This week I have several cases to report on the intersection memory, the brain and law. At least several times a week I have been inundated with cases in which criminal defendants raise claims about either their own memory, the memory of a witness or victim to a crime. The majority of these claims seem to fail, but this will be an interesting issue for future exploration. If you are interested in the intersection of Law & Memory, please join us for a conference on Law & Memory at Stanford Law School on April 1, 2011.

The case today is a new one for the blog — a defendant unsuccessfully raising an ineffective assistance of counsel claim because his trial counsel failed to investigate his diminished memory. The defendant now claims his diminished memory undermined the credibility of his incriminating statements made to police officers.

Brain Damage, Memory, Statements to Police
Gray v. Warden of Sussex I State Prison, 2011 WL 744961 (Va. 2011)
Petitioner was convicted by jury trial of four counts of capital murder and sentenced to two death sentences and life imprisonment for the remaining convictions. The Virginia Supreme Court affirmed Petitioner’s convictions and upheld his death sentence. Petitioner filed a writ of habeas corpus that was granted in part and denied in part. Petitioner claims, inter alia, that he was denied effective assistance of counsel because counsel failed to investigate the physiological effects “PCP” use had on petitioner’s memory. Petitioner contends that such information would have shown that the drug affects brain cells and would have called into question the statements petitioner gave to the police. The Court held that this portion of claim satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland because the record indicated he knew what he was doing when he spoke to the police so trial counsel was not deficient. Petitioner also claims his trial counsel failed to protect petitioner’s rights to be free from double jeopardy because he was tried and punished for separate counts of capital murder even though the crimes arose from the same criminal act and “one punishment is for a crime which is a lesser included offense of the other.” The Court held that claim satisfies the “performance” and the “prejudice” prongs of Strickland and that there was a reasonable probability that, but for counsel’s failure to raise this issue at trial, Petitioner would only have been sentenced on one of the two indictments. Therefore, petitioner is granted a writ of habeas corpus as to his life sentences and these convictions were remanded so that one of the underlying convictions could be vacated.