Paul Kordenbrock v. Gene Scroggy, Warden, Kentucky State Penitentiary

BOYCE F. MARTIN, Jr., Circuit Judge,

concurring in part and dissenting in part.

I concur in the majority’s opinion reversing Paul Kordenbrock’s conviction and sentence on the grounds set out in parts II-IV of the opinion. However, on the remaining issues, I have additional comments and/or a slightly different analysis of the issues. Thus, I write separately on each of the remaining parts of the opinion.

V. Miscellaneous Claims

I agree with the majority’s treatment of issues B., C., and D. As to issue E., I believe that the police’s action of displaying the pill bottle before Kordenbrock during interrogation was intentionally manipulative. I also believe that the police’s oh-so-convenient loss of the pill bottle and erasure of the tape are inexcusable bungles for courts to tolerate in capital cases.

As to Issue A., I disagree that the standard announced in Caldwell v. Mississippi, 472 U.S. 320 , 105 S.Ct. 2633 , 86 L.Ed.2d 231 (1985), was satisfied. In Caldwell , the Court held that it is “constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death lay elsewhere.” Caldwell, 472 U.S. at 328-29 , 105 S.Ct. at 2639-40 . In Caldwell , the Court dealt with a prosecutor’s inaccurate statements to a jury regarding its sentencing responsibilities. This case is unique because while the prosecutor accurately informed the jury that the Kentucky capital sentencing law in effect at the time of Kordenbrock’s case requires a jury to “recommend” the sentence in a capital sentencing proceeding, the statute itself did not accurately reflect the de facto sentencing responsibility of the jury which was to fix the sentence.

In cases where the term “recommendation” has been upheld for jury instructions informing the jurors of their sentencing function, the states involved actually limit the jury’s function to giving a non-binding recommendation to the trial judge. See, e.g., Harich v. Dugger, 844 F.2d 1464, 1473-74 (11th Cir.1988), cert. denied, 489 U.S. 1071 , 109 S.Ct. 1355 , 103 L.Ed.2d 822 (1989) (Florida); see also Project, Nineteenth Annual Review of Crim.Proc.: United States Sup.Ct. and Cts. of App. 1988-89, 78 Geo.L.J. 669, 1294 n. 2747 (1990) (noting that Florida, Alabama, and Indiana use a jury recommendation system as an advisory opinion for trial judge). The Kentucky *1122 sentencing statute in effect at the time Kordenbrock was sentenced mischaracter-ized the binding nature of the jury’s decision as a “recommendation” when in fact the jury fixed the penalty as either life or death. Consequently, the capital sentencing jury instructions were amended by the Kentucky Supreme Court in Tamme v. Commonwealth, 759 S.W.2d 51 (Ky.Sup.Ct.1988), to accurately state the jury’s role.

Most courts have held that Caldwell focuses solely on the prosecutor’s statements regarding the applicable sentencing law and that there must be a misstatement regarding that law for a Caldwell violation to have taken place. Yet, Caldwell speaks in broader terms, holding that it is “constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rest elsewhere.” Caldwell, 472 U.S. at 328-29 , 105 S.Ct. at 2639-40 . The fact that the words of the Kentucky statute are inaccurate, not the prosecutor’s instructions, is immaterial because the harm and constitutional deficiency stem from the jurors’ false perception of their sentencing responsibility.

The standard for a challenge to the jury instructions themselves was set out in Dugger v. Adams, 489 U.S. 401 , 109 S.Ct. 1211 , 103 L.Ed.2d 435 (1989). The Court held that the defendant “necessarily must show that the remarks made to the jury improperly describe the role assigned to the jury by local law.” 109 S.Ct. at 1215. Here, the fact that the Kentucky statute was accurately described does not mean that in application, the law was constitutional. The statute clearly gave the jury a false sense of its actual responsibility — thus necessitating the Kentucky Supreme Court’s amendment, in Tamme , of the statutory instructions. In Dugger, the Court declined to reach the issue because the defendant failed to object to the allegedly improper instructions. Interestingly, the Court referred to the issue as a Caldwell issue despite the fact that it was a jury instruction issue, not a prosecutor’s statement issue — supporting my view that Caldwell applies to misleading jury instructions as well. Consequently, I believe that this case presents the highly unusual situation where an accurate description of the capital sentencing statute is unconstitutional because Kentucky’s statute inaccurately described the jurors’ actual role.

VI. Refusal to Provide Psychiatric Expert for the Defense

A. Applicability of Ake v. Oklahoma

I join Chief Judge Merritt’s dissent on this issue. The question is whether Ake v. Oklahoma, 470 U.S. 68 , 105 S.Ct. 1087 , 84 L.Ed.2d 53 (1985), is limited to providing an indigent defendant with a psychiatric expert for presenting only a sanity-related defense. I believe that such a limitation on Ake’s holding is an unusually myopic reading of the reasoning in that opinion.

I fully agree with Chief Judge Merritt’s analysis of this issue. The extension of Ake beyond the sanity issue is supported both by Justice Marshall’s Mathews v. El-dridge, 424 U.S. 319 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976), due process analysis in Ake and by the lower federal courts and state courts that have recognized that Ake stands for the proposition that the state must furnish the defense with the “basic tools” for an adequate defense. Ake, 470 U.S. at 77 , 105 S.Ct. at 1093 ; see, e.g., Little v. Armontrout, 835 F.2d 1240, 1243 (8th Cir.1987) (en banc), cert. denied, 487 U.S. 1210 , 108 S.Ct. 2857 , 101 L.Ed.2d 894 (1988) (holding that Ake required even non-psychiatric experts); Moore v. Kemp, 809 F.2d 702 (11th Cir.) (en banc), cert. denied, 481 U.S. 1054 , 107 S.Ct. 2192 , 95 L.Ed.2d 847 (1987); State v. Coker, 412 N.W.2d 589, 593 (Iowa 1987) (defendant entitled under Ake to expert on intoxication defense); In re Allen R., 127 N.H. 718 , 506 A.2d 329 (1986) (Ake entitled defendant to mental health expert on issue of defendant’s competency to waive Miranda rights); but see State v. Massey, 316 N.C. 558 , 342 S.E.2d 811, 816 (1986) (defendant not entitled to expert on competency to waive Miranda rights); Stafford v. Love, 726 P.2d 894 (Okla.1986) (Ake limited to *1123 psychiatric experts only); Ex parte Grayson, 479 So.2d 76 (Ala.), cert. denied, 474 U.S. 865 , 106 S.Ct. 189 , 88 L.Ed.2d 157 (1985) (Ake limited to psychiatrists and the insanity defense). I believe that under Justice Marshall’s due process/fundamental fairness analysis, Ake provides for experts on issues other than sanity.

Moreover, I believe that Kordenbrock’s right to an expert for his diminished capacity defense is equally cognizable under his equal protection clause argument. In a pre-Ake state habeas case, the Fourth Circuit held that the equal protection clause required the state to provide expert assistance for a criminal defense “when a substantial question exists over an issue requiring expert testimony for its resolution and the defendant’s position cannot be fully developed without professional assistance.” Williams v. Martin, 618 F.2d 1021 (4th Cir.1980). This right, according to the court, was “firmly based on the equal protection clause.” Id. at 1026 . There, the request was for a pathologist to assist the defendant’s argument that a gunshot wound did not cause the victim’s death. The court held that the equal protection clause required the appointment of the pathologist. I believe Kordenbrock satisfies the standard in Williams v. Martin and that his entitlement to an expert is solidly established under the equal protection clause as well as under the due process reasoning in Ake .

I agree with Chief Judge Merritt that Kordenbrock’s counsel cannot be found to have manufactured an appealable issue by “deliberately failing to secure payment for an expert.”

I also concur with Chief Judge Merritt’s reasoning that Ake requires more than a “neutral” expert. The language of the majority opinion and dissent in Ake shows that the expert was deemed to be a defense expert. While Ake does not give the defendant the expert of his choice, it does indicate that the defense is entitled to an expert “who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." Ake, 470 U.S. at 83 , 105 S.Ct. at 1096 (emphasis supplied). The tasks of the defense psychiatrist were described as “to conduct a professional examination on issues relevant to the defense, to help determine whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of a State’s psychiatric witnesses.” Id. at 82 , 105 S.Ct. at 1096. It is clear that the Ake majority did not contemplate a neutral psychiatrist as satisfying due process. Indeed, Justice Rehnquist assailed the majority in his dissenting opinion for establishing the right to a “defense consultant.” Id. at 87 , 105 S.Ct. at 1098. Moreover, in Ake , the Court all but overruled United States ex rel. Smith v. Baldi, 344 U.S. 561 , 73 S.Ct. 391 , 97 L.Ed. 549 (1953), where the state had supplied neutral psychiatrists.

The reason for a partisan witness is clear. Dr. Bland, the state psychiatrist, testified before Judge Bertelsman at the habeas hearing that he could not pursue theories desired by the defense, assist their cross-examination, nor guarantee confidentiality to the defense. As stated by the Tenth Circuit, the Court’s duty to appoint a defense expert under Ake “cannot be satisfied with appointment of an expert who ultimately testifies contrary to the defense .... The essential benefit of having an expert in the first place is denied the defendant when the services of the doctor must be shared with the prosecution.” United States v. Sloan, 776 F.2d 926, 929 (10th Cir.1985); see also United States v. Crews, 781 F.2d 826, 833-34 (10th Cir.1986) (despite testimony of four treating or court-appointed psychiatrists, defendant was entitled to his own psychiatrist to aid in the interpretation of the experts’ finding and to assist in cross-examination); but see Magwood v. Smith, 791 F.2d 1438, 1443 (11th Cir.1986) (court upheld denial of defendant’s request for independent expert where three of the state’s six experts testified in favor of the defense). In Magwood, the court overlooked the fact that presenting testimony is only one of the many functions of the psychiatric expert and the defendant was deprived of the assistance of cross-examining the defense experts. The use of an impartial expert subverts the *1124 adversary process by making a single expert the ultimate decider of the issue. The jury or judge can only make a principled decision when there is a “battle of the experts” where truth is more likely to emerge through each side presenting its own case. With a "neutral” expert, the defense cannot really challenge the findings of adverse testimony because that expert is the only one available to the indigent defendant. Moreover, a potential for conflict of interest emerges when a state agency uncovers incriminating evidence — is its duty to the defendant or to the public? While a defendant is not entitled to an expert who will testify to the issues in a way that the defendant wishes, the expert must be “partisan” in the way a retained expert would provide assistance to the defense. See generally Note, Expert Services and the Indigent Criminal Defendant: The Constitutional Mandate of Ake v. Oklahoma, 84 Mich.L.Rev. 1326, 1349-64 (1986); Comment, Nonpsychiatric Expert Assistance and the Requisite Showing of Need: A Catch-22 in the Post-A/ce Criminal Justice System, 37 Emory L.J. 995 , 1008, 1018-22 (1988).

Recently, the Fifth Circuit held that Ake was not violated by court appointment of a psychiatrist whose examination report to both the defense and prosecution. Granviel v. Lynaugh, 881 F.2d 185 (5th Cir. 1989), cert. denied, —U.S.-, 110 S.Ct. 2577 , 109 L.Ed.2d 758 (1990). In a dissent from the Court’s denial of certiorari, Justice Marshall, Ake’s author, joined by Justice Brennan, blasted the decision as unfaithful to Ake’s clear requirement of a partisan expert — not a “disinterested” expert. I believe that Justice Marshall’s dissent, although obviously not a majority opinion, is a particularly persuasive comment on Ake’s requirements since he is that opinion’s author.

I concur in Chief Judge Merritt’s analysis of the issues concerning whether a pharmacologist satisfied Ake . I also join in Chief Judge Merritt’s analysis of the jury instructions regarding the jury’s consideration of mitigating factors in Part VII of the opinion.