Under Georgia law, and “[u]nder the facts in this case, the trial court was required to do no more regarding the applicable statutory aggravating factors than to repeat the exact statutory language.”
How later courts described this case
- Under Georgia law, and “[u]nder the facts in this case, the trial court was required to do no more regarding the applicable statutory aggravating factors than to repeat the exact statutory language.”
- examining state court’s determination under an abuse of discretion standard
- state must furnish psychiatric or psychological experts to indigent capital defendant if evidence not available from other sources is necessary to prove mitigating circumstances
- concession in answer that recourse to state courts would be futile
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by David Peek v. Ralph Kemp, Warden, Georgia Diagnostic and Classification Center, 784 F.2d 1479 (1986)
704 F.2d 1487, 1498-99 (11th Cir. 1983), overruled on other grounds, Peek v. Kemp, 784 F.2d 1479, 1494
Overruled — as noted by a later court
704 F.2d 1487 (11th Cir.1983)] and its progeny are inconsistent, those cases are overruled.” 784 F.2d at 1494.
medium confidence
The opinion
CLARK, Circuit Judge,
concurring in part and dissenting in part:
Unquestionably, a defendant in a capital murder trial must be allowed to proffer, and a jury permitted to consider, any evidence of mitigation submitted as a basis for a sentence less than death.
(Majority opinion at 1495), citing Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978).
In preparing Westbrook’s defense, his counsel discovered that Westbrook had spent the majority of his life incarcerated in a variety of prisons. In 1951, at the age of 14, Westbrook was found guilty on eleven counts of burglary for which he was sentenced to consecutive five-to-ten year terms, and three misdemeanor counts for which he was sentenced to consecutive one-year terms, for a total of 58 to 113 years. 1 *1508 Westbrook spent the next twenty years in the Georgia State Penal System. 2 West-brook was confined in an adult prison, after two years in a boys’ training institute, *1510 where he allegedly suffered physical abuse and homosexual attacks by other prisoners. Westbrook’s counsel believed that to prepare an adequate defense, he should request psychiatric or psychological assistance to evaluate the impact of these many years of incarceration on Westbrook. Exposure to this environment at an immature age could have diminished Westbrook’s mental development and his capacity to know right from wrong. Counsel thus sought expert testimony to introduce evidence of these aspects of Westbrook’s character and record, which must be considered as mitigating circumstances under Lockett v. Ohio, 438 U.S. at 604 , 98 S.Ct. at 2965 , 57 L.Ed.2d at 989 . Such evidence could have shown that West-brook had been so dehumanized and brutalized by prison that his ability to function properly in society had been impaired at an early age.
*1508 Case No. Crime Charged Date of Crime Plea Date of Sentencing Sentence Imposed
3124 Burglary 11/17/51 Guilty 12/8/51 (theft of cigarettes from store house) 5-10 years Consecutive
3125 Burglary 11/6/51 Guilty 12/8/51 (theft of piggy bank containing $10) 5-10 years Consecutive
3126 Burglary 11/6/51 Guilty 12/8/51 (theft of shoes, jacket & toy bank) 5-10 years Consecutive
3127 Burglary 12/5/51 Guilty 12/8/51 (theft of pistol & flashlight) 5-10 years Consecutive
3128 Burglary 11/18/51 Guilty 12/8/51 (theft of candy cigarettes) 5-10 years Consecutive
3129 Burglary 12/5/51 Guilty 12/8/51 (theft of wallet and flashlight) 5-10 years Consecutive
3130 Burglary 11/17/51 Guilty 12/8/51 (attempted theft) 5-10 years Consecutive
3131 Burglary 12/5/51 Guilty 12/8/51 (theft of piggy bank containing $5) 5-10 years Consecutive
3133 Burglary 11/18/51 Guilty 12/8/51 (theft of $3) 5-10 years Consecutive
3134 Burglary ll/*/51 Guilty 12/8/51 (theft of clothes & pistol) 5-10 years Consecutive
3135 Burglary 12/5/51 Guilty 12/8/51 (attempted theft)
3314 Burglary 12/5/51 Guilty 12/12/51 (theft of 2 purses and 1 ring) 5-10 years Consecutive
3315 Carrying 12/5/51 Guilty 12/12/51 Pistol Without a License 1 year Consecutive
3316 Simple 12/5/51 * 12/12/51 Larceny (theft of 1 boy’s bicycle) 1 year Consecutive
3317 Carrying 12/5/51 * 12/12/51 Concealed Pistol 1 year Consecutive
Total: 58-113 years
* Not apparent from the record.
*1510 As indicated by the majority, Westbrook’s counsel orally moved the state trial court to appoint a qualified psychologist or psychiatrist. Counsel informed the court that the expert was to determine the effects of Westbrook’s incarceration in the state penal system on the development of his personality and his ability to conform to acceptable societal standards. Given Westbrook’s tragic history, counsel’s only strategy for the sentencing hearing was to present evidence of Westbrook’s penal history and testimony by an expert who could explain to the jury how the incarceration itself affected Westbrook’s character.
The trial court declined to appoint, at state expense, psychological or psychiatric diagnostic expert assistance, absent an intention by Westbrook to plead insanity at the time the crime was committed or incompetency to stand trial. Westbrook’s indigency prevented his obtaining private diagnostic assistance. The only volunteer psychologist who could be found was unlicensed and had little clinical experience, with no experience in a prison setting. The trial judge concluded that this psychologist was not an expert with any age group of incarcerated people. Furthermore, the psychologist had never examined appellant and could only respond to hypothetical questions.
There is strong support for Westbrook’s contention that incarceration at an early age could have had a lasting detrimental impact. Thomas J. Cottle, a psychologist at Harvard Medical School, wrote:
Most of the cases with which I have been involved were children who have been deeply hurt by serving an extended jail term. The jail experience may well be called traumatic. Years after a person’s release, the psychological and physical symptoms resulting from incarceration still may be detected.
T. Cottle, Children in Jail, Crime and Delinquency, p. 318 (1979). Other effects of incarceration of adolescents are documented in Kenneth Wooden’s book, Weeping in the Playtime of Others. Dr. Karl Menninger, one of this country’s most outstanding psychiatrists, has also recognized what tragic impacts extended incarceration can have:
A place where idle, frustrated, unkempt, frightened, resentful men are pushed into physical and psychological intimacy and left to await someone else’s pleasure and convenience is a prime breeding place of evil and violence.
The frustration of the prisoner’s ability to make choices and the frequent refusals to provide an explanation for the regulations and commands descending from the bureaucratic staff involve a profound threat to the prisoner’s self-image because they reduce the prisoner to the weak, helpless, dependent status of childhood.
K. Menninger, The Crime of Punishment, pp. 43, 74-75 (1968).
The Supreme Court has explicitly recognized that the eighth and fourteenth amendments require individualized consid *1511 eration of mitigating factors in capital cases. Lockett v. Ohio, 438 U.S. at 606 , 98 S.Ct. at 2965 , 57 L.Ed.2d at 989 . In Eddings v. Oklahoma, 455 U.S. 104 , 102 S.Ct. 869 , 71 L.Ed.2d 1 (1982), the Supreme Court reversed a decision where the death sentence was imposed without considering in mitigation the circumstances of petitioner’s unhappy upbringing and emotional disturbance. In sentencing, the Eddings trial court had stated that it would not consider Eddings’ violent background and concluded that the only mitigating circumstance was Eddings’ youth. On appeal, the Court of Criminal Appeals stated that the evidence in mitigation was not relevant because it did not tend to provide a legal excuse from criminal responsibility. The Supreme Court ruled that the limitation placed by the court on its consideration of mitigating evidence had violated the rule in Lockett v. Ohio . Thus, in Eddings the Court first resolved that the evidence Eddings offered was relevant mitigating evidence and, second, that the courts could not refuse to consider such evidence. The Court said:
[I]t is not disputed that [Eddings] was a juvenile with serious emotional problems, and had been raised in a neglectful, sometimes even violent, family background. In addition, there was testimony that Ed-dings’ mental and emotional development were at a level several years below his chronological age. All of this does not suggest an absence of responsibility for the crime of murder, deliberately committed in this case. Rather, it is to say that just as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and mental and emotional development of a youthful defendant be duly considered in sentencing.
455 U.S. at 116 , 102 S.Ct. at 877 , 71 L.Ed.2d 12 (emphasis added). The very evidence which the Court determined was crucial for Eddings’ sentencing determination was the expert testimony of psychologists, psychiatrists, and sociologists. I respectfully submit that Westbrook’s case is controlled by Eddings , which the majority fails to distinguish.
I agree with the majority’s holding that:
We interpret Lockett v. Ohio and Gregg v. Georgia as vehicles for extending a capital defendant’s right to present evidence in mitigation to the placing of an affirmative duty on the state to provide the funds necessary for production of the evidence. Permitting an indigent capital defendant to introduce mitigating evidence has little meaning if the funds necessary for compiling the evidence is unavailable.
(Majority opinion at 1496). The majority, and I, read Bounds v. Smith, 430 U.S. 817 , 97 S.Ct. 1491 , 52 L.Ed.2d 72 (1977), “to require the state to furnish the services of a psychologist or psychiatrist in those capital cases deemed appropriate by the state trial court.” (Majority opinion at 1496). The majority next states that under Georgia law the appointment of an expert was a matter of trial court discretion. With no further explanation, the majority concludes:
Accordingly, the trial court’s ruling on such a request is tested by the abuse of discretion standard. Applying that standard in this case, we disagree with West-brook’s assertion that the denial of his request rendered the sentencing phase of his trial fundamentally unfair.
(Majority opinion at 1497). The majority does not suggest under what facts, if ever, it would find a trial court had abused its discretion in failing to appoint an expert.
The majority justifies its conclusion with two final contentions: (1) the evidence for which Westbrook sought a psychologist could have been demonstrated by other methods, and (2) the evidence sought by Westbrook was “not a critical piece of evidence determinative of his guilt or innocence of the offenses charged.” (Majority opinion at 1497). I find neither conten *1512 tion persuasive. As to the first, the majority suggests that evidence of the impact of incarceration could have been provided by other witnesses such as family and friends. I disagree. First, there is no evidence of the existence of such persons. Second, such other witnesses could only speculate, as did the inexperienced psychologist who answered hypothetical questions, on the impact of imprisonment on West-brook. Permitting Westbrook to have an expert to examine him and then testify would have given his defense greater credibility and, more importantly, enabled his counsel to attempt to determine the true impact of his incarceration.
The importance of psychiatric testimony in capital cases is the theme of several recent law review articles. One article notes that no Supreme Court since 1944 has explicitly refused to admit psychiatric evidence of mental disorder in mitigation. Liebman and Shepard, Guiding Capital Sentencing Discretion Beyond the ‘Boilerplate’: Mental Disorder as a Mitigating Factor, 66 Geo.L.J. 757, 794 (1978). Another commentator is more specific in his recommendation:
An indigent defendant charged with a capital crime should be provided a comprehensive forensic evaluation, at state expense, to assist his attorney in exploring and presenting his “defenses,” including evidence in exculpation or mitigation. Because this evaluation should be viewed as essential to the effective assistance of counsel, the evaluation should be conducted for the defense by a qualified forensic specialist on terms similar to those arranged by defendants with means to pay for their own defense.
Bonnie, Psychiatry and the Death Penalty: Emerging Problems in Virginia, 66 Va.L.Rev. 167, 186 (1980).
The Supreme Court opinion in Eddings reveals that Eddings’ evidence in mitigation included testimony of a state psychologist, a sociologist specializing in juvenile offenders, and a psychiatrist. 455 U.S. at 107 , 102 S.Ct. at 872 , 71 L.Ed.2d at 6 . The expert testimony included opinions that Eddings’ mental and emotional development were at a level several years below his age and that Eddings could be rehabilitated. Testimony about Eddings’ difficult childhood by friends and relatives could not have risen to the same level of persuasiveness and credibility as the expert testimony for Eddings, just as it could not for Westbrook.
The majority’s second contention, in support of its conclusion that Westbrook’s sentencing hearing was not rendered fundamentally unfair, is that the expert testimony sought was “not a critical piece of evidence determinative of his guilt or innocence of the offense charged.” (Majority opinion at 1497). Thus, the majority attempts to distinguish the present case from Barnard v. Henderson, 514 F.2d 744 (5th Cir.1975), in which we held that: “Fundamental fairness is violat-
ed when a criminal defendant on trial for his liberty is denied the opportunity to have an expert of his choosing, bound by approximate safeguards imposed by the Court, examine a piece of critical evidence whose nature is subject to varying expert opinion.” 514 F.2d at 746 . While I agree that psychiatric testimony would not determine Westbrook’s guilt or innocence, I do not find that distinction dispositive. In a capital case, the defendant is entitled to present both evidence of his innocence and evidence in mitigation, in two separate proceedings. Georgia law provides that a jury “shall consider” any mitigating circumstances. Westbrook had only one possible means of establishing mitigating circumstances: expert testimony of the impact of incarceration. This testimony was critical to the sentencing phase of his trial.
Moreover, the majority’s argument was rejected by the Supreme Court. In Ed-dings, the Court of Criminal Appeals followed the trial court’s approach and “found that the evidence in mitigation was not *1513 relevant because it did not tend to provide a legal excuse from criminal responsibility.” 455 U.S. at 113 , 102 S.Ct. at 875 , 71 L.Ed.2d at 10 . The Supreme Court rejected this approach and explicitly held that the evidence had to be considered in mitigation even though it did not go to Eddings’ guilt or innocence. I believe the same result should ensue in this case.
I do not contend that all indigent defendants should be entitled to a court-appointed psychologist or psychiatrist, just as indigent defendants are not entitled to unlimited use of experts in other fields. I agree with the majority that a state trial court should consider the specific facts of each case and the importance of the requested expert testimony. The record in this case, however, indicates that the trial court did not believe it could appoint a psychologist or psychiatrist in the absence of an intent to plead insanity. 3 Just as the trial judge in Eddings erroneously believed as a matter of law that he could not consider the proffered mitigating evidence, the trial judge for Westbrook erroneously believed that he could not comply with Westbrook’s request. Even if the record indicated that the denial of psychological or psychiatric help was an exercise of discretion, I would hold that under the facts of this ease such a denial renders the sentencing fundamentally unfair and thus constitutes an abuse of discretion.
Westbrook’s only evidence in mitigation was his history of incarceration and its unfortunate, and as yet unexplored, impact. The relevance of such testimony was affirmed in Eddings v. Oklahoma, 455 U.S. 104 , 102 S.Ct. 869 , 71 L.Ed.2d 1 . In refusing to appoint a qualified psychiatrist for Westbrook, the court effectively denied consideration of an important mitigating factor.
I respectfully dissent from Part III.A of the majority opinion and concur in all other issues.
. The following chart, based on trial exhibits, lists the crimes charged against Westbrook and the subsequent sentences imposed:
. Westbrook’s prison records are summarized below:
Westbrook’s Prison History:
12/18/51 Westbrook (age 14) transferred from county jail to Boys Industrial Training Institute
9/8/53 Westbrook (age 16) transferred to State Penitentiary at Reidsville
3/9/56 Westbrook stabbed by another inmate. 12/31/56 Westbrook (age 20) transferred to Lowndes County Public Works Camp
7/2/60 Westbrook transferred to Reidsville (reason: physical condition)
8/10/71 Westbrook paroled
7/30/73 Westbrook arrested for violating parole by attempting to sell stolen goods 11/9/73 Parole revoked
1/10/75 Parole granted
1/10/75 Westbrook’s full sentence commuted to 38-60 years
*1509 Punishment Reports:
Date Punishment: Number of days in Incident isolation on restricted diet
Reidsville
3/24/54 destroying state property 30
8/10/54 beating inmate with a stick 10
6/9/55 unsatisfactory work 10
6/23/55 fighting inmate Oglesby 30
11/28/55 hanging blankets around his bed 10
3/15/56 unsatisfactory work 5
5/19/56 unsatisfactory work & lying 20
6/20/56 stabbing inmate Oglesby 30
8/30/56 fighting 20
8/31/56 smuggling stolen tobacco into isolation 10
Lowndes County iblic Works Camp
3/7/57 possession of tobacco can of potash 20
5/27/59 escape (additional 2 year prison sentence imposed) 30
9/9/59 escape (2 year prison sentence imposed, concurrent with other 2 year sentence) 30
2/1/60 fighting Not apparent from the record
Reidsville
8/29/60 out of dormitory 20
11/1/61 possession of knife 5
12/26/61 fighting with inmate, running from officer 5
4/20/62 laying in on a forged lay-in 15
6/11/62 out of dormitory 10
10/29/62 refusing to line up when so ordered 10
12/26/62 gambling & drinking 10
3/9/64 talking after lights out 5
6/22/64 in possession of another’s property 4
1/4/65 playing record player at 5:00 a.m. 3
3/5/65 talking after lights out 5
3/30/65 fighting 10
4/19/65 7/7/65 going to the power house 7 lying to officer to gain entry to another inmate’s cell 6
9/16/65 unsatisfactory work: mashing zippers with press 5
6/21/66 laying down in cell & refusing to get up for count 10
7/28/69 passing shorts in mess hall 7
1/6/70 out of dormitory 12
7/8/70 in bed with another inmate 14
7/27/70 fighting 14
1/3/71 fighting 7
. In ruling on Westbrook’s motion for the appointment of a psychologist or psychiatrist, the trial court stated:
[OJn your oral motion for examination and evaluation, with the motion contained as a part of it that you are not asking it for purposes of determining whether or not he knew the difference between right or wrong at the time of the commission of the offense, I think that answers the obligation on my part that I have in any way to appoint an expert opinion. ... I think the request itself, in and of itself, by saying that it is not for that purpose [of pleading insanity], but some other purpose, I would deny that.
Record, Exhibit 2 (Transcription Trial Motions) at 35.