
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-
