Tuesday, August 8, 2017

Ineffective Assistance In Failure To Pursue Fantasy Defense

The United States Court of Appeals for the District of Columbia Circuit granted a new trial on a showing of ineffective assistance of counsel in defending a case where the defendant wanted to offer expert testimony that he was engaged in online fantasy rather than an attempt to sexually entice a minor.

In particular, [expert] 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.

Dr. Berlin also rebutted certain quasi-expert assertions made at trial by Detective Palchak, such as that there are only three categories of chat participants who engage in child-sex fantasy: (1) those who masturbate while chatting online, (2) those who want to go offline for phone sex, and (3) those who actually want to meet and engage in sex with a child. If those three categories were exhaustive, Laureys would fall into the third, because he left his house and drove to the District of Columbia for a sexual encounter. But Dr. Berlin would have testified that Palchak’s list of categories was not exhaustive, and that significant numbers of chat participants are interested in meeting one another to have adult sex while fantasizing about children. And, whereas Palchak testified that people interested only in fantasy chat will reveal that right up front, Dr. Berlin would have testified that, in fact, 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. Finally, Dr. Berlin testified that Laureys’ history of promiscuity with adult men, as well as a series of Laureys’ prior chat transcripts in which a discussion of child sex was followed by an invitation to meet the other adult male participant, led Dr. Berlin to conclude there was a high likelihood that Laureys was interested in having sex with Palchak while fantasizing about children. All of that testimony would have bolstered Laureys’ testimony that he sought to meet with Palchak to “engage in homosexual activity while indulging in [taboo] fantasies.”

The court

Here, trial counsel recognized from his very first meeting with Laureys that a mental health expert would be necessary to his defense, and rightly so. Laureys has steadfastly maintained his innocence, despite the existence of a chat transcript in which he discussed child sex in graphic detail, because he insists that he was only engaging in fantasy and that his actual intent was to engage in an adult sexual encounter while fantasizing about a child. Such a defense might seem unimaginable to the average juror absent a clinical presentation regarding, for instance, the prevalence of fantasy in internet chat rooms, or the use of fantasy chat as a coping mechanism to deal with inappropriate or unlawful sexual urges. Therefore, with trial counsel having correctly identified the need for a mental health expert, the question is whether his failure to provide that expert at trial “fell below an objective standard of reasonableness,”

...trial counsel’s error led to the complete failure to provide expert mental health testimony that trial counsel himself recognized was necessary, thereby depriving Laureys of an adequate defense. This was a slow-moving train wreck, one set in motion long before Dr. Berlin’s eventual exit; indeed, it played out as the trial judge had predicted seven months before trial. It was thus unreasonable for trial counsel, so warned, to have done so little to avert it...

Turning to prejudice, there is no question that Laureys’ defense, and his own testimony, would have been significantly bolstered by expert testimony regarding fantasy chat and, more specifically, the existence of a subculture of men who meet first online and then offline for sex with one another spurred on by child sex fantasies, such that a “reasonable probability” of a different outcome at trial exists.

Circuit Judge Rogers authored the opinion. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2017/08/the-united-states-court-of-appeals-for-the-district-of-columbia-circuit-held-that-a-su-trial-counsels-error-led-to-the-co.html

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