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Ohio Supreme Court: IAC for Counsel to Mention ‘Neonaticide’ at Sentencing but Fail to Explain and Use It as Mitigating Evidence

by Douglas Ankney

The Supreme Court of Ohio ruled that Emile Weaver’s trial counsel was ineffective at her sentencing when he made mention of the term “neonaticide” without explaining its meaning and how neonaticide was applicable to Weaver’s case. The Court also found, in an unusually forceful manner, that the trial court judge demonstrated bias in denying Weaver’s postconviction motion for relief.

In 2014, Weaver was a sophomore at a university in New Concord, Ohio, and lived in a sorority house. Upon obtaining birth control at a wellness center, she was informed that she was pregnant. She testified at trial that she did not “completely” believe she was pregnant because she did not show any of the normal signs of pregnancy, e.g., she did not (1) gain weight, (2) have morning sickness or exhaustion, or (3) stop menstruating. Whenever her sorority sisters or friends asked if she was pregnant, she denied it. She never told her mother.

At trial, Weaver explained that she lied about her pregnancy because she was scared, “felt like [she] had no one,” and was “worried about getting in trouble.” When she discussed her pregnancy during her “rocky relationship” with her boyfriend, he encouraged her not to tell anyone. She described him as “controlling and judgmental” as well as “abusive.”

In April 2015, Weaver, believing she was having a bowel movement, went into the sorority house bathroom. She then realized she was in labor; silently and alone, she delivered the baby into the toilet. The baby was later discovered by two sorority sisters in a trash bag next to the sorority house.

After a jury found Weaver guilty in 2016, a sentencing proceeding ensued. While her attorney offered as mitigating evidence a short, cursory statement about neonaticide, he did not explain the term or its application to Weaver and potential effect on her sentence. The trial court sentenced Weaver to consecutive terms of one year for gross abuse of a corpse, three years for tampering with evidence, and life without parole (“LWOP”) for aggravated murder. In support of this sentence, the trial court found that (1) Weaver lacked remorse, (2) her crimes harmed her sorority sisters, (3) her conduct consisted of “the worst form” of aggravated murder, and (4) her “relationship with the victim caused [the crime].” The Court of Appeals (“COA”) affirmed.

In 2017, Weaver filed a petition for postconviction relief, claiming ineffective assistance of counsel (“IAC”) based on her trial counsel’s failure to present evidence about neonaticide as a mitigating factor at sentencing. She supported her petition with an article on neonaticide written by former Associate Professor Michelle Overman at DePaul University College of Law and an affidavit from Dr. Clara Lewis, a professor at Stanford University who had studied the social and cultural causes of neonaticide in America.

After Lewis reviewed the evidence and personally interviewed Weaver, she opined that: Weaver’s case was “a typical example of contemporary neonaticide;” that her LWOP sentence was “disproportionately harsh when compared to sentences given to others convicted of this crime;” and that defense counsel’s failure to “introduce relevant information about the social and cultural causes of neonaticide” deprived the trial court of  “information that would have provided context for understanding [Weaver’s] crime.” Lewis acknowledged that Weaver needed to be punished for her conduct but emphasized that had the existing body of research on neonaticide been presented at Weaver’s sentencing, it “would have demonstrated that there are substantial grounds to mitigate her culpability.” Significantly, Lewis emphasized that panic is “central” to cases involving neonaticide, which suggests the crime is “not carefully planned.”

The trial court denied Weaver’s petition without a hearing, ruling her IAC claim was barred by res judicata. On appeal, the COA concluded the trial court erred in finding her claim was barred by res judicata because her claim dealt with matters outside the trial record, i.e., Lewis’ affidavit and report. [Editor’s note: Res judicata – known as “claim preclusion” – is the principle that a cause of action may not be relitigated, by the same parties, after it has been judged on the merits (and in most jurisdictions, also applies to dismissals based on a failure to state a claim).]

On remand, the trial court conducted a hearing. While Lewis did not testify on Weaver’s behalf, psychotherapist Dr. Diana Barnes did. The State did not object to Barnes’ expert testimony, which substantially aligned with Lewis’ affidavit and report regarding Weaver. Barnes focused on the interplay between neonaticide and “pregnancy-negation syndrome” (“PNS”). A closely associated precursor to neonaticide, PNS is “a clinical syndrome that encompasses both the concepts of pregnancy denial and pregnancy concealment,” in which women “negate and detach from their pregnancies to the point that their bodies respond with fewer and less physical signs of pregnancy, such as no morning sickness, no sensation of fetal movement, minimal or no weight gain, no recognition of the start of labor, and continual spotting during pregnancy.”

Because PNS causes women to “distance themselves psychologically from the pregnancy for all nine months ... they often act detached after the events of birth and neonaticide, which people may interpret as indifference.”

Barnes opined that Weaver met the criteria for PNS. In addition to the facts already cited, Barnes also observed that Weaver, “after suffering deep internal vaginal lacerations and loss of blood during the birth, was discovered sitting cross-legged on her bed typing a term paper shortly after the birth ... indicat[ing] her detachment from the reality of the situation.”

At the close of the hearing, the trial court found Barnes to be “unbelievable and biased” (for reasons that will be discussed below) and denied her petition. Weaver appealed, arguing that the trial court discredited Barnes’ testimony due to the judge’s bias. The COA affirmed the trial court’s judgment, relying upon the “well established” standard that an appellate court “may not substitute [its] own credibility determination for that of the trial court.” State v. Weaver, 2021-Ohio-1025 (“Weaver II”).

The Court accepted Weaver’s discretionary appeal wherein she argued that the trial court abused its discretion by disregarding Barnes’s testimony “without good reason.”

The Court observed “[g]enerally, ‘the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts.’” State v. DeHaas, 227 N.E.2d 212 (Ohio 1967). However, in State v. White, 885 N.E.2d 905 (Ohio 2008), the Ohio Supreme Court determined: “the trial court abused its discretion in determining that the petitioner had failed to establish an intellectual disability when the trial court did not provide ‘any rational basis grounded in evidence for rejecting the uncontradicted testimony of two qualified expert witnesses in the field of psychology.’” Although trial courts are not required to automatically accept the opinion of an expert witness, courts may not arbitrarily ignore an expert’s opinion, but instead, they must provide some objective rationale for ignoring the opinion. Id. 

In White, (1) the trial court focused its attention on largely irrelevant evidence, (2) no evidence was offered to call into doubt the reliability of the test administered by the experts, and (3) the trial court made no finding that the expert witnesses lacked either credentials or credibility. The White Court concluded: “[w]hile the trial court is the trier of fact, it may not disregard credible and uncontradicted expert testimony in favor of either perceptions of lay witnesses or of the court’s own expectations” and doing so demonstrated “an arbitrary, unreasonable attitude toward the evidence before the court and constitute[d] an abuse of discretion.”

“Additionally, although an appellate court must not reweigh the witness testimony when reviewing a trial court’s credibility determination, that does not mean it may skip reviewing a court’s credibility determination of a witness in the name of deference,” as the COA had done in the present case. “Had the [COA] objectively reviewed the trial court’s determination that Barnes was ‘unbelievable,’ it would have observed that the trial court’s representation of Dr. Barnes’s testimony as ‘unbelievable’ was based on immaterial information, its own fundamental misunderstanding of neonaticide, and its own biases pertaining to the subject of Barnes’s testimony,” the Court declared.

For example, the trial court twice noted in its entry denying Weaver’s petition that Barnes was not a medical doctor, stating: “She can’t do some of the things she was asked to do with trying to apply brain trauma to the issues in this case because she’s not a medical doctor.” And “[s]ince she’s not an MD, I have a hard time calling it a diagnosis; but her findings.”

However, the Court corrected that Barnes held a Ph.D. in psychology, and psychologists can and do make diagnoses. Furthermore, expertise in trauma and application to the brain is one of the topics psychologists often deal with in their practice, according to the American Psychological Association. But beyond that, the trial court failed to “explain why the ability to apply ‘brain trauma’ to the issues in this case weighed so heavily against believing Dr. Barnes’s expert opinion that Weaver met the criteria for pregnancy-negation syndrome.” The criteria for diagnosing PNS include numerous factors other than “trauma,” the Court noted.

The trial court also found Barnes was “unbelievable and biased” because “she would bounce back and forth on what is [pregnancy] denial, what is [pregnancy] concealment,” and “when that didn’t work, she came up with a third name for her diagnosis or whatever you want to call it.”

But again, the Court criticized the trial court by stating that “those statements exemplify the trial court’s misunderstanding of Dr. Barnes’s testimony regarding ‘pregnancy negation,’ a clinical syndrome encompassing both pregnancy denial and pregnancy concealment.” Addressing the trial court’s mischaracterization, the Court stated that Barnes “did not ‘bounce back and forth’ but rather explained several times during her testimony that pregnancy denial and pregnancy concealment are terms that ‘describe the same phenomenon with different intensity levels regarding the amount of conscious awareness throughout the pregnancy....’ Consequently, the terms are generally used interchangeably, and pregnancy-negation syndrome serves as a term to describe not just women who are in denial of their pregnancy but also women who have knowledge of their pregnancy and conceal it.”

The Court concluded: “We find that the trial court’s decision demonstrated its arbitrary disregard of Dr. Barnes’s uncontradicted expert opinion. Furthermore, the trial court’s decision was based on an unfounded and capricious credibility determination and ‘an arbitrary, unreasonable attitude toward the evidence before it.’” See White.

The Court then reviewed Weaver’s IAC claim under the familiar standard of Strickland v. Washington, 466 U.S. 668 (1984): (1) the attorney committed errors that fell below an objective standard of reasonableness, meaning the attorney performed deficiently and (2) if not for the attorney’s deficient performance, there is a reasonable probability the outcome of the proceeding would have been different.

The Court observed Weaver’s trial counsel failed to (1) define the term ‘neonaticide’ for the trial court, (2) explain the social and cultural causes of neonaticide and provide a personality and demographic profile of women who commit this act and the pattern of behaviors that are typical leading up to the crime, and (3) describe how Weaver and her actions fit into this profile and pattern, thereby contextualizing her actions as those of extreme panic rather than premeditation. Counsel did nothing more than simply mention the term “neonaticide.” The Court stated that it could not conceive of any “‘reasonable professional judgment’ that counsel might have exercised here by merely mentioning neonaticide, but not providing any context or potential impact of it at Weaver’s sentencing, especially in light of the two uncontradicted experts Weaver provided in the postconviction proceedings, who each have opined that Weaver’s case fits into the classic personality and demographic profile of women who commit neonaticide and that her actions were consistent with neonaticide patterns.” Thus, the Court determined that Weaver satisfied Strickland’s first prong.

As to Strickland’s prejudice prong, the evidence “provide[d] a compelling narrative that could have framed Weaver’s actions not as premeditated, but those of desperation and panic from an immature and isolated young woman,” reasoned the Court and concluded “there is a reasonable probability that her sentence would have been different but for counsel’s deficient performance.” Thus, she satisfied the second prong and established IAC under Strickland.

As to the issue of judicial bias, the Court made an explicit finding of such, citing the trial judge’s behavior that demonstrated his “fixed anticipatory judgment” regarding Weaver’s sentence. Judicial bias has been described as “a hostile feeling or spirit of ill will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by the laws and the facts.” State ex rel. Pratt v. Weygandt, 132 N.E.2d 191 (Ohio 1956).

To support this finding, the Court observed that at Weaver’s original sentencing, the judge stated: “(1) You can’t get any younger than this victim,” (2) it’s aggravated murder based upon the age of the victim, and (3) “what I find in this case is that for a number of months, you tried over and over to take that baby’s life.”

Then after the hearing on Weaver’s petition, the trial judge “made dismissive statements about Weaver that did not pertain to the [IAC] issue at hand [such as]: ‘The [c]ourt is required to sentence based upon what [Weaver] is convicted of and taking anything else [into] mitigation, age, this, that, and the other, prior history, she had none.’” The trial judge then echoed his same findings of the original sentencing: “The offense becomes a life sentence based upon the age of the victim. You can’t get any younger than the victim in this case. And you couldn’t have tried more times to kill this child than she did throughout the nine months she was pregnant. That was the [c]ourt’s finding at that point in time. It’s still the [c]ourt’s finding at this time.”

The Court observed “[t]hese statements indicate that the trial-court judge wanted to punish Weaver not only for the offenses with which she was charged, but for her behavior throughout her pregnancy, which he found to be personally reprehensible.”

Accordingly, the Court reversed the COA’s judgment in Weaver II and remanded to the trial court for a new sentencing hearing and for assignment to another trial judge of that court. See: State v. Weaver, 2022 Ohio LEXIS 2470 (2022).

Writer’s note: This opinion provides a detailed and in-depth explanation of the causes and symptoms of both neonaticide and pregnancy-negation syndrome. Anyone with an interest in this topic is encouraged to read the Court’s full opinion. This is the first time the topic has been covered in CLN.

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