Title United States v. Kauffman
Date 1997
By
Subject Other\Dissenting
Contents
Page 1
39 of 79 DOCUMENTS
UNITED STATES OF AMERICA v. KOURTNEY KAUFFMAN Appellant.
No. 96-7287
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
109 F.3d 186; 1997 U.S. App. LEXIS 5868
November 12, 1996, ARGUED March 28, 1997, Filed
PRIOR HISTORY: **1 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA. (D.C. Criminal No. 92-cr--00268).
DISPOSITION: Order of the district court denying Kauffman's motion under 28 U.S.C. § 2255 is reversed, and this case is remanded.
CASE SUMMARY:
PROCEDURAL POSTURE: Defendant sought review of a decision from the United States District Court for the Middle District of Pennsylvania which denied his motion to vacate, set aside or correct sentence under 28 U.S.C.S.
§ 2255, on the ground of ineffective assistance of counsel. OVERVIEW: On the advice of his counsel, defendant pled guilty to possession of a firearm by a felon in vio- lation of 18 U.S.C.S. §§ 922(g), 924(c). Defendant was sentenced to a term of 15 years imprisonment, the manda- tory minimum for an habitual offender. The district court denied without hearing defendant's motion to vacate, set aside or correct sentence under 28 U.S.C.S. § 2255. The court vacated this judgment and ordered that a hearing be held. Following this hearing the district court again denied defendant's motion. Defendant contended that the district court erred in denying his motion because his counsel was ineffective. The court agreed, reversed the district court's decision, and ordered a new trial. Defendant's counsel fell below an objective standard of reasonableness when he failed to conduct any pretrial investigation after receiv- ing a letter from a psychiatrist indicating that defendant was psychotic. A minimal investigation would have re- vealed defendant's history of severe mental illness. It was doubtful that if defendant's counsel had discovered this information he would have advised defendant to plead guilty rather than attempt to assert an insanity defense. OUTCOME: The decision denying defendant's motion
to vacate, set aside or correct sentence on the ground of in- effective assistance of counsel was reversed and a new trial ordered. Defendant's counsel was not effective because he failed to conduct pretrial investigation. If such investiga- tion had occurred, defendant's counsel would have dis- covered defendant's history of severe mental illness and probably have advised against a plea bargain.
LexisNexis(R) Headnotes
Criminal Law & Procedure > Counsel > Effective
Assistance > Appeals
HN1 Because ineffective assistance of counsel claims present mixed questions of law and fact, an appellate court's review is plenary.
Criminal Law & Procedure > Counsel > Effective
Assistance
HN2 A court must be highly deferential to counsel's decision and there is a strong presumption that counsel's performance was reasonable. The defendant must over- come the presumption that, under the circumstances, the challenged action might be considered sound trial strat- egy. It is only the rare claim of ineffective assistance of counsel that should succeed under the properly def- erential standard to be applied in scrutinizing counsel's performance.
Criminal Law & Procedure > Counsel > Effective
Assistance > Tests
HN3 In order for a defendant to gain relief because his counsel is ineffective, the defendant must satisfy the two-pronged test announced in Strickland. The defendant must show (1) that counsel's representation falls below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel's error, the result would have been different.
Criminal Law & Procedure > Counsel > Effective
Assistance > Pleas
Criminal Law & Procedure > Counsel > Effective
Assistance > Tests
109 F.3d 186, *; 1997 U.S. App. LEXIS 5868, **1
Page 2
HN4 The two-part Strickland test is applicable to peti- tioners who challenge the effectiveness of counsel after the entry of a guilty plea. When such persons enter a plea of guilty on the advice of counsel, the voluntariness of the plea depends on whether there is a reasonable probability that, but for counsel's errors, the defendant would have proceeded to trial instead of pleading guilty. A reason- able probability is one which is sufficient to undermine confidence in the outcome.
Criminal Law & Procedure > Counsel > Effective
Assistance > Pretrial
HN5 Failure to conduct any pretrial investigation gener- ally constitutes a clear instance of ineffectiveness. While counsel is entitled to substantial deference with respect to strategic judgment, an attorney must investigate a case, when he has cause to do so, in order to provide minimally competent professional representation.
Criminal Law & Procedure > Counsel > Effective
Assistance > Tests
HN6 A court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case.
Criminal Law & Procedure > Counsel > Effective
Assistance > Pleas
Criminal Law & Procedure > Counsel > Effective
Assistance > Tests
HN7 Under Strickland's second prong (the "prejudice" requirement), if the ineffectiveness alleged is a failure to investigate thoroughly, which in turn caused the defendant to plead guilty, the defendant must show a likelihood that some evidence would have been discovered which would have caused the attorney to change his recommendation to enter into a plea agreement.
COUNSEL: Daniel M. Pell (ARGUED), 425 West
Market Street, York, PA 17404, Attorney for Appellant. Eric Pfisterer (ARGUED), Office of United States Attorney, Federal Building, 228 Walnut Street, Post Office Box 11754, Harrisburg, PA 17108, Attorney for Appellee.
JUDGES: BEFORE: ALITO, ROTH and LEWIS, Circuit
Judges. ALITO, Circuit Judge, dissenting
OPINIONBY: LEWIS
OPINION: *187 OPINION OF THE COURT
LEWIS, Circuit Judge.
Kourtney Kauffman appeals from the order of the district court denying his motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255, on the ground of ineffective assistance of counsel. Kauffman's claim was based, inter alia, on his counsel's failure to conduct any pre-trial investigation, or contact potential witnesses in connection with a possible insanity defense. We have jurisdiction under 28 U.S.C. §§ 2253 and 2255. HN1 Because ineffective assistance of counsel claims present mixed questions of law and fact, our review is plenary.
**2 Dooley v. Petsock, 816 F.2d 885, 889 (3d Cir. 1987).
I. A.
On July 19, 1991, Kourtney Kauffman was released, against the advice of his psychiatrists, from Edgewater Psychiatric Center in Harrisburg, Pennsylvania, where he had been involuntarily committed since July 14, 1991. n1 On July 12, 1991, just two days prior to Kauffman's commitment, three shotguns and two rifles were re- ported stolen from a residence in Hellam Township, Pennsylvania. Kauffman was arrested on July 24, 1991, five days after his discharge from Edgewater, while at- tempting to sell four of these stolen guns to a firearms dealer in a transaction monitored by the police. n2
n1 . Prior to Kauffman's discharge, Edgewater petitioned the Court of Common Pleas of Dauphin County, Pennsylvania, for an order of involuntary commitment for Kauffman. The court denied the hospital's petition.
n2 . Initially, state charges were brought against Kauffman. Kauffman retained Stephen Zorbaugh as his lawyer and on July 9, 1992, Kauffman pleaded guilty to four counts of receiving stolen property arising out of the sale of four of the five guns described above. Zorbaugh was then ap- pointed by the district court to represent appellant on the pending federal charges which are the sub- ject of this opinion.
**3
Immediately following his arrest on July 24, 1991, Kauffman was examined by Dr. Jacob Stacks, a psychia- trist at Harrisburg State Hospital. In a discharge summary prepared by Dr. Stacks, he stated that Kauffman "went into the York County Prison on 7/24/91 with a charge of receiving stolen property. He was undoubtedly psychotic at that time." On March 25, 1992, Dr. Stacks wrote a letter to attorney Steven Zorbaugh, who was representing Kauffman at the time,
109 F.3d 186, *188; 1997 U.S. App. LEXIS 5868, **3
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*188 stating that in his opinion Kauffman was manic and psychotic "at the time of the committing of the crime he was charged with." Despite the exculpatory nature of this letter, Zorbaugh declined to investigate further a pos- sible insanity defense and advised Kauffman to plead guilty.
On February 19, 1993, acting upon the advice of coun- sel, Kauffman pleaded guilty, pursuant to a plea agree- ment with the government, to a one-count indictment which charged Kauffman with being a felon in posses- sion of firearms in violation of 18 U.S.C. §§ 922(g) and
924(c). Kauffman was sentenced to 15 years imprison- ment pursuant to 18 U.S.C. § 924(e), the mandatory min- imum sentence for violation of the armed career criminal offender statute.
On January **4 24, 1994, Kauffman filed a pro se motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct sentence, which the district court denied without a hearing on March 25, 1994. Kauffman then re- tained private counsel and timely filed a second habeas motion on February 13, 1995. In his petition, Kauffman asserted that he was entitled to habeas corpus relief be- cause Zorbaugh rendered ineffective assistance by failing to counsel him regarding his right to proceed to trial and present an insanity defense. Kauffman also contends that his former attorney incorrectly advised him that probation was a possible sentence if a downward departure motion was granted. Moreover, Kauffman contends that his prior counsel should be deemed per se ineffective because his attorney was himself suffering from a debilitating mental condition.
We vacated the judgment of the district court denying Kauffman's second petition and remanded for an eviden- tiary hearing on December 6, 1995. At the conclusion of the evidentiary hearing, the district court denied the habeas petition. Kauffman once again appeals. For the reasons which follow, we will reverse and remand to the district court for a new trial.
B. **5
At the evidentiary hearing ordered by this court, Steven Zorbaugh testified that he remembered Kauffman
bringing Dr. Stacks' letter, describing Kauffman as manic and psychotic when he was arrested for the offense, to his law office for review. Zorbaugh admitted to having no conversation about Kauffman's mental status with any physician or making any review of the medical records, or doing any research on the federal insanity defense. The reason Zorbaugh gave for advising Kauffman to plead guilty and not tender an insanity defense at trial was that Kauffman had pleaded guilty to state charges of receiving stolen property. In Zorbaugh's words:
you go through . . . a written plea colloquy that was about ten or eleven pages I believe, plus an oral colloquy that included questions like did you understand what you were doing, did you know it was illegal. And you have to answer these questions. And I felt that would be an additional barrier in Federal Court be- cause I felt the prosecutor could use those to establish that he knew what he was doing.
Zorbaugh also stated his belief that Kauffman's act of hid- ing the stolen property would impede a successful insanity defense in **6 that it further enabled the government to show that Kauffman was aware of the consequences of his actions.
Yet, the hearing as a whole uncovered substantial ev- idence which would support Kauffman's claim that an insanity defense was nonetheless viable. For example, Dr. Denis Milke, a Board Certified psychiatrist who is the Medical Director of Edgewater Psychiatric Center and was Kauffman's attending physician, testified that as of the date of discharge from Edgewater, Kauffman's men- tal status as reflected in the medical records was that of a person whose judgment was markedly compromised, with limited insight and poor reliability. He also testified that Kauffman was released against medical advice just prior to the commission of the offense. In fact, Dr. Milke wanted Kauffman immediately transferred to Harrisburg State Hospital, a long term care facility.
Dr. Milke identified Kauffman's illness as a bipolar disorder. He explained that Kauffman's thought disorder is characterized by
109 F.3d 186, *189; 1997 U.S. App. LEXIS 5868, **6
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*189 grandiose thought, loose associations, tangential- ity, chronic poor judgment, with some degree of paranoid perceptions. He also stated that treatment of Kauffman's condition required psychotropic drugs, **7 and that as of the date of discharge Kauffman did not have suffi- cient Lithium in his blood stream to control the symptoms of his bipolar disorder. Finally, Dr. Milke testified that a bipolar disorder affects a person's ability to appreciate the wrongfulness of his or her conduct.
The district court also heard testimony from Mr. Patrick Gallagher, an employee of York Hospital. Mr. Gallagher had been the mental health counselor at York County Prison in July, 1991. He testified that he saw Kauffman on his admission to York County Prison on July 24, 1991, and that Kauffman was clearly psychotic at that time. He recalled discussing Kauffman's condi- tion with Dr. Jacob Stacks, the supervising physician and psychiatrist, perhaps as early as July 26, 1991, and that both he and Dr. Stacks agreed that Kauffman should be committed to a psychiatric facility.
Mr. Gallagher further stated that on or about July 26,
1991, Kauffman was engaging in "jerky" movements, was very suspicious and angry, was suffering from a thought disorder, was out of touch with reality, did not understand the consequences of his actions and would not have appre- ciated the wrongfulness of any criminal conduct. In fact,
**8 Mr. Gallagher recalled that Kauffman attacked a guard on or about July 26, 1991, and as a result was placed in isolation.
Robert H. Davis, M.D., a Board Certified Psychiatrist at the Harrisburg State Hospital, also testified on behalf of Kauffman as an expert. Dr. Davis testified that Kauffman was suffering from a severe mental disease such that he was unable to appreciate the wrongfulness of his acts. He further stated that had an attorney come to him regarding the viability of an insanity defense in this case, he would have advised the attorney that such a defense would be viable:
He has a clear history of a major psychiatric disorder. The history of the disorder predates
the crime for which he is being charged. So it is a well documented history. And the nature of his disorder is one that leads to impaired judgment, psychotic symptoms. And that is the type of disorder that very much often leads to a very successful insanity defense. C.
After hearing the testimony on Kauffman's psychiatric condition, the district court concluded that Kauffman's former attorney, Steven Zorbaugh, did not render ineffec- tive assistance when he declined to pursue investigation into an insanity **9 defense by conducting research and interviewing potential witnesses. The district court also concluded that Kauffman failed to make a showing of prejudice attributable to Zorbaugh's actions.
The district court reasoned that Zorbaugh's failure to pursue any investigation into an insanity defense was based on two legitimate considerations. First, Kauffman admitted he had the guns in question and made arrange- ments with a dealer to sell them for profit. This, Zorbaugh believed, showed that Kauffman knew what he was doing and appreciated the nature and quality of the acts. Second, Kauffman had entered into a prior detailed plea colloquy at the state court level in which he acknowledged his guilt on the charge of receiving stolen property (the guns which are the subject of the federal charge). Because Zorbaugh was faced with two impediments to an insanity defense, on the one hand, and the potential for a downward de- parture motion for substantial assistance on the other, the district court determined that he had made a reasonable tactical decision to advise his client to plead guilty.
II. A.
HN2 A court must be "highly deferential" to coun- sel's decision and there is a "strong presumption" **10 that counsel's performance was reasonable. Strickland v. Washington, 466 U.S. 668, 689, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). "The defendant must overcome the pre- sumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at
109 F.3d 186, *190; 1997 U.S. App. LEXIS 5868, **10
Page 5
*190 689. "It is only the rare claim of ineffective as- sistance of counsel that should succeed under the properly deferential standard to be applied in scrutinizing counsel's performance." United States v. Gray, 878 F.2d 702, 711
(3d Cir. 1989).
HN3 In order for a defendant to gain relief because his counsel was ineffective, the defendant must satisfy the two-pronged test announced in Strickland v. Washington,
466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). The defendant must show "(1) that counsel's representa- tion fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel's error, the result would have been different." United States v. Nino, 878 F.2d 101, 103 (3d Cir. 1989), citing Strickland, 466 U.S. at 687-96. Both Strickland prongs must be met. Nino, 878 F.2d at 104.
HN4 This two-part test is applicable to petitioners who challenge the effectiveness of counsel after the en- try of **11 a guilty plea. Hill v. Lockhart, 474 U.S.
52, 88 L. Ed. 2d 203, 106 S. Ct. 366 (1985). When such persons enter a plea of guilty on the advice of counsel, the voluntariness of the plea depends on whether there is a reasonable probability that, but for counsel's errors, the defendant would have proceeded to trial instead of plead- ing guilty. Parry # BH-2648 v. Rosemeyer, 64 F.3d 110,
118 (3d Cir. 1995). A reasonable probability is one which is "sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
B.
In applying the first prong of Strickland's two- part test, we must determine whether Kauffman's prior counsel exercised reasonable professional judgment de- spite his failure to pursue an investigation of a letter from Kauffman's treating psychiatrist which stated that Kauffman was manic and psychotic at the time of the commission of the offense.
As we explained in United States v. Gray, 878 F.2d
702 (3d Cir. 1989), " HN5 failure to conduct any pre- trial investigation generally constitutes a clear instance of
ineffectiveness." Gray, 878 F.2d at 711. See also Code v. Montgomery, 799 F.2d 1481, 1483 (11th Cir. 1986)
(counsel's performance fell below competency standard where **12 he interviewed only one witness); Nealy v. Cabana, 764 F.2d 1173, 1177 (5th Cir. 1985) ("At a minimum, counsel has the duty to interview potential witnesses and to make an independent investigation of the facts and circumstances of the case."). While counsel is entitled to substantial deference with respect to strategic judgment, an attorney must investigate a case, when he has cause to do so, in order to provide minimally compe- tent professional representation. Gray, 878 F.2d at 711. Here, Zorbaugh admitted that even though he had a letter from Kauffman's psychiatrist concerning Kauffman's mental condition, he did not pursue any in- vestigation into an insanity defense. While we recognize that Zorbaugh may have found the strength of the gov- ernment's case daunting, we can imagine no reasonable professional calculation which would support Zorbaugh's failure to conduct any pre-trial investigation into the facts and law of an insanity defense under the circumstances of this case. See Strickland, 466 U.S. at 690-91 HN6
(" A court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case."). **13
Only if Zorbaugh had investigated Kauffman's long history of serious mental illness, and conducted some legal research regarding the insanity defense could his counseling be characterized as "strategy." Instead, his failure to investigate or research the insanity issue at all resulted in a cursory, uninformed judgment call which deprived Kauffman of the affirmative defense of insanity and the meaningful representation which the Constitution requires. Accordingly, we conclude that Zorbaugh's per- formance fell below an objective standard of reasonable- ness, and that Kauffman has satisfied the first prong of Strickland.
C.
The fact that counsel was ineffective is not in itself sufficient to grant relief under
109 F.3d 186, *191; 1997 U.S. App. LEXIS 5868, **13
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*191 Strickland. HN7 Under Strickland's second prong (the "prejudice" requirement), if the ineffectiveness alleged was a failure to investigate thoroughly, which in turn caused the defendant to plead guilty, the defendant must show a likelihood that some evidence would have been discovered which would have caused the attorney to change his recommendation to enter into a plea agree- ment. See Hill v. Lockhart, 474 U.S. 52, 59, 88 L. Ed.
2d 203, 106 S. Ct. 366 (1985). In other words, Kauffman must show that **14 Zorbaugh's representation fell be- low an objective standard of reasonableness, and that but for Zorbaugh's errors, Kauffman would have insisted on going to trial rather than plead guilty. 474 U.S. at 56-60. In this case, minimal factual investigation by Zorbaugh would have uncovered Kauffman's long- standing history of bipolar syndrome and his numerous psychotic episodes leading to multiple psychiatric hos- pitalizations, all of which preceded the offense of July
24, 1991. In addition, several doctors were willing to tes- tify that Kauffman was hypomanic on his release from Edgewater Psychiatric Center on July 19, 1991, and to- tally psychotic by the time he reached York County Prison. While it is unlikely that we can determine with preci- sion what the result of the proceedings would have been if counsel had not erred, the breadth of evidence adduced at the evidentiary hearing is sufficient to undermine our confidence that Zorbaugh would have advised his client to plead guilty rather than proceed to trial and that Kauffman would have accepted that advice. Parry # BH-2648 v. Rosemeyer, 64 F.3d 110, 118 (3d Cir. 1995). Thus, the defendant has met his burden of showing a reasonable probability **15 that the outcome of these proceed- ings would have been different had his counsel not failed in his duty to investigate the evidence obtainable from various health professionals. See United States v. Nino,
878 F.2d 101, 103 (3d Cir. 1989), citing Strickland v. Washington, 466 U.S. 668, 687-96, 80 L. Ed. 2d 674,
104 S. Ct. 2052 (1984). This evidence was crucial in pro- viding background information supporting an affirmative defense to the crime, and casting doubt on the govern- ment's case with respect to Kauffman's criminal intent.
We therefore conclude that the district court's deter- mination that Zorbaugh's ineffective assistance did not
prejudice Kauffman cannot stand. For these reasons, we will reverse and remand for a new trial. n3
n3 . Since we are satisfied that Zorbaugh's fail- ure to conduct the proper pre-trial investigation requires reversal, we need not explore Kauffman's subsidiary arguments regarding Zorbaugh's ques- tionable legal advice on the issue of downward de- parture, nor his contention that Zorbaugh should be deemed per se ineffective due to his own emotional problems, which Zorbaugh himself described to the district court.
**16
III.
For the foregoing reasons, the order of the district court denying Kauffman's motion under 28 U.S.C. § 2255 will be reversed, and this case will be remanded with di- rections to grant Kauffman's motion to vacate, set aside or correct the sentence and to grant Kauffman a new trial.
DISSENTBY: ALITO
DISSENT: ALITO, Circuit Judge, dissenting:
Steven Zorbaugh, Kourtney Kauffman's attorney, ad- vised Kauffman that he should plead guilty to a charge of possession of a firearm by a convicted felon rather than proceed to trial and present an insanity defense. The ma- jority holds that because of Zorbaugh's "failure to investi- gate or research the insanity issue at all," this advice was "a cursory, uninformed judgment call" (Maj. Op. at 12) so in- excusable as to fall outside "the wide range of reasonable professional assistance," Strickland v. Washington, 466
U.S. 668, 689, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984)
(citation omitted), within which counsel may make tacti- cal decisions without fear of judicial second-guessing. I believe that in light of the particular facts of this case -- specifically, the knowledge that Zorbaugh already pos- sessed by virtue of his prior representation of Kauffman on the related state charges -- **17 Zorbaugh's advice is properly viewed under our precedents as a tactical deci- sion that, while perhaps debatable, remains safely within the expansive realm of
109 F.3d 186, *192; 1997 U.S. App. LEXIS 5868, **17
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*192 constitutional reasonableness. I therefore respect- fully dissent.
The majority relies heavily on our statement in United
States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989), that
"failure to conduct any pretrial investigation generally constitutes a clear instance of ineffectiveness," and upon Zorbaugh's admission that he "did not pursue any investi- gation into an insanity defense." Maj. Op. at 11 (emphasis in original). This case, however, is crucially different from Gray. In that case, the defendant had told his attorney that there were numerous eyewitnesses and had provided him with the names of several and information with which to locate others. 878 F.2d at 711-12. Nevertheless, the attorney did not contact any of the witnesses, did not visit the scene of the incident that led to the defendant's arrest, did not take any action whatsoever designed to investi- gate his client's theory of self-defense, and did not hire or seek funds to hire an investigator to perform any of these tasks. Id. Instead, the attorney took **18 Gray's case to trial and presented a theory of self-defense without doing anything to try to ensure the viability of that defense. As we emphasized, "counsel offered no strategic justification for his failure to make any effort to investigate the case, and indeed he could have offered no such rationale." Id. at
711. In fact, the government conceded in that case that the attorney's "behavior was not colorably based on tactical considerations but merely upon a lack of diligence." Id. at 712. It was under these circumstances that we invoked counsel's duty to investigate, explaining that "ineffective- ness is generally clear in the context of complete failure to investigate because counsel can hardly be said to have made a strategic choice against pursuing a certain line of investigation when s/he has not yet obtained the facts on which such a decision could be made." Id. at 711.
The instant case is significantly different. Here, Zorbaugh had already represented Kauffman in connec- tion with state charges arising out of the same incident as the federal charge. During that prior state represen- tation, Zorbaugh had discussed the possibility of an in-
sanity defense with Kauffman but **19 had advised him to plead guilty because the Commonwealth was offering a plea bargain of time served and Kauffman was primarily concerned with getting out of jail. Thus, when he began to represent Kauffman in the federal case, Zorbaugh was already familiar with the facts and circumstances of Kauffman's allegedly criminal conduct and with Kauffman's mental condition. In particular, Zorbaugh knew that Kauffman had hidden the guns in a blanket in a remote barn and had negotiated a sale of one of them. At the evidentiary hearing in the district court, Zorbaugh testified that he believed that Kauffman's actions showed planning, concern for secrecy, and desire for profit, all of which, in his view, tended to show that Kauffman appreciated the nature and wrongfulness of his conduct. Moreover, Zorbaugh knew that at the state-court plea hearing, Kauffman had admitted, on the record, that he knew what he was doing and that he knew it was illegal. Zorbaugh testified that he recalled Kauffman's giv- ing him Dr. Stacks' letter, which described Kauffman as manic and psychotic at the time of the offense and thus indicated the possibility of an insanity defense. However, Zorbaugh stated that he did **20 not pursue the issue because he believed that, given Kauffman's actions and his state-court plea colloquy, an insanity defense was not likely to be successful. In addition, Zorbaugh had known Kauffman for over a year and had observed Kauffman's behavior. As the government's brief points out, Zorbaugh thus knew that Kauffman appeared normal, that his men- tal condition was easily controlled by medication, and that it was Kauffman's own choice whether or not to take the medication. While it is true that the doctors who testified in support of Kauffman at the evidentiary hearing were able to explain how a manic individual could appear to an observer to understand the nature and wrongfulness of his actions and yet suffer from such impaired judgment as to be disconnected from reality, Zorbaugh was familiar with Kauffman's behavior and reasonably believed that
Kauffman simply did not present the compelling
109 F.3d 186, *193; 1997 U.S. App. LEXIS 5868, **20
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*193 picture of insanity that a paranoid schizophrenic, for example, might present. Accordingly, Zorbaugh con- cluded that a jury would be unlikely to accept an insanity defense.
Under these circumstances, Zorbaugh's decision, un- like the dereliction of the defense attorney in Gray, can
**21 be said to be a "strategic choice against pursuing a certain line of investigation," because Zorbaugh was al- ready in possession of "the facts on which such a decision could be made." Gray, 878 F.2d at 711. Cf. Jones v. Page,
76 F.3d 831, 843 (7th Cir. 1996) ("if it is reasonable in the circumstances not to conduct a particular investigation,
a lawyer's failure to do so will not establish ineffective representation") (quoting Earl v. Israel, 765 F.2d 91, 93
(7th Cir.), cert. denied, 474 U.S. 951, 88 L. Ed. 2d 300,
106 S. Ct. 350 (1985)) (emendations in original); Crisp v. Duckworth, 743 F.2d 580, 583 (7th Cir. 1984) (recog- nizing that "there may be unusual cases when an attorney can make a rational decision that investigation is unnec- essary"), cert. denied, 469 U.S. 1226, 84 L. Ed. 2d 361,
105 S. Ct. 1221 (1985). I therefore believe that this case is critically different from Gray.
The other two cases on which the majority relies - Code v. Montgomery, 799 F.2d 1481 (11th Cir. 1986), and Nealy v. Cabana, 764 F.2d 1173 (5th Cir. 1985) -- are dis- tinguishable as well. In Code, the attorney "attempted to present an alibi defense with no alibi witnesses." 799 F.2d at 1484. As the court unsurprisingly observed, **22 the attorney's conduct was "wholly unsupported by reason- able professional judgment; although his sole strategy was to present an alibi defense, he terminated his investigation without determining whether the one witness he contacted could provide an alibi." Id. In contrast, Zorbaugh's strat- egy was to obtain a plea agreement, encourage Kauffman to cooperate, and hope that the government would move for a downward departure, and Zorbaugh acted reason-
ably in furtherance of that strategy. His conduct can in no way be equated with that of an attorney who goes to trial with only one conceivable defense and no witnesses in support of it.
In Nealy, the attorney also prepared an alibi defense but took only minimal steps to attempt to contact one alibi witness and did nothing to attempt to contact two others, resulting in a similar presentation of an alibi defense at trial without alibi witnesses. See 764 F.2d at 1175-76. Since the attorney did not even argue that his conduct was
"part of a calculated trial strategy," the court concluded that he "simply failed to make the effort to investigate," and held that he had furnished constitutionally defective assistance. Id. at 1178. **23
Under the circumstances of this case, it seems to me that Zorbaugh's decision to recommend a guilty plea with- out further investigation of a possible insanity defense did not violate Sixth Amendment standards. Familiar with the nature of Kauffman's conduct, his state-court guilty plea colloquy, his normal appearance, and the other circumstances mentioned above, Zorbaugh had grounds for questioning the wisdom of going to trial with an insanity defense. Moreover, like most expe- rienced defense attorneys, Zorbaugh also undoubtedly knew that "successful invocation of the insanity defense is rare." AMERICAN PSYCHIATRIC ASSOCIATION, STATEMENT ON THE INSANITY DEFENSE 5 (1982). n4 Accordingly, I am unable to conclude that Zorbaugh's recommendation to plead guilty, cooperate with the gov- ernment, and hope for a motion for downward departure was so indefensible as to overcome the "strong presump- tion that his conduct falls within the wide range of pro- fessional assistance." Strickland, 466 U.S. at 689. While the majority recites that "counsel is entitled to substantial deference with respect to strategic judgment,"
109 F.3d 186, *194; 1997 U.S. App. LEXIS 5868, **23
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*194 (Maj. Op. at 11) in my view it fails to heed that important admonition. n5 **24
n4 Only 38 defendants were found not guilty by reason of insanity in federal courts nationwide in fiscal year 1995. U.S. Dept. of Justice, Statistical Report: United States Attorneys' Offices, Fiscal Year 1995, at 46. In fiscal year 1994, only 49 de- fendants were found not guilty by reason of insan- ity. U.S. Dept. of Justice, Statistical Report: United States Attorneys' Offices, Fiscal Year 1994, at 46. n5 . I do not believe that Kauffman's "subsidiary arguments", Maj. Op. at 14 n.3, require extended discussion. Kauffman argues that Zorbaugh's rep- resentation should be deemed per se ineffective be- cause Zorbaugh was experiencing mental problems of his own. He also contends that Zorbaugh ren- dered ineffective assistance by advising Kauffman that, if he did not plead guilty and accept respon- sibility, he would have no chance of receiving a motion for downward departure, as well as by lead- ing Kauffman to believe that if he cooperated with
the government, he might receive probation.
As for the first contention, it is undisputed that Zorbaugh experienced emotional problems at or near the times in question, but Kauffman has failed to present any evidence that Zorbaugh was incapac- itated to such an extent as to merit being deemed
per se ineffective. Kauffman's second contention is completely meritless. While it is true that accep- tance of responsibility and a motion for downward departure are technically distinct issues, Zorbaugh did not act unreasonably in advising Kauffman that he would be effectively foreclosed from receiving the latter unless he did the former. Kauffman argues that the existence of the 15-year mandatory mini- mum under which he was sentenced made it unrea- sonable for Zorbaugh to represent that if Kauffman cooperated, he might receive probation. However, Kauffman's argument overlooks the fact that if the government had moved for a downward departure
(it did not, apparently because Kauffman was ei- ther unable or unwilling to provide the requisite assistance), the court could have departed from the otherwise-mandatory sentence and imposed proba- tion. While this was perhaps unlikely, it was not un- reasonable for Zorbaugh to inform Kauffman that the likelihood of receiving probation "really de- pends on how successful and how much he is able to cooperate." App. 248. The district court found that Kauffman had understood that he would likely receive the 15-year mandatory minimum and that he had not been promised probation. I perceive no basis to overrule this finding.
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