Genius v. Pepe

• Court: Court of Appeals for the First Circuit
• Decided: July 6, 1998
• Docket: 97-2427
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 97-2427



                         EVERARD GENIUS,



                      Petitioner, Appellant,



                                v.



                         PETER PEPE, JR.,



                      Respondent, Appellee.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



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


Before



                     Torruella, Chief Judge,

                                

                 Aldrich, Senior Circuit Judge,

                                

                   and Boudin, Circuit Judge.


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

for petitioner.

     Gregory I. Massing, Assistant Attorney General, Criminal

Bureau, Appellate Division, with whom Scott Harshbarger, Attorney

General, was on brief for respondent.


July 1, 1998


BOUDIN, Circuit Judge.  This is an appeal by Everard

Genius from the district court's order denying Genius's petition

for a writ of habeas corpus.  Everard was convicted of first degree

murder in state court in 1980 and is currently serving a life

sentence for that crime.  Relying primarily on the well-reasoned

decision of the district court, we sustain the denial of the writ. 

However, in light of the unusual history of the case, we set forth

a brief summary of the facts and our reasons for affirmance.

  The facts, recounted in numerous opinions cited

hereafter, can be briefly stated.  In 1979, Genius--who was married

at the time--stabbed to death his paramour, Lillie Mae Nesbitt.  He

claimed that she had threatened him with a gun and that he recalled

nothing thereafter.  He also claimed that he was compelled to

commit the murder by a voodoo curse that his wife had placed upon

him.  There is no dispute that Genius did in fact kill Nesbitt; the

only issue is whether an insanity defense should have been pursued

more vigorously.

  Prior to the state court trial, Genius was examined by

Dr. Dennis Koson, a forensic psychiatrist employed by McLean

Hospital with responsibilities at Bridgewater State Hospital. 

Koson found Genius incompetent to stand trial due to "situational

depression of severe proportions" resulting from "incarceration in

the jail and the charges lodged against him."  Genius was then

treated for approximately two months with antidepressant

medication.  In May 1980, Koson examined Genius again and found the

depression had lifted and that Genius was competent; Koson found

"no evidence of psychosis" and opined that Genius was not insane at

the time of the murder.  

  At almost the same time but prior to Genius's trial, the

Massachusetts Supreme Judicial Court recognized a diminished

capacity "defense" to first degree murder charges.  Commonwealth v.

Gould, 405 N.E.2d 927, 932-35 (Mass. 1980).  Under Gould, even a

person who is not insane under Massachusetts law might still argue

that he did not have the capacity to form the specific intent

needed for a conviction of first degree murder, which in

Massachusetts requires premeditation or extreme cruelty or

atrocity.  See Mass. Gen. Laws ch. 265,  1.  Even without either

element, the defendant might still be found guilty of second degree

murder so long as the murder was intentional.  

  Genius's counsel, Reuben Dawkins, determined to build his

defense on the Gould case.  At trial, he called Dr. Koson who

testified that while Genius was not insane at the time of the

murder, he was "extremely agitated to the point of losing touch with

the enormity of what he was doing."  However, consistent with his

own prior opinion, Koson admitted that nothing suggested that Genius

was "mentally ill" at the time of the crime as required for insanity

under Massachusetts law.  After several hours of deliberation, the

jurors asked for further instructions on extreme atrocity and after

several days of deliberation, returned a verdict of first degree

murder.  Genius's conviction was affirmed on direct appeal.  SeeCommonwealth v. Genius, 442 N.E.2d 1157 (Mass. 1982).

     Two years later, in 1984, Genius filed a pro se motion for

a new trial and in that connection was examined--although only years

later, in 1987--by another psychiatrist, Dr. Daniel Weiss.  Weiss

said that Genius's belief in voodoo constituted a delusion that

deprived Genius of self-control and meant that he "could not be held

to be criminally responsible."  In a supplemental opinion, Weiss

said that Genius's amnesia might indicate that he was suffering from

a mental illness or defect after the murder.  Treating this as newly

discovered evidence, the state Superior Court judge granted Genius

a new trial and was promptly reversed by the Massachusetts Supreme

Judicial Court.  See  Commonwealth v. Genius, 524 N.E.2d 1349 (Mass.

1988).  

     Having exhausted state remedies, Genius then turned to the

federal district court to pursue his constitutional claim that

Dawkins had rendered ineffective assistance of counsel in the

original state court trial by failing to pursue adequately the

possibility of an insanity defense.  Under the Sixth Amendment, made

applicable to the states through the Fourteenth Amendment, a

criminal defendant is entitled to a competent defense counsel,

although counsel's judgments in formulating the defense strategy are

entitled to substantial deference.  See Strickland v. Washington,

466 U.S. 668, 689 (1984).  In response to Genius's initial habeas

corpus petition, the state moved to dismiss on procedural grounds

only, arguing that Genius had waived his objection by failing

earlier to raise his constitutional claim.  

     In response, Judge Keeton dismissed the petition on the

merits, determining that Genius's allegations, even if true, did not 

show that Dawkins had rendered ineffective assistance of counsel. 

At the time of this decision, it appears that the state had not yet

made any effort to develop the record to show what other psychiatric

evaluations had been done.  Thus, when Genius appealed from this

original denial of the petition, this court knew little more than

the facts already recounted above concerning the defense that

Dawkins had mounted at trial and the background of his decision. 

On that record, this court reversed the district court.  See Geniusv. Pepe, 50 F.3d 60 (1st Cir. 1995).

     In a brief opinion, this court pointed out that although

Koson had rejected Genius's claim of mental disorder, Weiss had now

opined that Genius had been or could have been insane.  Dawkins

might, under state law, have obtained an independent psychiatric

examination paid for by the Commonwealth, and the report would have

been privileged and unavailable to the Commonwealth.  Mass. Gen.

Laws ch. 261,  27C(4), ch. 233  20B.  Given that Genius had

admittedly been incompetent to stand trial for several months and

that insanity would offer a complete defense, this court said that

Dawkins had provided incompetent representation in failing to pursue

the insanity issue.

     As soon as the decision was rendered, the state filed a

petition for rehearing, pointing out that the record had not been

adequately developed to show the context in which Dawkins had made

his decision.  This court then entered an order denying rehearing

but saying that the state was free to seek to offer additional

evidence in the district court.  On remand, Judge Keeton recused

himself, and the matter was transferred to Judge Stearns who

proceeded to develop the record.  After doing so, Judge Stearns

entered the order now under review, rejecting Genius's claim that

he had been incompetently represented and denying his petition for

the writ.  This appeal followed.

     Judge Stearns's thirty-one page opinion makes clear that

Genius was in fact evaluated six times before trial.  Two of the

reports have been lost, and neither side claims to know exactly what

they said, although there is some reason to believe that they did

not say that Genius was insane at the time of the murder.  Of the

four reports that are in the record, prepared by three different

psychiatrists, none suggests that at the time of the crime Genius

had a mental disease or defect that might have afforded him an

insanity defense.

     Genius was first examined after his arraignment on July

16, 1979 by the court clinic psychiatrist, but that report is

missing.  In December 1979, Genius was examined by Dr. Emil

Pawlowski, the Director of the Suffolk County Superior Court

Psychiatric Clinic, who found him competent to stand trial, stating

that he was "moderately depressed," but that "there was no

suggestion of psychosis or organic brain disorder."  In the same

month, the court ordered another evaluation by the court clinic

psychiatrist, but this report is also missing.

     In February 1980, Dr. Koson examined Genius and found him

incompetent to stand trial, for reasons already recounted, and in

April 1980, Genius was again examined by Dr. Robert Fein, the Deputy

Medical Director at Bridgewater.  Fein found Genius now competent

to stand trial.  In May 1980, Koson examined Genius again and gave

the opinion already described that there was no evidence of

psychosis and that Genius was not insane at the time of the murder

but may have been overcome by passion and a loss of control.

     Judge Stearns also undertook a review of Dr. Weiss's

several full opinions, which had not been before this court at the

time of the original appeal.  Judge Stearns concluded that Weiss's

opinions provided no legitimate basis for doubting Genius's sanity

at the time of the trial.  Weiss's original report made no mention

of a mental disease or defect--an absolute precondition under

Massachusetts law for the insanity defense--and his subsequent

report equated a belief in voodoo with mental disorder on the ground

that it was an irrational belief.  Judge Stearns pointed out that

this approach would render insane vast numbers of Americans

including, merely to pick an example, the millions who believe in

astrology.

     On this second appeal, Genius does not challenge the

district court's right to supplement the record, in accordance with

our order on rehearing, but does urge that even on this record the

district court erred in concluding that Dawkins had rendered

competent service.  Genius repeats that it would have cost nothing

for Dawkins to have obtained the additional psychiatric report

provided under state law.  Since  Genius had been found temporarily

incompetent to stand trial and had at least some worrying symptoms

(for example, alleged amnesia), Genius argues that his defense

counsel had nothing to lose and everything to gain by seeking the

psychiatric examination that might have given some purchase for an

insanity defense.

     The argument is not frivolous, but neither is it

persuasive.  In many criminal cases, there are (in the abstract)

numerous possible defenses.  Even when there is no need for an

expert or the costs of an expert are borne by the state, pursuing

any line of inquiry involves some use of time and distracts in some

degree from other possible defenses that might be pursued.  As the

Eleventh Circuit has said, "counsel . . . is not required to pursue

every path until it bears fruit or until all available hope

withers."  Solomon v. Kemp, 735 F.2d 395, 402 (11th Cir. 1984),

cert. denied, 469 U.S. 1181 (1985) (citation omitted).

     In short, everything depends on context.  Here, the

context is that Genius had been examined by three psychiatrists

whose reports are available to us and none of them suggested that

there was any indication of mental disease or defect at the time of

the crime.  The only asserted expert evidence of Genius's insanity

at the time of the crime was prepared seven years afterwards;

without adopting the district court's description of Weiss's

analysis as "addled," we agree that it provides very little basis

even now for thinking that Genius had an insanity defense available. 

By contrast, Koson's testimony did supply some hope for the

diminished capacity defense, while an insanity defense would have

involved impeaching Koson's claim that Genius was not insane at the

time of the crime.

     Against this background, we have no hesitation in

concluding that on a fully developed record, there is no showing

that Dawkins provided incompetent defense.  And in fairness to

Dawkins, it is worth recording that the state Superior Court judge

who granted the motion for a new trial on grounds of newly

discovered evidence also wrote:  "I . . . find it hard to imagine

what else Mr. Dawkins could legitimately do in this type of case. 

He comported himself as a talented advocate.  He did not fail to

protect his client at any time during the trial."

     Affirmed.