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Are there circumstances in which a criminal defense lawyer should not disclose to a jury the potentially mitigating mental health history of a client accused of murder? Yes, according to a recent opinion from the Fifth Circuit U.S. Court of Appeals. In Nov. 21′s Dretke v. St. Aubin, the court considered whether defendant Keith Michael St. Aubin’s trial counsel was ineffective because he did not adequately investigate St. Aubin’s “extensive history of mental health problems” and did not present that evidence during his sentencing. In a 3-0 opinion, the court concluded that defense lawyer Paul Nugent, a partner in Houston’s Forman, DeGeurin & Nugent, was not ineffective, because he had strategic reasons for not introducing his client’s mental health problems as evidence during the sentencing phase of the trial � namely because it might have allowed prosecutors to explore St. Aubin’s violent past. In its opinion, the Fifth Circuit sets out the following facts: St. Aubin was tried for murder in connection with a 1998 shooting spree when he was 19 years old. After arguing with a man during a street festival in Galveston, Texas, St. Aubin pulled out a handgun and started shooting into the crowd, killing one person and injuring four others. He also assaulted a police officer when he was arrested. At trial, Nugent declined to pursue an insanity defense and instead argued that his client had acted in self-defense. St. Aubin claimed he feared for his life because the victims who surrounded him were preparing to attack him. St. Aubin’s own psychiatrist had determined that an insanity defense was not possible, because St. Aubin knew the difference between right and wrong, according to the opinion. After a state court jury found St. Aubin guilty of murder, prosecutors presented evidence that St. Aubin had a bad reputation, including deputies who testified during the sentencing phase of the trial that while in jail St. Aubin threatened them, and a high school coach who testified that St. Aubin did not have a reputation as a peaceful, law-abiding citizen. Nugent did not call any rebuttal witnesses during the sentencing phase. St. Aubin was sentenced to life in prison for the murder and to 10 years in prison for assaulting the police officer. St. Aubin appealed, filing numerous state habeas corpus applications alleging that during the sentencing phase of his trial, Nugent did not present mitigation evidence, including that St. Aubin had been hospitalized twice for psychiatric reasons and had been prescribed a number of antipsychotic medications. St. Aubin maintained that evidence of his “mental illness, aggression, isolated acts of violence and other incidents of antisocial behavior” were kept from the jury, according to the opinion. Nugent submitted an affidavit during a state habeas proceeding asserting that he had extensive meetings with St. Aubin’s parents about all aspects of his client’s life that led him to conclude that presenting St. Aubin’s mental health history was a double-edged sword: It might diminish St. Aubin’s blameworthiness for the crimes but also indicate future dangerousness. In the affidavit, Nugent also said he made a strategic decision not to call any witnesses during the sentencing phase, according to the opinion. The state trial court denied habeas relief, a decision upheld by the Texas Court of Criminal Appeals. As a result, St. Aubin filed a federal habeas application with the U.S. District Court for the Southern District of Texas, which was denied. St. Aubin appealed to the Fifth Circuit, asserting ineffective assistance of counsel at his trial. The Fifth Circuit concluded that Nugent did a reasonable investigation into his client’s mental health history by reviewing his medical records and consulting with St. Aubin’s treating psychiatrist. Further investigation would not have been helpful. “An attorney who wants to keep damaging information out of a sentencing hearing does not act unreasonably by failing to investigate the damaging evidence further,” wrote Fifth Circuit Judge Rhesa Hawkins Barksdale, who was joined by Judges Fortunato “Pete” Benavides and Priscilla Owen. The panel also agreed with state court rulings that rejected St. Aubin’s habeas petitions by concluding that Nugent made a sound decision not to introduce his client’s mental health history into evidence during sentencing. “The district court’s finding that [Nugent's] decision was based on a professionally informed and competent assessment of St. Aubin’s mental health history and thus fell “within the wide range of reasonable professional assistance’ supports its conclusion that the state court denial of the failure-to-present-evidence claim was not unreasonable,” Barksdale wrote. STRATEGIC DECISION The Fifth Circuit’s decision shocks Jani Maselli, a Houston solo who has represented St. Aubin for several years in his habeas appeals. She notes that in 2003′s Wiggins v. Smith the U.S. Supreme Court emphasized that defense counsel must perform an adequate examination of mitigation evidence. “The problem is there was no investigation done into the mental health aspect, unless you consider a five minute and 16 second phone call [in which a psychiatrist spoke with St. Aubin] and a lawyer’s review of psychiatric records spanning years. It’s just unbelievable,” Maselli says. “It just infuriates me. It’s a total rejection of Wiggins.”
‘Our criminal justice system is just not equipped to handle people who do bad things with mental condi-tions. The reality is unless you’re insane — which is a tough standard — having some mental health is-sues is not a defense.’

PAUL NUGENT defense lawyer

While Wiggins addresses mitigation evidence in death penalty cases, the Fifth Circuit’s 2005 opinion in Miller v. Dretke requires defense counsel to perform adequate examinations of mitigation evidence in nondeath penalty cases. Maselli believes the Fifth Circuit’s decision in St. Aubin rejects its previous holding in Miller. Maselli also believes that there was no more harm that could have been done to St. Aubin by introducing his mental health history into evidence during the sentencing phase of his trial. “It couldn’t have made it any worse even looking in hindsight,” Maselli says. “The ultimate goal would have been to have the jury think about what’s behind the person who committed the act. He was sick. It’s like cancer � it’s cancer of the mind.” But Nugent could have made it much worse for his client had he introduced St. Aubin’s mental health history by putting his treating psychiatrist on the witness stand during the sentencing phase, says Joel Bennett, Galveston County’s first assistant district attorney. “Those are my favorite defense witnesses. When you put a psychiatrist up there you open the door,” Bennett says. “It definitely opens the door for a prosecutor to get into extraneous offenses.” Nugent also says introducing St. Aubin’s mental health history would have harmed his client’s case. “I talked to the psychiatrist, and I looked at the records. I had other people look at the records,” Nugent says. “The records were full of prior bad acts, prior assaults and failure to follow doctors’ instructions.” Nugent says he had rebuttal witnesses available during sentencing but decided not to have them testify, because they also could have introduced damaging information into evidence. “I don’t know how it’s mitigation for the jury to hear that he’s previously beat up his father,” Nugent says. “Our criminal justice system is just not equipped to handle people who do bad things with mental conditions. The reality is unless you’re insane � which is a tough standard � having some mental health issues is not a defense.” Nugent says he would have lost credibility with the jury if he argued self-defense during the guilt-innocence phase of the trial and then blamed St. Aubin’s actions on mental illness during the sentencing phase. But Dallas County Public Defender Brad Lollar, who has represented several clients with mental health problems in high-profile trials, says it’s usually best to disclose the defendant’s psychiatric problems to juries, especially when there’s no question about the defendant’s guilt. The defendant’s mental health background will paint a complete picture for the jury, he says. In one trial, Lollar introduced into evidence the psychiatric problems of a client who locked her child in a closet and nearly starved her to death. “The jurors were going to give her life anyway,” Lollar says. “But it did explain how she got to the point she was.” Robert Udashen, a partner in Dallas’ Sorrels Udashen & Anton who teaches criminal procedure at Southern Methodist University Dedman School of Law, says it’s up to the defense lawyer to use his best judgment to decide whether to introduce a client’s mental health history during the sentencing phase of a trial. Usually, a lawyer will not be found ineffective if he has done an adequate investigation into that history, he says. Udashen says he has a hard time proving ineffective assistance if the lawyer looked at the evidence and made a strategic decision. Notes Udashen: “I raise this all the time: If a trial lawyer failed to raise mitigation evidence, if they didn’t know about it, then they’re ineffective.” John Council is a reporter with Texas Lawyer, a Recorder affiliate based in Dallas.

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