Hemy Neuman Found Guilty but Mentally Ill

Last week, the jury reached a verdict in the highly-publicized daycare shooting trial of Hemy Neuman. If you have been following the blog posts, you know that Neuman was accused of shooting Rusty Sneiderman on the lawn of a daycare in Dunwoody back in November 2010. He plead not guilty by reason of insanity, arguing that an angel who looked like Olivia Newton John told him he needed to kill Rusty Sneiderman. Neuman was intimately involved with Rusty Sneiderman's wife, Andrea although she expressly denied having an affair several times while under oath.

The jury deliberated over two days. They were presented with three options: not guilty by reason of insanity, guilty but mentally ill, or guilty. The jury found him guilty but mentally ill for the murder charge, and guilty for the possession of a weapon during the commission of a felony charge. The judge sentenced him to life without parole. The Judge was faced with the option of a life sentence with the possibility of parole after 30 years, however the Judge said he believed the killing was a "planned execution with no justification." With the guilty but mentally ill verdict, Neuman will receive treatment for his illness while in prison. The distinction between a not guilty by reason of insanity and a guilty but mentally ill verdict is that in the case of the former, the jury believes that the defendant did not know the difference between right and wrong during the commission of a crime. A guilty but mentally ill verdict indicates that the jury believes beyond a reasonable doubt that the defendant knew the difference between right and wrong and knew the consequences of his actions, yet remains a mentally ill individual. Obviously, it is possible to be considered mentally ill, but still possess the intent to commit a crime. Apparently, that is what the jury believed here.

Once he was sentenced, DeKalb County District Attorney Robert James said, "He was a cold-blooded killer. An adulterer. And a liar. And he ultimately got what he deserved."

What will be interesting to see is what prosecutors decide to do about Andrea Sneiderman. She quickly became an interesting topic because of her adamant denial of the alleged affair with Neuman. In an earlier post, I described some key discrepancies in her testimony, the most important being her testimony of when she first learned of the shooting. Andrea testified that she first learned of the shooting when she arrived at the hospital and the doctors informed her of her husband's condition. However, two separate witnesses testified that Andrea called them while in route to the hospital and told both of the witnesses that her husband had been shot. Also, it wasn't until after she began to receive payments off of her husband's life insurance policy that she saw fit to express to the police a suspicion that Neuman could have been the shooter.

The question now is: will prosecutors bring charges against Andrea? She would likely be charged with conspiracy. With the evidence that has arisen against her, it is highly likely that charges will be brought soon. I'll keep you updated. But for now, the dramatic trial of Hemy Neuman has ended, and he will be spending the rest of his life in prison.

6th Circuit holds a Sleeping Attorney is Not "Ineffective" Counsel

• Muniz v. Smith

The 6th Circuit heard a case out of Michigan last week that involved a defendant's appeal of a conviction for assault with intent to commit murder, felon in possession of a firearm, and felony firearm. Muniz argued that his 6th Amendment right to counsel was violated because his attorney fell asleep during his trial.

The 6th Circuit first had to decide which rule of law to follow. Muniz argued that the Court should only apply the rule of U.S. v. Cronic which held that there are "circumstances so likely to prejudice the accused that the cost of their effect in a particular case is unjustified and prejudice is presumed." The lower Court previously used the standard of U.S. v. Strickland which held that in order to successfully claim that an attorney was so ineffective as to violate the 6th Amendment, the defendant must prove two things: that counsel's performance was deficient and that the deficient performance prejudiced the defendant.

Applying both rules, the 6th circuit determined that the defendant had not proven that his counsel's slumber had a prejudicial effect on his defense. Applying the rule from Cronic, the Court had to decide whether Muniz had proven that his attorney slept through a "substantial part" of his trial. The only evidence Muniz offered was testimony from two of the jurors who said they saw the attorney sleeping during Muniz's cross-examination. His cross-examination made up only a very small part of the trial transcript. This evidence, the Court held, did not prove the attorney slept through substantial portion of the trial.

Applying the rule from Strickland, the Court had to decide whether the attorney's conduct fell below an objective standard of reasonableness, and if so, if that conduct prejudiced the defendant. The Court held that there is no question that the attorney's conduct fell below an objective standard of reasonableness. Sleeping in court during your client's cross-examination is not reasonable conduct for an attorney. What the defendant could not prove, however, was that his attorney's conduct prejudiced the defendant's defense. In order to do so, Muniz would have to prove that the outcome of the trial would have been different. The evidence against Muniz was so strong, the Court held that it was unlikely that the outcome of the trial would have been different even if the attorney had not fallen asleep.

If an attorney sleeping through examination of his client by the government is not enough to trigger relief, what is? Sounds like the Court is asleep on this issue as well. I understand that in a case--especially one of strong proof--that the court can't be reversing on collateral issues. But I wonder what the trial court was doing. Surely, if two jurors are to believed and counsel was asleep, the Court was aware. I can't think of anything more damaging to the integrity of the judicial process than a sleeping defense attorney. You can imagine what the jurors said, "if his own lawyer doesn't care enough to be awake for the trial you know he's guilty."

Indigent Defendants Do Not Have the Right to an Attorney in Civil Contempt Proceedings

Turner v. Rogers

The U.S. Supreme Court decided an interesting case this week, Turner v. Rogers, addressing an indigent defendant's right to counsel for civil contempt proceedings when facing incarceration. Turner was held in contempt of court and sentenced to incarceration several times over many years because of his failure to pay child support. While imprisoned for a year, he appealed arguing that under the Fourteenth Amendment, he was entitled to counsel during his hearing (even though the custodial parent, Rogers, did not have an attorney at the hearing either).


The Court unanimously held that Turner was not entitled to an attorney at his hearing. The Court noted that the Sixth Amendment right to counsel only applies in criminal cases so they had to look to the Fourteenth Amendment's Due Process clause. Citing policy reasons for the importance of due process, the Court ultimately decided that providing an indigent defendant with an attorney in civil contempt proceedings would make the proceedings "less fair" overall. The reasoning for this is because, as here, a lot of times the custodial parent seeking child support is not represented by counsel either. Since this parent is arguably a single parent, trying to support a family, he or she may not have the money for an attorney. To appoint counsel to one party and not the other would make the proceedings vastly unfair.


The Court also held, however, that there are certain procedural safeguards that should be in place to prevent violations of due process in situations like this. For instance, the lower court should have informed Turner of the legal significance of his financial situation; or they should have had a common form for defendants to fill out regarding their financial situations; or lastly, they should have afforded Turner the opportunity to answer questions about his financial status during the hearing. Without these procedural safeguards, the Court was required to vacate the decision and remand the case for further proceedings.


Tennessee Criminal Law Review discussed this case after Oral Arguments here.  There has been extensive coverage about his case: New York Times, Washington Post, and the Wall Street Journal Blog all offer analysis that is worth reading.

Tennessee Supreme Court says Lawyers must advise Clients of Mandatory Supervision in Sex Cases

Jason Calvert was represented by two lawyers after an indictment in Davidson County on numerous sex offenses. He and his lawyers met at least 6 times. They provided him discovery. They went over the materials with him. After these meetings, he entered a written plea agreement to several offenses, two of which were aggravated sexual battery. Calvert received a sentence of 10 years suspended after he served 9 months in jail. During the plea colloquoy, the Judge believed the sentence was illegal because aggravated sexual battery was non-probatable. After consulting with his lawyers, Calvert changed his plea from two counts of aggravated sexual battery to two counts of rape. Neither his attorney nor the Court advised him that rape carries with it mandatory lifetime supervision.


In revieweing Calvert's post-conviction petition, the Tennessee Supreme Court held that a lawyers failure to advise their clients of such an important and adverse consequence such as mandatory lifetime supervision when the client is considering a plea consitututes ineffective assistance of counsel under the 6th Amendment. The Supreme Court further held that because the Defendant testified that he thought it would have made a difference in his decision, that such deficiency constitutes prejudice.


Practice Note: Slow down attorneys. The Court has made it clear that even if your client is considering a plea that carries lifetime supervision, that you must advise of the possible supervision requirements. In Calvert, This issue got past the Judge and both Defense Attorneys who did not mention it. The one person it did not get past was the District Attorney who checked the box on the Judgment form. However, the DA never announced that condition in the plea colloquoy transcript. Had he announced it on the record, how much time could have been saved avoiding a post-conviction hearing and appeal?

• JASON CALVERT v. STATE OF TENNESSEE