Ineffective Assistance Seen in Failure To Raise Diminished-Capacity Defense

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

Originally published in the NJLawJournal

Michael Booth, New Jersey Law Journal

A woman who pleaded guilty to infanticide was entitled to an evidentiary hearing on her claim that her lawyer should have argued diminished capacity due to her own history of sexual abuse as a child, a New Jersey appeals court says in a precedential ruling.

“Acquittal was far from certain,” the panel said on April 24. “Yet, it is not self-evident that pleading guilty was a reasonable strategy. This was not a case where the plea offer was so attractive that it would defy logic or reason that a defendant would risk a trial.”

Alice O’Donnell, 51, admitted that on Feb. 21, 2005, she gave her 6-year-old son, Phillip, an overdose of Klonopin, an anti-anxiety drug, and Benadryl, an antihistamine, and smothered him with a pillow when he began to vomit. She is serving a 30-year prison sentence.

A trial court judge rejected Alice O’Donnell’s motion for post-conviction relief based on ineffective assistance of counsel, finding she had entered her plea voluntarily and there was insufficient evidence to show her diminished capacity claim would have been successful.

O’Donnell argues she should have been allowed to argue diminished capacity based on years of sexual abuse at the hands of her father and on-going issues with depression, anxiety and insomnia which led to psychiatric hospitalizations.

She argues that her attorney at the time of her guilty plea, Assistant Deputy Public Defender H. Todd Hess, failed to properly follow through on obtaining psychiatric evaluations that could have led to a judgment of acquittal based on her mental state.

She also argues that Hess coerced her into pleading guilty to the indictment rather than go to trial; failed to adequately discuss the guilty plea with her before she agreed to accept it; and failed to properly attend to the case because of personal problems.

Appellate Division Judges Mitchel Ostrer. Judges Harry Carroll and Susan Reisner found O’Donnell presented a prima facie case of ineffective assistance of counsel and resulting prejudice.

“[A]n evidentiary hearing is required to fairly assess defendant’s asserted reasons for seeking to withdraw her plea, and her allegations regarding trial counsel,” Ostrer wrote in State v. O’Donnell.

“The court did not expressly consider that once defendant raised the question of her mental disease or defect, it was the state’s burden to disprove her diminished capacity beyond a reasonable doubt,” he said.”

Neither Hess nor Assistant Middlesex County Prosecutor Joie Piderit, who handled the case on appeal, returned telephone calls.

The telephone number for O’Donnell’s attorney on the appeal, Galloway solo Philip Lago, was not in service and he could not be reached for comment.

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