Lawyer Ineffective for Failure to Investigate, Request Medical Records Indicating Possible Insanity; (Be careful what you ask for…)
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
Spencer Ojeifo Imoudu was not a normal individual. In August 2005 the Bexar County resident stole a vehicle parked outside a pawn shop. The vehicle belonged to the owner of the pawn shop. He, and another witness, saw Imoudu get in the vehicle and drive off. The two men raced to the witness’s truck and sped away after Imoudu. During the high speed chase, Imoudu turned into oncoming traffic, crashing head on into an oncoming vehicle. The driver of the other vehicle was killed. Imoudu was arrested and charged with felony murder and manslaughter. He eventually pled guilty to the two charges in exchange for a 17-year sentence with an affirmative finding of a deadly weapon. 1/
Appellant was initially represented by a court-appointed attorney. This changed after Imoudu’s father visited him in the county jail where the father found his son not acting normally. The father spoke to a jail social worker who informed him that she had noticed his son’s mental health deteriorating. The social worker had attempted to contact Imoudu’s court-appointed attorney, but the attorney had not returned any of her calls. The social worker suggested that the father retain another attorney to represent his son. 2/
The father accepted the social worker’s suggestion. In March 2006 Imoudu’s father retained a new attorney and the court-appointed attorney was dismissed. The retained attorney visited Imoudu in jail and found him staring “into space” and striking “an odd pose with his fingers on his chin” and mumbling incoherently. The attorney’s co-counsel also met with Imoudu and left feeling there was “something wrong” with him. 3/
Quite naturally the new attorney filed for a competency examination after these two separate attorney/client meetings. The trial court appointed a psychiatrist to evaluate Imoudu and followed up by conducting a competency hearing. The court-appointed expert testified at the hearing that he believed Imoudu was competent to stand trial. Imoudu, who was taking anti-psychotic medication at the time, also testified at the hearing. After hearing his client testify, Imoudu’s attorney conceded that his client was competent to stand trial. A month later Imoudu at his attorney’s suggestion accepted a plea deal offered by the state and pled guilty in exchange for the 17-year sentence. 4/
Once in prison Imoudu obtained a new attorney who filed an application for writ of habeas corpus charging that Imoudu’s trial attorney failed to investigate whether his client was insane at the time of the offense and failed to inform him about a possible insanity defense before advising him to plead guilty. Imoudu’s family hired a psychiatrist to review Imodu’s medical records and this expert concluded that the inmate had a “chronic mental illness, probably schizophrenia, and was likely insane at the time of the offense.” 5/
Imoudu’s habeas attorney argued before the trial court that had Imoudu’s trial attorney obtained those medical records and hired a psychiatrist to review them, the expert would probably have drawn the same conclusion as the habeas psychiatrist that Imoudu was insane at the time of the offense. The habeas attorney also suggested that had Imoudu and his family known about a possible insanity defense, the defendant would have rejected the plea deal and stood trial.
There was no evidence that Imoudu had ever received mental health treatment in the free world, but he had compiled an extensive mental health record during periods when he was in jail. In 2005, some six months before he was arrested for the felony murder, he was arrested and placed in jail on a misdemeanor theft offense. During that early 2005 incarceration, he was prescribed Stelazine, an anti-psychotic drug used to treat schizophrenia. The theft charge was dismissed and Imoudu was released after spending a month in jail. After his arrest on the felony murder charge, he compiled an even more extensive mental health record and eventually had to be assigned to a wing in the jail where mentally ill inmates were housed. Jail mental health personnel monitored his behavior and determined he suffered from “significant … mental illness.” They prescribed the drugs Haldol and Depakote to handle their “possible diagnosis of schizophrenia.” 6/
After reviewing all the foregoing information, the Texas Court of Criminal Appeals (“CCA”) on June 3, 2009 reversed Imoudu’s convictions and sentence, finding that he had been denied his Sixth Amendment right to effective assistance of counsel. 7/ The CCA offered the following reasons for its finding:
”In his affidavit, one of Applicant’s attorneys stated that he received a letter from Applicant: ‘Much of it was gibberish. However, he wrote that he was attending programs for illness’ and taking various prescription medications.’ This led the attorneys to request a competency examination, but they never investigated whether he was insane at the time of the offense, did not review his jail medical records or speak to any of the jail personnel who had contact with him after his arrest, did not request an insanity evaluation or hire a psychiatrist to evaluate Applicant’s mental condition at the time of the offense, and did not advise him of the insanity defense.
”Given Applicant’s odd behavior when the attorneys met him, the concerns expressed to the attorneys by his family, and the fact that the attorneys were retained on the advice of the social worker who had observed Applicant’s decline in mental-health, Applicant’s attorneys should have been alerted that his mental health at the time of the offense may have been in question and thus, they should have looked into past medical records from the jail. Applicant’s other attorney filed an affidavit stating, ‘I explained the [plea] offer to [Applicant] and his family and recommended that he accept it due to my concerns about how [Applicant] would act and what he might say during the punishment hearing in any attempt at mitigation.’ If the attorney was so concerned about Applicant’s bizarre behavior that he recommended that Applicant accept the State’s plea offer, he should have considered that the bizarre behavior could indicate that Applicant may have been insane at the time of the offense–at least enough to have looked into it.
”Thus, we feel that counsel had a duty to investigate the possibility that Applicant was insane at the time of the offense given the likelihood of mental illness noted in reports from jail medical personnel. Instead, counsel failed to even obtain Applicant’s medical records. If they had, it would have been clear from even a cursory reading of the documents that Applicant was suffering from some mental problems while he was incarcerated. This leads us to conclude that counsel was ineffective for failing to investigate whether Applicant was insane at the time of the offense.” 8/
Having determined that Imoudu had received ineffective assistance of counsel, the CCA had to next determine under U.S. Supreme Court precedent whether Imoudu suffered “prejudice” as a result of the ineffective representation. This required the CCA to find that had Imoudu known about the possible insanity defense, he would not have pled guilty. In finding that Imoudu had in fact been prejudiced by the ineffective representation of trial counsel, the CCA relied upon affidavits from Imoudu and his family. 9/
In his affidavit, Imoudu stated: “The lawyers did not discuss an insanity defense with me. Had they hired a psychiatrist to evaluate me, the psychiatrist concluded that I was insane at the time of the offense, and the lawyers explained the insanity defense to me, I would have rejected the plea bargain, pled not guilty by reason of insanity, and gone to trial.”
The affidavit by Imoudu’s father echoed the same sentiments, saying: “[t]he lawyers did not advise me of the insanity defense or request funds to hire a psychiatrist to determine whether [Applicant] was insane at the time of the offense. I would have provided funds upon request. Had a psychiatrist concluded that [Applicant] was insane at the time of the offense, and the lawyers advised me of the insanity defense, I would have encouraged [Applicant] to plead not guilty by reason of insanity and go to trial.”
This was a difficult case for Imoudu’s trial attorneys and underscores the complexities involved in insanity cases. The CCA was particularly critical of Imoudu’s attorneys because they had observed the strange and bizarre behavior Imoudu exhibited during their initial interviews with him. But as Chief Judge Sharon Keller pointed out in dissent in the Imoudu case, individuals suffering from “mental problems” does not necessarily mean they are legally insane. “Legal insanity involves a failure to appreciate the illegality of one’s conduct,” Judge Keller observed, “and very few people with mental illness are actually insane.” 10/
Imoudu’s attorneys had observed their client testify in a rational manner at the competency hearing, and only after that testimony did they concede the point that Imoudu was competent to stand trial. While it certainly would have been preferable for Imoudu’s attorneys to have secured their client’s jail mental health records, neither Imoudu or his family had offered any indication that Imoudu suffered from mental illness while in the free world. The mental illness, and symptoms of schizophrenia, apparently surfaced only when Imoudu found himself in jail.
For example, Judge Keller also pointed to Imoudu’s testimony at the competency hearing as a basis for finding him competent to stand trial: “Okay, Juan was out, you know, with the car running and I was in the parking lot plaza over here southeast. The car was started and I went inside the car, got inside the passenger’s seat and then I went to the driver’s seat and then I sped off the parking lot and then I went to, like, the freeway, the highway exit, and I was in traffic. And then when I exited the highway, I kept going straight. I was on the freeway and I kept on going straight. And then they said that there was a T-bone collision. By that time, Juan already followed me. He got into another car. He was hitchhiking. Well, not hitchhiking. He got into another car and he was chasing me. They were on the phone trying to get the police. By the time the accident happened, the police, they showed up.”
It was that kind of coherent testimony, both on direct and cross-examination, given by Imoudu at the competency hearing that prompted his trial attorneys to concede his competency to stand trial, and no doubt influenced their tactical decision not to request his jail mental health records.
Having determined that an insanity defense was not a viable strategic choice, Imoudu’s attorneys worked to secure the best possible plea deal they could for their client. And in that regard they were successful. Imoudu committed a serious felony murder. He stole a car and killed an innocent person with it. He was facing life imprisonment. His attorneys negotiated a relatively lenient 17-year plea deal. By any reasonable barometer, that was a favorable outcome.
Imoudu is now back at square one. He is facing felony murder and manslaughter charges. His only defense is insanity; and Texas juries are not inclined to accept that defense. If a jury rejects the insanity defense and finds Imoudu guilty of felony murder, the jury (or the judge) could more assess a punishment far more severe than 17 years.
The Imoudu case actually underscores the complexities associated with the insanity defense. It is a difficult—if not virtually impossible in most cases—defense to establish. That’s because mental illness per se does not constitute legal insanity; therefore, the only safe way to navigate through this complex issue is that once an attorney determines there is a need for a competency examination, every facet of the defendant’s mental health history should be thoroughly investigated and vetted with the defendant prior to any strategic decision about whether to proceed to trial or opt for a plea deal, if one is on the table. In hindsight, that is what Imoudu’s attorneys should have done, even though many would argue the end result of their representation produced a favorable outcome for their client.
1/ Ex parte Spencer, 2009 Tex.Crim.App. LEXIS 730 (Tex.Crim.App. June 3, 2009)
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair