 |
Three cases are examined this week in depth, The Ninth Circuit
in Odle v. Woodford
remands on the issue of whether the trial court erred in not conduct
a mental competency hearing even if defendant appeared calm in court.
In Arkansas the state supreme court has remanded for further proceedings
in Jackson
v. State due to the breakdown in postconviction proceedings which
led to dismissal of appellant's petitions on procedural grounds. Finally,
the Fifth Circuit in Hudson
v. Johnson dismisses several challenges to the Texas death penalty
scheme and further holds that petitioner cannot attack credibility of a
hearing witness through habeas review when he failed to challenge the witness'
credibility at the actual hearing
Featured this week is Harlow M. Huckabee's "Dodging
The Insanity Defense with Diminished Capacity." Mr. Huckabee's analysis
of diminished capacity is too large to be reprinted in full, however, the
entire of the article is available on Mr. Huckabee's website, www.diminishedcapacity.com.
Several weeks ago the newsletter changed formats and as a result several
areas were no longer being covered as fully as they formerly were.
Findlaw is now offering much of the services formerly offered by this newsletter,
http://guide.lp.findlaw.com/lists/casesummaries.html. Findlaw is
also now offering an archive of all of their newsletters that is fully
searchable. On such things as criminal law, constitutional law, insurance,
etc. (http://caselaw.lp.findlaw.com/casesummary/index.html).
Supreme
Court
No cases available this week.
Captial Case Relief Granted
No cases available this week.
Captial
Cases Remanded for Further Adjudication
Odle v. Woodford
(9th Cir) Where a defendant has suffered massive trauma to his brain and
subsequently exhibits psychotic behavior, some of it while awaiting trial,
the court should conduct a mental competency hearing even if defendant
appeared calm in court.
Odle's mental troubles started in 1973 when he suffered severe trauma
to his brain as a result of a car accident. A surgeon performed a temporal
lobe lobectomy, removing a 3 x 3 x 4 inch piece of his brain. The surgery
left just a flap of skin to cover the opening in his skull, and only when
Odle complained thirteen months later that his brain was pulsating beneath
the skin, did the surgeon insert a plastic plate to close the opening.
Doctors, family and friends testified that this experience left Odle "a
different guy," one who appeared to be mentally unstable and out of control.
Family members and employers further testified that the Odle they knew
before the accident and the man he became afterwards were like "night and
day." He changed from a man who did not miss "a day he was supposed to
work " to one who was "more like . . . half of a person." He [*6]
seemed confused and talked slowly, like a child; he had trouble controlling
his impulses and often acted bizarrely and wildly. He would get a "hot
look in his eye like a junk-yard dog" and would "beat his head against
the wall."
Mental health records and expert witnesses offered an explanation for
the erratic behavior and personality change that Odle's family and friends
had observed: Odle may never have recovered from the severe trauma he suffered
in the car accident. While county health records revealed no mental disturbances
or mental health visits prior to the accident, Odle was involuntarily committed
to a psychiatric ward three times in as many years following the accident.
The first time, he was hospitalized after taking twelve Tylenol tablets.
"For the greater part of his [nine day] hospital stay," Odle acted "combative,
assaultive, agitated [and] disoriented," and a nurse found him pounding
his head against the wall. Doctors diagnosed him as suffering from "acute
brain syndrome." Later that year, the same day he was discharged from the
surgery to close his skull, Odle was committed a second time. He "had become
violent, he threatened himself [and] others." As another [*7]
doctor described it, "he seemed to have little control over these outbreaks."
As Odle went in and out of the psychiatric ward, doctors prescribed
him different medications, including tranquilizers and antidepressants.
But nothing altered his erratic, out-of-control behavior. Two years later,
he was committed again, after someone found him prowling around a stranger's
back-yard, "incoherent," "reliving combat or war somewhere," "confused"
and "hallucinating." This pattern ended only when he went to prison in
1976. While there, he slashed his wrists in an attempted suicide. After
he was released at the end of 1979, his family believed that he continued
to "go downhill" and was not acting "in his right mind."
The trial judge had before him a comprehensive record of this history
and heard the testimony of expert witnesses who described the extensive
damage to Odle's brain. Doctors testified that Odle probably suffered from
an organic brain disorder, which causes "defects in the way [a person]
functions intellectually, socially, and emotionally." One psychiatrist
asserted generally that severe head injuries like the one Odle suffered
could cause seizure disorders affecting behavior [*8] for a
prolonged period of time. Another doctor had administered an electroencephalogram
in 1982, before trial, which revealed brain abnormalities consistent with
an epileptic seizure disorder. He testified that Odle's brain injury would
probably cause behavioral disturbances beyond his control. This diagnosis
was consistent with Odle's complaints, documented during his hospitalizations,
that he often felt unable to control his impulses.
The State argues that this evidence of mental impairment is irrelevant
because Odle appeared calm in the court-room. But calm behavior in the
courtroom is not necessarily inconsistent with mental incompetence. Some
forms of incompetence manifest themselves through erratic behavior, others
do not. Odle's behavior in the courtroom does not refute the large body
of clinical evidence which tended to cast doubt on his competence.
Moreover, records from the county jail suggest that this calm masked
continuing mental impairment. Less than a year before the trial began,
prison officials found Odle lying face down in his jail cell, apparently
unconscious. Odle had attempted to commit suicide by setting fire to his
cell. The prison's mental health staff diagnosed [*9] this
as a brief psychotic episode and, given his history of depression and past
suicide attempts, placed him in a suicide observation room for several
weeks.
The State also relies on the fact that Odle's own lawyer did not question
his competence at the time of trial. It is true that "defense counsel will
often have the best-informed view of the defendant's ability to participate
in his defense." Medina, 505 U.S. at 450. But counsel is not a trained
mental health professional, and his failure to raise petitioner's competence
does not establish that petitioner was competent. Nor, of course, does
it mean that petitioner waived his right to a competency hearing. See Miles
v. Stainer, 108 F.3d 1109, 1113 (9th Cir. 1997). n5
We do not dismiss lightly the fact that no one questioned Odle's competence
over the course of two years of pre-trial proceedings and twenty-eight
days of trial. See Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir. 1991)
("We deem significant the fact that the trial judge, government counsel,
and [petitioner's] own attorney did not perceive a reasonable cause to
believe [petitioner] was incompetent."). The observations of those interacting
with petitioner surely are entitled to substantial weight. But personal
observations cannot overcome the significant doubt about Odle's competence
raised by the clinical evidence. The record revealed an extensive history
of mental impairment, and expert testimony and jail records suggested that
Odle's mental problems lay not just in the past, but continued to the time
of trial. Cf. United States v. Loyola-Dominguez, 125 F.3d 1315, 1318-19
(9th Cir. 1997) (competency hearing required where defendant attempted
suicide on eve of trial and trial court failed to elicit adequate information
to dispel concerns). And, as the trial judge was aware, Odle was missing
a piece of his brain the size of a grapefruit.
None of this [*11] establishes that Odle was incompetent
to stand trial. But we believe a reasonable jurist, given the information
available, would have developed doubts on this score. After all, competence
to stand trial does not consist merely of passively observing the proceedings.
Rather, it requires the mental acuity to see, hear and digest the evidence,
and the ability to communicate with counsel in helping prepare an effective
defense. See Dusky, 362 U.S. at 402; see also Note, Incompetency to Stand
Trial, 81 Harv. L. Rev. 454, 457-59 (1967). The judge may be lulled into
believing that petitioner is competent by the fact that he does not disrupt
the proceedings, yet this passivity itself may mask an incompetence to
meaningfully participate in the process. n6 Where a petitioner has suffered
massive trauma to his brain and subsequently exhibits psychotic behavior,
some of it while awaiting trial, an inquiry into whether he possesses the
mental acuity to participate in the proceedings is the reasonable and appropriate
course of action. Failure to do so denied Odle his right to due process.
See Drope, 420 U.S. at 172.
The state court can nonetheless cure its failure to hold a competency
hearing at the time of trial by conducting one retroactively. We have said
that retrospective competency hearings may be held when the record contains
sufficient information upon which to base a reasonable psychiatric judgment.
See De Kaplany, 540 F.2d at 986 & n.11; see also Moran, 57 F.3d at
696. Although many years have passed since Odle was convicted and sentenced,
the state trial court should be able to "adduce sufficient evidence " to
determine whether Odle was competent to stand trial. Evans v. Raines, 800
F.2d 884, 888 (9th Cir. 1986). n7 Expert witnesses who testified at trial,
as well as experts who have since examined Odle, submitted declarations
describing Odle's mental state at the time; defense counsel and an investigator
submitted declarations describing Odle's behavior during trial proceedings.
Moreover, medical records, psychiatric reports and jail records submitted
at trial are still available. Given this old and new evidence, "it is not
unreasonable to conclude that a fair retroactive hearing could be . . .
conducted." De Kaplany, 540 F.2d at 986 n.11. [*13]
We therefore remand the case to district court with instructions to
grant the writ unless the state trial court conducts a hearing within sixty
days to determine whether Odle was competent at the time he stood trial.
See Miles, 108 F.3d at 1114. The district court shall retain jurisdiction.
If the state court vacates the conviction, the district court shall dismiss
the habeas petition. If it upholds the conviction, the district court shall
review the state court's determination consistent with this opinion. We
retain jurisdiction over the case and, if the competency claim is ultimately
resolved against him, we will review Odle's remaining four claims as to
which we grant the COA. See Morris, 229 F.3d at 781.
Jackson
v. State (Arkansas) Breakdown in postconviction proceeding led to dismissal
of appellant's petitions on procedural grounds; reversed & remanded
where appellant was entitled to have claims considered.
Here, appellant contends that Rule 37.5 creates a specific
entitlement to counsel in a capital case for the purpose of pursuing relief
via Rule 37. He further contends that that entitlement to counsel means
"conflict-free" counsel (citing Wood v. Georgia, 450 U.S. 261, 67 L. Ed.
2d 220, 101 S. Ct. 1097 (1981)), and that because the attorney appointed
by the circuit court moved to be relieved on the basis of a conflict of
interest and was relieved on that basis, he was not provided Rule 37.5
counsel prior to the expiration of the filing period. We agree.
We noted in O'Brien v. State, 339 Ark. 138, 3 S.W.3d 332 (1999)
[*8] that there is no constitutional right to an attorney in State
postconviction proceedings; however, in O'Brien, we distinguished our holding
in Porter based on the fact that Porter was a death penalty case decided
under Rule 37.5; O'Brien was not. Further, as we pointed out in Porter,
while there is no constitutional right to a postconviction proceeding,
when the State undertakes the role of providing such, it must comport with
due process and be fundamentally fair. See Porter, 339 Ark. at 18 (citing
Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997)).
This Court's pronouncements in cases following Porter suggest that Rule
37.5 cases require an examination of whether it is "fundamentally fair"
to require an inmate on death row to abide by the stringent filing deadlines
when he was under the impression he was represented by counsel and that
said counsel was timely filing the proper pleadings on his behalf. Porter,
339 Ark. at 18; see O'Brien v. State, supra; Coulter v. State, 340 Ark.
717, 13 S.W.3d 171 (2000). The obvious concern in the instant case is that
the State [*9] has opted to specifically provide a postconviction
process for persons under a sentence of death through Rule 37.5. Rule 37.5
mandates very specific requirements, including a level of quality of appointed
counsel for persons pursuing Rule 37.5 relief. In addressing whether the
strict application of the jurisdictional time limits would be fundamentally
fair in the instant case, the following facts are of relevance to consider:
1)
In the instant case, appellant requested the appointment of counsel
for the purpose of pursuing Rule 37 relief at his Rule 37.5 hearing; he
inquired as to whether the circuit court was going to relieve the counsel
appointed based on the asserted conflict of interest; and, he eventually
did file a Rule 37 petition via Mr. Rosenzweig. Clearly, appellant wanted
to pursue Rule 37 relief.
2)
The Commission, shortly after appointment, moved to be relieved based
upon a conflict of interest. The asserted conflict was that appellant's
trial counsel, Maxie Kizer, would soon be employed by the Public Defender
Commission and under the direct supervision of Ms. Didi Sallings. Thus,
the Commission would be investigating claims of ineffective assistance
[*10] of counsel against one of its employees. Ms. Sallings also
submitted that it was a conflict of interest for her to represent appellant
because she had previously represented him in a different capital murder
case, and she could conceivably be called as a witness at the Rule 37.5
hearing.
3)
Rule 37.5(c)(5) specifically states that a circuit court shall not appoint
an attorney under the rule if that attorney represented the person under
a sentence of death at trial or on direct appeal to the Arkansas Supreme
Court unless the person requests as such. Further, the rule states that
if such an attorney is appointed, the circuit court shall appoint a second
attorney who has not represented the person. Thus, this rule was violated
because Ms. Sallings represented appellant in a different trial, under
a sentence of death, and the circuit court did not appoint a second attorney
to assist. Mr. Kizer's employment with the Commission further complicated
the situation.
Unlike Porter, this case does not evolve from a lack of notice to the
appellant. He was aware in this case that the Commission had been appointed
but had moved to be relieved. Appellant was, however, [*11]
waiting for the circuit court to either relieve the Commission and appoint
new counsel who would file his petition, or to deny the Commission's motion
so that the Commission would then file his petition. The end result is
that a breakdown in the State-provided postconviction proceeding led to
the dismissal of appellant's petitions on procedural grounds, and this
Court has held that great care should be taken to assure that the denial
rests on solid footing. Porter, 339 Ark. at 19.
Porter and the cases that follow suggest that Rule 37.5 requires a heightened
standard of review of capital cases because the State has undertaken, via
Act 925 of 1997 and Rule 37.5, to provide collateral relief so as "to eliminate
the need for multiple federal habeas corpus proceedings in death cases."
Id. Again, while there is no constitutional right to a postconviction proceeding,
when the State undertakes the role of providing such, as it has done here,
it must comport with due process and be fundamentally fair. Id. at 18.
Therefore, pursuant to Porter, we hold that fundamental fairness dictates
that the appellant in this case be afforded an opportunity [*12]
to have his claims considered. For all of the above-stated reasons, we
hereby reverse and remand the case.
Commonwealth
v. Sarchank (Pennsylvania)(order with
dissent) Remand for furth adjudication for a "colloquy with Daniel
M. Sarancak to determine the veracity of the unsworn declaration which
was attached to the application"
Federal
Captial Cases Relief Denied
Hudson v. Johnson
(5th Cir) Substantial review of Texas's death penalty statue. Petitioner
cannot attack credibility of a hearing witness through habeas review when
he failed to challenge the witness' credibility at the actual hearing.
Beazley raises several challenges to the constitutionality
of the Texas death penalty statute. The statute's history is helpful background
both to the issues raised in state court (discussed here in part II.A)
and to those raised for the first time in federal court (discussed in part
II.B.1). The statute has come before the Supreme Court on multiple occasions
as the Court,
in the years since Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346,
92 S. Ct. 2726 (1972), has struggled [*15] to harmonize[] two
competing commandments of the Eighth Amendment. On the one hand, as Furman
itself emphasized, the States must limit and channel the discretion of
judges and juries to ensure that death sentences are not meted out wantonly
or freakishly. On the other, ... States must confer on the sentencer sufficient
discretion to take account of the character and record of the individual
offender and the circumstances of the particular offense to ensure that
death is the appropriate punishment in a specific case.
Graham v. Collins, 506 U.S. 461, 468, 122 L. Ed. 2d 260, 113 S. Ct.
892 (1993) (emphasis added; internal quotations marks and citations omitted).
In 1976, in Jurek v. Texas, the Supreme Court upheld the constitutionality
of an earlier version of the Texas death penalty statute. 428 U.S. 262,
269, 276, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976) (plurality opinion) (citing
TEX. CODE CRIM. PROC. art. 37.071 (Vernon Supp. 1975-76)). Under that statute,
the jury considered: (1) whether the conduct of the defendant was committed
deliberately and with the reasonable expectation death would result; (2)
whether the probability of future violence [*16] and a continuing
threat to society existed (future dangerousness); and (3) whether defendant
was unreasonably provoked. Id. at 269 (plurality opinion). The Court determined
that, although the statute did "not explicitly speak of mitigating circumstances",
id. at 272 (plurality opinion) (emphasis added), it assured that the jury
had before it "all possible relevant information about the individual defendant
whose fate it must determine". Id. at 276 (plurality opinion).
In Franklin v. Lynaugh, the Court considered whether the Texas special
issues prevented adequate consideration of the defendant's clean prison
disciplinary record. 487 U.S. 164, 108 S. Ct. 2320, 101 L. Ed. 2d 155 (1988).
A plurality rejected the challenge, finding: "In resolving the second Texas
Special Issue [future dangerousness] the jury was surely free to weigh
and evaluate petitioner's disciplinary record as it bore on his 'character'
... as measured by his likely future behavior". Id. at 178 (plurality opinion).
Then, in 1989, the Court in Penry v. Lynaugh overturned a death sentence,
concluding that Texas' special issues [*17] failed to provide
the jury a genuine opportunity to give mitigating effect to a defendant's
mental retardation and abused childhood. 492 U.S. 302, 328, 109 S. Ct.
2934, 106 L. Ed. 2d 256 (1989). It reasoned: this evidence had only aggravating
relevance to future dangerousness (special issue two), even though it might
diminish a defendant's blameworthiness; it might not be reflected in the
first special issue (deliberate action); and it could not be considered
under the third (provocation). Id. at 322-24. Therefore, the defendant
was constitutionally entitled to further instructions that would allow
the jury to give effect to his mitigating evidence. Id. at 328. The Court
stated that, because this holding was "dictated by" its capital-case precedent,
id. at 319, it was not making a new rule under Teague. Id. at 318-19 (citing
Teague v. Lane, 489 U.S. 288, 301, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989)).
Later, in Graham, the Court observed: "We do not read Penry as effecting
a sea change in this Court's view of the constitutionality of the former
[*18] Texas death penalty statute; it does not broadly suggest the
invalidity of the special issues framework". Graham, 506 U.S. at 474 (emphasis
added). It concluded that the focus remained on whether the sentencer had
a reliable means of giving mitigating effect to the evidence or if it had
been placed beyond the jury's effective reach. Id. at 475. Finally, in
Johnson v. Texas, the Court held that the future dangerousness special
issue allowed adequate consideration of youth. 509 U.S. 350, 368, 113 S.
Ct. 2658, 125 L. Ed. 2d 290 (1993). It reaffirmed that "States are free
to structure and shape consideration of mitigating evidence in an effort
to achieve a more rational and equitable administration of the death penalty".
Id. at 362 (internal quotation marks and citations omitted).
In the wake of Penry, Texas amended its death sentencing statute, effective
1991. See TEX. CODE CRIM. PROC. ANN. art. 37.071. Under § (2)(b) of
the amended statute, the jury considers future dangerousness (previously
issue 2); and, if the defendant has been charged as a party, it considers
whether the defendant actually caused the death, [*19] or intended
to cause or anticipated a death. Under § (2)(e), the jury is instructed
that, if it answers "yes" to the previous issues, it must consider
whether, taking into consideration all of the evidence, including the
circumstances of the offense, the defendant's character and background,
and the personal moral culpability of the defendant, there is a sufficient
mitigating circumstance or circumstances to warrant that a sentence of
life imprisonment rather than a death sentence be imposed.
Id. § 2(e)(1). Subsection (f) requires an instruction that mitigating
evidence is that which "a juror might regard as reducing the defendant's
moral blameworthiness". Id. § 2(f)(4) (emphasis added).
The Texas Court of Criminal Appeals explained in McFarland v. Texas,
928 S.W.2d 482, 520 (Tex. Crim. App. 1996) (en banc), cert. denied, 519
U.S. 1119, 136 L. Ed. 2d 851, 117 S. Ct. 966 (1997), that "the inclusion
of the mitigation issue in the present Texas scheme is merely a codification
of the dictates of Penry". Accord Cantu v. Texas, 939 S.W.2d 627, 645 (Tex.
Crim. App.) (en banc) [*20] ("Our statutory scheme has not
radically changed from the version upheld in Jurek v. Texas 428 U.S. 262,
49 L. Ed. 2d 929, 96 S. Ct. 2950, except to incorporate the dictates of
Penry". (emphasis added; citations omitted)), cert. denied, 522 U.S. 994,
139 L. Ed. 2d 399, 118 S. Ct. 557 (1997).
On direct appeal, Beazley asserted that the death penalty, at least
as administered in Texas, was cruel and unusual punishment under the Eighth
and Fourteenth Amendments, especially in the light of developments following
the earlier-referenced Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346,
92 S. Ct. 2726 (1972) (juror discretion made death penalty system cruel
and unusual punishment, violative of Eighth Amendment). The Texas Court
of Criminal Appeals held its recent decisions were to the contrary, citing
McFarland, 928 S.W.2d at 520-21, and Lawton v. Texas, 913 S.W.2d 542, 558
(Tex. Crim. App. 1995) (en banc), cert. denied, 519 U.S. 826, 136 L. Ed.
2d 44, 117 S. Ct. 88 (1996).
The district court observed that the Supreme Court has held the Texas
death penalty scheme does not violate the Eighth Amendment and [*21]
rejected the claim as without merit, citing Jurek.
Beazley contends that the state court decision regarding whether the
Texas death penalty constituted cruel and unusual punishment was "contrary
to" clearly established Supreme Court precedent because it "mischaracterized
at best the appropriate rule". He fails, however, to elaborate on how this
mischaracterization occurred. In any event, under the standard of review
articulated by Williams, the state court ruling on this issue does not
run afoul of § 2254(d)(1).
3.
Along this same line, Beazley maintained on direct appeal that the Texas
statute's definition of "mitigating evidence" is facially unconstitutional
because it limits "mitigation" to factors that render a capital defendant
less morally "blameworthy" for commission of the capital murder. See TEX.
CODE CRIM. PROC. ANN. art. 37.071 § 2(f). The Court of Criminal Appeals
rejected Beazley's claim, stating it had recently decided the issue otherwise,
again citing McFarland, 928 S.W.2d at 518, and Lawton, 913 S.W.2d at 555-56.
On state habeas, the court concluded that, in addition to the claim's
[*22] not being subject to habeas relief because it had already been
rejected on direct appeal, the claim was procedurally barred because it
had not been raised in the trial court. In the alternative, it rejected
the claim on the merits, concluding: the jury could consider evidence of
prior good character when answering the special issues; and the instructions
did not preclude it. The district court concluded: in Crank v. Collins,
19 F.3d 172, 175 (5th Cir.), cert. denied, 512 U.S. 1214, 129 L. Ed. 2d
825, 114 S. Ct. 2699 (1994), this claim was held to be without merit because
good character evidence is within the effective reach of the jury under
the future dangerousness special issue; and, in addition, Crank held the
issue Teague-barred. See id.
Crank concerned the statute prior to its amendment in 1991. Beazley
asserts that, because the statute has been amended, Crank does not control.
He contends that the new mitigating evidence special issue and definition
of "mitigating evidence", added in 1991 to subsection (f), preclude consideration
of good character and community approbation.
As quoted earlier, "[Texas'] statutory [*23] scheme has
not radically changed from the version upheld in Jurek v. Texas, except
to incorporate the dictates of Penry". Cantu, 939 S.W.2d at 645 (emphasis
added; citations omitted). In considering challenges to the definition
of mitigating evidence as that which makes the defendant less morally blameworthy,
the Texas court has repeatedly stated that all mitigating evidence can
be given effect under the broad definition of mitigating evidence found
in Texas Code of Criminal Procedure article 37.071 § 2(e). See Prystash
v. Texas, 3 S.W.3d 522, 534 (Tex. Crim. App. 1999) (en banc) ("Section
2(e) solves any potential narrowing problem in section 2(f)(4)[, instructing
the jury to consider mitigating evidence to be that which reduces the defendant's
moral blameworthiness,] ... [because] the trial court's instructions pursuant
to section 2(e) provide the jury with a vehicle to respond to a broader
range of mitigating evidence".), cert. denied, 529 U.S. 1102, 146 L. Ed.
2d 782, 120 S. Ct. 1840 (2000); see also Cantu, 939 S.W.2d at 648-49 (by
requiring jury to take into account all evidence, [*24] §
2(e) supports interpretation that § 2(f)(4) does not unconstitutionally
narrow definition).
Likewise, our reading of the statute leads us to conclude that the amended
statute does not unconstitutionally "preclude[] [the jury] from considering,
as a mitigating factor, any aspect of a defendant's character or record
and any of the circumstances of the offense that the defendant proffers
as a basis for a sentence less than death". Lockett v. Ohio, 438 U.S. 586,
604, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978).
The definition of mitigating evidence does not limit the evidence considered
under the third special issue (whether mitigating circumstances warrant
a life, rather than a death, sentence). "Virtually any mitigating evidence
is capable of being viewed as having some bearing on the defendant's 'moral
culpability' apart from its relevance to the particular concerns embodied
in the Texas special issues". Graham, 506 U.S. at 476 (emphasis added).
Furthermore, as noted, the future dangerousness special issue remains
in the amended Texas statute. Our court has repeatedly concluded that,
under that special issue, a jury [*25] could give effect to
good character evidence. See Nichols v. Scott, 69 F.3d 1255, 1278 (5th
Cir. 1995) ("At the least, the ... special issue concerning future dangerousness
provides an adequate vehicle for the jury to give effect to this mitigating
evidence, placing it within the effective reach of the sentencer, and there
is no reasonable likelihood that the jury would have found itself foreclosed
from thus considering it. The Supreme Court and this Court have many times
so held." (emphasis added)), cert. denied, 518 U.S. 1022, 135 L. Ed. 2d
1076, 116 S. Ct. 2559 (1996); see also Jacobs v. Scott, 31 F.3d 1319, 1327
(5th Cir. 1994) (holding that "as for [a defendant's] alleged positive
character traits, a jury wishing to give effect to such traits could answer
'no' to the ... special issue regarding future dangerousness"), cert. denied,
513 U.S. 1067, 130 L. Ed. 2d 618, 115 S. Ct. 711 (1995); Black v. Collins,
962 F.2d 394, 405 (5th Cir.) (denying certificate of probable cause for
claim that Texas did not allow mitigating weight to be given good character
evidence because jury could consider such evidence under [*26]
future dangerousness special issue), cert. denied, 504 U.S. 992, 119 L.
Ed. 2d 601, 112 S. Ct. 2983 (1992).
State
Captial Cases Relief Denied
Dansby
v. State (Arkansas) Writ of error coram nobis denied as no reasonable
probability that judgment would not have been rendered had newly discovered
evidence been brought out at trial.
Before a writ of error coram nobis may issue it must appear that the
facts as alleged as grounds for its issuance be such that there is a reasonable
probability that the judgment of conviction would not have been rendered,
or would have been prevented, had the exculpatory evidence been disclosed
at trial, not that the newly discovered evidence might have produced a
different result had it been known to judge and jury. Larimore, supra.
The information contained in the affidavits that petitioner contends is
newly discovered exculpatory evidence is not of such fundamental nature
that it can be said that there is a reasonable probability that the judgment
would not have been rendered had the information been brought out at trial,
especially in view of the forensic evidence, including DNA testing linking
petitioner to one of the victims, and petitioner's admission to two persons
of his guilt. With respect to petitioner's claim that the State,
[*11] or Hillary acting as an agent of the State, may have withheld
Byer's account by telling Byers that his information was not needed, petitioner
has not demonstrated that there was some deliberate suppression of exculpatory
evidence by the State such that a fundamental error extrinsic to the record
occurred.
Other
Notable Cases
Spencer v. Sutton
(4th Cir) Defendant's petition for habeas corpus was untimely because the
limitations period is only tolled from the time an application for
state post-conviction or other collateral review is initially filed until
it is finally disposed of by the state courts, including during times between
denials of claims and appeals.
US v. Henley
(9th Cir) When deciding whether to grant a new trial based on a defendant's
alleged attempt to bribe a juror, the standard is whether the alleged misconduct
"interfered with the jury's deliberations by distracting one
or more of the jurors," not whether the conduct substantially swayed
the jury.
US v. Craven
(1st Cir) If a sentencing court desires additional information from a court-appointed
expert, rather than communicate ex parte with the expert, it must either
(1) make a written request for a supplemental report and provide it to
the parties in accordance with 18 USC 3552(d),
or (2) bring the expert into court to be questioned in the presence
of the parties.
US v. Davis
(2nd Cir) Defendant, who accused his attorney of coercing him into making
a guilty plea, received ineffective assistance of counsel, where he made
particularized allegations that counsel had threatened not to investigate
his case and not to file pre-trial motions.
Dawes v. Walker
(2nd Cir) Prisoner's failure to set forth specific time frame for his challenge
to disciplinary proceeding, and alleged retaliation by prison officials,
and lack of factual allegations to support charge of Eighth Amendment violations,
warrants dismissal of civil rights action.
US v. Pratt
(4th Cir) Where defendant communicates to all members of the conspiracy
that his withdrawal from the conspiracy would jeopardize his usefulness
to law enforcement as a cooperating witness, the cooperation itself was
inconsistent with the aims of the conspiracy and thus signalled a withdrawal
from it.
Morrison v. Garraghty
(4th Cir) Correctional system may not prohibit petitioner from acquiring
and possessing sacred Native American objects purely on the basis of petitioner's
race.
Staley v. Jones
(6th Cir) State court's determination that Michigan's anti-stalking statute
is not vague or overbroad was not contrary to, or an unreasonable application
of, federal law as it existed in 1995-96, as established by the U.S. Supreme
Court.
Outrages
of the Week
US v. Fleming
(6th Cir) A sentencing court cannot unilaterally restore a right to appeal
that has been waived by the defendant pursuant to a valid plea agreement.
US
v. Gonzalez-Rodriguesz (8th Cir) District court did not abuse its discretion
in refusing to disclose
identity of confidential informant where informant was merely a
tipster, and defendant failed to show materiality for revealing the informant's
identity.
Featured
Few articles or websites are more timely, and to date undeservedly
overlooked by this website, than Harlow M. Huckabee's "Dodging
The Insanity Defense with Diminished Capacity." Mr. Huckabee
has recently released Mental
Dissability Issues in the Criminal Justice System : What They Are, Who
Evaluates Them, How and When, as well as his classic (1980) release
Lawyers,
psychiatrists & criminal law: co-operation or choas. The
entire of Mr. Huckabee's article is available at www.diminishedcapacity.com
The language "Dodging The Insanity Defense" in the title of
this article is not meant to be critical of defense attorneys who use diminished
capacity as a defense in criminal cases. Certainly it is their duty to
present all appropriate defenses within the framework of the law and legal
ethics. Instead, this study is aimed at jurisdictions and entities such
as those listed in Sections III, and V through X in the foregoing Table
of Contents. They have adopted positions in legislation and court decisions
(or in a model code, standards or policy statements by the entities in
Sections III, IX and X) which can result in admissibility of mental disability
evidence not meeting the seriousness requirements of traditional insanity
defenses.
Insufficient action has been taken to resolve the problems. This is
in spite of the fact that in the wake of the Hinckley case (involving the
attempted assassination of President Reagan) there was a hue and cry about
the need to eliminate or tighten insanity defenses. The apparent purpose
of this was to reduce the influence of mental disability evidence and testimony
of mental health experts in criminal prosecutions. Presumably, this would
also include reducing such testimony and evidence directly on mens rea
outside the framework of traditional insanity defenses. The jurisdictions
discussed in this article are examples illustrating that variations of
the problems still exist. Other jurisdictions may find this study helpful
in evaluating the issues.
This article considers various alternatives. The first is whether or
not a traditional insanity defense should be considered as a firm framework,
with a requirement that all mental disability evidence on mens rea outside
that framework should be precluded. A number of jurisdictions have taken
variations of that position. As will be discussed more in detail later
(in Section IV herein) some seem to place too much emphasis on "insanity
defense or nothing" type language. This tends to create constitutional
problems.1
A second alternative comes close to achieving the same result as the
first alternative, mentioned above. If a jurisdiction has a traditional
insanity defense it may still allow in evidence on mens rea certain mental
disability not necessarily fitting the framework of that defense. However,
this alternative contemplates that such mental disability must be severe
enough to demonstrate complete lack of capacity for the mens rea involved
in the offense. If it does not meet that requirement this approach says
it should be kept out by using evidentiary, substantive law or policy reasoning
(or a combination thereof). This involves the Strict Mens Rea concept described
in Section II E of the Glossary in this article.
Evidentiary, substantive law and policy reasoning is also undoubtedly
an underlying factor in protecting against constitutional attacks even
in jurisdictions completely precluding mental disability testimony and
evidence outside the traditional insanity defense (i.e. the first alternative
mentioned above). In connection with taking that broad position, presumably
the jurisdictions have applied such reasoning. Nevertheless, it would be
better if they would downgrade any "insanity defense or nothing" type rhetoric
in court opinions, briefs and other material in support of that position.2
A third alternative involves the approach in various jurisdictions (and
in certain circumstances) which allows even minor mental disorders to be
admitted directly on mens rea (outside the traditional insanity defense
framework).3 This includes allowing such minor disorders in evidence whenever
they are relevant to prove any subjectively defined mental state; or sometimes
only in more limited situations such as, for example, in homicide cases
to reduce degrees of crime; or to focus only on specific intent, knowledge
etc.4
For those who are "law and order" oriented the simple answer would be
the first alternative mentioned above, firmly keeping all mental disability
evidence on mens rea within the traditional insanity defense framework.
Those with law and order orientation might also be satisfied with the above
mentioned second alternative. However, instead of having a flat rule that
draws the line at the insanity defense in all cases (as in the first alternative),
the second alternative would require admissibility decisions by courts
on a case by case basis. This is cumbersome and difficult. Defense attorneys
and those who are treatment oriented would probably prefer the third alternative,
which would allow even minor mental disorders to come into evidence directly
on mens rea (outside the traditional insanity defense framework).
The constitutional issues involved in all of this are difficult to handle.
As developed in more detail in Section IV of this study, in a 1989 Pepperdine
Law Review article (Volume 16 at 573-611) I attempted to support the "insanity
defense or nothing" position in the first alternative, discussed above.
I said that it could be supported if appropriately backed up by evidentiary,
substantive law and policy reasoning. In an article in 1993 in the Western
State University Law Review (Volume 20 at 435, 465-504) I continued in
my position that the first alternative might be handled in a constitutional
manner, but suggested that it might be safer for jurisdictions to consider
the above mentioned second alternative, which would require decisions by
courts on a case by case basis (Volume 20, Western State University Law
Review at 496).
In the subtitle of a recent book Professor James Q. Wilson questions
whether the "abuse excuse" threatens the legal system.5 In criminal
prosecutions diminished capacity involving the effect of mental disorders
not serious enough to meet insanity tests does not specifically fit into
the "abuse" concept. Nevertheless, elements of diminished capacity can
be argued in some cases in support of the abuse defense. In fact, at various
points in his book Professor Wilson refers to mental disorder issues as
being part of the problem. In his book entitled The Abuse Excuse Professor
Alan M. Dershowitz uses a subtitle: And Other Cop-outs, Sob Stories, and
Evasions of Responsibility.6 Clearly variations of diminished capacity
would fit within that subtitle. Thus, in various contexts, Professor Dershowitz
refers to mental disorder issues in his book.
Professors Wilson and Dershowitz have a broader approach than my focus
on diminished capacity and related issues in this article. Nevertheless,
it can be seen from their books that the effect of minor mental disorders
is an underlying factor in numerous areas they have considered. This includes
a variety of new "syndromes" which have proliferated in recent years as
defenses in criminal prosecutions. An indication of the scope of this problem
can be seen from the large number of items in the literature on this subject.
A lengthy list is included in a book by Professors D. Cherwyn Picquet and
Reba A. Best, of the University of Tennessee College of Law. It is entitled
The Insanity Defense: A Bibliographic Research Guide (Second Edition 1994).
For example, it includes listings of literature on this issue regarding
post traumatic stress disorder at pages 168-171; premenstrual syndrome
at pages 171-173; and XYY chromosome syndrome at pages 248-249. At pages
206-213 of their book, Professors Picquet and Best also set forth a lengthy
list of items in the literature regarding diminished capacity and diminished
responsibility. These concepts are a major focus in this study. See also
Section 12.01 at pages 12-3 through 12-6 of a book entitled Psychiatric
And Psychological Evidence (Second Edition, December 1995) by Professor
Daniel W. Shuman of the School of Law, Southern Methodist University. He
discusses (and cites literature regarding) the potential use of diminished
capacity (as well as the insanity defense) with reference to premenstrual
syndrome, post traumatic stress disorder, battered woman syndrome and postpartum
psychosis.7
Because of this movement in recent years towards more use of variations
of the so-called diminished capacity concept (under varying labels), there
is emphasis in this study on evaluating the potential for moving things
back as close as possible to the traditional insanity defense framework.
In my judgment this can be accomplished within the context of the foregoing
discussion in this Introduction, which will be developed more in detail
throughout this study.
A point which should be emphasized is that it does not do much good
for reformers to make sweeping comments about the need for improvements
in these areas by the various criminal justice systems, unless jurisdictions
and entities (such as those in Sections III and V through X in this study)
really try to solve the problems. In view of the strength of the defense
bar and treatment oriented members of the medical and mental health professions,
I am not too optimistic that there will be movement away from the present
system in many jurisdictions involving admissibility of relatively minor
mental disorders on mens rea. Nevertheless, the attempt here is to add
something to the dialogue.
An example of the problem is discussed by Lisa Weintraub in the Summer
1997 issue of The Journal Of Psychiatry And Law. Her article is entitled
Inner-City Post-Traumatic Stress Disorder. It discusses the fact that in
the fourth edition of the American Psychiatric Association’s Diagnostic
And Statistical Manual Of Mental Disorders there is a new definition of
post-traumatic stress disorder. (PTSD was first used in the criminal context
as a defense of Vietnam veterans accused of crimes, and is related to their
combat experiences.) Ms. Weintraub’s article examines expansion of that
defense, and the extent to which inner-city defendants in criminal cases
meet the criteria of the new definition of PTSD (including having to face
urban violence). She points out how defense attorneys and the legal system
have used it in connection with insanity defenses in criminal cases. As
examples, she comments on some cases similar to those mentioned in the
books by Professor Dershowitz and Professor Wilson, previously referred
to herein. They include the black rage defense, urban psychosis, and "rotten
social background" excuses. An additional consideration, discussed herein,
is that also implicit in this trend is that PTSD will undoubtedly be more
often used in mens rea model-type defenses outside the framework of traditional
insanity defenses. Ms. Weintraub says that the legal system should not
encourage PTSD defenses for such inner-city residents because they foster
negative stereotypes of racial minorities; they perpetuate the cycle of
violence in cities; they are an insult to the many inner-city minorities
who grow up around violence and never commit crimes; and they could result
in dangerous criminals being released. Consistent with some of the major
points stressed herein, she indicates that severe mental disease requirements
in insanity defenses could help reduce use of such defenses. I fully agree
with that, and stress herein that any evidence of mental disability on
mens rea outside the traditional insanity defense framework should also
be severe. The question to consider is whether or not any level of PTSD
can meet that requirement.8
In the Notes I emphasize citations to my own book and articles. Readers
who want to go into more depth (or desire more authorities) regarding the
points being made may refer to additional references cited in my writings,
or in the other references cited herein.
Incidentally, it will be noticed that I have not followed the exact
citation rules as set forth in the "The Bluebook," compiled by the editors
of various law reviews and journals, and published and distributed by the
Harvard Law Review Association. For example, at times I set forth citations
to supporting authorities in the text of this article that in ordinary
law review or law journal articles would be in footnotes. Also, I have
avoided lengthy textual material in footnotes. Nevertheless, lawyers, law
students and others familiar with "The Bluebook" will find that citations
are generally consistent with that publication (although not always in
the exact format recommended therein). In view of the complexity and length
of this project I have focused my efforts on substantive issues rather
than taking the time to seek "Bluebook" perfection in the citations. Nevertheless,
I have attempted to be accurate in the titles of publications, where published,
dates, page and section numbers etc. Perhaps all of this is my way of attempting
to be more comfortable in moving things along (on my own and without editors)
in this new "web site" method of publishing a legal article. Hopefully
this approach will be acceptable to readers. Perhaps they can make suggestions
for improvement for me to consider when I update this web site.
Whether or not there is agreement with all of my positions in this study,
the effort here is based on the assumption that the approaches I am using
will at least be considered viable as a basis for discussion of the issues.
Focusing on the exact definitions and explanations in the Glossary is particularly
important. This is because a major problem regarding this subject involves
the variety of ambiguous and inconsistent labels for "diminished capacity"
and its variations in cases, statutes, literature, standards and policy
statements. There might be disagreement with the choice of labels used
here, but the purpose of the Glossary is to spell out exact meanings. Thus,
participants in discussions will not get lost by having different understandings
of the meaning of the particular concept under consideration.
Sections I through IV of this study present the general framework for
consideration of the concepts and issues. With reference to the jurisdictions
and entities in Sections V through X, that framework will be revisited
and applied in varying situations.
Because the attempt here is to apply general principles to problems
existing in all states and the federal system, of necessity I am using
a "broad brush." My effort is to focus on examples which illustrate the
general concepts. It is my hope that knowledgeable participants in (and
students of) the criminal justice system will understand the general framework
of what I am discussing. Perhaps they will then be able to use the concepts
discussed here in any attempts to tighten the system in the jurisdiction
in which they are interested. Obviously this will involve myriad local
issues and concepts, depending on statutes, case law and rules existing
in the particular jurisdiction.
This subject is controversial. There are strong feelings by (1) those
who are prosecution or (as I like to say) "law and order" oriented versus
(2) those with defense or treatment orientation. The attempt here is to
present a framework for tightening criminal justice systems and pointing
out how they can move in the law and order direction. There are recommendations
throughout which may not be attainable in some jurisdictions because of
strong feelings by those with defense or treatment oriented goals. Nevertheless,
perhaps this study will be useful in suggesting ways to at least move to
some extent closer to law and order goals, even though perhaps not as far
as suggested in my recommendations.
Errata
From the Death
Penalty Information Center reports:
Recently, the Fort Worth Star-Telegram (Texas) urged lawmakers
to consider a moratorium on executions in Texas while the state's capital
punishment system is studied:
It's about time that the Texas Legislature
started talking about a moratorium on executions.
...
[T]he evidence should be overwhelming by now:
Texas' capital punishment system harbors too many weaknesses to ensure
that just punishment is being imposed in a manner that protects defendants'
constitutional rights.
...
A moratorium with a time frame for studying
and implementing improvements would add safeguards that the system now
lacks.
Justice that carries lingering doubts is not
justice at all.
(Fort Worth Star-Telegram, 2/11/01) See also, Changes in the Death
Penalty Around the U.S. and Editorials
Innocent Man Finally Released from Virginia Prison
Earl Washington, Jr. was released from the Greensville Correctional
Center on February 12, after spending 9 1/2 years on Virginia's death row.
Washington, who suffers from mental retardation and has an IQ of 69, had
once come within 9 days of execution for the 1982 rape and murder of a
Culpeper woman. After being granted an absolute pardon by the governor,
Washington's release was delayed because of an unrelated assault conviction.
Now, released on parole for the assault conviction,
the Virginia Department of Corrections has refused to allow Washington
to travel to neighboring Washington, DC, to meet with members of Congress,
attend a press-conference on Capitol Hill, and reunite with his family.
"I'm disappointed that Washington will apparently be unable to respond
to a request from members of Congress who are working on legislation that
will affect cases just like his," said Rep. Robert C. Scott (D-VA).
Washington was instead taken to Virginia Beach, where he will live in a
group home run by a support center for people with mental disabilities.
(Associated Press, 2/12/01 and Washington Post, 2/8/01). See also,
Fenton Communications' Press Release and Innocence.
Bush's New Head of Faith-Based Initiatives Opposes the Death Penalty
The director of the new White House Office of Faith-Based and Community
Initiatives, John J. DiIulio, Jr., says he once favored the death
penalty as "a substantive tool of crime control." DiIulio, who will
aid President Bush's efforts to help religious groups provide social services,
now says he opposes capital punishment. Citing the Catholic catechism,
DiIulio believes "[p]revention is the only reasonable way to approach
these problems." (New York Times, 2/9/01) See also, New Voices
Union of the Orthodox Jewish Congregations Supports Moratorium
The Union of the Orthodox Jewish Congregations of America, the nation's
largest Orthodox Jewish umbrella organization representing nearly 1,000
synagogues nationwide, announced its support for efforts to impose a nationwide
moratorium on executions. The organization endorses the creation
of a commission to conduct a comprehensive review of how the death penalty
is administered in America's courts. (The Union of the Orthodox Jewish
Congregations of America, Press Release, 6/13/00) See
also, Statements and Resolutions from Religious Organizations and Leaders
New Resources
The latest version of the NAACP Legal Defense Fund's "Death Row
USA" (January 1, 2001) is now available on DPIC's Web site. The report,
which includes a list death row prisoners by state, shows that the population
on death row increased by 74 in the past year, a smaller increase than
in previous years. The states with the largest increases since the
October, 2000 report were California (+9) and Pennsylvania (+5).
EDITORIAL
As part of a series on the death penalty in Texas, the Houston Chronicle
called for greater emphasis on indigent defense:
"If there is an indisputable problem with the manner in which the death
penalty is assessed and carried out in Texas, that problem can lie with
the inadequacy of the defense often provided to indigent defendants charged
with capital murder. Since there is no room for error when the death
penalty is enacted, Texans owe it to the defendants and to their own conscience
to insist that every indigent defendant receive a competent, vigorous defense."
(Houston Chronicle, 2/5/01). Read the Houston Chronicle's series
on the death penalty. See also, New Voices and Editorials
Tennessee Death Penalty Supporter Urges Governor to Grant Clemency
Rep. Frank Buck, D-Dowelltown, one of the Tennessee Legislature's leading
death penalty supporters, recently wrote to Governor Don Sundquist urging
him to grant clemency to death row inmate Philip Workman. Citing
new evidence and a recanting witness, Buck believes "justice may not have
been done in this case." Workman, who was convicted of killing Memphis
police Lt. Ronald Oliver, has new evidence to support his claim that he
could not have fired the shots that killed Oliver. "Governor, this
case just does not sit right on my conscience," wrote Buck, the chairman
of the House Judiciary Committee. "There is enough doubt here that if I
were on the jury, I would never vote for the death penalty in this particular
case." Workman recently received a stay of execution while the U.S.
Supreme Court considers whether to hear his case. If the stay is
lifted, the Governor will have to consider whether to grant clemency. (Knoxville
News-Sentinel, 2/3/01) See also, clemency.
From
the mailbox
From this week's inbox:
Karl, I just noticed that in last week's edition of Capital
Defense Weekly, you have a
link to the Indiana Supreme Court's direct appeal decision in Prowell
v. State. The
link you want is to the state post-conviction appeal. Keep up
the wonderful work.
http://www.state.in.us/judiciary/opinions/archive/01110101.trb.html
Paula Sites
-- thanks Paula for the link.
CAPITAL
DEFENSE DISCUSSION LIST: A discussion list for legal professionals
doing capital litigation has been formed. The hope of the list is to get
some cross-pollination of ideas, as well as to give those practitioners',
who may not be at a public defender's office or similar non-profit, a forum
to seek advice & bounce ideas around. The list is private & moderated
only to try to weed out prosecutors & law enforcement.
Post message: capitaldefense@onelist.com
Subscribe: capitaldefense-subscribe@onelist.com
Unsubscribe: capitaldefense-unsubscribe@onelist.com
List owner: capitaldefense-owner@onelist.com
RELATED
RESOURCES You might want to check out the following internet
resources other than this newsletter. Findaw.com's new service provides
e-mail style newsletters on a wide variety of subjects at http://newsletters.findlaw.com,
including both a free weekly criminal law and state court decisions. Similarly,
www.lidb.com (Louisiana's public defender), probono.net (ABA) &
www.capdefnet.org (federal defender) have many prepackaged motions
and law guides dealing with death penalty issue. Finally, the discussion
groups above can help you with any questions you might have.
ARCHIVES
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