An Ohio Appeals Court has rejected a post-conviction request by a defendant facing the death penalty for additional psychological and neurological testing.

The case is State v. Mammone, 2012-Ohio-3546.

The Defendant was convicted of murdering his former mother-in-law and his two children, ages five and three. The jury recommended the death penalty and the trial court sentenced appellant to death.  The Defendant has a direct appeal pending before the Ohio Supreme Court.

In 2011, the defendant filed with the trial court a petition for postconviction relief.  The trial court denied the petition, finding that the defendant he did not present sufficient evidence to warrant a hearing.

The noteworthy claim by the Defendant is that his trial counsel was ineffective for failing to obtain a neuropsychologist to evaluate him and failing to request neuroimaging.

At trial, a forensic psychologist testified for the defendant in mitigation.  He was appointed at the request of the defendant’s counsel.  In the Petition for Post-Conviction Relief, the defendant attached an affidavit of a board certified forensic psychologist.  The new psychologist said:  “I strongly recommend that [the defendant] be evaluated by specialists in the field of neurology, neurophysiology, and neuropsychology to determine the existence of brain dysfunction, neurological insults, and/or neuropsychological deficits.”

The court rejected this argument.  The original psychologist testified he has conducted  neuropsychological assessments requested by neurologists, neurosurgeons, and other specialists to determine “whether some of their patients may have deficits that haven’t maybe turned up on MRIs and cat scans, but that may show up in neuropsychological testing.”  He also met with the defendant seven times with twenty hours of face-to-face time and his evaluation included numerous tests as well as a “review of a very extensive collection of case relevant background records” and third-party interviews.  He found no indication of any brain disorder or brain damage, but instead found the defendant to have a severe personality disorder not otherwise specified with schizotypl, borderline, and narcissistic features.

The court noted that the new psychologist “possesses the same credentials as” the original psychologist.  The court said the Petition for Post-Conviction Relief should be denied:

We fail to see that the presence of a contradicting opinion by one who never interviewed appellant would result in any affirmative help to appellant’s case.  The affidavit is only an offer of a contradicting opinion and not definitive evidence on the issue.