In 1998, Michael Barrett was convicted of aggravated child molestation and two counts of cruelty to children. He was represented by two attorneys who served as public defenders. Barrett’s lead attorney at trial, Katie Anderson, also represented him on appeal. The Court of Appeals affirmed in an unpublished opinion. Barrett v. State , 244 Ga. App. XXV 2000. In 2002, Barrett filed a petition for writ of habeas corpus, based on the alleged ineffective assistance of counsel at trial and on appeal. The habeas court granted relief, finding that Ms. Anderson was notified prior to trial that Barrett had been hospitalized for treatment of mental illness, but neither of his attorneys obtained the records or requested an evaluation of him by a mental health expert. The habeas court further found that this failure to investigate was the result of inattention rather than strategic choice and that, but for this deficient performance, a reasonable probability exists that Barrett would have been found legally insane at the time of the crimes, incompetent to stand trial, or guilty but mentally ill. The Warden appeals pursuant to OCGA § 9-14-52 c. In order to prevail on his claim of ineffective assistance of counsel under Strickland v. Washington , 466 U. S. 668 104 SC 2052, 80 LE2d 674 1984, Barrett “must show both deficient performance by trial counsel and actual prejudice. Cits.” Head v. Taylor , 273 Ga. 69, 71 3 538 SE2d 416 2000. “On appeal, we accept the habeas court’s factual findings unless clearly erroneous, but we independently apply the relevant legal principles to the facts. Cit.” Head v. Taylor , supra. The Supreme Court of the United States recently reaffirmed the principles of Strickland as they relate to defense counsel’s decisions regarding investigation: “Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Cit. Wiggins v. Smith , 539 U. S. 510, 521-522 II A 123 SC 2527, 156 LE2d 471 2003. See also Rompilla v. Beard , __U. S.__ 125 SC 2456, __LE2d__ 2005.
In death penalty cases, both the Supreme Court of the United States and this Court have upheld the grant of habeas relief based upon trial counsel’s insufficient investigation of the defendant’s mental health as a possible source of mitigating evidence in the sentencing phase. Wiggins v. Smith , supra; Head v. Thomason , 276 Ga. 434, 435 1 578 SE2d 426 2003; Turpin v. Lipham , 270 Ga. 208, 212 3 B 510 SE2d 32 1998; Turpin v. Christenson , 269 Ga. 226, 234 12 B 497 SE2d 216 1998. See also Rompilla v. Beard , supra. In a non-capital case, a decision to forego or curtail the investigation of the accused’s mental health is not as likely to be unreasonable. See Stephens v. Kemp , 846 F2d 642, 653 III 11th Cir. 1988. Ordinarily, the lack of investigation into a previous mental hospitalization is reasonable when an expert has determined that the defendant is fit to stand trial or that he was sane at the time of the offense. Stephens v. Kemp , supra; People v. Fields , 557 NE2d 629, 634 Ill. App. 1990. In the absence of such determination, however, “where a defense attorney has received information from a reliable source that his client has had a history of psychiatric problems, but failed to adequately investigate this history, counsel failed to provide effective assistance. Cits.” Emphasis omitted. Brown v. Sternes , 304 F3d 677, 694 III B 1 7th Cir. 2002. A clear majority of the federal circuits have addressed the issue and “arrived at the same conclusion. Cits.” Brown v. Sternes , supra.
