USCA1 Opinion
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
-2-
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.
-3-
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).
-4-
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.
-5-
