.

“Petitioner acknowledges that his sole chance of acquittal … depended on persuading the jury that he was not legally responsible for the crimes committed against Leo Fisher and Susan Duncan due to a ‘medication-induced delirium.’ …

“Preventing the Commonwealth’s mental health expert from evaluating the petitioner not only deprived the Commonwealth’s expert of a unique and critical source of information but ensured that the only mental health expert who had actually evaluated the petitioner would be the expert retained by the defense.

“Second, by not asserting an insanity defense, the petitioner avoided having to disclose to the Commonwealth the evaluation report of his mental health expert, along with ‘copies of psychiatric, psychological, medical, or other records obtained during the course of any such evaluation,’ pursuant to Va. Code § 19.2-169.5(E). This prevented the Commonwealth from learning the substance of petitioner’s expert’s mental health evaluation until nine days into the trial.

“Third, by not asserting an insanity defense, the petitioner sought the extraordinary strategic advantage of placing before the jury his own mental health expert without any risk of the Commonwealth presenting an effective rebuttal expert.

“Any such expert would neither have evaluated the petitioner nor been privy to the results of the defendant’s own expert evaluation. Petitioner now characterizes trial counsel’s plan as ‘unprecedented’, ‘unheard of’, ‘unsupported’, ‘unreasonable’ and yielding ‘absurd results,’ … but it was an entirely plausible and reasonable possibility at the time.

“Fourth, by not asserting an insanity defense, the petitioner completely avoided the risk of being found Not Guilty by Reason of Insanity, which could have resulted in the petitioner’s detention for years and extensive restrictions on his liberty.

“Instead, if the jury accepted the petitioner’s involuntary intoxication defense, its verdict would have been Not Guilty. The defendant would walk out of the courtroom a free man, what trial counsel termed the ‘end game of this, of involuntary intoxication defense, if we win[.]’ …

“It is hard to imagine a more compelling motivation for a defendant not to assert an insanity defense, especially if there was a reasonable possibility that the trial court could be persuaded to admit the petitioner’s expert mental health testimony.

“These were each genuine and tangible strategic advantages, but they required trial counsel to assert involuntary intoxication without asserting an insanity defense.”

“Petitioner has also failed to establish the prejudice requirement as set forth in Strickland. The evidence before the jury demonstrated by overwhelming evidence that the petitioner was not insane, not ‘involuntarily intoxicated,’ not ‘unconscious,’ and not in a state of ‘medication-induced delirium.’

“The petitioner, along with his wife, Alecia Schmuhl, had a clear motive for committing the crime, meticulously planned the crime, took multiple deliberate steps to conceal the Sclunuhls’ involvement in the commission of the crime, and executed the crime in a manner designed to leave neither incriminating evidence nor witnesses behind.

“Further, the jury was told of all the medications allegedly taken by the petitioner and the toxicological effects of such medication – including the many potentially serious effects on an individual’s mental state.

“In short, even if the petitioner had been permitted to put before the jury his full mental health defense, there is no ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ Strickland, 466 U.S. at 694.

“Therefore, the Respondent’s Motion to Dismiss must be granted.”

Schmuhl v. Clarke, Case No. CL-2021-2333, Aug. 26, 2021, Fairfax Circuit Court (Bellows). VLW 021-8-109, 71 pp.

VLW 021-8-109

Virginia Lawyers Weekly