Defense Counsel’s Failures (Claims 128-175)
From Judge Bryan’s Order:
Trial Counsel Performed Ineffectively in the Investigation and Presentation of Mitigation Evidence Related to PTSD
“Counsel’s investigation into potential mitigating evidence, particularly evidence regarding Thuesen’s PTSD, was ‘inconsistent with the standard of professional competence in capital cases.’”
“Despite the numerous indications that PTSD was a central component in Thuesen’s case and the suggestions by several mental health professionals that counsel present testimony from a PTSD expert, counsel did not secure the assistance of an expert witness or witnesses qualified to explain the mitigating impacts of PTSD.”
“The ultimate presentation of information regarding PTSD during Thuesen’s capital trial, including information specific to his experience and information placing his struggle with PTSD in a broader context, was significantly incomplete.”
“Substantially more information was available at the time of Thuesen’s trial that would have been relevant and compelling mitigation for a juror’s consideration.”
For example, the link between PTSD and incarcerated veterans has been documented for decades. “The connection between PTSD and violence has been studied since the 1980s. At the time of Thuesen’s trial, over 70 studies were available that show PTSD is a significant problem in America’s returning veterans.”
Furthermore, “veterans with PTSD are at a statistically significant risk of committing violent acts. Of the over 70 studies, the most consistent finding is that PTSD correlates to a higher risk of violence.”
In fact, “criminal justice involvement is one of the most significant problems for Iraq and Afghanistan veterans, and PTSD is significantly linked to incarceration in veterans. The reality of the impact of PTSD is that over 200,000 veterans are in U.S. jails or prisons, most incarcerated for violent offenses. And even this number may be underestimated.”
“A thorough description of PTSD would have explained Thuesen’s behaviors around the time of the crime…This evidence would have shown the jury a different pattern in Thuesen’s life story, arguing that the effects of his war trauma (while mitigating in themselves) continued to impact his life once back home.”
“In addition, this evidence would have put Thuesen’s experience into a national context of understanding the impact of PTSD. Instead of the prosecution’s suggestion that no other veterans were committing violence, this evidence would have shown that 1 in 3 veterans suffering from PTSD and alcohol abuse commit serious acts of violence.”
“Finally, development of expert testimony regarding PTSD would have allowed counsel to explain to the jury why a diagnosis that explains Thuesen’s struggles and behaviors does not at the same time warrant a finding that he would commit acts of criminal violence in the future.”
“Rather, expert witnesses could have explained the ability to treat PTSD symptoms and significantly reduce any likelihood of aggression or violence by Thuesen going forward.”
Trial Counsel Performed Ineffectively by Failing to Investigate and Present Evidence that Thuesen Was Not Properly Treated for PTSD by the VA
“Counsel’s failure to investigate and present evidence that the VA failed to properly diagnose and treat Thuesen’s PTSD fell below the norms of professional standards for capital counsel.”
“Counsel failed to sufficiently review Thuesen’s medical records and investigate potential testimony about the failure of the VA to diagnose Thuesen. Any decisions not to present such testimony were not based on reasonable investigation and complete information.”
“There is a significant probability that evidence the VA failed to properly diagnose and treat Thuesen would have impacted the jury’s deliberations. Such evidence could have placed Thuesen’s lack of diagnosis in the broader context of a VA system that had recently come under fire for the failure…to diagnose returning veterans with PTSD.”
“A history of Thuesen’s reports to the VA of PTSD symptoms would have countered the suggestion by the prosecution that PTSD was simply a made-up excuse by Thuesen post-crime. This history would have made clear that Thuesen consistently reported struggling with PTSD over a long period of time. It would have also made clear that Thuesen was not receiving proper medical care for that PTSD.”
Trial Counsel Performed Ineffectively in the Investigation and Presentation of Evidence that Thuesen would likely Not Commit Acts of Future Violence Constituting a Danger to Society
“Trial counsel’s failure to present affirmative evidence that Thuesen would not pose a future threat of violence constituted deficient performance.”
“Trial counsel did not present an expert to testify whether there was a probability that Thuesen would commit acts of future violence constituting a danger to society.”
“Substantially more evidence was available to show that there was a low likelihood that Thuesen would commit serious acts of violence while serving life without the possibility of parole.”
“Trial counsel did not present an expert in PTSD to testify at the punishment phase of Thuesen’s trial. Had counsel done so, a PTSD expert could have testified that the effects of PTSD impact those veterans who are not receiving adequate treatment and are subject to the stressors of re-entry into civilian life. However, prison is a structured setting, which can provide consistency and treatment for Thuesen’s PTSD. Accordingly, ‘it is very unlikely Thuesen will commit any violent acts […] in the future.’”