Must an Attorney Investigate and Consider a Diminished Capacity Defense?

Facts of the Case

A jury convicted Mr. Hernandez of committing the first-degree murder, forcible rape, and forcible sodomy of two victims, Edna Bristol and Kathy Ryan, in separate incidents five days apart in January 1981. The pathologist concluded that both were killed by strangulation or suffocation and noted that their bodies were subjected to “extremely similar and extremely rare trauma to the anal and vaginal areas” (Chappell, p 547). Additionally, “their bodies were mutilated, with bite marks on their breasts, and their pubic hair was singed. Bristol had ligature marks around her wrists and ankles. Ryan's nose was fractured, and a tic-tac-toe pattern had been carved into her abdomen postmortem” (Chappell, p 547).

When Mr. Hernandez was arrested in early 1981, he made a taped confession to the crimes and “chillingly recounted not only his horrific acts, but also the thoughts and feelings that went through his mind as he committed the crimes” (Chappell, p 547). In other words, his confession established the mens rea and specific intent required for the crimes with which he had been charged. In decades of legal proceedings, Mr. Hernandez has not disputed the reliability or voluntariness of his confession.

At trial, Mr. Hernandez's attorney presented a diminished capacity defense based on voluntary intoxication with alcohol. His trial attorney did not present a diminished capacity defense based on a history of mental disease or defect. While Mr. Hernandez was a juvenile, prior to the assaults and murders of Ms. Bristol and Ms. Ryan, Mr. Hernandez had undergone one known psychological assessment at a juvenile justice facility. This assessment concluded that Mr. Hernandez “functioned within the high normal range of intellectual ability. … His behavior is characteristic of an antisocial personality in that he is aware of what he is doing, realizes that he is capable of doing it and goes about doing it with impunity. … There were no indications of organicity nor of a neurological dysfunction” (Hernandez v. Martel, 824 F. Supp. 2d 1025 (C.D. Cal. 2011), p 1039). As presented in hearings after his trial, Mr. Hernandez's history also included being the victim of “physical and sexual abuse at the hands of a psychotic adoptive mother” and “head injuries from nearly a dozen motorcycle accidents,” including one that had resulted in his losing consciousness and experiencing “convulsions” (Hernandez v. Chappell, 878 F.3d 843 (9th Cir. 2017), p 846).

Whatever the merits of a possible diminished capacity defense based on mental illness may have been in the case of Mr. Hernandez, his trial attorney later acknowledged that he was ignorant of the California law permitting such a defense, and therefore “neither investigated nor made a reasonable decision not to investigate” the possibility of presenting such a defense at trial (Chappell, p 550, citing Kimmelman v. Morrison, 477 U.S. 365 (1986), p 385). The result of the trial was that the jury found Mr. Hernandez guilty on all counts.

Mr. Hernandez was subsequently assessed by a number of psychological professionals. At a postconviction hearing, he presented testimony from a psychiatrist, two psychologists (one specializing in neuropsychology), and a criminologist. The general psychologist commented extensively on his social and family history and suggested that Mr. Hernandez had dissociated during the crimes, leaving him with “‘no subsequent actual recollection of the events that transpired’” (Chappell, p 555). The psychiatrist diagnosed him with bipolar disorder and stated that he had been in a “manic or hypomanic state while simultaneously experiencing dissociative symptoms” (Hernandez v. Chappell, 878 F.3d 843 (2000), p 857). She concluded that his “capacity to form the specific intent to rape and kill was substantially impaired” (Chappell, p 555). The neuropsychologist concluded that Mr. Hernandez had organic brain damage based on the results of psychological testing, which the neuropsychologist used to create “behavioral images” that he stated represented the physical state of Mr. Hernandez's brain.

Ruling and Reasoning

The Ninth Circuit agreed with the lower court that Mr. Hernandez's trial attorney was “constitutionally deficient” in failing to investigate and consider a diminished capacity defense based on the contention that Mr. Hernandez was mentally ill (and thus could not form the requisite specific intent). The court ruled, however, that Mr. Hernandez had not shown that his “counsel's errors were so serious as to deprive the defendant of a fair trial” (Strickland v. Washington, 466 U.S. 668 (1984), p 687); in other words, the court ruled that he had not met the “reasonable probability … of reasonable doubt” standard established by Strickland. Consequently, the Ninth Circuit ruled that Mr. Hernandez was not entitled to relief and affirmed the district court's ruling.

The Ninth Circuit based its ruling on the fact that “the strength of the evidence for Mr. Hernandez's intent to rape and kill contrasts with the relatively weak … evidence that his mental condition rendered him incapable of forming the requisite intent” (Chappell, p 554). The court systematically critiqued the testimony of each of the defense's mental health experts as failing to demonstrate that Mr. Hernandez was incapable of forming the requisite intent. The court relied extensively on Mr. Hernandez's own statements from his confession to support the notion that he had formed the required specific intent for both first-degree murders. For example, the court noted that the clinical psychologist's “suggestion … that Hernandez was in a dissociative state and ‘had no subsequent actual recollection’ of his crimes is totally contradicted by his detailed confession” (Chappell, p 555).