# Paul Kordenbrock v. Gene Scroggy, Warden, Kentucky State Penitentiary > Court of Appeals for the Sixth Circuit · January 30, 1991 · 919 F.2d 1091 URL: https://www.frixlaw.com/law-library/cases/9481066 ## Case - **Full name:** Paul KORDENBROCK, Plaintiff-Appellant, v. Gene SCROGGY, Warden, Kentucky State Penitentiary, Et Al., Defendants-Appellees - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** January 30, 1991 - **Citations:** 919 F.2d 1091 - **Precedential status:** Published - **Opinion:** Dissent by Wellford - **Judges:** Merritt, Keith, Kennedy, Martin, Jones, Krupansky, Wellford, Milburn, Guy, Nelson, Ryan, Boggs, Norris - **Cited by:** 96 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9481066 ## How later opinions describe it (automated extraction) - finding that admission of confession obtained in violation of Miranda was not harmless error because “the portion of [the defendant’s] confession taken after the Miranda violation – other than the inferences to be made from the fact of the robbery and shooting – was the only c… - finding that admission of confession obtained in violation of Miranda was not harmless error because “other than the inferences to be made from the fact of the robbery and the shooting, [the confession] was the only concrete, noncircum-stantial piece of evidence the state had … - finding that “[b]ecause it appears that a[n independent] psychiatric expert will be provided on retrial, I do not think it is necessary for us to decide the issue” of whether the provision of a neutral psychiatrist satisfies Ake - concluding that there was a “substantial possibility” that the jury construed its instructions to “mean that mitigating as well as aggravating circumstances could be found only if the jury was unanimous” - holding that there was no violation of state law because the trial and appeal in the case at bar happened before the decision in Tamme and the decision in Tam-me was not retroactive ## Opinion text WELLFORD, Circuit Judge, dissenting. I concur fully in Judge Kennedy’s opinion with the reservation that I am not persuaded that Kordenbrock’s trial counsel was trying to create an appealable issue by his somewhat inept handling of Dr. Nizny’s potential as a witness for defendant. In any event, this has no bearing on the guilt stage of the proceedings in light of the overwhelming evidence that Kordenbrock intentionally killed one man and, but for fortuitous circumstance, would have killed another. Furthermore, Ake v. Oklahoma, 470 U.S. 68 , 105 S.Ct. 1087 , 84 L.Ed.2d 53 (1985) requires only that an indigent defendant who specifically pleads insanity or its equivalent, is to be provided a competent psychiatrist “to assist in evaluation, preparation, and presentation of the defense,” not one of defendant’s (or his counsel’s) choice. Defendant’s constitutional rights *1132 under Ake were not violated under the circumstances of this case. This view of Ake is fully supported by Harris v. Vasquez, 913 F.2d 606 (9th Cir.1990): Harris argues that he was denied access to a qualified psychiatrist who “conducts professionally competent examinations of the defendant and who on this basis provided professionally competent assistance.” Appellant’s Brief at 15. Harris contends that access to such psychiatric assistance is required by the due process protection holding in Ake v. Oklahoma, 470 U.S. 68 , 105 S.Ct. 1087 , 84 L.Ed.2d 53 (1985). We disagree. Under the narrow holding of Ake , the state must provide an indigent defendant with access to psychiatric assistance in only two circumstances: (1) at the guilt phase of a trial, when the defendant has demonstrated that his sanity at the time of the offense is likely to be a significant factor in determining guilt; and (2) at a capital sentencing proceeding, when the state presents psychiatric evidence of the defendant’s future dangerousness. [Fn. 11] Id. at 83 , 105 S.Ct. at 1096 . Another court has recently considered an indigent defendant’s constitutional challenge, relying upon Ake , to the appointment by the court, in the case of an insanity plea to capital murder charges, of a psychiatrist “whose opinion and testimony is available to both sides.” Granviel v. Lynaugh, 881 F.2d 185 (5th Cir.1989). Such an expert was available to Korden-brock in this case. In denying this challenge, the court stated: “A psychiatrist’s examination is not an adversary proceeding. Its purpose is not to aid in the establishment of facts showing that an accused committed certain acts constituting a crime; rather its sole purpose is to enable an expert to form an opinion as to an accused’s mental capacity to form criminal intent.” Stultz v. State, 500 S.W.2d 853, 855 (Tex.Crim. App.1973), quoted in Granviel v. State 552 S.W.2d [107] at 115 [(Tex.Cr.App.1976)]. Granviel’s ability to uncover the truth concerning his sanity is not prejudiced by a court-appointed, neutral expert. Availability of a neutral expert provides defendants with “the raw materials integral to the building of an effective defense.” Ake, 105 S.Ct. at 1093 . The state is not required to permit defendants to shop around for a favorable expert. Id. at 191, 192 . I am in agreement with the views of both Harris v. Vasquez and Granviel v. Lynaugh with respect to the proper interpretation of Ake . Judges Merritt and Martin rely upon authority such as United States v. Sloan, 776 F.2d 926 (10th Cir.1985). That case involved a situation where the trial judge, faced with a defense of insanity and/or incompetence, appointed the same psychiatrist to examine the defendant who would be available to serve as a witness for the prosecution as well. The essential ruling of Sloan was that Ake is not satisfied by “appointment of an expert who ultimately testifies contrary to the defense on the issue of competence.” Id. at 929. The fact situation in Sloan , not a capital case, is completely distinguishable from the fact situation in the instant case. United States v. Crews, 781 F.2d 826 (10th Cir. 1986), also cited by Judge Martin in his expansive interpretation of Ake , involved as the basic issue in the case, also a non-capital case, the competence or sanity of the defendant who requested appointment of a psychiatrist. Crews is also inapplicable to the facts of this case; it interprets a federal statutory requirement (18 U.S.C. § 3006A(e)(1)) and whether a defendant, specifically pleading incompetence or insanity, is entitled to appointment of a psychiatrist to assist him in this defense. Ake is a narrow holding applicable to specific unusual factual circumstances presented in that case. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9481066. Public record. Not legal advice.