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 re

____________________
___________________
brief for Petitioner. Everard Genius on brief pro se.
______________
Gregory I. Massing, Assistant Attorney General, with whom Sc
___________________
__
Harshbarger, Attorney General, was on brief for Respondent.
___________ ________________
____________________
March 21, 1995
____________________

ALDRICH, Senior Circuit Judge.

____________________

Petitioner, Everard

Genius, hereinafter defendant, presently convicted

degree

murder

in May

1979,

has

twice failed

of firstbefore

the

Supreme Judicial Court.

Commonwealth v. Genius, (Genius I),

____________
______
________

387

442 N.E.2d

Mass.

Genius,
______
He

695

(1982),

(Genius II), 402 Mass. 711

_________

now appeals

from a

1157;

Commonwealth
____________

v.

(1988), 524 N.E.2d 1349.

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

contention,

district

that

the

court.
district

defendant's claim that he

We
court

deal

with

erred

in

only

one

rejecting

was denied effective assistance of

counsel in that counsel did not pursue the defense of lack of

criminal responsibility (insanity).
Defendant
wounds.

The

killed

first degree.
him

appointed
defendant

and

present

with

ten

stab

premeditation

and

also

which could lead to murder

in the

Defendant claimed that the victim turned a gun

that he

remembered

psychiatrist,
was

irresponsible.

girlfriend

Commonwealth charged

extreme atrocity, both of

on

his

We reverse.

mentally

Doctor

is

counsel

based

obtained psychiatric

report from

support

defense.

an insanity

-2-

else.

Koson,

deficient,

Defendant's

proceeding

nothing

upon

but

court-

testified
not

criminally

accepted this.
defendant's

a Doctor Weiss
The Superior

that

The

recently
that would

Court, "deeply

concerned," granted a pro

Genius I,
________

se motion for new

but was reversed in

trial following

Genius II.
_________

This petition is

the next step.1

Turning

to the

merits

of the

Doctor Koson's opinion defendant was

have

a mental

defect,

but his

diminished at the time

from

murder in the absence

says

he

had

examination.
required

sufficiently

if the jury saw

that would make

to

Admittedly,

to pay

for it,

report

would have

been

M.G.L.

c. 233,

20B.

defendant was ahead.

mentality was

lose

by

fit,

for first degree

of proof of premeditation.

nothing

in

not insane, and did not

as to detract,

the extreme atrocity

original case,

an

insanity

the Commonwealth would

have been

M.G.L. c.

having

Defendant

261,

privileged and
If the

27C(4),

and the

unavailable to

report proved

it.

affirmative,

If it proved negative, he need

not use

it.
The

district

court

generalization that preparation

of counsel, who cannot

responded

to

is always in

be faulted for not

this

with the

the discretion

going on and

on,

unless there was an indication that there might be a benefit.

But there
F.2d

may have been

1245, (5th

Cir.

one.

Cf.
__

1987).

In

counsel incompetent for ignoring

____________________

Profitt v. Waldron,
_______
_______
Profitt the
_______

court

831
held

the fact that defendant had

1. There
remedies.

is

no

question

of

failure

to

exhaust

state

-3-

been

in a mental institution.

Here defendant

did not have

that history, but he

did have something of consequence.

meet

he was

the

fear that

defendant

had

confirmed

on February

competency

was found.

not

to

been a

flagged the
complete

competent to

Bridgewater and

20.

It

was

not

While incompetency

equivalent to insanity, it

should have
have

been sent

not

To

stand trial,
the

until

fear was
May

that

to stand trial is

is a serious condition, that

possibility.
defense, it

was

Where

insanity would

inexcusable not

to

pursue it.
Unless, of course,

there was a reason.

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

In Genius
______

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

possible complete defense because

partial one

(reducing

murder one

extraordinarily unbalanced choice.

deliberately

(as

to

which there

forego even exploring a

offering it might weaken a

to murder

two) seems

an

Whether counsel made

it

was

no

evidence) or

by

____________________
2.

Commonwealth v. Gould, 380

____________
_____
927 (1980).

Mass. 672, 680-86; 405 N.E.2d

-4-

default, we cannot find it within

of

competence.

And

the most tolerant standard

particularly so when

some evidence of insanity in the record.

there already was

Genius I, 387 Mass.
________

at 697.
As to prejudice from counsel's neglect, we have but

to look at
same

the statement

of the Superior

one who had tried the case)

trial because

the

report of

Court judge

(the

that he was granting a new

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-