Thompson v. Bell

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Thompson v. Bell No. 00-5516

ELECTRONIC CITATION: 2004 FED App. 0195P (6th Cir.)

File Name: 04a0195p.06 ATTORNEY GENERAL, Nashville, Tennessee, for

Appellee.

UNITED STATES COURT OF APPEALS MOORE, J., delivered the opinion of the court, in which

CLAY, J., joined. SUHRHEINRICH, J. (pp. 7-105),

FOR THE SIXTH CIRCUIT delivered a separate opinion concurring in part and dissenting

_________________ in part.

GREGORY THOMPSON, X _________________

Petitioner-Appellant, - OPINION

-

- No. 00-5516 _________________

v. -

> KAREN NELSON MOORE, Circuit Judge. Eighteen

, months ago, this panel in a split decision producing three

RICKY BELL, Warden, - different opinions affirmed the decision of the district court

Respondent-Appellee. - granting summary judgment to respondent in this habeas

N corpus action. Judge Suhrheinrich later conducted sua sponte

Appeal from the United States District Court a second, thorough review of the record and came to the

for the Eastern District of Tennessee at Chattanooga. conclusion that the facts as adduced in deposition testimony

No. 98-00006—R. Allan Edgar, Chief District Judge. not part of the district court record supported the granting of

the writ. See infra (Suhrheinrich, J., concurring). Upon

Decided and Filed: June 23, 2004 reviewing the deposition of Dr. Faye Sultan, and investigating

the procedural complications of this case, it is clear that this

Before: SUHRHEINRICH, MOORE, and CLAY, Circuit extremely probative testimony requires that we vacate the

Judges. district court’s grant of summary judgment in favor of

respondent.

_________________

Judge Suhrheinrich summarizes most effectively the Sultan

COUNSEL deposition and its value in assessing Gregory Thompson’s

mental state at the time of the crime. Where his opinion goes

ARGUED: Dana C. Hansen Chavis, FEDERAL too far is in its accusations of fraud on the court; while his

DEFENDER SERVICES, Knoxville, Tennessee, for explanation for the omission of the Sultan deposition from the

Appellant. Jennifer L. Smith, OFFICE OF THE official record before the court is possible in the narrowest

ATTORNEY GENERAL, Nashville, Tennessee, for sense, the power of this court should not be used to make

Appellee. ON BRIEF: Dana C. Hansen Chavis, FEDERAL such accusations without more definite proof than the factual

DEFENDER SERVICES, Knoxville, Tennessee, for record of this case reveals.

Appellant. Jennifer L. Smith, OFFICE OF THE

1

No. 00-5516 Thompson v. Bell 3 4 Thompson v. Bell No. 00-5516

Dr. Sultan’s deposition was taken by trial counsel for 913 F.2d 89, 97 (3d Cir. 1990) (citing inconsistent circuit

respondent, but was not included with the evidence submitted precedent); United States v. Aulet, 618 F.2d 182, 187 (2d Cir.

as part of Bell’s motion for summary judgment. Slightly 1980), the rule in this circuit has consistently been that Rule

more than one year later, contemporaneous with the 10(e) does not allow such inclusion. See, e.g., Inland Bulk,

preparation of this appeal, appellate habeas counsel made a 332 F.3d at 1012; S & E Shipping Corp. v. Chesapeake &

Rule 60(b) motion in the district court asking to include the Ohio Ry. Co., 678 F.2d 636, 641 (6th Cir. 1982). We adhere

Sultan deposition as part of the record. At the same time, to our previous interpretation that Rule 10(e) does not allow

Thompson’s counsel submitted that deposition to this court as inclusion in the appellate record of material that the district

part of his motion to hold this appeal in abeyance during the court did not consider.

pendency of the Rule 60(b) motion. Applying the principle

of Occam’s razor, we conclude that more than likely, a Although Rule 10(e) is thus unavailable, we recognize that

genuine mistake was made, one which was not realized until a number of our sister circuits have held that the courts of

a different attorney looked at the case. To conclude otherwise appeals have the inherent equitable power to supplement the

is to disbelieve sworn testimony by an officer of the court, record on appeal, where the interests of justice require. See

and to assume that habeas counsel conspired to conceal United States v. Kennedy, 225 F.3d 1187, 1192 (10th Cir.

evidence beneficial to their client, for no discernible reason 2000) (“[U]nder some circumstances, we have an inherent

— evidence loses power, rather than gains it, by being equitable power to supplement the record on appeal.

revealed on the “eve of execution” in a second habeas However, we conclude the present case” does not present

petition. Reading Judge Suhrheinrich’s opinion, one might those circumstances.); Ross v. Kemp, 785 F.2d 1467, 1474

conclude that this court had only recently unearthed the (11th Cir. 1986) (relying on Dickerson, infra, and exploring

Sultan deposition, when in fact it was submitted to the panel circumstances under which exercise of that power is

prior to oral argument as part of the abeyance motion. appropriate); Gibson v. Blackburn, 744 F.2d 403, 405 n.3 (5th

Cir. 1984) (“Although a court of appeals will not ordinarily

We did not consider it, however, in rendering our decision, enlarge the record to include material not before the district

believing ourselves to be bound by the record created in the court, it is clear that the authority to do so exists.”); Dickerson

district court. Upon reflection, and after reviewing Judge v. Alabama, 667 F.2d 1364, 1368 (11th Cir. 1982) (relying on

Suhrheinrich’s forceful assessment of the probity of the court’s inherent equitable powers to supplement the record in

Sultan deposition, we believe it is appropriate to use our habeas case); Turk v. United States, 429 F.2d 1327, 1329 (8th

inherent equitable powers to expand the record on appeal to Cir. 1970) (“[I]n the interest of justice, this court may order

consider the deposition. Ordinarily, a court of appeals should the record enlarged.”); Gatewood v. United States, 209 F.2d

only consider evidence made part of the district court record. 789, 792-93 & n.5 (D.C. Cir. 1953) (sua sponte ordering

Where through error or accident material matters are omitted preparation of transcript for record “in the interest of both

or misstated, Federal Rule of Appellate Procedure 10(e) parties, and of the due administration of justice”); see also

allows correction of the appellate record to include the Charles Alan Wright et al., Federal Practice & Procedure

corrected material. See Inland Bulk Transfer Co. v. Cummins § 3956.4, at 349-51 (3d ed. 1999 & Supp. 2003) (“In special

Engine Co., 332 F.3d 1007, 1012 (6th Cir. 2003). While circumstances, however, a court of appeals may permit

some circuit courts have held that Rule 10(e) allows the supplementation of the record to add material not presented

inclusion of material the district court did not consider, see In to the district court.”); 20 Moore’s Federal Practice,

re Capital Cities/ABC, Inc.’s Appl. for Access to Sealed Trs., § 310.10[5][f], at 310-19 (3d ed. 2000) (“In extraordinary

No. 00-5516 Thompson v. Bell 5 6 Thompson v. Bell No. 00-5516

situations, the circuit court may consider material not 357 F.3d 461, 464 (4th Cir. 2004) (“The mandate of the court

presented to the district court when it believes the interests of has not yet issued in this case, and, therefore, we may, at our

justice are at stake.”). Although recent Sixth Circuit cases discretion, ‘amend what we previously decided . . . .’”

indicate that we have not yet “embraced the notion that the (quoting Alphin v. Henson, 552 F.2d 1033, 1035 (4th Cir.

record can be supplemented under an appellate court’s 1980)); First Gib. Bank v. Morales, 42 F.3d 895, 898 (5th Cir.

equitable authority,” see Inland Bulk, 332 F.3d at 1012, in at 1995) (relying on Alphin, 552 F.2d at 1035, to reconsider

least one earlier state habeas case we have so supplemented decision where mandate had not yet issued). We therefore

the record, citing to Dickerson, 667 F.2d at 1367. See rely on our inherent power over a case until our mandate

Prather v. Rees, 822 F.2d 1418, 1420 n.1 (6th Cir. 1987) issues in reconsidering our opinion in this case.

(“Although the parties did not provide the court with copies

of the state court briefs, this court may supplement the record The judgment of the district court is therefore VACATED,

when necessary.”); see also Adams v. Holland, 330 F.3d 398, and the case is REMANDED for further proceedings not

405-06 (6th Cir. 2003) (recognizing exception to Rule 10(e) inconsistent with this opinion. Thompson’s execution is also

in habeas cases: “where substantial portions of [the state trial STAYED for 180 days to permit the district court to proceed.

transcript] were omitted before the District Court, a habeas

case should be remanded to the District Court for

consideration in light of the full record.”). Because the

evidence here was apparently negligently omitted, because

the evidence is so probative of Thompson’s mental state at the

time of the crime, because there is no surprise to respondent

as it was his counsel who took the deposition, and because

this is a capital case, we believe that the circumstances of this

case merit consideration of the Sultan deposition pursuant to

our equitable power to supplement the record on appeal,

despite the omission of the deposition from the District Court

record. We therefore vacate the grant of summary judgment,

and remand the case to the District Court for a full evidentiary

hearing.

It remains to be explained the source of our power to so

reconsider our earlier opinion, as we do not join in Judge

Suhrheinrich’s allegation of fraud on the court. Instead, we

rely on our inherent power to reconsider our opinion prior to

the issuance of the mandate, which has not yet issued in this

case. Although a court of appeals should withdraw an

already-issued mandate only to prevent a miscarriage of

justice, see Calderon v. Thompson, 523 U.S. 538 (1998), at

least two of our sister circuits have reconsidered opinions

where the mandate has not yet issued. See Wilson v. Ozmint,

No. 00-5516 Thompson v. Bell 7 8 Thompson v. Bell No. 00-5516

______________________________________________ in my chambers, who also happens to be a board-certified

psychiatrist, expressed concern as to why Thompson’s post-

CONCURRING IN PART, DISSENTING IN PART conviction expert, Gillian Blair, Ph.D., and Thompson’s

______________________________________________ habeas experts, Barry Crown, Ph.D. and Faye Sultan, Ph.D.,

had not directly addressed the question as to whether

SUHRHEINRICH, Circuit Judge, concurring in part and Thompson did or did not exhibit symptoms of a major mental

dissenting in part. illness at the time of the crime or sentencing, and, if he did,

whether the symptoms were sufficient at that point to support

I. Introduction a diagnosis of mental illness which should have been

presented as mitigating evidence at the sentencing hearing.

Petitioner-Appellant Gregory Thompson (“Thompson” or I then conducted my own review of the entire certified record,

“Petitioner”) was convicted of first degree murder and in addition to my prior review of the joint appendix. As a

sentenced to death by the State of Tennessee. In a previous result of my review of the entire certified record, I feel that it

decision, this Court affirmed the district court’s denial of his is incumbent upon me, as a judicial officer sworn to uphold

request for a writ of habeas corpus. See Thompson v. Bell, the Constitution, and as authoring judge of the initial opinion,

315 F.3d 566 (6th Cir. 2003), cert. denied, 124 S. Ct. 804 to reverse that ruling and issue this opinion. Although I am

(2003). The Supreme Court denied Thompson’s petition for now merely a concurring/dissenting judge in this matter, I

writ of certiorari. On February 25, 2004, the State of wish it to be known that the initiative for this decision came

Tennessee granted the State’s motion to set an execution date from my chambers. The majority’s ruling is based upon their

and has ordered that the Warden of the Riverbend Maximum review of my draft opinion, prepared after my discovery, and

Security Institution or his designee execute the sentence of the hundreds of hours of work that followed, reviewing the

death on August 19, 2004, “unless otherwise ordered by this entire record, researching the law, and drafting this opinion.

Court or other appropriate authority.” This matter is now

before this Court on its own motion. The question thus is whether our prior ruling was mistaken,

because there is, and was, in fact available proof that

Essential to our conclusion that Thompson was not denied Thompson was suffering from a serious mental disease or

effective assistance of counsel due to counsel’s failure to defect at the time of the 1985 offense which would have

introduce evidence that he suffered from schizophrenia at the substantially impaired his ability to conform his conduct to

time of the offense was our finding that Thompson “has never the requirements of law.1 Also at issue, and integral to the

submitted to any court any proof that he suffered from severe

mental illness at the time of the crime.” Thompson, 315 F.3d

at 590. Subsequent to the issuance of our decision on January 1

9, 2003, information has come to the attention of the Court The Tennessee Code Annotated, § 39-13-204(j) lists as a mitigating

which requires us to determine whether our decision to affirm factor:

(8) The capac ity of the defendant to app reciate the wrongfulness

the district court’s denial of Thompson’s petition for writ of of the defendant’s conduct or to conform the defendant’s

habeas corpus relief from his death sentence was improvident. conduct to the requirements of the law was substantially

impaired as a result of a mental disease or defect or intoxication

While reviewing various Sixth Circuit death penalty cases which was insufficient to establish a defense to the crime but

in preparation of a law review article on the subject, an intern which substantially affect the defendant’s judgment[.]

Tenn. Cod e Ann. § 39-13-304 (j)(8) (2003).

No. 00-5516 Thompson v. Bell 9 10 Thompson v. Bell No. 00-5516

primary question, is whether the federal habeas counsel in this the Navy, when he was beaten in the head with a hammer by

case committed fraud on the court by intentionally or three fellow servicemen.

recklessly failing to present critical evidence on the question,

of which they had knowledge, to the district court. For the On March 28, 1985, less than three months from the date of

reasons that follow, we vacate our prior ruling and the offense, the trial court ordered that Thompson be referred

conditionally grant the writ. to the Multi-County Mental Health Center for a forensic

evaluation to determine (1) his competency to stand trial and

II. Background to assist in his own defense, and (2) his mental capacity at the

time of the crime. On April 4, 1985, the trial court entered

The facts are set forth in great detail in our prior opinion. another order directing Thompson to undergo a forensic

See id. However, because the present inquiry involves evaluation at a state facility, Middle Tennessee Mental Health

voluminous facts and procedural history not presented to us Institute (“MTMHI”), for a maximum of thirty days. A team

on appeal as part of the joint appendix, it is necessary to of forensic psychologists at MTMHI evaluated Thompson

revisit much of the case, and to review and present the new and found him to be competent.

materials. To the extent possible, I have attempted to present

the relevant facts in chronological and procedural order. Trial counsel questioned the state team’s impartiality and

requested funds to secure further psychiatric evaluations. On

A. State Court Proceedings July 29, 1985, the trial court granted counsel funds to hire an

independent psychiatrist. Instead, counsel used the funds to

1. Trial Court hire Dr. Copple, a clinical psychologist. Trial counsel stated

that the effort to hire a psychiatrist “was not successful.” Id.

Brenda Lane was murdered on January 1, 1985. Thompson at 573. Also as part of their trial preparation, counsel traveled

was apprehended the next day. On January 29, 1985, the trial to Thompson’s home town where they interviewed various

court appointed counsel. On February 26, 1985, less than two family members and acquaintances of Thompson.

months after the murder, counsel filed a notice of insanity

defense and also requested a mental or psychological Thompson did not present a defense at trial, and the jury

evaluation of Thompson to determine (1) whether Thompson convicted him of the first degree murder of Brenda Lane. At

was competent to stand trial, and (2) his mental capacity at the sentencing phase, Thompson’s former girlfriend, Arlene

the time of the crime. On March 25, 1985, less than three Cajulao, testified that she knew Thompson from 1980 until

months after the murder, trial counsel filed a supplementary June 1984. She described Thompson as caring and sensitive.

motion for a psychiatric examination and a neurological On cross-examination, she testified to incidents concerning

examination to determine (1) whether Thompson was Thompson’s violent behavior while in the Navy.

competent to stand trial and assist counsel with his defense, Thompson’s sister, Nora Jean Walton, testified about his

(2) whether Thompson was suffering from a mental illness on activities in Georgia upon his return from Hawaii after his

the date of the offense, and (3) whether Thompson was in discharge from the Navy. Dr. Copple also testified. He stated

need of hospitalization for further psychiatric treatment and that he spent roughly eight hours examining Thompson over

evaluation. The affidavit in support stated that Thompson had several sessions. Copple stated that during the first session,

previously suffered two concussions, one when he was he was basically looking at what things Thompson would be

sixteen years old from a car accident, and the second while in capable of doing in a prison setting. Copple testified that, in

No. 00-5516 Thompson v. Bell 11 12 Thompson v. Bell No. 00-5516

his opinion, Thompson had an unusually strong need to 2. Post-Conviction

nurture other people that had impelled him to some unwise

actions. Copple felt that Thompson did not have an adult On October 16, 1990, Thompson filed a petition for post-

anti-social personality disorder. On cross-examination conviction relief, claiming in relevant part that trial counsel

Copple stated that he did not think Thompson was suffering failed to investigate adequately Thompson’s background and

from any mental illness. personal and medical history for the existence of mitigating

evidence. See Thompson, 315 F.3d at 576. On February 1,

The State presented in rebuttal the deposition testimony of 1991, post-conviction counsel filed an ex parte, sealed motion

Dr. Robert Glenn Watson, who had participated in the staff seeking “funds to hire a licensed psychologist or psychiatrist

evaluation of Thompson at MTMHI. Watson found no and an investigator to assist in the preparation of his case for

intellectual impairment. Watson also testified that they found post-conviction relief.” Id. at 577. In support, counsel

no real evidence of organicity or brain damage. Watson also attached the affidavit of Dr. Gillian Blair, a clinical

administered the Minnesota Multiphasic Inventory-II psychologist. Blair noted that Thompson’s post-incarceration

(“MMPI”), but determined that the tests results reflected medical records indicated that Thompson had been variously

malingering. Watson further stated that on May 24, 1985, at diagnosed as having bipolar affective disorder, schizo-

a staff conference, based on all the data, the staff concluded affective disorder, and schizophrenia, paranoid type, and was

that: taking Lithium, Haldol, and Cogentin. Id. Blair opined that

“[i]f Mr. Thompson is found to be suffering from

[Thompson] exhibited none of the signs of an affective neurological or psychological impairment as described above,

illness. His judgment and insight are rather poor. it is likely that some degree of such impairment would have

Psychological testing revealed him to be functioning in existed at the time of the offense and would have been a

the average range intellectually, to exhibit no signs of significant factor in determining whether or not Mr.

organicity or brain damage on the Bender-Gestalt Test Thompson was able to appreciate the wrongfulness of his

and the Bender Interference Procedure. Personality conduct or to conform his conduct to the requirements of law

profiles revealed no evidence of a psychosis, but when he committed the homicide of which he stands

indicated malingering in the mental illness direction. convicted.” Id. Blair indicated that Thompson needed a full

(For example, the schizophrenic score was at T 120, psychological evaluation. Id.

while clinical observations revealed no evidence of a

thought disorder.) The state trial post-conviction court held an evidentiary

hearing on March 27 and March 29, 1995. At the hearing

The staff at MTMHI diagnosed Thompson as Axis 1, Adult Blair testified that she reviewed Thompson’s institutional

Antisocial Behavior, 071.01. The forensic team therefore records, beginning with the 1985 MTMHI assessment. She

concluded that Thompson was mentally competent to stand also interviewed Thompson in March and April 1992, and at

trial and was not suffering from a mental disease or defect. that time administered “a basic psychological battery of tests

with some additional . . . neuropsychological tests because of

The jury imposed the death penalty at the conclusion of the the history of head injuries that Mr. Thompson had received

penalty phase, and the trial court entered judgment sentencing and that were well documented in his medical record.” Id. at

Thompson to death by electrocution. Thompson thereafter 578-79. Blair then articulated the following opinion:

pursued his direct appeals to no avail.

No. 00-5516 Thompson v. Bell 13 14 Thompson v. Bell No. 00-5516

The Riverbend medical record indicated that since 1985, violent and possibly in his mother but none of those

Mr. Thompson had shown a deteriorating mental status. records were available.

He had become psychotic. He had been treated with

anti-psychotic medication at that time. He was treated Id. Blair therefore stated that she did not have an opinion

with Haldol, Cogentin, and Lithium, and three different about Thompson’s diagnostic

treating physicians at that time: Dr. Dyner [sic], Dr.

Deal, and Dr. Humble had all over the years from 1985 status in 1985. Id.

to 1990 had diagnosed him as either having bipolar

disorder or a schizo affective disorder or schizophrenia. On cross-examination, Blair stated that she had reviewed

They described his agitated behavior. They described his all of the records included in the files from MTMHI. This

hostility. They described his inappropriate affect, his included daily progress notes, medication sheets, the report of

experience of auditory hallucinations, his delusions, his psychological testing, the discharge summary, the admission

paranoia, his thoughts of persecution. He had attempted summary, the staff conference report, and the social worker’s

suicide of a couple of occasions. He had set fire to his history. Id. When asked whether she thought MTMHI’s

cell burning both his hands and his face. They had testing procedure was unreliable, she averred that it was not

certainly–two of those psychiatrists and maybe all three unreliable, but simply “not extensive enough.” Id. Blair

of them had considered the possibility that he was further testified that from her own testing,2 she did not

malingering, that he was faking mental illness and believe that Thompson was faking or attempting to fake

throughout their Riverbend records, it was clear that mental illness.

those psychiatrists had discounted the possibility of

malingering because they didn’t feel that it accounted for On May 15, 1995, the post-conviction court denied

all of the psychotic symptoms they saw in him. Thompson’s claims. The court found that defense counsel

had made an adequate investigation into their client’s

Id. at 579. background and prior medical history. The court stated that

state post-conviction counsel had presented no proof of

Blair was also asked what other facts would be necessary mental problems that would have provided Thompson with a

for her to develop an opinion as to Thompson’s condition at defense or shielded him from the death penalty. Id. at 580.

the time of the offense. She stated that “the most important

thing that would be necessary would be a full history and full

medical records of Mr. Thompson prior to the commission of 2

Blair stated that she ad ministered the following tests:

the offense.” Id. She added that: The tests that I administered in 1992 that directly addressed

whether there was psychosis or no t, I administered the PA I, I

From the records I was able to review, it was clear that administered the MM PI II which replaces the MM PI which was

the social history was very sketchy in terms of his remote administered in 1985. I administered the Rorschach, which was

not adm inistered in 1985. The PAI wa s not ad ministere d in

history, his childhood and his upbringing, and also 1985. I administered the MC MI II and I adm inistered the

family history of mental illness. There seemed to be a Rorschach, which is a projective test of personality which was

[sic] strong evidence to suggest that there was mental not–the others are all objec tive. They are all tests in which

illness in his family, probably in his father who individual answers true or false and the Rorschach is very

committed suicide and was known to be extremely different.

Id. at 579-80.

No. 00-5516 Thompson v. Bell 15 16 Thompson v. Bell No. 00-5516

The Tennessee Criminal Court of Appeals held that Warden to disclose his expert witnesses by December 31,

Thompson had failed to establish that any type of 1998. The scheduling order also provided that the Warden’s

psychological impairment in general may have existed which answer to the petition for writ of habeas corpus was to be

would have been mitigating evidence.” Id. That court filed on or before July 17, 1998, and that the parties file a

specifically noted that “Dr. Blair declined to give an opinion joint schedule of needed discovery by July 24, 1998.

on these important issues, and the evidence does not

preponderate against the trial court’s finding that the defense On May 26, 1998, Assistant Attorney General Glenn R.

attorneys were not ineffective.” Id. (quoting Thompson v. Pruden became counsel of record for the Warden.

State, 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997)).

a. The Petition

B. Federal Habeas Proceedings

As required by the scheduling order, Thompson filed his

1. District Court petition for writ of habeas corpus on June 12, 1998.

Thompson alleged in relevant part that his trial counsel were

On January 23, 1998, Thompson filed a petition for writ of ineffective for failing to: (1) perform a reasonable

habeas corpus pursuant to 28 U.S.C. § 2254. (DCTR 1).3 He investigation of his background and mental health history;

also filed a motion and application for appointment of counsel (2) secure adequate expert assistance regarding his mental

to investigate, prepare and file the petition, pursuant to 21 health; (3) discover available evidence of mental illness

U.S.C. § 848(q)(4)(B). (DCTR 2). On January 29, 1998, the caused by two serious head injuries; and (4) investigate and

court granted Thompson’s motion for appointment of counsel challenge Thompson’s competency to stand trial as well as

and designated the Federal Defender Services of Eastern his competency at the time of the offense.4 He also

Tennessee, Inc., to provide Thompson with an attorney to

prepare and file a petition for a writ of habeas corpus and “to

prepare for and participate in all proceedings in connection 4

In fact, the allegation, as stated in his traverse, reads as follows:

therewith.” (DCTR 3). The petition alleges in releva nt part that:

In violation of the F ifth, Sixth, Eighth, and Fourteenth

On March 9, 1998, the district court held a scheduling Amendments, petitioner was denied the effective assistance of

conference. Attorney Stephen M. Kissinger was present counsel at the guilt phase of trial, the sentencing p hase o f trial,

representing Thompson. Assistant Tennessee Attorney on appeal, and in post-conviction proceedings. In particular,

counsel failed to perform reasonably, and there is a reasonable

General John H. Baker III was present on behalf of the State. probab ility, sufficient to undermine confidence in the outcome

(DCTR 6). On March 11, 1998, the district court entered a of trial, sentencing, ap peal, and p ost-conviction proceedings, that

scheduling order. The court required, in relevant part, that had counsel performed reasonably, petitioner would not have

disclosure of anticipated use of any expert witness and been convicted or sentenced to death, and/or would have

disclosure of information regarding the expert and the received relief on appeal or in po st-conviction proc eedings.

expert’s expected testimony was to be completed by Spe cifically, counsel was ineffective for the following non-

exclusive list of reasons:

Thompson by October 30, 1998. The court directed the

a. Counsel at all critical stages failed to reasonably

investigate Mr. Tho mpson’s background and mental

3

health history. Had counsel done so, they would have

District Court Record (“D CTR ”). discovered that Petitioner had, in the years following

No. 00-5516 Thompson v. Bell 17 18 Thompson v. Bell No. 00-5516

claimed that he was denied funding for mental health and

investigative experts during the state trial and post-conviction

his graduation fro m high school, interm ittently proceedings. The petition was signed by Stephen M.

demonstrated bizarre and delusional thought patterns, Kissinger.

particularly during ob jectively stressful situations.

They would have also discovered that members of On August 25, 1998, the district court entered an order

Petitioner’s family, e.g., his father, had a long and granting Respondent’s motion for extension of time for filing

pervasive history of severe mental illness. There is a

reaso nable probab ility that such ev idenc e, when

a discovery schedule, moving the deadline to September 2,

coupled with evid ence prese nted d uring trial, would 1998.

have convinced one or more jurors that Mr.

Thomp son’s confession was not the truth, but rather the On October 22, 1998, Thompson filed an amended petition

product of the interaction betwee n his mental illness, for writ of habeas corpus. Thompson contended, in pertinent

his desire to protect his co-defendant, Joanne part, that the state courts denied him funding for mental

McN amara, and illegal questioning by po lice, as we ll

as to provide relevant mitigating evidence at the health and investigative experts at trial and during state post-

sentencing phase of trial. Trial counsel, however, conviction proceedings, implicating his fundamental rights to

failed to perform a reasonable investigation, failed to due process, equal protection, and effective assistance of

find such evidence, and consequently failed to present counsel. (DCTR 17). Thompson also complained that he was

the following evidence to the jury, both during the guilt denied expert funding, in violation of his Fifth, Sixth, Eighth

phase and during the sentencing p hase o f the trial.

b. Coun sel was ineffective for failing to fully investigate

and present relevant evidence of Mr. Thompson’s

mental health history, and to secure adequate expert i. Counsel failed to discover and interview

assistance to defend Mr. T hompson including pertine nt, available witnesses who could have

psychologists, neuropsychological, and/or neurological testified and or informed appropriate mental

experts to estab lish valid m itigating facto rs including, health experts of M r. Thompson’s descent

but not limited to, three statutory mitigating factors into intermittent bizarre and delusional

under Tennessee law, i.e, that Mr. Thompson suffered behavior following high schoo l;

from substantial mental disord ers and dem onstrable

physical brain dam age which made him unable to ii. Counsel failed to discover available evidence

conform his behavior to the law; left him under the of mental illness caused by two serious head

influence of extreme mental or emotional disturbance, injuries.

substantially impaired his ability to appreciate the

wrongfulness of his conduct at the time of the offense, iii. Counsel failed to obtain medical and other

and non-statutory mitigation under both Tennessee and important records for the purpose of

federal law. As importantly, had counsel secured such prese nting evidenc e in mitigation.

mental health history, the result of any p rofessio nally

adeq uate pre-trial competency and insanity c. Counsel failed to obtain adequate expert assistance,

examination (including, if indee d it was, o r had been, i n c l u di n g c o n fi d en t ia l p s yc h o l o g i ca l,

professiona lly adequate, the pre-trial competency neuro psychological, and neuro logical experts.

examination actually p erform ed in M r. Thompson’s

case) would have been different. Specifically, but not d. Counsel failed to investigate and challenge Petitioner’s

exclusively: competency to stand trial as well as his competency at

the time of the offense.

No. 00-5516 Thompson v. Bell 19 20 Thompson v. Bell No. 00-5516

and Fourteenth Amendment rights. He alleged in relevant schizophrenia were found consistent with

part: Petitioner’s psychotic disorder even at his then

current “stable” level of functioning. Since his

a. Both trial and post-conviction counsel knew incarceration, Petitioner has been heavily

Petitioner’s mental state was an important issue medicated. For example, Petitioner has taken

but without assistance from a competent Lithium and Klonopin, both indicated for

investigator and mental health expert, counsel bipolar disorder; Depakene and Depakote

was unable to explain and overcome the state indicated for epileptic conditions and rapid

mental hospital’s initial findings. cycling bipolar disorder due to brain disease;

the anti-psychotic drugs Haldol, Haloperidol,

b. Attorney Parsons was aware of Petitioner’s Mellaril, Navane, Thioridazine, and Trilafon;

history of head injuries and “the significant Cogentin/Benztropine to minimize the effect of

[sic] of those head injuries and what that can do such drugs; the sedative Vistaril; and,

to somebody.” P.C. Vol. I, p.38. Later, counsel Ativan/Lorazepam and Valium to reduce

also witnessed “a period when he [Petitioner] agitation.

got sick mentally.” P.C. Vol. I, p.83. Trial

counsel requested funds for a mental health d. Post-conviction counsel repeatedly requested

expert but were denied. Instead, Petitioner was funds for a mental health expert. The

sent to Middle Tennessee Mental Health prosecutor argued that post-conviction counsel

Institute (MTMHI) for a competency were not entitled to experts at state expense.

evaluation. Although MTMHI found Petitioner P.C. Vol. 1, p.16. In support of the motion for

to be competent, Mr. Parsons continued to funding, counsel submitted the affidavit of Dr.

believe further evaluation was needed. . . . Gillian Blair. Dr. Blair’s affidavit and post-

conviction testimony reflected her need for a

c. Records from Riverbend Maximum Security complete social history, additional testing and

Institution reflect that several different treating interviews before she could render an opinion

psychiatrists have diagnosed Petitioner as on Petitioner’s mental status at the time of the

having either a bipolar affective disorder, cyclic crime, at trial, and at the present time. See

mood disorder, schizo-affective disorder or generally P.C. Vol. I, pp. 199-219. Dr. Blair

schizophrenia. All of the psychiatrists opined that based on the Riverbend records, her

described Petitioner’s agitated behavior, test results from 1992, and the brief social

hostility, inappropriate affect, auditory and history available, further investigation and

visual hallucinations, delusions, paranoia, and examination of Petitioner was required. Dr.

thoughts of persecution. Psychiatrists Blair testified that since 1985 Petitioner had

considered the possibility of Petitioner’s shown a deteriorating mental status. P.C. Vol.

malingering and all discounted that possibility. II, p. 209. Petitioner had been diagnosed with

State examiners at Riverbend ruled out bipolar disorder, schizo affective disorder or

malingering noting that it did not explain all schizophrenia. Id. She further testified that

psychotic features. Test results indicating schizophrenia and bipolar disorder, indeed all

No. 00-5516 Thompson v. Bell 21 22 Thompson v. Bell No. 00-5516

forms of psychosis, generally begin in early Thompson further alleged ineffective assistance of counsel,

adulthood, Id. at 215, which coincides with the for the following non-exclusive reasons:

timing of the instant offense. Dr. Blair stated

that Petitioner’s troubles in the Navy, just prior 1. Counsel at all critical stages failed to

to the crime, would suggest that he was reasonably investigate Mr. Thompson’s

becoming mentally ill at that time. Id. at 216. background and mental health history. Had

However, further information was needed to counsel done so, they would have discovered

render an opinion and diagnosis of Petitioner at that Petitioner had, in the years following his

that time. Dr. Blair also stated that further graduation from high school, intermittently

evaluation of Petitioner was necessary to demonstrated bizarre and delusional thought

determine his present competency. Id. at 207. patterns. They would have also discovered that

members of Petitioner’s family, e.g., his father,

e. The court denied funding for expert assistance had a long pervasive history of severe mental

at the post-conviction hearing. The court illness. Trial counsel, however, failed to

reasoned that funds were unnecessary because perform a reasonable investigation, failed to

Petitioner had not shown a “need,” further find such evidence, and consequently failed to

funding would result in a delay of the present the following evidence to the jury, both

proceedings and the issue was a matter of during the guilt phase and during the sentencing

record. . . . phase of the trial.

f. Although the court found no “need” for further 2. Counsel was ineffective for failing to fully

expert assistance, the court later used the fact investigate and present relevant evidence of Mr.

that Dr. Blair could not express an opinion as to Thompson’s mental health history, and to

the issues of Petitioner’s mental health to limit secure adequate expert assistance to defend Mr.

Dr. Blair’s testimony and, subsequently, to Thompson inclu ding p sychologi s ts,

deny Petitioner relief from his unconstitutional neuropsychological, and/or neurological experts

conviction and sentence. For example, to establish valid mitigating factors including,

throughout Dr. Blair’s testimony, the but not limited to, three statutory mitigation

prosecutor made repeated objections on the factors under Tennessee law, i.e., that Mr.

basis that Dr. Blair did not have an ultimate Thompson suffered from substantial disorders

opinion. See e.g. P.C. Vol. II, pp. 208, 215, and demonstrable physical brain damage which

216, 220, 259. Although the court allowed made him unable to conform his behavior to the

most of Dr. Blair’s answers, it did so remarking law; left him under the influence of extreme

that the weight of the testimony was specious. mental or emotional disturbance, substantially

See id. The court, however, did not allow Dr. impaired his ability to appreciate the

Blair to testify about mitigating circumstances. wrongfulness of his conduct at the time of the

offense, and non-statutory mitigation under

(Footnotes omitted.). both Tennessee and federal law. As

importantly, had counsel secured such mental

No. 00-5516 Thompson v. Bell 23 24 Thompson v. Bell No. 00-5516

health history, the result of any professionally that the allegations before the court did not establish good

adequate pre-trial competency and insanity cause for discovery as required under Rule 6(a) of the Rules

examination (including, if indeed it was, or had Governing Section 2254 Cases in the United States District

been, professionally adequate, the pre-trial Court. That same day the court entered an order allowing

competency examination actually performed in Thompson to take the depositions of Dr. Michael Rutter, Dr.

Mr. Thompson’s case) would have been Robert Hoen, and Dr. John Pruett, mental health experts. The

different. Specifically, but not exclusively: order further allowed Respondent the right to take the

depositions of Thompson’s two experts, neuropsychologist

i. Counsel failed to discover and interview Barry Crown, Ph.D, and psychologist Faye Sultan. (DCTR

pertinent, available witnesses who could 18). The magistrate judge noted that the execution of

have testified and/or informed appropriate Thompson would violate the Eighth Amendment due to

mental health experts of Mr. Thompson’s Thompson’s incompetence. The order also noted a Brady

descent into intermittent and delusional claim.5

behavior following high school.

Also on November 2, 1998, Thompson filed his initial

.... witness list. His “[e]xpert witnesses and testimony” included

the following:

. . . Had counsel been informed, they would

have recognized that witness accounts, of

Petitioner’s bizarre change in behavior signaled

the onset of mental illness. The lingering

question would have been answered. The 5

outcome of Petitioner’s capital conviction and Although not fully articulated as such, the magistrate judge appears

sentence probably would have been different. to have b ased its conclusion o n the follo wing allegation in Th omp son’s

amended p etition, which the court quoted in its order:

41. CLAIM 41- BRA DY CLAIM

(DCTR 17; footnotes omitted). The amended petition for writ a. Throughout P etitioner ’s court proceedings the prosecutor

of habeas corpus was signed by Stephen M. Kissinger. engaged in false and/or misleading questioning and use of

reports to argue that Petitioner was competent and not mentally

b. Discovery ill. The prosecu tor misled Petitioner’s judge and jury despite

having evidence to the contrary, and without revealing such

On November 2, 1998, the magistrate judge held three evidence, thereby committing gross misconduct. For example,

during the Petitioner’s postconviction proceedings, the state

telephone conferences with Attorney Kissinger and Assistant argued that Petitioner was not mentally ill, was competent at the

Attorney General Jennifer Smith regarding Thompson’s time of trial, was p resently competent, and was competent to be

request for discovery regarding those matters alleged in the executed, despite ten years of records to the contrary.

petition, to which Respondent objected. The court’s order Institutional records clearly illustrate Petitioner’s ‘significant

states that, during the hearing, Kissinger advised that he history of psychosis requiring multiple medications.’

Petitioner’s mental health treatment plan contemporary to the

needed to obtain the depositions of three mental health expert postconviction hearing reveals a diagnosis of schizoph renia with

personnel who had seen and treated Thompson during his presenting problems of auditory and visual hallucinations and

period of incarceration. Respondent maintained his objection paranoid ideatio n. . . .

(DC TR 18).

No. 00-5516 Thompson v. Bell 25 26 Thompson v. Bell No. 00-5516

a. Dr. Barry Crown, Penthouse Ste 310, Red Road, the time of the offense and at the time of trial. She will

South Miami, FL 33143, will provide foundation testify that Petitioner’s mental illness was severe and

testimony to establish himself as an expert in that it substantially impaired the ability of the Petitioner

neuropsychology. He will testify that he has been to distinguish between right and wrong and/or to

provided with background information regarding conform his conduct to the requirements of the law

Petitioner’s medical and social history, that he has and/or prevented Petitioner from doing the same. She

interviewed, and administered a battery of indicated will testify that Petitioner’s mental illness prevented

neuropsycholgical tests to the Petitioner. He will testify Petitioner from meaningfully assisting in his own

that the results of those tests indicate that Petitioner defense at trial and during state post-conviction

suffers from organic brain damage. He will testify that proceedings and/or from fully comprehending the nature

the brain damage observed, as well as Petitioner’s social of those proceedings. She will further testify that

and medical history, is consistent with schizophrenia. arguments regarding Petitioner’s mental state made by

He will testify that Petitioner’s brain damage counsel for the State of Tennessee during state post-

substantially impaired the ability of the Petitioner to conviction proceedings were both outside the scope of a

distinguish between right and wrong and/or to conform lay person’s knowledge and that the prosecutor’s

his conduct to the requirements of the law and/or statements misrepresented Petitioner’s prison medical

prevented Petitioner from doing the same. He will records.

testify that Petitioner’s brain damage prevented

Petitioner from meaningfully assisting in his own (DCTR 19) (emphases added).

defense at trial and during state post-conviction

proceedings and/or from fully comprehending the nature On November 30, 1998, Respondent appealed the

of those proceedings. He will further testify that magistrate judge’s discovery order. The district court

arguments regarding Petitioner’s mental state made by affirmed the ruling. Significantly, the district court stated the

counsel for the State of Tennessee during state post- following:

conviction proceedings were both outside the scope of a

lay person’s knowledge and that the prosecutor’s Additionally, if the facts are developed to show that

statements misrepresented Petitioner’s prison medical petitioner’s mental health should have been introduced as

records. mitigating evidence, petitioner may be entitled to relief.

The magistrate judge heard argument of counsel and then

b. Dr. Faye Sultan, 8430 University Executive Park ruled that certain specific discovery would be

Drive, Suite 690, Charlotte, NC 28262, will provide allowed. . . . Not only has Thompson raised the issue of

foundation testimony to establish herself as an expert in ineffective assistance of counsel for failure to fully

clinical and forensic psychology. She will testify that explore his mental health for mitigating purposes at his

she has been provided with background information sentencing, which trial counsel testified he should have

regarding Petitioner’s medical and social history, that she explored Thompson’s mental health further . . . ; the

has interviewed, and administered a battery of indicated record also includes factual allegations that there was

psychological tests to the Petitioner. She will testify that, some mental health evidence that could have been

on the basis of her examination, it is her expert opinion introduced as mitigating evidence. Furthermore,

that Petitioner suffers from schizophrenia and did so at Thompson alleges he did not receive a full and fair post-

No. 00-5516 Thompson v. Bell 27 28 Thompson v. Bell No. 00-5516

conviction hearing in state court because he was denied On February 12, 1999, Thompson filed an ex parte motion

funds to hire a mental health expert to prove his for a temporary mandatory restraining order, for preliminary

incompetency/insanity at trial and at execution. If the and permanent injunctive relief, and for an order finding

fact are fully developed, he may be able to demonstrate Thompson incompetent to proceed, continuance, and to toll.

he is entitled to relief. (DCTR 34). In support, Thompson alleged in part as follows:

After a cursory review of the numerous volumes of 1. Petitioner suffers from schizophrenia. During

state documents[] involved in this case, it appears that the vast majority of his incarceration

Thompson has alleged a factual basis for some of his Respondent has medicated Petitioner in order to

claims and the magistrate judge so found. For example, treat his mental illness.

petitioner claims trial counsel failed to properly

investigate his mental health history and present 2. On or about September 1998, Respondent

mitigating evidence at trial and sentencing. Petitioner stopped providing Petitioner with appropriate

contends he had two serious head injuries and psychiatric medication.

intermittent bizarre and delusional thought patterns and

witnesses to testify to such, and this mitigating evidence 3. Petitioner’s mental health thereafter radically

should have been introduced. Furthermore, petitioner declined. Petitioner is now unable to

contends that his institutional records reveal a diagnosis meaningfully assist counsel or understand the

of schizophrenia with problems of auditory and visual nature of the proceedings in which he is being

hallucinations and paranoid ideation. If petitioner proves required to participate. Moreover, because of

these factual allegations, he may be entitled to relief. the severe nature of Petitioner’s mental illness,

Respondent’s refusal to provide appropriate

(Footnote omitted) (DCTR 22). psychiatric care is tantamount to subjecting

Petitioner to physical torture. See, Exhibit A,

On December 24, 1998, Respondent filed his initial expert Declaration of Faye Sultan PhD. attached.

witness list disclosure. It listed simply Dr. Theodore H.

Blau, who would “testify as an expert in the area of forensic ....

neuropsychology. Dr. Blau will be called, if necessary, to

rebut the testimony of petitioner’s expert witnesses, Dr. Barry 6. Petitioner has no remedy at law. . . . Given the

Crown and Dr. Faye Sultan, as disclosed in petitioner’s initial Petitioner’s incontrovertible right both to

witness list of October 30, 1998.” (DCTR 24). receive proper psychiatric care and to seek

federal habeas corpus relief the likelihood that

On December 29, 1998, Attorney Kissinger moved to he will prevail on the merits of his motion are

appear pro hac vice. (DCTR 25). great. Should Respondent be allowed to

continue to deprive Petitioner of proper

On February 3, 1999, the district court granted Thompson’s psychiatric care Petitioner will suffer

request for an extension of time to conduct discovery. The irreparable injury. Not only is he being

court set the discovery date at June 11, 1999, and the rendered incompetent, he is, for all intents and

dispositive motion cutoff at July 2, 1999. (DCTR 32). purposes, being tortured.

No. 00-5516 Thompson v. Bell 29 30 Thompson v. Bell No. 00-5516

(Footnotes omitted.). The motion was signed by Attorney of his surroundings, and requiring immediate emergency

Kissinger (by permission). (DCTR 34). attention. (Id).

Attached to the February 1999 motion is the declaration of On April 7, 1999, Thompson moved to withdraw his ex

Faye Sultan, Ph.D, a clinical psychologist. Sultan stated in parte motion for injunctive relief and for an order finding him

relevant part that incompetent to proceed, principally because on April 6, 1999,

Dr. Sultan saw Thompson and concluded that his condition

At the request of attorneys at the Federal Defender had improved, due to an adjustment in his medication. Thus,

Services of Eastern Tennessee, I initiated a psychological the factual basis for the motion no longer existed. (DCTR

evaluation of Mr. Gregory Thompson in August, 1998. 64). On April 29, 1999, the court granted the motion to

Formal psychological testing and extensive clinical withdraw the ex parte motion. (DCTR 67).

interview were conducted with Mr. Thompson at the

Riverbend Maximum Security Prison in Nashville, On June 28, 1999, the district court entered an order

Tennessee on 8-20-98. This interview was conducted as extending the discovery deadline to July 30, 1999. The court

a “Contact Visit”, with no physical barrier between this extended the deadline to allow Respondent to depose

examiner and Mr. Thompson, and Mr. Thompson was Thompson’s expert witnesses, Drs. Crown and Sultan, and to

not physically restrained in any way. allow Petitioner to depose Respondent’s expert witness, Dr.

Theodore Blau. On July 9, 1999, Respondent filed a motion

In addition to the data gathered during this for summary judgment as to all claims raised in the amended

examination, I was asked to review extensive petition for writ of habeas corpus. (DCTR 81-82). On July

documentation about Mr. Thompson’s psychiatric, 15, 1999, Thompson deposed Respondent’s expert, Dr. Blau.

military, and legal history. These data also serve as On July 20, 1999, Respondent deposed Petitioner’s expert.

bases for the opinions rendered here. These data include Dr. Crown.6 On July 29, 1999, Thompson filed his response

psychiatric records and examinations regarding Mr. to Respondent’s motion for summary judgment.

Thompson for approximately the past fifteen years,

administrative and medical records from the Tennessee On August 2, 1999, Respondent filed a motion for

Department of Corrections, and legal and police reimbursement of deposition expenses. (DCTR 87).

documents relating to the original offenses for which Mr. Respondent claimed that Dr. Crown’s deposition testimony

Thompson is currently incarcerated. In total, hundreds of was considerably different than that represented in

pages of records and documents have been reviewed for Petitioner’s initial witness list. Specifically, Respondent

the purpose of this evaluation. alleged that, based on Petitioner’s initial disclosure

concerning Dr. Crown’s testimony, particularly as to

(DCTR 34). Dr. Sultan also stated that in August 1998 Petitioner’s mental state at the time of the offense, “i.e., his

Thompson met all of the diagnostic criteria for the major ability to distinguish between right and wrong and/or to

mental illness schizophrenia, episodic, with interepisode conform his conduct to the requirements of law, competency

residual symptoms. She further indicated that Thompson’s

condition had rapidly deteriorated between August 1998 and

February 1999. In Dr. Sultan’s opinion, Thompson was 6

experiencing a severe psychiatric crisis, making him unaware As will be explained shortly, counsel for Resp ondent depo sed

Thomp son’s other named exp ert, Dr. Faye Sultan, PhD. on July 22, 1999.

No. 00-5516 Thompson v. Bell 31 32 Thompson v. Bell No. 00-5516

at the time of trial,” counsel for Respondent traveled to in connection with the July 20, 1999, deposition of Dr.

Miami, Florida to depose Dr. Crown. Respondent further Crown.

claimed that, at the beginning of the deposition, he was

presented “for the first time” with an affidavit indicating Dr. On August 4, 1999, Petitioner filed a motion in limine,

Crown’s proposed testimony, which was significantly seeking to exclude Dr. Blau’s testimony on the grounds that

different from the October 30, 1998, initial witness list Dr. Blau neither formed an opinion nor was asked to form an

disclosure. The affidavit indicated no opinion as to opinion regarding any of the issues raised in the petition:

Thompson’s mental state at the time of the offense or at trial, “Despite all issues being clearly framed by the allegations in

no opinion indicating that brain damage substantially the petition, Respondent never sought, nor did Dr. Blau

impaired Thompson’s ability to conform his conduct to the render, any opinion contrary to such allegations.” (Footnote

requirements of law and/or to distinguish between right and omitted.). (DCTR 88). Also on August 4, Petitioner filed a

wrong, and no opinion concerning Thompson’s ability to motion for costs incurred in deposing Dr. Blau. Petitioner

assist counsel in his defense at trial or comprehend the nature alleged in pertinent part:

of that proceeding.

2. On July 15, 1999, undersigned counsel conducted

Respondent alleged that, “contrary to representations in the deposition of Dr. Blau in order to discover the

Petitioner’s initial expert disclosure, Dr. Crown testified in his substance of his testimony at the evidentiary hearing. At

deposition that he had not rendered, nor had he been asked to that time Dr. Blau testified that he had been asked to

render, an opinion concerning Petitioner’s mental status at the render an opinion only in regard to Mr. Thompson’s

time of the offense in this case.” (DCTR 87). The motion competency to proceed in the instant action . . . ; that he

stated that Dr. Crown testified that he was also not asked to had not reached any opinion other than that reflected in

render an opinion concerning Petitioner’s competence at the his report on the competency to proceed . . . ; and that in

time of trial. The motion further alleged that “Dr. Crown order to render additional opinions he would require

testified that he had seen petitioner on one occasion, June 12, further interviewing and testing of Mr. Thompson. . . .

1998, and was prepared to render an opinion concerning

petitioner’s competence and mental status on that day.” 3. It is clear that although Respondent was on notice of

Thus, in Respondent’s view, “Dr. Crown offered no Petitioner’s mental health claims which are detailed in

testimony pertinent to any claim presented in the amended his habeas petition and was on notice regarding

petition for writ of habeas corpus.” Respondent therefore Petitioner’s anticipated expert’s testimony, Respondent

claimed that, had he been advised of the precise nature of Dr. either instructed Dr. Blau not to render any opinion

Crown’s testimony, as required under Fed. R. Civ. P. during deposition regarding the issues in the petition or

26(a)(2)(B) and by the district court’s order of March 11, Dr. Blau failed to formulate such opinions. It appears

1998, he likely would not have deposed Dr. Crown. that Respondent made the strategic decision to limit Dr.

Respondent contended that, given the clear representations in Blau’s testimony to Mr. Thompson’s competency to

his October 1998 expert disclosure statement, Petitioner had proceed given Dr. Blau’s sworn testimony that his

a duty to disclose the nature of Dr. Crown’s testimony. opinion was limited to Mr. Thompson’s competence to

Respondent sought an order requiring Petitioner to reimburse proceed, the fact that Dr. Blau only evaluated Mr.

Respondent in the amount of $2,768.71 for expenses incurred Thompson on one occasion for the specific purpose of

competency to proceed, and that Respondent did not

No. 00-5516 Thompson v. Bell 33 34 Thompson v. Bell No. 00-5516

provide a copy of Petitioner’s habeas petition to Dr. ....

Blau.

7. Not one of these questions asked whether Dr. Crown

4. Undersigned counsel relied upon Respondent’s had an opinion on the issue of mental state at the time of

representation that Dr. Blau would rebut Petitioner’s the offense, at trial, or at any other time for that matter.

expert witnesses. Had undersigned known that Dr. They queried only regarding the communications

Blau’s opinion was limited to Mr. Thompson’s between Dr. Crown and undersigned counsel. As a

competency to proceed, an issue which is no longer matter of fact, only once in the excerpts attached to

before this court, he would not have taken Dr. Blau’s Respondent’s motion does Mr. Pruden ask any question

deposition and incurred expenses totaling $4,097.01. which could reasonably be interpreted as seeking Dr.

Crown’s opinions on these issues.

(DCTR 89) (emphasis added) (footnote omitted). Petitioner

requested a court order requiring Respondent to pay those

costs. The motion for costs is signed by Stephen M.

Kissinger. trial?

On August 5, 1999, Thompson filed a response opposing (Crown deposition at Page 7, lines 11-13)

Respondent’s motion for reimbursement of deposition

expenses. In it he contended that the opinions Dr. Crown So if I understand you co rrectly, you were only

asked [by Respondent’s counsel] to make a

expressed in his deposition were materially consistent with competency determination at the time you met M r.

Thompson’s initial witness list. In response to Respondent’s Thom pson?

contention that Dr. Crown failed to provide an opinion at

deposition regarding Thompson’s mental condition at the (Id. at Page 7, lines 19-21)

time of the offense, Thompson stated that “[t]his allegation is

Have you been asked to render any opinions concerning Mr.

untrue or irrelevant for at least two reasons.” First, Thomp son’s mental status at the time of the murder of Brenda

Lane?

5. Insofar as Respondent’s complaint relates to Dr.

Crown’s response to the Assistant Attorney General

Pruden’s very few questions which Respondent elected (Id. at Page 8, lines 7-9)

to attach to his motion, Dr. Crown was not asked whether Not specifically. Does that mean that you have not been asked that

he had an opinion regarding Petitioner’s mental condition specific question?

at the time of the offense or at trial. Instead Mr. Pruden

chose to focus on the communication between Dr. Crown (Id. at Page 8, lines 11-12[)]

and Respondent’s counsel.[7]

So you have not been asked to render an opinion to Mr.

Kissinger yet one way or the other regarding M r. Thomp son’s

7

ability to distinguish between right and wrong or conform his

6. Respo ndent po sed the following questions: conduct to the requirements of the law at the time of M s. Lane’s

murder?

Have you been asked to render any determination about

whether he was competent to stand trial at his criminal (Id. at 17-20).

No. 00-5516 Thompson v. Bell 35 36 Thompson v. Bell No. 00-5516

8. On that occasion, Dr. Crown responded that he was from one severe schizotypal mental illness at the time of the

unable to render such an opinion because he could not be offense as well as his state court trial rather than another

certain whether he had been provided all relevant severe schizotypal mental illness, Dr. Crown’s deposition

information. Crown deposition at Page 9, lines 4-15. testimony is clearly consistent with the information contained

Rather than show that he had no opinion on a material in Petitioner’s Initial Witness List.” Thompson also alleged

issue, Dr. Crown’s answer demonstrated that he would that Respondent was not in a position to complain that Dr.

not carelessly issue an opinion until counsel for Crown’s testimony did not make the connection between

Respondent defined the facts upon which counsel wished Petitioner’s mental illness and competency at the time of the

Dr. Crown to base that opinion. Despite Dr. Crown’s offense, because Respondent “with full knowledge that Dr.

qualified response, counsel for Respondent never asked Crown was of the opinion that Petitioner was severely

Dr. Crown whether, assuming that Dr. Crown had all mentally ill at the time of the offense, either chose not to

relevant information, he had an opinion regarding Mr. inquire regarding the afore-described connection or forgot to

Thompson’s mental state at the time of the offense and/or do so.” (DCTR 90) (emphasis added). Thompson therefore

at trial, nor did counsel provide Dr. Crown with claimed that he had demonstrated that the information in his

supplemental fact which Respondent deemed relevant initial witness list was consistent with Dr. Crown’s testimony.

and then ask him whether, based upon the combined He further claimed that even if it was materially inconsistent,

information, he held an opinion on those regards. Respondent could not complain because he had previously

made this allegation to the magistrate judge, who granted

9. The reasons Respondent failed to discover Dr. Respondent the right to depose both Drs. Crown and Sultan

Crown’s opinions in these areas were not because Dr. before Respondent ever contacted Dr. Blau. Thus, Thompson

Crown held no such opinions. Respondent’s counsel claimed that Respondent had been granted the opportunity to

either made a strategic decision to focus on the conduct determine the exact opinions of Dr. Crown before Dr. Blau

of counsel (or perhaps to attempt to create the illusion was ever contacted. (DCTR 90).

that Dr. Crown’s opinions regarding these areas will

come as a complete surprise to the Respondent when Next, Thompson asserted that Dr. Blau stated during his

they are stated at hearing), or he simply neglected to ask deposition that he was contacted by Respondent’s counsel,

the relevant questions. Pruden, on November 2, 1998, to retain him as a

psychological expert and that he was asked simply “to review

(DCTR 90). records in respect to competence to proceed regarding Mr.

Thompson, and possible questions were whether Mr.

Thompson articulated a second reason, namely that Dr. Thompson is competent to act as a party participant in habeas

Crown’s deposition did substantially conform to the corpus proceedings,” and also whether he “could determine

information contained in his initial witness list because psychologically his mental condition and status with respect

Crown stated during his deposition “that Petitioner suffers to his capacity to understand his legal position and his

from bipolar disorder of a schizo-affective type and that the options.” (DCTR 90 (quoting Deposition of Theodore H.

onset of this affliction was prior to the alleged offense. Crown Blau, Ph.D., July 15, 1999, Page 5, lines 8-19). Thompson

deposition at Pages 32-34, in passim.” Thompson added that further alleged that Dr. Blau was asked whether he had been

“[u]nless Respondent can seriously maintain that it is material asked to examine Thompson regarding any area other than

in this case whether Dr. Crown found that Petitioner suffered competency and that “[h]is response clearly demonstrated that

No. 00-5516 Thompson v. Bell 37 38 Thompson v. Bell No. 00-5516

not only had he not examined and/or reached any opinions in future date prior to the evidentiary hearing to

any area other than Petitioner’s present competency, the only render such an opinion?

neuropsychological examination he had conducted was ‘at

best’ . . . a screening examination.” (DCTR 90 ¶ 6). A: It hasn’t been suggested or asked of me.

Thompson therefore moved for an order denying

Respondent’s motion for reimbursement of deposition Q: So if I understand you correctly then, you were

expenses. (DCTR 90). only asked to make a competency determination

at the time you met Mr. Thompson?

In his reply, Respondent stated simply that the documents

attached to its motion for reimbursement plainly A: That is correct.

demonstrated that Thompson’s October 1998 disclosure was

materially different from the testimony offered at Dr. Crown’s Q: And when was that, sir?

deposition and in his affidavit. (DCTR 91). Attached as an

exhibit was a complete copy of Dr. Crown’s July 20, 1999, A: June 12th of 1998.

deposition. Much of it bears repeating here: Q: All right. His mental status. Please elaborate

Q: Specifically, what issues regarding Mr. for me, what about his mental status have you

Thompson and his case have you been asked to been asked to opine?

review and render expert opinions on, sir? A: I have been asked to evaluate it.

A: At this point, I have been asked to consider his Q: His mental status at present?

competency and also his mental status.

A: Well, it was his status as of the time that I saw

Q: Okay. Let’s take them one at a time, then. him. I haven’t seen him since June 12th of

Competency, are you talking strictly about his 1998.

present competency in the habeas corpus

proceedings? Q: Have you been asked to render any opinions

concerning Mr. Thompson’s mental status at

A: I am talking about his competency at the time the time of the murder of Brenda Lane?

that I saw him.

A: Not specifically, no.

Q: Have you been asked to render any

determination about whether or not he was Q: Not specifically. Does that mean that you have

competent to stand trial at his criminal trial? not been asked that specific question?

A: No. A: That is correct.

Q: Has anything been said to you that would lead Q: Have you rendered an opinion, though, in that

you to believe that you might be asked at a regard?

No. 00-5516 Thompson v. Bell 39 40 Thompson v. Bell No. 00-5516

Q: No, not as of this time. A: That is correct.

Q: So you have not rendered an opinion to Mr. Q: What materials have you been provided to

Kissinger yet one way or another regarding Mr. review concerning Mr. Thompson?

Thompson’s ability to distinguish between right

and wrong or conform his conduct to the A: I have seen what I believe to be his Department

requirements of the law at the time of Ms. of Corrections file from it’s [sic] inception.

Lane’s murder?

Q: And when you say his Department of

A: That is correct. Corrections file, do you mean his

medical/mental health file?

Q: Has Mr. Kissinger, or anyone else representing

Mr. Thompson, represented to you that they A: It’s his medical file, as well as his general file,

would like you to render such an opinion including disciplinary reports, including

during the course of your employment? adjustment reports.

A: No. Q: Have you reviewed any other records?

Q: Just so I am clear then, your mental status A: I have seen the depositions of three of the

evaluation of Mr. Thompson is only to evaluate employees of Prison Health Services. I have

his mental status at present? seen the reports of the mental health facility that

Mr. Thompson spent thirty days in prior to his

A: I have only seen him on one occasion, June original trial. I have seen the testimony of the

12th of 1998. So what I have to say would be mental health professions at his trial, Dr.

related to that examination. I have looked at Kogley.

other records, but I don’t know they are

necessarily complete, and I couldn’t render an Q: Cobley?

opinion based on the lack of completeness, or

what I assume is the lack of completeness. A: Cobley. I have seen the materials from Dr.

Blaire.

Q: So you don’t feel that based on the materials

that you have reviewed to date that you could, Q: How about Dr. Watson?

based on your professional experience, render

an opinion about Mr. Thompson’s mental state A: Watson. I have seen Dr. Watson.

say back in 1985 at the time of the murder?

Q: When you say materials from Dr. Blaire, does

A: As I sit here today, I could not. that simply mean her testimony, or have you

seen other--

Q: So you are not prepared to render any opinion

in that regard today?

No. 00-5516 Thompson v. Bell 41 42 Thompson v. Bell No. 00-5516

A: I have seen the raw data, or parts of raw data. He also indicated that Kissinger had not at that time asked

Actually, the entire raw data are not in the him to do so.

materials that were provided to me. And then I

have seen Dr. Blau’s report and Dr. Blau’s raw Dr. Crown opined that Thompson suffers from an auditory

data. processing deficit. He further indicated that Thompson has

some sort of organic brain damage, but that he did not

Q: And you just received Dr. Blau’s-- pinpoint it to a specific portion of the brain. Dr. Crown stated

that he did not intend to make any further evaluation of

A: Correct. Thompson’s organic brain damage unless asked. Dr. Crown

indicated that he knew that Thompson had suffered traumatic

(DCTR 91). head injuries. He testified that he had not seen Thompson’s

military medical records. Dr. Crown testified that the

Dr. Crown also indicated that he had reviewed Thompson’s organicity was secondary to other mental impairments,

medication portfolio from his records at Riverbend Maximum namely schizo-affective disorder, bipolar subtype, with

Security Institution. When asked, Dr. Crown stated that he organic components. Dr. Crown stated that he reached this

had not read, and not been asked to read, the trial transcript, conclusion

but that he had asked Mr. Kissinger “to provide me with

whatever materials he wished.” (DCTR 91). Dr. Crown from looking at the reports of the treating physician, the

acknowledged that he had not given Kissinger a specified list psychiatrists, and psychiatric nurses, and nurse

of items he wished to review, but was “relying on whatever practitioners that have had the opportunity to monitor

it is Mr. Kissinger” gave him. him over the last fourteen years, that I have concluded

that he’s best treated with anti-psychotic medication, that

Dr. Crown also stated that he met with Thompson on schizo-affective disorder is a disorder that affects

June 12, 1998, at Riverbend for about two and one half hours. thoughts related to reality and results in distortions of

Dr. Crown indicated that, at that time, he took a brief history, reality.

a standard basic demographic clinical interview, and

administered a group of tests.8 Dr. Crown testified that the It also results in distortions of affect, meaning, the way

only written record of his evaluation was his July 20 affidavit; that behavior is expressed. And I believe that his affect

that he would only prepare a written report if Kissinger asked. has been variable from rather depressed to highly

agitated and aggressive. And so, putting that together, I

believe he does have a schizo-affective disorder of the

bipolar type, meaning, there is a considerable spread in

8 his emotionalities, that there is a distortion in his

Dr. Cro wn stated that he administered the following tests: perception of reality, that he tends to fragment at times,

The Shipley Institute of Living Scale; the G-F-W Auditory

Selective Attention Test; the Catego ry Te st; the Kaufman

and tends to be directed by hallucinatory activity.

Neuropsychological Assessment Procedure; the Luria Mem ory

Test; the Reitan-Indiana A phasia Screening Test; the Rey- . . . [I]n Mr. Thompson’s case, there are notations

Osterreith Complex Figure Test; the Trailmaking Test; W ord throughout his medical records that he has auditory

Generation, F/A/S; Finger Oscillation T est; and the W isconsin hallucinations. He also related to me that at the time I

Card So rting T est.

No. 00-5516 Thompson v. Bell 43 44 Thompson v. Bell No. 00-5516

saw him he was auditory hallucination free, but that he Next, counsel asked Dr. Crown:

frequently got command hallucinations that there were

voices coming from within him that were telling him Q: And if I understood your answers earlier

what to do, which is what happens in an auditory correctly, you do not have an opinion at this

hallucination state. time as to the exact nature of this brain damage

for which you have seen some indicia?

(DCTR 91). The following colloquy between counsel for

Respondent and Dr. Crown, then took place: ....

Q: Based on your review of Mr. Thompson’s A: I don’t specifically know the causation. I

records or the records that were provided to believe it may be secondary to his thought

you, what do you conclude, or when did you disorder since we know that in people who do

conclude, was the onset of these auditory have chronic thought disorders that the thought

hallucinations? disorder itself may either be caused by or may

result in some damage to the brain. For

A: I have no real pinpoint. For that, most example, schizophrenics very often have

typically, people with schizo-affective disorder enlarged ventricles of the brain.

tends to develop in late adolescence to early

adulthood. Q: I notice that you did not attempt to administer

an MMPI to Mr. Thompson. The reason for

Q: From the materials you have reviewed, do you that, sir?

see anything in those materials that show that

this is when it occurred in Mr. Thompson? A: In the regular course of my neuropsychological

evaluations, I tend not to administer a

A: I believe he began to have a more difficult time personality questionnaire. I leave that for, or

with life in his–in the last stages of his military the assessment of personality, specifically to a

service. So I believe that the beginnings of it clinical psychologist or a psychiatrist.

would be tracked to that. I haven’t seen the

records, but I believe that that’s probably when Q: In this case, this would be something that you

I would anticipate that it would have begun. would defer basically to Dr. Sultan?

(Emphases added.) A: I would defer in terms of administering or

interpreting of the personality testing. Yes.

Counsel for Respondent also asked Dr. Crown whether he

had talked with any of Thompson’s family members to gain Q: Would an MMPI-2 be useful in terms of

insight into his background while growing up. Dr. Crown assessing organic brain damage?

stated that he had not, nor had he spoken with school teachers,

counselors, or ministers. Dr. Crown also indicated that he A: No, not necessarily. No.

had not spoken with Joanne McNamara, or Arlene Cajulao.

....

No. 00-5516 Thompson v. Bell 45 46 Thompson v. Bell No. 00-5516

A: No. If I thought it was necessary to form a Q: In terms of competency, did you evaluate him

neuropsychological opinion, I would have given as being competent?

it.

A: At the time that I saw him, it’s my opinion he

Q: And in this case you didn’t? was competent.

A: That is correct. (DCTR 91).

Q: And part of that is because you are not In response to Thompson’s motion for costs, Respondent

interested in determining whether or not he can reiterated that in his October 30, 1998, initial witness list,

distinguish between right and wrong? Thompson stated that he intended to call two expert

witnesses, Dr. Barry Crown and Dr. Faye Sultan. Respondent

A: I was asked to assess his neuropsychological stated that with regard to the substance of the expert

status, and that to [sic] extent, I wasn’t asked to testimony, Petitioner indicated that each would testify in

consider issues of determining right or wrong, pertinent part that Petitioner’s mental condition substantially

sanity, and I wasn’t asked specifically to impaired his ability to distinguish between right and wrong

consider personality. But when I looked at him, and/or to conform his conduct to the requirements of law.

it was clear to me that Mr. Thompson also had Respondent contended that on December 24, 1998,

personality problems. He had a thought Respondent notified Petitioner that he intended to call Dr.

disturbance. Theodore Blau as an expert in the area of forensic

neuropsychology to rebut the testimony of Drs. Crown and

I assumed that someone else would be looking Sultan. Respondent further claimed that, pursuant to the

at him in terms of those thought disturbances, November 2, 1998 order of the magistrate judge, Respondent

the personality difficulties, and I just recently conducted the depositions of Dr. Crown and Dr. Sultan on

learned that Dr. Sultan had looked at him. July 20, 1999, and July 22, 1999, respectively. 9 Respondent

further contended that, prior to those depositions, Respondent

(Emphasis added.) Dr. Crown stated that he had worked with received no information from Petitioner other than that

Dr. Sultan on several capital cases. contained in the initial witness list, nor had Respondent been

provided with any information concerning the data or other

Counsel for Respondent recapped: information considered by the witnesses in forming their

Q: My understanding then is you were solely asked opinions, as required by Fed. R. Civ. P. 26(a)(2)(B). Finally,

to talk about Mr. Thompson’s current Respondent asserted that, although it was clear from

competency. That’s what you have been asked Respondent’s notice of expert witnesses that Dr. Blau would

to render an opinion about–or competency at be called to rebut the testimony of Petitioner’s experts,

the time you saw him? Petitioner chose to schedule the deposition of Dr. Blau on

A: Competency and mental status.

9

Kissinger defended b oth dep ositions.

No. 00-5516 Thompson v. Bell 47 48 Thompson v. Bell No. 00-5516

July 15, 1999, before the previously-scheduled depositions of does he intend to make such an evaluation. (Court File

Drs. Crown and Sultan. No. 91, Exhibit 1, pp. 24-28). Dr. Crown believes this

organicity is secondary to a thought disorder which he

c. The District Court’s Ruling on the Rule 56 Motion refers to as a schizo-affective disorder-bipolar subtype

with organic components. Dr. Crown bases his

On February 17, 2000, the district court issued a conclusion on the reports of the people who have treated

Memorandum granting Respondent’s summary judgment Thompson for the last fourteen years. (Court File 91,

motion as to all claims and dismissing his § 2254 motion. Exhibit 1, p. 35).

The district court stated in relevant part:

Respondent hired Dr. Blau to rebut Dr. Crown’s

Petitioner claims experts recently obtained by him testimony. Portions of Dr. Blau’s testimony have been

have revealed that he was incompetent under Tennessee filed with the Court. Dr. Blau testified he did not

law at the time of the crime and throughout his court observe or see any indications of organic brain damage

proceedings. Petitioner has failed to state the name of on the test he administered. Dr. Blau found Thompson’s

the expert and failed to provide the proof of these responses during testing were rational and appropriate.

revelations. The Court has read the deposition of Dr. (Court File No. 89, Attachment C, pp. 31, 47-48).

Crown, (Court File No. 119, Exhibit 1) but was unable

to located [sic] his opinion that Thompson was Thompson has failed to provide any significant

incompetent at the time of the crime and throughout his probative evidence which would make it necessary for

court proceedings. As a matter of fact, Dr. Crown stated this Court to resolve a factual dispute. . . . Thompson

he was not asked to render any determination about has not provided this Court with anything other than

whether or not Thompson was competent during his state factually unsupported allegations that he was

jury trial. (Court File No. 91, Exhibit 1, pp. 7-9). Dr. incompetent at the time he committed the crime and at

Crown stated he was only asked to make a competency the time of his jury trial. Nor has Thompson provided

determination at the time he met Mr. Thompson on June this Court with any significant probative evidence that

12, 1998. After meeting with Thompson for two and a Thompson was suffering from a significant mental

half to three hours, which consisted of taking a brief disease that should have been presented to the jury

history for twenty-five to thirty minutes and the during the punishment phase as mitigation evidence.

remainder of the time was spent administering tests, it

was his opinion that Thompson was competent on June Petitioner had two different psychological evaluations

12, 1998. (Court File No. 91, Exhibit 1, p. 7-47). and both resulted in findings of competency at the time

of the crime and at the time of trial. Additionally, the

Dr. Crown did testify Thompson had a significant record shows that trial counsel did reasonably

auditory processing deficit which means he is easily investigate Thompson’s background and mental health

distracted by external auditory stimuli. (Court File No. history.

91, Exhibit 1, p. 20). He further testified that some of the

test results led him to conclude that there was some sort Memorandum dated February 17, 2000 at 53-55 (emphases

of organic brain damage. However, he is not able to added) (DCTR 124).

make any assessment of the severity of the damage nor

No. 00-5516 Thompson v. Bell 49 50 Thompson v. Bell No. 00-5516

d. The Motion to Alter or Amend was, or would be, applied to claims arising from facts not

heretofore presented to the state courts of Tennessee is

On March 2, 2000, Petitioner filed a motion to alter or independent of federal law; and (2) whether the State of

amend the judgment pursuant to Fed. R. Civ. P. 59. By way Tennessee’s interference with Mr. Thompson’s attempts

of introduction, the motion states: to present claims arising from his unquestionably severe

mental illness either deprived Mr. Thompson of a full

As an initial point, undersigned counsel apologizes for and fair opportunity to present the facts supporting those

any lack of clarity which may exist in Petitioner’s claims to the state courts of Tennessee or provided

pleadings.1 Though counsel disagrees with the Court’s “cause” for not presenting the facts supporting those

criticism of those pleadings, the fact that the Court’s claims to the state courts of Tennessee.

Decision is contrary to controlling authority and sound

legal reasoning provides empirical evidence that (DCTR 126, at 1-2). Thompson then presented argument on

undersigned counsel has somehow failed to bring that two issues, namely, that “The Tennessee Courts Will Not

authority and reasoning to the Court’s attention. Mr. Apply the Tennessee State Post-Conviction Statute of

Thompson should not suffer because of counsel’s Limitations to Petitioner’s ‘Later-arising’ Claims in a Manner

shortcomings. Furthermore, this Court should not face that is Independent of Federal Law, “ and that “The

almost certain reversal simply because counsel phrased Tennessee Court’s Refusal To Afford Petitioner Mental

otherwise irrefutable arguments in such a way that the Health Services During State Post-conviction Proceedings

Court remained unaware of the proper resolution of Constituted a State Obstacle to the Presentation of Facts

Respondent’s Motion for Summary Judgment. In an And/Or Claims Arising From Mr. Thompson’s Mental

effort to fulfill his duty to both his client and the Court, Illness.” In conclusion, Thompson reiterated that although

counsel now attempts to phrase those arguments in such the motion to alter or amend did not specifically address

a way that the Court is fully aware of their nature and every error in the district court’s decision, which he

asks this Court to alter or amend the judgment entered specifically reasserted, “[t]he errors addressed herein,

herein to fully address such arguments and thereafter however, go to the very integrity of the judicial process.”

deny Respondent’s Motion for Summary Judgement.2 (DCTR 126 at 10). The motion was signed by Stephen M.

Kissinger.

____________________

e. The District Court’s Ruling on the Motion to Amend

1The Court’s Decision contains several negative

comments regarding perceived deficiencies in On March 31, 2000, the district court denied the motion,

undersigned counsel’s pleadings. holding that Thompson had failed to present any additional

information which justified reconsideration and an order

2Though Mr. Thompson does not waive or concede altering or amending judgment. (DCTR 128).

any of the issues and/or arguments raised by the

pleadings which were not expressly or previously waived On April 21, 2000, Thompson filed his notice of appeal to

or conceded, and the same are reasserted herein, this Court.

Petitioner’s Motion to Alter or Amend centers on two

primary issues: (1) whether the procedural bar which

No. 00-5516 Thompson v. Bell 51 52 Thompson v. Bell No. 00-5516

f. The Rule 60(b) Motion of the claims. With regards to the merits of Mr.

Thompson’s mental health related claims, he maintains

On March 2, 2001, Thompson, through undersigned that he made a sufficient showing of a genuine issue of

appellate habeas counsel, Dana C. Hansen, also of the Federal material fact to overcome Respondent’s summary

Defenders Office of Eastern Tennessee, filed a motion under judgment motion notwithstanding Dr. Sultan’s opinions.

Fed. R. Civ. P. 60(b).10 In that motion, Thompson However, Dr. Sultan’s opinions certainly are directly

“respectfully request[ed] the Court to relieve Mr. Thompson relevant to the mental health related claims and should be

from the final order entered on February 17, 2000, for the considered by the Court. Counsel for Mr. Thompson

purpose of entering an order to supplement the record with engaged in [sic] Dr. Sultan’s services for the sole

Respondent’s deposition of Dr. Faye E. Sultan, Ph.D, and the purpose of offering her opinions to support his

accompanying report of Dr. Sultan.” (DCTR 133, at 1). constitutional claims. The failure of counsel to ensure

Thompson claimed that the petition was timely. “The order that Dr. Sultan’s opinions were filed in the record is a

entered in Mr. Thompson’s case granting summary dismissal result of excusable neglect.

of his amended petition for writ of habeas corpus was entered

on February 17, 2000. Therefore this motion, being filed (Id. at 2) (emphasis added).

within one year of the order, is timely.” (Id.)

In support of his claim that Dr. Sultan’s deposition and

Thompson explained “Dr. Sultan’s Involvement in this report were not included in the record because of mistake,

Case:” inadvertence, surprise, or excusable neglect, Thompson stated

the following:

Earlier in Mr. Thompson’s District Court proceedings,

Respondent took the deposition of Dr. Sultan. The District Court counsel for Mr. Thompson, Stephen M.

district court record presently contains a summary of her Kissinger, was under the mistaken belief that the

conclusions in an expert disclosures pleading (R. 19) and evidence was in the record.1 To the extent that counsel

an affidavit detailing her opinion regarding Mr. should have nonetheless known that Respondent had not

Thompson’s mental health status in February 1999 (R. placed Dr. Sultan’s deposition and report in the record,

34). Having examined Mr. Thompson and viewed his counsel’s failure to ascertain that fact and file the same

social and medical history, Dr. Sultan executed a report himself was the result of excusable neglect. During the

in addition to her testimony at Respondent’s deposition. time period in question, counsel’s office was in a state of

(Attachments A & B). turmoil and his caseload was excessively burdensome.

Although this Court denied Mr. Thompson’s mental

health related claims partially on procedural grounds, Dr.

Sultan’s deposition and report are important to the merits

10

On March 2, 2001, Hansen filed with this C ourt a m otion to hold

case in abeyance pending Thompson’s contemporaneous Rule 60(b)

motion in the district court. Dr. Sultan’s deposition is attached to that

motio n. W e den ied that reque st by ord er dated M arch 2 1, 20 01.

No. 00-5516 Thompson v. Bell 53 54 Thompson v. Bell No. 00-5516

As described fully in the attached affidavit of counsel, 3. Social, environmental, psychological, and

Stephen M. Kissinger, this state of disorder contributed economic factors in the life of Mr. Thompson

to counsel’s excusably negligent failure to realize that which might have [to] be considered to be

Dr. Sultan’s deposition and report were not filed in the mitigating in nature at the time of his trial.

record. (Attachment C).

(DCTR 133, Attachment A; emphasis added).

__________________

Dr. Sultan’s report indicated that she began psychological

1. Respondent’s deposition of Dr. Crown and the evaluation of Thompson on August 20, 1998. At the first

accompanying report were placed in the record by session, which lasted four hours, Dr. Sultan conducted a

Respondent. (R. 91). Because Respondent had moved clinical interview and administered the MMPI-2. Dr. Sultan

for costs incurred in, inter alia, hiring its own mental also noted that she did not assess Thompson’s levels of

health expert, Dr. Blau, on the grounds that Dr. Blau’s current intellectual and neuropsychological functioning

services were unnecessary because Petitioner had no because they had recently been assessed by Dr. Crown.

expert opinions to support the mental health related

allegations contained in the petition, counsel for Mr. Thereafter, Dr. Sultan initiated “a very extensive review of

Thompson was under the mistaken belief that legal, military, medical, prison and psychiatric/psychological

Respondent had placed his deposition of Dr. Sultan records.” Regarding “Relevant Psychological/Psychiatric

and the report which Dr. Sultan had supplied to Data Contained in Records,” Dr. Sultan stated:

Respondent in the record.

The [sic] is substantial documentation throughout the

(Id. at 3) (emphasis added). Thompson therefore asked the Tennessee Department of Corrections records that Mr.

Court to order the record supplemented with the deposition Greg Thompson has suffered from significant mental

and report of Dr. Faye E. Sultan, PhD, and that the district illness since at least the time of his incarceration in 1985.

court revisit its previous summary denial of Thompson’s He has been treated almost continuously with some

petition. (Id.) combination of major tranquilizer and/or anti-depressant

and/or anti-anxiety medications. He has received a

(i). Dr. Sultan’s Report variety of diagnostic labels including Psychosis,

Psychosis Not Otherwise Specified, Paranoid

Attached to the motion are three exhibits. The first is a Schizophrenia, Mania, Mixed Substance Abuse,

psychological report prepared by Dr. Sultan, dated July 22, Schizophrenia, BiPolar Affective Disorder,

1999. Dr. Sultan states the referral questions as follows: Schizoaffective Disorder, Malingering, and Adult

Antisocial Behavior. This is clearly indicative of the

1. Mr. Thompson’s current psychological status[.] Tennessee DOC mental health staff’s view that Mr.

Thompson has experienced major mental illness

2. Mr. Thompson’s likely psychological status and throughout at least most of his period of incarceration.

mental state before and surrounding the time of Further, there is extensive documentation contained in

the 1985 offense. these records of many episodes of bizarre aggressive

and/or self destructive behavior.

No. 00-5516 Thompson v. Bell 55 56 Thompson v. Bell No. 00-5516

(Id.) children’s basic daily needs, highly critical, and unable

to care properly for the children. Ms. Wharton described

Next, Dr. Sultan stated that she interviewed five individuals many instances of such abuse and neglect. She described

“who provided significant supplemental information about the the period following their mother’s death as particularly

life circumstances and past/present psychological functioning chaotic and neglectful, recalling that often there was no

of Mr. Gregory Thompson.” Dr. Sultan interviewed Ms. food in the home and that the children would take money

Maybelle Lamar, Thompson’s maternal grandmother. Dr. from under their grandmother’s mattress to go and buy

Sultan reported that Lamar assumed complete responsibility food. In the period following their mother’s death, Ms.

for Thompson and his two older siblings after Thompson’s Wharton reported that her grandmother was

mother was killed when Thompson was five years old. Dr. continuously drunk and unable to care for her

Sultan reported Lamar’s description of Thompson as follows: grandchildren. According to Ms. Wharton, Greg

Thompson frequently witnessed his sister Nora being

Ms. Lamar described Mr. Thompson as displaying beaten by their grandmother.

significantly “different” behavior when he returned to

visit her following his discharge from the U.S. Navy. Ms. Wharton further recalled that she and her younger

“Greg didn’t act the same”. Unlike the ‘eager to please’, brother had witnessed the brutal beating and rape of their

passive, sometimes funny gentle boy who she had mother by their biological father. She recalls Greg

reared, Mr. Thompson was “angry”, “sometimes sad”. “I standing in the scene screaming and sobbing

don’t think he wanted me to know what was going on uncontrollably.

with him. He mostly just stayed away from me.” Ms.

Lamar reported that she noticed Mr. Thompson Of particular relevance is Ms. Wharton’s recollections

sometimes “staring off into space” or “talking to about Mr. Thompson repeatedly banging his head against

himself”. She would ask him about these behavior. [sic] the wall of their home on many occasions during their

“He’d deny it. He acted like he didn’t know what I was early childhood. This behavior frequently followed their

talking about.” Ms. Lamar recalls being quite concerned grandmother yelling at Greg “You have the Devil in

about her grandson’s mental state during this time. She you.” Mr. Thompson would tell his sister that he was

did not recall ever being asked questions at any time attempting to “knock the Devil out” of his head in this

before or during Mr. Thompson’s trial. way. Ms. Wharton recalls believing that this behavior

was quite odd.

(DCTR 133 Attachment A).

Ms. Wharton reported that Greg would frequently cry

Dr. Sultan also interviewed Ms. Nora Jean Hall Wharton, at school during the early school years, and as a result,

Thompson’s older sister. Dr. Sultan reported: was often the victim of intense mockery from his

classmates. Because Ms. Wharton was in the same

Ms. Wharton described Mr. Greg Thompson as a classroom as her brother she observed these behaviors

highly sensitive, passive, timid, emotionally vulnerable and often intervened on her brother’s behalf. She

child. She described a childhood of great hardship. described Mr. Thompson’s response to this abuse as

According to her report, their grandmother, Ms. quite passive.

Maybelle Lamar was verbally abusive, neglectful of the

No. 00-5516 Thompson v. Bell 57 58 Thompson v. Bell No. 00-5516

Following his discharge from military service, Ms. antecedent. She reported that Mr. Thompson sometimes

Wharton described Mr. Thompson’s behavior as thought that people were “after” him. He would close all

significantly different than his prior conduct and attitude. the curtains in the house because he did not want the

She reported several episodes of bizarre behavior which person who was “looking” for him to see him through the

included a sudden intense emotional reaction without curtains. She remembers being quite concerned about

obvious external provocation. Mr. Thompson would Mr. Thompson’s mental state.

become extremely angry, would cry and scream for a

lengthy period of time, would appear as if he might or Dr. Sultan next reported her “Summary and Conclusions,”

actually become physically violent or aggressive, and which we quote here in full:

then would suddenly retreat. Ms. Thompson reported

this behavior and her concerns about it to her Mr. Gregory Thompson has experienced symptoms of a

grandmother. Ms. Lamar suggested that Ms. Wharton major mental illness throughout his adult life. Indeed,

take her brother to the psychiatric unit of the local there is information available which suggests that Mr.

hospital for treatment. Ms. Wharton did not attempt to Thompson was displaying significant signs of mental

get any treatment for Mr. Thompson and reports feeling illness from the time he was a small child. Self-injurious

quite guilty about this. behavior is reported as early as six years old. There is

extensive documentation contained within the records

Nora Jean Wharton described her own struggles with reviewed for this evaluation that Mr. Thompson has

mental illness throughout the past fifteen years. She has experienced a thought disorder and/or an affective

received counseling to assist her in coping with the disorder of some type for many years.

effects of her abusive childhood and she has been treated

with a combination of a major tranquilizer (Stellazine) It is my opinion that Mr. Gregory Thompson is most

and anti-depressant medications. She reported her appropriately diagnosed, according to the Diagnostic

younger half-sister Kim has also suffered from and Statistical Manual of Mental Disorders, Fourth

significant mental illness. Edition, as having Schizoaffective Disorder, Bipolar

Type. As is typical of this illness, symptoms became

(DCTR 133 Attachment A). apparent in early adulthood. Mr. Thompson was

suffering serious mental illness at the time of the 1985

Dr. Sultan also relayed the report of Michael Chavis, an offense for which he has been convicted and sentenced.

investigator for the Federal Defenders Office of Eastern This mental illness would have substantially impaired

Tennessee, from his interview of Ms. Cajulao in summer of Mr. Thompson’s ability to conform his conduct to the

1998. requirements of the law.

Mr. Chavis reported that Ms. Cajulao described Mr. Further, Mr. Thompson was the victim of severe

Thompson as displaying increasingly bizarre behavior childhood emotional abuse and physical neglect. His

during the latter part of their relationship. Similar to family background is best described as highly neglectful

descriptions proved [sic] by Ms. Nora Wharton, Ms and economically deprived. Mr. Thompson repeatedly

Cajulao reported several episodes of “paranoid” and witnessed episodes of violence during his childhood in

aggressive behavior which had no apparent external which one family member assaulted or brutalized

No. 00-5516 Thompson v. Bell 59 60 Thompson v. Bell No. 00-5516

another. There are significant aspects of Mr. state, his level of functioning at the present

Thompson’s social history that have been recognized as time.

mitigating in other capital cases.

Q: Were you also asked if you would be able to

It is important to note that all of the information related determine his competency at the time of his

to Mr. Thompson’s early mental illness and social criminal trial in 1985?

history was available at the time of his 1985 trial.

A: That was not an initial question, no.

Id. (emphases added). Again, this report is dated July 22,

1999.11 ....

(ii.) Dr. Sultan’s Deposition Testimony Q: Did Mr. Chavis express to you any opinion as

to what he thought Mr. Thompson’s

The second attachment is Dr. Sultan’s deposition. Pruden, psychological condition was, his mental status

counsel for Respondent, took Dr. Sultan’s deposition on July was, at the time of the offense?

22, 1999. Appearing on behalf of Thompson was Stephen

Kissinger. Michael Chavis was also present. A: The only opinion that he expressed to me was

that he thought that he was not in good shape,

Dr. Sultan told Respondent that she was first contacted by that he had deteriorated. He didn’t label it in

Chavis on behalf of Kissinger in July or August of 1998. Dr. any particular way. Said he didn’t think that he

Sultan testified that was doing as well.

A. Mr. Chavis asked me about my availability and (Emphasis added.) (DCTR 133 Attachment B).

asked if I would be willing to perform a

psychological evaluation to assess what Mr. Dr. Sultan also stated that she had consulted with Dr.

Thompson’s psychological condition might Crown. She stated that Chavis told her

have been like at the time of the offense in 1985,

to assess whether it was possible to make such Dr. Crown would be conducting the neuropsychological and

an appraisal, to see whether there were factors intellectual assessment. Dr. Sultan testified that she needed

in his personal background that might have to check Dr. Crown’s test results so that she could include

been investigated at the time of trial that would them in her opinion, but that she did not provide Dr. Crown

have had bearing on his psychological status at with any of her diagnostic information.

the time of the offense, and Mr. Chavis also

suggested that they wanted to know something When asked whether she had prepared a social history on

about Mr. Thompson’s current psychological Thompson, Dr. Sultan indicated that she had not yet but that

it had been provided as part of the prison records. Dr. Sultan

testified that she had spoken with Thompson’s grandmother

11 and sister, and had attempted to speak with his brother Curtis.

The documents to which Dr. Sultan refers are not actually attached

to the report. They are attached to her deposition testimony, Attachment She further stated that, although she had not spoken with any

B, and marked as Exhibit 3 to that deposition. of Thompson’s school teachers, school administrators, or

No. 00-5516 Thompson v. Bell 61 62 Thompson v. Bell No. 00-5516

neighbors, she had reviewed testimony from them. Dr. Sultan and she saw those behaviors as very unusual for

was not sure whether she had reviewed the actual transcript him and reported to Mr. Chavis that Mr.

from Thompson’s court martial, but stated that, at a Thompson seemed unaware of what had

minimum, she had reviewed the testimony of at least some of provoked it and didn’t even seem after the fact

the witnesses. She had not contacted any of Thompson’s to remember what had taken place, would

supervisors in the military. simply, after a period of time, calm himself

down and return to normal behavior. I found all

Although Dr. Sultan also had not spoken with Cajulao, she of that quite significant.

interviewed Chavis, who spent several days with Cajulao in

1998. Dr. Sultan stated that she found Cajulao’s observations (Id. at 55-56).

“beneficial” in reaching her diagnosis. Specifically,

Shortly thereafter, Pruden called for a break, and took that

A: Ms. Cajulao described to Mr. Chavis that opportunity to take a look at Dr. Sultan’s report. Upon return,

during the course of the four-year relationship Pruden asked Dr. Sultan:

she had with Mr. Thompson, Mr. Thompson

became increasingly bizarre in behavior that he Q: What indicates to you or what indicia are there

exhibited. There were a number of occasions in for you that suggest Mr. Thompson was

which there were incidents that took place in displaying significant signs of mental illness

the military that he described to her as him from the time he was a small child? How do

having been attacked. The facts of the situation you arrive at that conclusion?

may in fact not be that, but that was his

description to her, that he was being picked on, A: During my interview with Mr. Thompson’s

that he was being bullied, that he was being sister–and let me say all of her names–Ms. Nora

attacked. Jean Hall Wharton, Ms. Wharton spontaneously

began to talk to me about Mr. Thompson’s

He became depressed, according to her, over behavior in the time period immediately

time and increasingly paranoid. At some point following their mother’s death.

she would come home from work, and he

would be in their home with the curtains drawn, By the time of the first grade, Mr. Thompson,

standing by himself in the dark telling her that when he was being yelled at by his

people were after him and that he didn’t want grandmother, she was reportedly verbally

people to be able to look at him through the abusive in the following fashion: She would

windows. She remembers being quite yell at him-- you have the devil in you, boy.

concerned about his behavior. She would then observe Mr. Thompson

standing or sitting beside a wall repeatedly

There are a couple of situations that she banging his head into the wall. She, in her role

described to Mr. Chavis in which, with no as protector of him, would ask him what was

external provocation that she could identify, going on, and he would tell her he was trying to

Mr. Thompson became quite violent with her, knock the devil out of his head. She recalls at

No. 00-5516 Thompson v. Bell 63 64 Thompson v. Bell No. 00-5516

the time, although she was quite young herself, permitted much interaction outside of their

being worried about his behavior and thinking home.

it as was very odd.

(Id. at 60).

One of things that we know about people who

develop thought disorders is that frequently in Dr. Sultan further testified that:

childhood you’ll see one or more peculiarities

in behavior. This would certainly fit in that She [Ms. Wharton] recalled another episode

category. She recalls other instances. during which her biological father was brutally

beating and raping their mother on the floor in

Q: Sort of self-punishment or a self-exorcism type front of them when the children were quite

thing? small, perhaps Mr. Thompson was himself three

or four. She was maybe four or five. Mr.

A: A self-injurious behavior is what we would call Thompson’s reaction to that was to stand and

it I think. Mr. Thompson, when he was Greg, scream and scream and scream and scream

in the first and second and third grade had during the entire episode.

rather frequent crying episodes in classrooms

that Ms. Wharton recalls also as very unusual in Any of the–taking the self-injury aside, setting

the context of his schoolroom situation. She that aside, any one of those behaviors in

describes him as being the subject of torment on isolation might not be particularly significant.

the part of the students because he behaved in Putting them together, we begin to see a pattern

an odd fashion. Sometimes he would simply of intense emotional reactivity.

begin to cry and wail and scream and

apparently made a sound like a fire engine Q: So basically, if I understand it, it’s the self-

when he was sobbing and developed the injurious behavior and the crying and the way

nickname Fire Engine. That’s reported in the you see him reacting to these physical abuses of

trial transcript. She told me much more detail others?

about actually the extent of those kind of

emotional outbursts. A: Yes.

At home it was rather common for Mr. Q: And that is indicative of a sign of mental illness

Thompson to begin to cry and scream during to you? I just want to make sure that I’m

times when Ms. Wharton herself was being understanding what you’re telling me. If I’m

beaten by their grandmother. Ms. Wharton was not, please explain it to me.

the victim of physical abuse on the part of the

grandmother. Mr. Thompson observed much of A: I think I understand your question. It is an early

this since they were together virtually all of the indicator of a problem that’s likely to develop.

time, and Nora Wharton was not really With the benefit of hindsight, it takes on the

significance of a precursor, because then we see

No. 00-5516 Thompson v. Bell 65 66 Thompson v. Bell No. 00-5516

the escalating pattern of dysfunction and Q: . . . You don’t know to what degree the children

abnormality. were malnourished then?

Q: Sort of a causal relationship is what you’re A: No. I don’t know. I do know that–and this is

seeing developing? confirmed by the grandmother–in the six weeks

approximately following their mother’s death,

A: I’m not sure what causes what. There are often the children were left alone virtually all of the

early indices of later mental illnesses that you time because Ms. Lamar was drunk and in bed,

don’t know exactly what it’s going to look like and so we have a five, a six, and a seven-year-

later, but you realize in looking at the child that old child in a house with no food. They would

there’s a high likelihood that something is not occasionally steal money from underneath her

going to be right when that person achieves mattress while she was sleeping, and one of

maturity. them would go to the store to try to find some

food. Occasionally a neighbor would provide

Q: Because of the environment, for example, in them with a meal or a can of food. I don’t

which he’s growing up? know whether they were malnourished over an

extended period of time. I do know that there

A: Perhaps. Perhaps because of the genetics is, from Ms. Wharton’s perspective, rather

involved. Perhaps because of the situations serious psychological damage from that time.

he’s exposed to, as you said, the environment.

Perhaps because of whatever factors there are. Q: You have no medical documentation showing

Perhaps nutrition plays a role in this. These any malnourished condition or that it’s caused

children were without food for significant some problem with his brain, do you?

periods of time as well. I don’t know all of the

reasons, but what I know is that if you look A: I don’t. These children were never taken to the

back in the childhood of this man, the doctor, so there wouldn’t be any medical

beginnings of mental illness are apparent. documentation. There’ s p r obably

documentation in the school system. According

Q: Besides Ms. Wharton’s report of lack of food, to Ms. Wharton, Ms. Lamar was so drunk at the

have you seen any evidence that the children beginning of the school year following their

were taken away because of malnutrition? mother’s death that she forgot to sign the

children up for lunches at school. They didn’t

A: No. Ms. Wharton did tell me, however, that have anything to eat during the day, so they

there was a neighbor who had planned to make forged her signature on a permission slip so that

a report to Social Services, so perhaps I’ll have they could eat. They were discovered and

the opportunity to interview that neighbor as punished by the school superintendent people,

well. and a form was sent home to Ms. Lamar. She

then signed it, and the children were able to eat

No. 00-5516 Thompson v. Bell 67 68 Thompson v. Bell No. 00-5516

lunch after that point. A couple weeks passed take into account both thought disorder and

for all of that to get straightened out. affective illness.

Ms. Wharton has undergone a lot of therapy in The very best diagnosis to describe all of the

recent years and says that she’s now able to complex of symptoms that I just talked to you

describe situations that she wasn’t very about is schizoaffective disorder, bipolar type.

comfortable acknowledging to herself, these

being one of them. Q: You note in your report Mr. Thompson was

observed having a significant change in

Q: Your diagnosis of Mr. Thompson is behavior after he was discharged from the

schizoaffective disorder, comma, bipolar type. Navy. What significance do you attach to that

What leads you to that diagnosis from what fact?

you’ve reviewed and your testing results?

A: Well, it’s interesting, because the state Court of

A: What leads me to the diagnosis is that there is a Appeals actually notes this, that prior to his

long history, perhaps at this point almost a 20- entry into the military Mr. Thompson is

year history, of simultaneous thought disorder described almost uniformly–well, in fact,

on the part of Mr. Thompson documented uniformly according to their opinion–as

throughout all the records, and affective passive, as compliant, as eager to please, as

disorder, emotional disorder, being unable to gentle, as timid, as eager to run from attacks.

regulate his emotions, sometimes falling into

the pits of despair and becoming suicidal, At some point–and we don’t know, because I

sometimes becoming highly agitated and manic haven’t seen any psychiatric records from the

and having too much energy, too much military at this point; I don’t know if there are

exuberance, and grandiose thinking. The any–we don’t know whether or not the change

thought disorder is manifested in persecutory in Mr. Thompson is perceived as other than

ideas, delusions of grandeur–lots of different behavioral disruption, but, in fact, his

kinds of delusions actually–auditory description of that time is that he began to

hallucinations that he sometimes admits to, notice that people were trying to hurt him all

sometimes suspected by the doctors who are the time, that officers and other people of his

doing the examination. rank and slightly above his rank attempted to

provoke him, that they sometimes physically

The psychological testing early on in Mr. assaulted him, that he thought he was being

Thompson’s incarceration confirm the presence followed a lot, and that he sometimes struck out

of a psychotic process. There was an MMPI in what he thought was defense and then later

administered to him by a prison psychologist in found out from other people who he knew and

1990 that is described as valid and indicative of trusted that there wasn’t anything to defend

psychotic process, and throughout the prison against or that there might not have been

record he receives a variety of diagnoses that anything to defend against.

No. 00-5516 Thompson v. Bell 69 70 Thompson v. Bell No. 00-5516

Q: This is what he related to you during your approach her grandmother about what to do for

interview last August? treatment for him.

A: Right. The people who saw him after the (Id. at 62).

military each were struck by how very different

he seemed. That was the word that kept being Pruden then asked:

used, “different.” Sometimes the people I was

speaking to were not able to describe what Q: You state that the schizoaffective disorder,

different meant, but, for example, the bipolar type, would substantially impair Mr.

grandmother said that he was different as in not Thompson’s ability to conform his conduct to

right, that he wasn’t himself. Ms. Wharton tells the requirements of the law. How so?

me that the grandmother was very well aware

that he was in deep psychological distress, and, A: There are points in time when Mr. Thompson is

in fact, the grandmother suggested that he be out of contact with reality. He is responding to

taken to the psychiatric unit at Grady Hospital situations that simply don’t exist or that he

in Atlanta, I believe, for treatment. The perceives in extremely exaggerated or different

grandmother observed him staring off into form. A person is not able to conform one’s

space for long periods of time. She observed conduct to the law if you are frankly delusional

him mumbling to himself. When she asked him or hallucinating in some way. Mr. Thompson

what he was doing, he told her he had no idea over the years has had both of those symptoms.

what she was talking about. She said that was

very different from the boy who left her to go Q: So it’s this delusional aspect of this disorder

into service. that is the main factor that would keep him

from having the ability to conform his conduct

The sister has even a better glimpse of him than to the requirements of law, if I understand you

that, because he actually went to live with her correctly?

for a while, and she said he was bizarre. She

described him as paranoid. She said that he A: Is it the main factor? Let me say that I think it’s

would explode for no reason at all, that she was at least as potent a factor if not more as the

afraid of him for the very first time in her life, other aspect of his mental illness, which is that

that they had always been terribly close, the sort he has emotional disregulation.

of close where if there was only one piece of Q: Meaning?

bread to eat they would share it, that they

always looked out for one another, and that A: Meaning Mr. Thompson often is not in control

suddenly he was behaving in ways that she of his emotions. He has episodes of rage, of

simply could not identify. She described three aggression, that he doesn’t understand or relate

very serious episodes of aggression and to very well. He’s told about them later.

emotional upset that she said are what led her to Sometimes he remembers them, sometimes he

doesn’t.

No. 00-5516 Thompson v. Bell 71 72 Thompson v. Bell No. 00-5516

(Id. at 69). made regarding Respondent’s filing of the report and

deposition of Dr. Sultan, which were, however

The deposition concluded shortly thereafter. reasonable, incorrect. Counsel’s failure to verify this

assumption regarding these documents was neglect.

(iii.) Kissinger’s Affidavit Given the extraordinary pressure under which counsel

was operating at that time, such neglect was excusable.

The third attachment is Kissinger’s affidavit. In it, he

explains in relevant part the following:

And further this affiant saith not.

2. I was appointed to represent the Appellant, Gregory

Thompson, on January 29, 1998, by the district court. (Id. Attachment C)(emphasis added). Kissinger’s affidavit is

dated March 1, 2001.

3. In approximately November of 1999, Ms. Leah

Prewitt, the Federal Defender for the Eastern District of g. The District Court’s Ruling on the Rule 60(b) Motion

Tennessee, was forced by illness to cease activities on

behalf of Federal Defender Services of Eastern On April 17, 2001, the district court denied Thompson’s

Tennessee, Inc. Ms. Prewitt’s duties were assumed by motion to reconsider the order denying his motion to alter or

Ms. Elizabeth Ford, an Assistant Federal Defender in the amend judgment pursuant to Fed. R. Civ. P. 60(b). First, the

office. Because Ms. Prewitt had not resigned, Federal district court held that it had previously determined the Rule

Defender Services of Eastern Tennessee, Inc., was not 60(b) motion was filed outside the one year time period. The

able to hire a permanent replacement for Ms. Prewitt. district court noted that, according to its calculation the

Because Ms. Ford could not do both Ms. Prewitt’s job motion was required to be filed no later than February 16,

and her own, Federal Defender Services of Eastern 2001, to be considered timely. DCTR 139 (citing Fed. R. Civ.

Tennessee, Inc. assigned a portion of Ms. Ford’s P. 6 and 60(b)). The district court then noted that:

caseload to affiant.

Thompson now argues, without citing authority, that the

4. Affiant, however, already had an extremely heavy calculation of the Rule 60(b) one-year limitation period

capital habeas corpus caseload, including, but not limited should not begin until March 31, 2000, the date this

to, Mr. Thompson’s case. In fact, his capital caseload Court denied his Rule 59 motion to alter or amend the

was so heavy that Federal Defender Services of Eastern judgment. Thompson’s interpretation is contrary to the

Tennessee, Inc. was forced to hire a second attorney to plain language of the rule. Thompson has not cited, nor

handle capital habeas corpus cases in July of 2000. has the Court found, any authority to support his

When a portion of Ms. Ford’s cases were assigned to position. The rule specifies that the motion should be

affiant, that caseload became so great that affiant made made within a reasonable time, and in this case “not

errors which, however understandable, were nonetheless more than one year after the judgment, order, or

errors. proceeding was entered or taken.” Rule 60(b) of the

Federal Rules of Civil Procedure. In the case before this

5. Despite the affiant’s efforts, there were occasions Court, the order dismissing the habeas petition was

when he made assumptions, such as the assumption he entered on February 17, 2000. [Court File No. 125].

No. 00-5516 Thompson v. Bell 73 74 Thompson v. Bell No. 00-5516

(Id. at 3). 2. Appeal to this Court

Next, the district court stated, and we quote in full, the Thompson did not appeal from the order of the district

following: court’s denying his motion to alter or amend judgment. On

appeal to this Court, Thompson articulated the issues for

Moreover, the Court specifically noted in its review as follows:

memorandum opinion dismissing the habeas petition,

that Thompson procedurally defaulted his claim that he I. Whether the district court erred when it

was incompetent at the time of the crime and an the time reviewed Mr. Thompson’s claims under the “all

of trial. [Court File No. 124, at 35]. Furthermore, when reasonable jurists” standard denounced by the

addressing Thompson’s claim of ineffective assistance Supreme Court in (Terry) Williams v. Taylor to

of counsel for failing to adequately investigate his summarily deny Mr. Thompson’s petition.

mental health, the Court placed Thompson on notice

that he failed to provide evidence of his allegations that II. Whether the district court erred in denying Mr.

he was incompetent at the time of the crime and trial. Thompson’s habeas petition without a hearing

[Court File No. 124, at 53]. where Mr. Thompson did not fail to develop the

factual basis of his claims in state court and

Petitioner claims experts recently obtained by him

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