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Ineffective Assistance– trial counsel’s crafting of idiosyncratic defense and failure to secure assistance of expert witness leads to overturning of decision rejecting claim of ineffective assistance in defense of child sex conviction: United States v. Brandon Laureys, _ F.3d _ (D.C. Circuit, No. 15-3032, August 8, 2017).

Brandon Laureys was convicted by a jury of attempted coercion and enticement of a minor and travel with intent to engage in illicit sexual conduct. The offense arose from an online encounter with an undercover detective with whom Laureys enthusiastically envisioned sexual encounters with a nine year-old girl. In United States v. Laureys, 653 F.3d 27, 35 (D.C. Cir. 2011), Laureys’ challenge that there was insufficient evidence of intent faltered but the panel remanded his claim of ineffective assistance of counsel to the district court. Following an evidentiary hearing at which his claims were rebuffed, Laureys appealed again. This time, in an opinion written by Circuit Judge Pillard, the Circuit concluded that Laureys’s trial counsel’s “grievously misguided effort to employ a mental health expert in his client’s defense was so flawed as to be ‘the sort of serious blunder that will singlehandedly support a Strickland [v.  Washington, 466 U.S.  668, 687-88, 694 (1984)] claim.’” (Slip Op. at 14) (quoting United States v. Hurt, 527 F.3d 1347, 1356 (D.C. Cir. 2008)).

Laureys was a young man with a prior federal sex offense conviction. In 2008, through an internet chat room, he unwittingly ensnared himself in the clutches of Timothy Palchak, a local detective who was posing as a man offering a sexual relationship with his “girlfriend’s”nine year-old daughter. Laureys expressed interest in joining them both for sex (“’you gotta invite me over . . . let me help with the little girl . . . train the little gir[l, man] . . . make her into a good little whore’”). (slip op. at 2). After a series of increasingly sexually-tinged chats, Laureys suggested “’let her meet me and everything first . . . make sure she wants to do it haha . . . could start with just letting me watch her an[d you]. . . til she feels more comfortable.’” (Id. at 3.)  For Laureys, the facts got worse — or so it would seem, at least to most people. After Palchak emailed Laureys a picture of a young girl, to which Laureys responded “‘you fucking NEED to let me hang out with her man.’” (Id.) After twice exchanging information about their own physical characteristics, Palchak and Laureys arranged to meet in D.C. When Laureys arrived at Palchak’s location, Laureys was arrested and later convicted of attempted coercion and enticement of a minor (18 U.S.C. § 2422(b)), and travel with intent to engage in illicit sexual conduct (18 U.S.C. § 2423(b)). (Id).

This would have been a daunting case for anyone to defend. Trial counsel contacted Dr. Frederick Berlin, a specialist in sexual disorders at Johns Hopkins University School of Medicine, about potentially serving as an expert witness to support the theory that Laureys lacked the requisite intent, because he had merely been fantasizing about sex with the girl in his chat but really wanted to meet with Palchak for an assignation. Meanwhile trial counsel conducted his own internet search and conjured a different theory – notably one without support in scholarly research (Slip Op. at 15) – that Laureys suffered from “cybersex addiction,” meaning that his “cybersex addiction and sexual compulsivity prevented him from forming the requisite intent.” (Slip Op. at 3-4).

In the event, communication between defense counsel and Dr. Berlin was, in the panel’s laconic characterization, “sparse.” (Slip Op. at 4). Shortly before trial, the Trial Judge cautioned counsel at several status conferences that the proposed defense appeared more grist for sentencing than for adjudicating guilt or innocence, to the point of questioning why the defense wasn’t proffering Dr. Berlin, in lieu of what the District Judge characterized as a “‘will of the wisp’” theory. (Id. at 4-5). Tellingly, the experienced Trial Judge offered to continue the trial if counsel could persuade Dr. Berlin to support the notion of an “Internet sexual compulsive” diagnosis, meaning the victim ‘doesn’t have a yes/no mechanism.’” Dr. Berlin demurred and the case went to trial. Laureys testified in support of his fantasy defense and effectively self-immolated with claims that a member of the original panel had found “‘disturbing and graphic.’” (Slip. Op. at 7) quoting Laureys, 653 F.3d at 37 (Henderson, J., concurring in part and dissenting in part).

On remand, Dr. Berlin testified to two significant matters. First, he could have addressed “the prevalence of fantasy in internet chat rooms, how the internet facilitates sexual behaviors for vulnerable persons, Laureys’ mental health issues and how they affect his behavior, and the meaning of certain internet slang terms used to describe sexual activity.” Crucially, Dr. Berlin “observed that online fantasizing can seem very real, but a layperson would not necessarily know that, and that a person could be aroused by talking about child sex without then proceeding to seek sex with children.” (Slip Op. at 8). Second, Dr. Berlin would have rebutted aspects of Palchak’s “quasi-expert assertions” claims and explained to the jury “that significant numbers of chat participants are interested in meeting one another to have adult sex while fantasizing about children;” that “it can be very difficult to distinguish chats in which adults are arranging for sex with children from chats in which adults are arranging to meet one another and pretending that a child will join them” and that given Laureys’ “history of promiscuity with adult men” and prior similar chat transcripts with other adult males, “there was a high likelihood that Laureys was interested in having sex with Palchak while fantasizing about children.” (Id.).

A new trial court rejected Laureys’ claims of ineffective assistance. United States v. Laureys, 103 F. Supp. 3d 69 (D.D.C. 2015). Laureys appealed and a panel comprised of Judges Rogers, Pillard and Tatel unanimously reversed.  Applying a de novo standard of review, the Circuit observed that “‘[P]sychiatry has come to play [a pivotal role] in criminal proceedings,’ such that in cases turning on the defendant’s mental state, ‘the assistance of a psychiatrist may well be crucial to the defendant’s ability to marshal his defense.’” (Slip Op. at 10) (citing Ake v. Oklahoma, 470 U.S. 68, 79–80 (1985)). Here, the question was whether trial counsel, having correctly identified the need for a mental health expert, had failed to provide that expert at trial and that failure “‘fell below an objective standard of reasonableness.’” (Slip Op. at 11) (quoting Strickland, 466 U.S. at 687–88). The panel unhesitantly concluded that he had.

The fatal flaw lay in trial counsel’s seeking expert support for an internet compulsivity diagnosis “that trial counsel had arrived at through his own online research, which would support a defense of diminished capacity.” Worse yet, “as Dr. Berlin testified on remand, trial counsel led Dr. Berlin to believe that counsel was interested in establishing only this diminished capacity defense,” such that “Trial counsel focused Dr. Berlin on an invalid diminished capacity defense to the exclusion of all other possible defenses.” (Slip Op. at 12) (emphasis original). Pointing to Laureys’ adroit questioning on remand, the panel explained “Indeed, when afforded the opportunity on remand, trial counsel could point to no evidence that he had sought from Dr. Berlin any such beneficial testimony, rather than testimony on diminished capacity. Even if it was not actually trial counsel’s intent to limit Dr. Berlin’s inquiry, his single-minded pursuit of a particular diagnosis had the effect of denying his client Dr. Berlin’s services.” (Id. at 13).

There was more: “trial counsel also unreasonably failed to secure a different mental health expert when it became doubtful that Dr. Berlin would testify. Just as trial counsel placed all of his hopes on a particular defense, he placed all of his hopes on obtaining expert testimony from Dr. Berlin, despite Dr. Berlin’s continued scheduling conflicts, his persistent refusal to speculate about the requested diminished capacity diagnosis, and the trial judge’s repeated skepticism that Dr. Berlin would come through as trial counsel envisioned.”  “In these circumstances, a prudent attorney would at a minimum have sought an alternative source.” Although defense counsel made some “‘last stab’” efforts to secure another expert, in the end “nothing in the record suggests that he requested another continuance to allow him to secure a different expert when that failed. Instead, counsel took the case to trial with only Laureys, who suffers from a serious mental illness, left to explain his own intent.” (Slip Op. at 13-14).

In the end, the panel explained, “trial counsel lost sight of how Dr. Berlin could have placed his client’s conduct in a clinical context and mitigated the effects of evidence offered by the government and by Laureys himself. Indeed, there was some indication that trial counsel failed altogether to appreciate the benefits of the relevant and appropriate mental health testimony explaining pedophilic fantasy, which could have bolstered Laureys’ fantasy defense.” (Slip Op. at 14) (citing United States v. Hite, 769 F.3d 1154, 1170 (D.C. Cir. 2014)). For instance, “Counsel admitted that he had never handled an insanity defense, and yet he appears to have considered himself qualified, as a layperson, to effectively diagnose his client as an ‘Internet sexual compulsive’ and pursue confirmation of a diminished capacity diagnosis with potential experts. Nothing in the record even confirms that ‘Internet sexual compulsive’ is a mental disorder recognized by the American Psychiatric Association.” (Id. at 15).

Describing the defense case as it played out as a “slow-moving train wreck, one set in motion long before Dr. Berlin’s eventual exit,” and drawing from such precedent as Judge Kavanagh’s masterful opinion in United States v. Nwoye, 824 F.3d 1129, 1139–40 (D.C. Cir. 2016) (recognizing need for expert testimony on the battered woman syndrome), the panel found Laureys to have been prejudiced. Adding fuel to the proverbial fire, the panel noted that “the lack of a mental health expert also prejudiced Laureys by leaving him unable to rebut dubious, quasi-expert testimony by Detective Palchak.” (Slip Op. at 15-17). Emphasizing that “the significance of Dr. Berlin’s perspective cannot be underestimated,” the court reversed and remanded the cause. (Id. at 18).

On a sweltering day in Washington, you’re pulling for the Good Humor truck’s tingling bell, the Nats to win, and the Circuit to deliver a reversal. And it converged oh-so-deliciously: on her first at bat in the majors, Rebecca Brodey parked the Government into the way-far-out bleachers, aided on brief by Barry Boss, who tried the case with her assistance on remand. And yes, the Nats won and the vanilla ice cream was yummy.

  • Steve Leckar, of counsel to Kalbian Hagerty LLP, enjoys following and occasionally arguing in the D.C. Circuit. Full disclosure: I represented Mr. Laureys in his first appeal.
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