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Gish v. Dittmann

United States District Court, W.D. Wisconsin

February 19, 2019




         Petitioner Christopher Randolph Gish pleaded guilty to first-degree reckless homicide in Milwaukee County Case No. 12-CF-3564, but he seeks a writ of habeas corpus under 28 U.S.C. § 2254 so that he can withdraw his plea. Although he admits that he committed the crime, he contends that his trial counsel was ineffective because counsel failed to investigate and inform Gish of a potential defense of involuntary intoxication. If Gish had known about that defense, he says, he wouldn't have accepted the state's plea deal and would have instead gone to trial, where he would try to show that he killed his girlfriend as a result of side effects from Xanax that he was taking under a doctor's prescription.

         In an earlier order, I held that the Wisconsin Court of Appeals unreasonably applied federal law regarding ineffective assistance of counsel. Dkt. 22. I concluded that Gish should have had a hearing at which he could present evidence that his trial counsel was ineffective. On July 27, 2018, I held that hearing. The parties have submitted post-trial briefs and the matter is now ready for a decision.

         To show that his trial counsel was ineffective, Gish must show both that counsel's performance was deficient, and that Gish was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668 (1984). I will assume that counsel performed deficiently by failing to inform Gish of a potential defense of involuntary intoxication, but I will deny the petition because I conclude that Gish has not shown prejudice. Had trial counsel advised Gish about a possible involuntary intoxication defense, that advice would have to include an assessment of the prospects of success, which are essentially nil. Gish has some evidence that his conduct the night of the killing might have been influenced by the Xanax he was prescribed, but he has no evidence that he could not tell right from wrong, which is what he would have to prove for an involuntary intoxication defense. Under these circumstances, Gish hasn't shown that there is a reasonable probability that, had his trial counsel informed him of the defense, he would have decided not to plead guilty.


         In the early morning of July 14, 2012, sheriff deputies found Christopher Gish wandering shoeless and incoherent near General Mitchell Airport south of Milwaukee, after he had crashed the minivan owned by his girlfriend, Margaret Litwicki. Gish was taken to a nearby hospital. Because Gish made statements about “blacking out and seeing red, ” the investigating officers called for a wellness check at the Greenfield address where the van was registered. Ex. 5, at 4. (Exhibits cited in this opinion are at Dkt. 41.) Police found Litwicki dead in the bedroom she shared with Gish. She had been stabbed repeatedly in the head, neck, and chest. After Gish was released from the hospital, he was taken to the Greenfield Police Department, where he was interviewed by detective Brent Hart. Gish at first denied any recollection of the crime, but ultimately he admitted to stabbing Litwicki because he believed she was having an affair and had threatened to leave him and take their children with her.

         Gish was charged with first-degree intentional homicide in Milwaukee County Case No. 12-CF-3564. The charge carries a mandatory life sentence. Nathan Opland-Dobs, a lawyer from the office of the State Public Defender, was appointed to represent him. On November 19, 2012, Gish pleaded guilty to first-degree reckless homicide, which carries a maximum prison term of 60 years but no mandatory minimum sentence. Wis.Stat. §§ 939.50(3)(b) and 940.02(1). The plea agreement allowed the parties to argue for whatever sentence they thought appropriate. The circuit court sentenced Gish to 40 years' confinement to be followed by 20 years' extended supervision.

         Gish had wanted Opland-Dobs to raise Gish's use of Xanax as a defense, and shortly after sentencing he claimed that Opland-Dobs was ineffective because he did not do so. The procedural background of Gish's post-conviction proceedings is set out in my earlier order, Dkt. 22, so I won't repeat it here. The important point is that I concluded that Gish was entitled to a hearing where he would have the opportunity to present evidence that Opland-Dobs had been ineffective.

         At the hearing in this court, Gish presented the testimony of three witnesses: pharmacology consultant James T. O'Donnell; Opland-Dobs; and Gish himself. The respondent presented the testimony of two witnesses: Kayla Neuman, a senior chemist in the toxicology section of the Wisconsin State Laboratory of Hygiene; and detective Hart. The parties stipulated to the admission of exhibits. All at Dkt. 41. From this evidence, I find the following facts.

         On July 9, 2012, after a very brief consultation with his son's psychiatrist, Gish was prescribed three psychoactive medications, none of which he had taken before: Xanax, Lamictal, and Prestiq. Ex. 3 (pharmacy records). He went to fill the prescriptions the same day. The pharmacy was out of Prestiq, but he filled the prescriptions for Lamictal and Xanax, the latter of which Gish was prescribed to take three times a day. He took the Lamictal as prescribed, but there is conflicting evidence about whether he took the Xanax on the day of the killing. At the hospital, he told a nurse that he had been prescribed Xanax, Lamictal, and Prestiq, but that he had “sold them for money.” Ex. 16, at 10. During his interview with detective Hart, Gish said that he had taken the Lamictal “today sometime, ” but that he had last taken Xanax “a couple of days ago.” Ex. 18, at 4. He also said that he “sold them” immediately after referring to his Xanax prescription and that he and his girlfriend “sell our pills to make money for rent.” Id. at 4, 8.

         No Xanax pills or bottles were found at the Gish/Litwicki residence, although police found bottles for four other prescriptions for Gish, including Lamictal. After he was charged, Gish told Opland-Dobs that he had taken both Xanax and Lamictal on the day of the killing. Gish testified at the hearing in this court that he had taken the Xanax as prescribed, and he could not explain why he told Hart anything different. When asked at the hearing why police didn't find Xanax at his residence, Gish said, “It should have been there.”

         Gish's blood was tested for the presence of alcohol, but no other drugs, and no alcohol was detected. Gish's testimony that he took no other drugs the day of the killing is unrebutted. So I find that Gish had not taken any drugs other than those prescribed, but whether Gish actually took Xanax the day of the killing is a disputed fact.

         O'Donnell and Neuman (the two experts) agreed on the basic facts about Xanax, which they derived primarily from a review of medical literature. I accept their qualifications to testify about the reported effects of Xanax intoxication in the medical literature, but neither of them is an expert on Xanax or Xanax intoxication. Xanax is a benzodiazepine-class drug used to treat anxiety. A typical dose for anti-anxiety use for a first-time user would be .25 mg to .5 mg. Gish was prescribed 1 mg, two to four times a normal dose. Xanax can cause intoxication, with effects similar to alcohol intoxication, and therefore it is a common drug of abuse. The half-life of Xanax is short, so its effects wear off in less than a day. Although Xanax is a central nervous system depressant, it can also cause a “paradoxical effect” triggering behavioral disturbances, including hallucinations, agitation, rage, and aggressive or hostile behavior. The paradoxical reactions are not necessarily dose-dependent. Neither O'Donnell nor Neuman estimated how common such paradoxical reactions were. Neuman also testified that interaction with Lamictal can amplify the effects of Xanax, including the paradoxical effects.

         O'Donnell and Neuman disagreed about whether Gish was suffering from the effects of Xanax intoxication at the time of the killing. Neuman's opinion was that there is not enough information to determine whether Gish had taken Xanax the day of the killing. She also said that amnesia “would not be a side effect of a therapeutic dose.” O'Donnell's opinion is that Gish was under the influence of Xanax, that it triggered a drug-induced psychosis, and that “he would have been deprived of substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” Ex. 1. I will credit O'Donnell's opinion this far: Gish was found in a confused, delusional state and he recovered in a matter of hours, which O'Donnell says is more consistent with Xanax intoxication than with an episode of psychosis induced by an underlying mental illness.

         Opland-Dobs had about 11 years' experience when he undertook Gish's representation, and by the time of the hearing he had handled 15-20 homicide cases. He testified that because Gish had admitted the killing, the defense focused on sentencing mitigation. Nevertheless, Opland-Dobs did consider the defense of adequate provocation, which if established would result in a conviction for second-degree intentional homicide. Opland-Dobs also considered a defense of not guilty by reason of insanity, but he concluded that he had no support for it. He discussed both of these defenses with Gish.

         Opland-Dobs also considered whether the medications Gish had taken would affect his ability to control himself. Opland-Dobs was aware of the involuntary intoxication defense, but he had never raised the defense before and was not aware of any colleagues who had either. He made a formal request for research assistance on the effects of Lamictal, Ex. 10, and he inquired with colleagues and a psychiatrist to find out if Lamictal might have side effects that contributed to the crime. But Lamictal was a dead end. Ultimately, despite Gish's requests that Opland-Dobs consider some defense based on his medications, Opland-Dobs concluded that Gish had no viable defense to the homicide charge. Opland-Dobs testified that he did not consider whether Xanax might have adverse side effects, and he could not explain why he did not investigate Xanax as he had Lamictal. Opland-Dobs's practice is that he does not directly recommend that a client accept a plea offer, but leaves the decision to the client. He believed that the offer to Gish was reasonable under the circumstances, but not an especially good one.

         Gish testified at the hearing that he had taken Xanax three times per day as prescribed from July 9 through the day of the killing. He did not say at what time he took the last dose before killing Litwicki. He also testified that he accepted the plea to first-degree reckless homicide because he believed, based on Opland-Dobs's advice, that he had no viable defense. He testified that he was not a violent person and that he believed that he killed Litwicki because of the medications he was taking. Had he known about the involuntary intoxication defense, and the potential side effects of Xanax, he would have rejected the plea and gone to trial, even if the chances of success with that defense were as low as one percent.

         Brent Hart, the Greenfield detective who interviewed Gish, also testified. Video recordings of his interviews are in the record as Exs. 17 and 19; transcripts are Exs. 18 and 20. His hearing testimony established that no Xanax bottles ...

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