Petition for Writ of Certiorari — Bryan R. Johnston, Petitioner v. Lisa A. Mitchell, Superintendent, Old Colony Correctional Center

Supreme Court briefFeb 5, 2018

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No. _______________

In the Supreme Court of the United States

_______________

BRYAN JOHNSTON,

Petitioner,

LISA A MITCHELL,

SUPERINTENDENT, OLD COLONY CORRECTIONAL CENTER

Respondent.

_______________

Petition for Writ of Certiorari

to the United States Court of Appeals

For the First Circuit

DAVID NATHANSON

Counsel of Record

EVA G. JELLISON

Wood & Nathanson, LLP

50 Congress Street, Suite 600

Boston, MA 02109

(617) 248-1806

dnathanson@woodnathanson.com

Dated: February 5, 2018

Questions Presented

1. Trial counsel failed to move to suppress numerous statements

elicited after Johnston repeatedly invoked his right to counsel.

Edwards v. Arizona, 451 U.S. 477 (1981) held that such

statements must be suppressed. And while Johnston made the

statements during court-ordered pre-trial detention in a

psychiatric jail facility, Estelle v. Smith, 451 U.S. 454 (1981) held

that the Miranda doctrine applies equally to police and doctors

conducting court-ordered evaluations. Should a reasonable

attorney have pursued a motion to suppress Johnston’s postinvocation statements?

2. The lower courts found more than a dozen violations of Doyle

v. Ohio, 426 U.S. 610 (1976). By portraying Johnston to the jury

as calculating and rational because he invoked his Miranda

rights, these violations dovetailed with the prosecution’s

theory that Johnston was not delusional and went to the heart

of Johnston’s insanity defense. Doyle violations are

particularly poisonous and no reviewing court anywhere has

ever found so many Doyle violations harmless. Was the ruling

of harmlessness unreasonable?

TABLE OF CONTENTS

Questions presented

Table of Contents .

Index to the Appendix

iii

Table of Authorities

Petition

Citations to the Opinions Below .

Statement of Jurisdiction .

Constitutional and Statutory Provisions Involved

. 1, 2

Concise Statement of the Case .

Reasons for Granting the Petition

I. Trial counsel failed to move to suppress numerous

statements elicited after Johnston repeatedly

invoked his right to counsel. Edwards v. Arizona,

451 U.S. 477 (1981) held that such statements must

be suppressed. And while Johnston made the

statements during court-ordered pre-trial

detention in a psychiatric jail facility, Estelle v.

Smith, 451 U.S. 454 (1981) held that the Miranda

doctrine applies equally to police and doctors

conducting court-ordered evaluations. .

II. The lower courts found more than a dozen

violations of Doyle v. Ohio, 426 U.S. 610 (1976). By

portraying Johnston to the jury as calculating and

rational because he invoked his Miranda rights,

these violations dovetailed with the prosecution’s

theory that Johnston was not delusional and went

to the heart of Johnston’s insanity defense. Doyle

violations are particularly poisonous and no

reviewing court anywhere has ever found so many

Doyle violations harmless. .

iii

Conclusion .

Johnston v. Mitchell, 213 F.Supp.3d 282 (D. Mass. 2016) .

Commonwealth v. Johnston, 467 Mass. 674 (2014) .

. 20a

Bridgewater State Hospital Health Status Report

. 36a

Hampshire Jail and House of Correction Records

. 37a

Bridgewater State Hospital Progress Notes

. 38a

Index to the Appendix

Johnston v. Mitchell, 871 F.3d 52 (1st Cir. 2017)

TABLE OF AUTHORITIES

Page

Cases

Bosse v. Oklahoma,

137 S. Ct. 1 (2016) .

Brecht v. Abrahamson,

507 U.S. 619 (1993)

19, 20

Buchanan v. Kentucky,

483 U.S. 402 (1987)

10, 11, 13, 14

Commonwealth v. Johnston,

467 Mass. 674 (2014)

passim

Commonwealth v. Morasse,

446 Mass. 113 (2006)

Counselman v. Hitchcock,

142 U.S. 547 (1892)

Doyle v. Ohio,

426 U.S. 610 (1976)

16, 17, 19, 20

Edwards v. Arizona,

451 U.S. 477 (1981)

passim

Estelle v. Smith,

451 U.S. 454 (1981)

passim

Gholson v. Estelle,

675 F.2d 734 (5th Cir. 1982)

Glover v. United States,

531 U.S. 198 (2001)

Gov’t of Virgin Islands v. Davis,

561 F.3d 159 (3d Cir. 2009)

Greenfield v. Wainwright,

741 F.2d 329 (11th Cir. 1984)

17, 19

Greer v. Miller,

483 U.S. 756 (1987)

Hill v. Turpin,

135 F.3d 1411 (11th Cir. 1998) .

Hinton v. Alabama,

134 S. Ct. 1081 (2014)

Hudson v. Palmer,

468 U.S. 517 (1984)

Johnston v. Mitchell,

213 F.Supp.3d 282 (D. Mass. 2016)

. 1, 19

Johnston v. Mitchell,

871 F.3d 52 (1st Cir. 2017)

passim

Jones v. Dugger,

839 F.2d 1441 (11th Cir. 1988) .

Kansas v. Cheever,

134 S.Ct. 596 (2013)

4, 10, 11

Kimmelman v. Morrison,

477 U.S. 365 (1986)

. 8, 9

Lafler v. Cooper,

566 U.S. 156 (2012)

Lockhart v. Fretwell,

506 U.S. 364 (1993)

Minnick v. Mississippi,

498 U.S. 146 (1990)

. 8, 11

Miranda v. Arizona,

384 U.S. 436 (1966)

Rodriguez de Quijas v. Shearson/Am. Exp., Inc.,

490 U.S. 477 (1989)

Strickland v. Washington,

466 U.S. 668 (1984)

8, 10, 16, 20

9, 10, 15, 19

United States v. Gentry,

555 F.3d 659 (8th Cir. 2009)

United States v. Hale,

422 U.S. 171 (1975)

United States v. Harp,

536 F.2d 601 (5th Cir. 1976)

United States v. Hinckley,

672 F.2d 115 (D.C. Cir. 1982)

United States v. Kallin,

50 F.3d 689 (9th Cir. 1995)

United States v. Meneses-Davila,

580 F.2d 888 (5th Cir. 1978)

United States v. Wright,

777 F.3d 769 (5th Cir. 2015)

United States v. Zaccaria,

240 F.3d 75 (1st Cir. 2001)

Wainwright v. Greenfield,

474 U.S. 284 (1986)

12, 17, 19

Williams v. Taylor,

529 U.S. 362 (2000)

9, 15

Constitutional Provisions

U.S. Const. amend. V

passim

U.S. Const. amend. VI

8-10

Statutes and Court Rules

28 U.S.C. §1254(1) .

M.G.L. c. 123, § 18(a)

vii

Other Authorities

Gromer, Fifth Amendment – The Right to a No Adverse Inference Jury

Instruction, 72 J. CRIM. & CRIMINOLOGY 1307 (1981)

Hardy, The Admissibility of Mental State Observations Obtained During

Unlawful Custodial Interrogation: Drawing the Line on the Real or Physical

Evidence Distinction, 30 B.C. L. Rev. 1029 (1989) .

. 12

Hendrick & Shaffer, Effect of Pleading the Fifth Amendment on Perceptions

of Guilt and Morality, 6 BULL. PSYCHONOMIC SOC’Y 449 (1975) .

. 18

Sevier, Omission Suspicion: Juries, Hearsay, and Attorney’s Strategic

Choices, 40 Fl. St. Univ. L. Rev. 1, 19–20 (2012)

Shaffer & Sadowski, Effects of Withheld Evidence on Juridic Decisions II:

Locus of Withholding Strategy, 5 PERSONALITY & SOC. PSYCHOL. BULL. 40

(1979) .

. 18

Shaffer, Sadowski & Hendrick, Effects of Withheld Evidence on Juridic

Decisions, 42 PSYCHOL. REP. 1235 (1978)

Petition for a Writ of Certiorari

Petitioner Bryan R. Johnston respectfully prays for a writ of certiorari

to review the judgment of the United State Court of Appeals for the First

Circuit.

Citations to the Opinions Below

The opinion of the Massachusetts Supreme Judicial Court (“SJC”)

affirming Johnston’s conviction is reported as Commonwealth v. Johnston,

467 Mass. 674 (2014) (“Johnston I”). The opinion of the United States District

Court denying Johnston’s petition for a writ of habeas corpus is reported as

Johnston v. Mitchell, 213 F.Supp.3d 282 (D. Mass. 2016) (“Johnston II”). The

opinion of the United States Court of Appeals for the First Circuit affirming

the denial of Johnston’s habeas corpus petition is reported as Johnston v.

Mitchell, 871 F.3d 52 (1st Cir. 2017) (“Johnston III”). Copies of the opinions

below appear in the appendix to this petition at App. 1a-35a.

Statement of Jurisdiction

The United States Court of Appeals for the First Circuit affirmed the

denial of Johnston’s petition for a writ of habeas corpus on September 8,

2017. This Court has jurisdiction under 28 U.S.C. §1254(1).

Constitutional and Statutory Provisions Involved In This Case

The Fifth Amendment to the United States Constitution provides:

No person shall be held to answer for a capital or otherwise infamous

crime, unless on a presentment or indictment of a Grand Jury, except in

cases arising in the land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any person be subject

for the same offence to be twice put in jeopardy of life or limb, nor shall

be compelled in any criminal case to be a witness against himself, nor be

deprived of life, liberty or property without due process of law; nor shall

private property be taken for public use without just compensation.

The Sixth Amendment to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed, which district shall have

been previously ascertained by law, and to be informed of the nature

and cause of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for his defence.

Concise Statement of the Case

At trial for the murder of his friend, David Sullivan, and related offenses,

Johnston asserted an insanity defense. Johnston I, 467 Mass. at 680. The

evidence presented at trial focused on Johnston’s mental health and behavior in

the time leading up to and immediately after the killing. Id. at 677–685. Some

facts are reserved for discussion in the body of this petition. Infra at 8, 13–14,

16–20.

In brief, Johnston entered Sullivan’s house and shot him six times with

a rifle, killing him. Johnston I, 467 Mass. at 677. The evidence showed that

Johnston suffered from delusions that others, particularly Sullivan, were part

of an organized crime conspiracy to harm him and his family. Id. at 681, 683.

Johnston had a substance abuse problem, but he was observed to harbor these

delusions while sober and while intoxicated. Id. at 682; JA.1988.

In the immediate aftermath of the shooting, Johnston made intense,

irrational statements regarding the mafia and gangs, and threatened suicide.

Id. at 682. When he arrived home on December 7, his parents quickly

initiated civil commitment proceedings against him, but Johnston resisted

police executing the commitment order. Id. at 679. A toxicology screen at the

psychiatric hospital was negative for cocaine and amphetamines. Id. at 682.

The jury also heard that Johnston took some rational actions indicative of

consciousness of guilt. Id. at 677–79.

Relevant to this petition, the jury also received evidence that, upon

Johnston’s admission to jail on December 8, Johnston “refused examination

‘upon advice of my attorney.’” App.36a. On December 9, Johnston refused

medical intake, “stating ‘My lawyer said not to say a word.’” App.37a. On

December 10, he was committed to Bridgewater State Hospital1 for an

evaluation of whether “he was in danger of harming himself” due to mental

illness, not whether he was criminally responsible.2 Johnston III, 871 F.3d. at

55–56. From December 10–17, 2004, Johnston responded to numerous reapproaches by invoking his right to counsel multiple times. App.38a-40a, 43a51a, 54a; JA.197, 206, 244.

The jury learned that Johnston eventually responded to some of the reapproaches by simply denying any concerns (instead of futilely asking for his

attorney once again). In this way, he made multiple statements denying

1 Pre-trial detainees at the Bridgewater State Hospital (“Bridgewater”) are “in custody ...

awaiting trial” but also in need of psychiatric treatment; commitment to Bridgewater is “the

functional equivalent of being incarcerated”. Commonwealth v. Morasse, 446 Mass. 113, 119–

20 (2006) (citation omitted).

2 M.G.L. c. 123, § 18(a).

mental illness, hallucinations, and suicidal behavior.3 He also denied

homicidal or suicidal ideation.4

The records undercut the basis of defense expert testimony, e.g., that

Johnston did report auditory hallucinations,5 that Johnston believed that

Sullivan had arranged for Johnston to be raped,6 and that Johnston was

suicidal (i.e., psychotic) around the time of the shooting.7

Indeed, three mental health experts testified as to criminal

responsibility: Dr. Carol Feldman and Dr. Martin Kelly for the defense, and

Dr. Michael Welner for the prosecution (the same overreaching prosecution

expert at issue in Kansas v. Cheever, 134 S.Ct. 596, 601 (2013)).8

Dr. Feldman opined that Johnston suffered from paranoid

schizophrenia that rendered him not criminally responsible for the killing of

Sullivan. Johnston believed he was being persecuted by organized crime

groups, believed himself to be Sullivan’s prisoner, and heard “voices of people

intending to kill him”. Johnston I, 467 Mass. at 683.

Dr. Kelly testified that Johnston lacked criminal responsibility due to a

paranoid delusional disorder. Id. Unlike paranoid schizophrenia, paranoid

delusional disorder is not characterized by a decline in functioning, which

explains Johnston’s capacity to work and attend college. Id. His delusions

3 JA.211, 213, 223, 241, 245Q, 247, 2837–2838, 4225.

4 JA.4229; JA.254, 255, 274, 328–29.

5 JA.2335–36, 2350, 2355.

6 JA.198, 351, 355, 2239–40, 2334–36, 2352, 2453, 2465–66, 2500–01, 2525-26, 2890.

7 JA.193–94, 4264–66.

8 A fourth expert, Dr. Leonard Peebles was called by the Commonwealth to recite his

diagnosis of Johnston made in the context of his evaluation regarding Johnston’s ability to be

held in normal pre-trial detention. JA.4210–38, 4255–79.

centered on organized crime groups intending to “kill him and his parents.”

Id.

Dr. Kelly ruled out cocaine and alcohol intoxication as the cause of

Johnston’s delusions for multiple reasons. Id. at 683, 684. First, Johnston

experienced delusions even when sober, including reporting them to his

personal psychiatrist prior to the shooting. Id. at 684 & n.1. Indeed, the

toxicology screen done just hours after the shooting was negative for cocaine

and amphetamines. Id. at 683. Similarly, amphetamines do not cause

systematized delusions like Johnston’s and amphetamine psychosis is very

rare. Id. at 684. And even those symptoms do not persist for fifteen months,

as Johnston’s did after the shooting. Id.

In opposition, Dr. Welner testified that Johnston

did not suffer from a major mental illness. He ruled out

paranoid delusional disorder because the defendant had

reported to Dr. Berlin that his symptoms were not worsening or

intensifying.9 He also considered that the defendant did not

report persecutory or delusional behavior on the job10 or at

school, and that up to the night of the shooting the defendant

continued to be sociable, even though his friends avoided him.

Dr. Welner opined that the defendant’s hallucinations originated

from his drug use, and not from mental illness. He explained

that psychiatric illness is primarily associated with auditory

9 In a footnote, the SJC added: “However, Dr. Berlin’s notes indicate that the defendant was

“more sweaty [and] tense than self-report,” and that on October 1, 2004, the defendant’s

anxiety level had risen.” Johnston I, 467 Mass. at 684 n. 1.

10 In a footnote, the SJC added: “On October 2, 2004, the defendant went out socially with

some coworkers at Baystate Medical Center. The defendant became delusional about the

Central Intelligence Agency and fired a shot into the air with his handgun. He then claimed

the mafia was trying to get him for a rape he purportedly committed. The record shows that

he did not commit rape. He later apologized and attributed his behavior to alcohol.” Johnston

I, 467 Mass. at 684 n. 2.

hallucinations, not visual hallucinations. When a person has

visual as well as auditory hallucinations, the indication is that

they are drug induced.

Dr. Welner cited the defendant’s ability to mislead Hadley police

officers about where he had been and his concerns about their

presence as evidence of his ability to appreciate the

wrongfulness of his conduct.

Johnston I, 467 Mass. at 684–85.

In addition to expert testimony, multiple lay witnesses testified

regarding Johnston’s delusions preceding the crime. His delusions regarding

organized crime, surveillance, and the FBI began while he was attending

university in Hawaii. Id. at 680–81. He also abused drugs during this period.

Id. at 680. In April 2002, these delusions became so powerful that Johnston

abruptly left Hawaii with no belongings. Id at 681.

From the very moment of his return through the time of the shooting

two years later, Johnston repeatedly told friends, family and even police that

organized crime wanted to kill him, that he was being followed, and that

Sullivan was involved in organized crime.11, 12 In multiple incidents,13

whether sober or intoxicated, Johnston’s “delusional fear of organized crime

families and of gangs intensified during the six months preceding the victim’s

death.” Johnston I, 467 Mass. at 682.

11 See, e.g., J.A. 1813, 1822, 1875, 1982, 1984–85, 2021–22, 2250, 3112–16; Johnston I, 467

Mass. at 681.

12 Johnston was able to work and attend college. Johnston I, 467 Mass. at 681–82.

13 JA.3027–28, 3304–05 (repeated statements regarding organized crime and being followed).

JA.3126 (terrified of person on beach in St. Martin); JA.2026 (accosted friend Levernoch,

believed red shirt signified Bloods membership); J.A.2030–31, 2056, 3034–38 (agitated,

sweaty, pacing with gun at another friend’s house, claiming to have orders from IRA to kill

Levernoch).

Reasons for Granting the Petition

I. Trial counsel failed to move to suppress numerous statements

elicited after Johnston repeatedly invoked his right to

counsel. Edwards v. Arizona, 451 U.S. 477 (1981) held that

such statements must be suppressed. And while Johnston

made the statements during court-ordered pre-trial detention

in a psychiatric jail facility, Estelle v. Smith, 451 U.S. 454

(1981) held that the Miranda doctrine applies equally to

police and doctors conducting court-ordered evaluations.

Should a reasonable attorney have pursued a motion to

suppress Johnston’s post-invocation statements?

From the time Johnston arrived in jail on the evening of December 8

and then again from his arrival at Bridgewater on December 10, Johnston

continuously refused to answer questions and asked for counsel. App.36a41a, 43a-48a, 50a, 51a, 53a, 54a; see also JA.197, 206, 217, 224, 226, 244, 247,

254, 262, 324, 2649, 2828, 2832–35, 2840–42, 3004, 3537–38, , 4219–21, 4223,

4227–28, 4237–38). He was nevertheless re-approached and questioned

numerous times.

Based upon these facts, Johnston had a meritorious Edwards motion to

suppress these statements. Edwards v. Arizona, 451 U.S. 477 (1981).

Specifically, counsel could have suppressed all the statements made by

Johnston at Bridgewater except for the December 21 and 23 interviews with

Dr. Peebles when counsel was present. JA:4220; see n.8, supra; Minnick v.

Mississippi, 498 U.S. 146, 153-54 (1990) (reapproach after invocation

prohibited unless counsel is actually present). But counsel never moved to

suppress or exclude statements on this basis. Kimmelman v. Morrison, 477

U.S. 365, 385 (1986) (failure to move to suppress due to counsel’s mistaken

legal view held to be deficient performance); see also Hinton v. Alabama, 134

S. Ct. 1081, 1089 (2014) (mistake of state law constitutes ineffective

assistance). That established deficient performance. See Strickland v.

Washington, 466 U.S. 668, 687-691 (1984).

In Morrison, the defense counsel simply failed to appreciate that the

State was not obligated to disclose inculpatory evidence pretrial. Morrison,

477 U.S. at 385. Thus, when he learned during trial of the seizure of

inculpatory bedsheets and moved to suppress them, his motion came too late.

Morrison, 477 U.S. at 386–87. This Court held that this constituted deficient

performance, even though it was not clear from the record whether the

motion would eventually succeed. Id. The Court remanded for a prejudice

determination of whether the claim was viable. Id. at 373, 390–91.

The First Circuit ruled that Johnston’s ineffective assistance of counsel

argument failed on the Strickland performance prong14 because “prior case

14 The First Circuit departed from the Morrison framework by evaluating the merit of the

suppression motion in the performance prong rather than the prejudice prong. Johnston III,

871 F.3d 52, 60 (1st Cir. 2017) (citing Lockhart v. Fretwell, 506 U.S. 364, 374 (1993)

(O'Connor, J., concurring)); Johnston III, 871 F.3d at 63 (resolving claim on performance, not

prejudice grounds). In so doing, the First Circuit relied on the sui generis holding in Fretwell

that, if the merit of the omitted action depended on since-overruled precedent, the defendant

cannot claim prejudice. Id. This Court has repeatedly stated Fretwell is not to be applied

outside its own unique factual context. Glover v. United States, 531 U.S. 198, 203 (2001) (“our

holding in Lockhart does not supplant the Strickland analysis”); Williams v. Taylor, 529 U.S.

362, 391–93 (2000) (state court erred in applying Fretwell outside context of claims of

ineffective assistance for failing to assert a right to benefit from overruled precedent or a

right to testify falsely); Lafler v. Cooper, 566 U.S. 156, 166–67 (2012) (reiterating sui generis

status of Fretwell and reaffirming Strickland applies where the issue is “counsel's failure to

meet a valid legal standard, not . . . counsel's refusal to violate it”). This Court has never

modified the Morrison analysis. Indeed, the Court’s most recent relevant statement

reinforced and expanded the Morrison approach. In Lafler v. Cooper, the Court held that the

deficient performance was pre-trial advice to go to trial and reject an offered plea deal (which

is not a right in itself) and prejudice was demonstrated by only a reasonable probability that

the sought-after relief (the plea deal) would have been granted. 566 U.S. 156, 169 (2012)

law had [not] offered strong support for the notion” that statements obtained

in violation of Edwards were inadmissible against a defendant asserting an

insanity defense.15, 16 Johnston, 871 F.3d at 62–63.

This analysis unreasonably circumscribed the Fifth Amendment

protections announced in Estelle v. Smith, which extended the Miranda

protections to “pretrial psychiatric examinations.” 451 U.S. 454, 465–67

(1981). If left standing, the First Circuit’s ruling completely eliminates the

Fifth Amendment rights of defendants who raise mental health defenses.

That is not the law; such defendants retain Fifth Amendment protections.

See Kansas v. Cheever, 134 S.Ct. 596, 601 (2013); Buchanan v. Kentucky, 483

U.S. 402 (1987); Smith, 451 U.S. at 465, 467. “The fact that the [defendant’s]

statements were uttered in the context of a psychiatric examination does not

automatically remove them from the reach of the Fifth Amendment.” Estelle

v. Smith, 451 U.S. 454, 465 (1981).

The only protection such defendants lose is, if they intend to introduce

expert testimony based on a defense expert’s interview of the defendant, the

government gets a reciprocal — not greater — right to interview the

defendant. Cheever, 134 S. Ct. at 601; Buchanan v. Kentucky, 483 U.S. 402,

(citing Morrison). Johnston’s Edwards-based suppression claim clearly possessed merit. The

First Circuit should have said so and proceeded to a standard Strickland prejudice analysis.

That is, whether there is a reasonable probability that a motion to suppress would have been

granted. Strickland v. Washington, 466 U.S. 668, 694 (1984).

15 Because the First Circuit decided that counsel’s performance was not deficient it did not

analyze whether Johnston was prejudiced by the jurors receiving evidence of his statements

contained in his medical records. Johnston, 871 F.3d at 63.

16 The First Circuit assumed but did not decide that de novo review applied to Johnston’s

claim of ineffective assistance of counsel based upon the failure to file a motion to suppress

under the Fifth Amendment. Johnston, 871 F.3d at 60.

423–25 & n.21 (1987) (if defendant relies on parts of pre-trial mental health

report, the prosecution may rebut with other parts of same report). This

Court must act to ensure that constitutional protections described in these

precedents are applied faithfully by the lower courts and not whittled away.

The First Circuit opined that Johnston forfeited his Edwards

protections because Cheever

would not read as it does if the prior case law had offered strong

support for the notion that the results of a psychiatric

examination compelled without counsel present could not be

offered by the government in a case in which a defendant

mounted an insanity defense.

Johnston v. Mitchell, 871 F.3d 52, 62–63 (1st Cir. 2017). In essence, the First

Circuit found that its dubious view of some strained, implicit holding in

Cheever necessarily deprived mentally ill defendants of the protections

provided by the clear, bright-line holdings of Edwards and Minnick.

The First Circuit’s interpretation cruelly disables the most vulnerable

defendants. Posit a defendant who requests counsel but the government

continues to question him. If he asserts a reasonable doubt defense, the

resulting statements are inadmissible under Edwards. But if that same

defendant is severely mentally ill and properly asserts an insanity defense,

all of those otherwise improperly obtained statements go to the jury.

The First Circuit’s interpretation would give the government a

perverse incentive: if a defendant (like Johnston) is obviously mentally ill at

the time of arrest or while in pretrial detention, the government can

anticipate a mental health defense and completely ignore requests for

counsel. Disturbingly, this would eliminate Fifth Amendment protections for

those defendants who are least able to fend for themselves. That cannot be

the law. Wainwright v. Greenfield, 474 U.S. 284, 292 (1986).

Beyond making bad policy, the First Circuit also impermissibly

restricted Edwards and Smith, which is the sole province of this Court and

beyond the power of the Circuit Courts. “If a precedent of this Court has

direct application in a case, yet appears to rest on reasons rejected in some

other line of decisions, the Court of Appeals should follow the case which

directly controls, leaving to this Court the prerogative of overruling its own

decisions.” Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484

(1989). Indeed, even where this Court has explicitly overruled a decision in

part, the balance of the decision remains binding precedent that lower courts

may not ignore. Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016). Note that Edwards

was announced on May 18, 1981, the same day Smith was announced.

Obviously, this Court saw no conflict between the two rulings at the time. It

was not for the First Circuit to invent one.17 They, along with the

17 Indeed, until Johnston’s case, no Court of Appeals has ever suggested statements taken in

violation of Edwards could be used to rebut an insanity defense. The District of Columbia

Circuit explicitly forbids the practice. United States v. Hinckley, 672 F.2d 115, 133–34

(D.C.Cir. 1982) (abrogated on other grounds by Hudson v. Palmer, 468 U.S. 517 (1984)

(holding such statements inadmissible). The lower courts have only squabbled about the

admissibility of “demeanor” evidence obtained after a request for counsel. Jones v. Dugger,

839 F.2d 1441 (11th Cir. 1988), cert. denied, 109 S. Ct. 91 (1988) (permitting it); Gholson v.

Estelle, 675 F.2d 734, 742 (5th Cir. 1982) (forbidding it); Julie A. Hardy, The Admissibility of

Mental State Observations Obtained During Unlawful Custodial Interrogation: Drawing the

Line on the Real or Physical Evidence Distinction, 30 B.C. L. Rev. 1029 (1989) (reciting

circuit split and concluding that such evidence should be inadmissible).

Massachusetts courts and Johnston’s trial counsel, were simply bound to

apply the syllogism of Edwards and Smith, which leads to a viable

suppression claim.

Buchanan does not change that analysis. Smith made clear that the

Fifth Amendment applies to all court-ordered psychiatric examinations

unless they are “a sanity examination occasioned by a defendant’s plea of not

guilty by reason of insanity at the time of his offense.” Smith, 451 U.S. at

465. Buchanan expanded Smith’s holding to equate insanity defense

examinations with other mental health examinations that were not explicitly

directed to criminal responsibility but were nevertheless requested for the

explicit purpose of producing evidence regarding a mental health defense to

criminal charges. Buchanan, 483 U.S. at 423.

But that is simply not what happened here. Here, Johnston’s counsel

was appropriately concerned that his client was suicidal and so did nothing to

resist18 Johnston’s involuntary commitment to a psychiatric detention facility

— so that his client could simply remain alive. But he was very careful to

steer examinations away from any discussion of the criminal charges against

Johnston, and Johnston himself was similarly guarded.

JA.4223, 4226–27.

And Johnston’s defense at trial relied on the forensic sanity examinations

18 Unlike Buchanan, Johnston did not ask for the evaluation that occasioned the questioning.

Agents of the Commonwealth petitioned for it. Johnston III, 871 F.3d at 55-56.

19 Several evaluators specifically noted plans to encourage Johnston to speak despite his

invocations. On December 14, 2004, one evaluator notes a plan to “[e]ncourage cooperation”.

App.46a. On December 15, 2004, one doctor wrote “I encouraged him to comply.” App.50a.

And on December 20, an evaluator explicitly states that they will “encourage p[atien]t to

disclose more relevant aspects of his h[istory].” JA.226.

conducted by his own experts and civilian accounts of Johnston’s bizarre

behavior, not the Bridgewater records. That is a far cry from the defense

actions in Buchanan: affirmatively requesting an evaluation which was

calculated to produce evidence for use in his criminal case. Buchanan, 483

U.S. at 423.

Adopting the First Circuit’s interpretation would literally endanger

human life. Defense attorneys with valid insanity defenses for suicidal clients

would be forced to choose between undercutting the trial defense by allowing

such safety-directed examinations and endangering the client’s life by not

allowing them. That is obviously perverse. Thankfully, it is not and should

not be the law. The Commonwealth was entitled only to the same evidence

and opportunity to examine Johnston, but instead it got far more.

As noted, Johnston’s trial defense relied on lay witnesses and two

defense experts, not the Bridgewater examination or records. The

Commonwealth had advance notice of the defense and the reciprocal

opportunity to rebuttal that it was entitled to. It hired the volunteering, overenthusiastic Dr. Welner to examine Johnston. In addition, court-ordered

interviews conducted by Dr. Peebles (for a different purpose but with counsel

present) were admissible. Thus, the Commonwealth had ample access to

evidence with which to “controvert[] proof on an issue that [Johnston]

injected into the case” without employing statements that should have been

suppressed. Smith, 451 U.S. at 465.

Allowing the Commonwealth to introduce every jot and tittle uttered

by Johnston outside these court-ordered forensic interviews at any time does

not provide equal or reciprocal access to evidence for the prosecution. Instead,

such a rule would provide an asymmetrical unfair advantage to the

Commonwealth because (1) it could commit a defendant to a facility without

his agreement for thirty days of completely admissible questioning by dozens

of Commonwealth agents while (2) the defense gets a limited number of

partially admissible interviews by defense experts, which he must first clear

with the warden each time. This Court’s precedent requires an equal

opportunity to conduct “personal interviews” of the defendant. It does not

permit a psychological free-for-all to be pitted against a few previouslyscheduled interviews.

“The Fifth Amendment privilege is ‘as broad as the mischief against

which it seeks to guard.’” Smith, 451 U.S. at 467–68, quoting Counselman v.

Hitchcock, 142 U.S. 547, 562 (1892). This Court should not allow Smith to be

twisted into a case that permits the wholesale waiver of a defendant’s Fifth

Amendment rights because he raises a mental health defense.

Finally, there can be no question that there is a reasonable probability

that the result of Johnston’s trial was affected by the admission of the

statements that should have been suppressed. Strickland v. Washington, 466

U.S. 668, 694 (1984); Williams v. Taylor, 529 U.S. 362, 405–06 (2000). As

noted above, supra at 4, the records undercut the basis of defense expert

testimony. The records undercut the basis of Dr. Feldman’s testimony:

Johnston’s statements to her that he did have auditory hallucinations.

JA.2335–36, 2350, 2355. They contained Johnston’s denial of mental illness,

head trauma, suicidal behavior and multiple denials of hallucinations.

JA.211, 213, 241, 245Q, 247, 2838, 4225.

The records also contain his denial of sexual trauma, JA.223,

undercutting Johnston’s bizarre statements to Drs. Kelly, Feldman, and

Peebles that he believed that Sullivan had him raped in Hawaii. JA.198, 351,

355, 2334, 2453, 2465–66, 2890, 2981. Most significantly, it undercut Dr.

Feldman’s testimony that “It’s my thinking that once Bryan Johnston

thought he heard David say to him, ‘We paid to have you raped,’ that he then

became the focus of his delusional system.” JA.2352, 2500–01, 2525.

The evidence that should have been suppressed also undermined

Johnston’s statement to Dr. Sherry on December 10 that he was suicidal (and

therefore psychotic). JA.193–194, 4267–69, 4463. To wit, the prosecution

introduced post-invocation testimony and Bridgewater records that Johnston

denied any homicidal or suicidal ideation. JA. 254, 255, 274, 4226, 4229.In

sum, counsel’s error undermined Johnston’s sole defense on multiple fronts.

II.

The lower courts found more than a dozen violations of

Doyle v. Ohio, 426 U.S. 610 (1976). By portraying Johnston to

the jury as calculating and rational because he invoked his

Miranda rights, these violations dovetailed with the

prosecution’s theory that Johnston was not delusional and

went to the heart of Johnston’s insanity defense. Doyle

violations are particularly poisonous and no reviewing

court anywhere has ever found so many Doyle violations

harmless. Was the ruling of harmlessness unreasonable?

The First Circuit concluded that the SJC did not unreasonably apply

Doyle v. Ohio, 426 U.S. 610 (1976) in determining that Johnson suffered no

prejudice from the introduction of his more than a dozen invocations of his

right to counsel. Johnston III, 871 F.3d at 66. To petitioner’s knowledge, no

court has ever found harmless error in a case with as many instances of the

introduction of such poisonous evidence. See, e.g., Wainwright v. Greenfield,

474 U.S. 284, 285 (1986) (granting habeas), affirming Greenfield v.

Wainwright, 741 F.2d 329, 336 (11th Cir. 1984) (no objection to three

elicitations of invocations, objection to three references in closing)

Every court to review Johnston’s case has found or assumed error in

counsel’s introduction of Johnston’s invocations. Johnston’s expert, Dr. Kelly,

made the first reference to Johnston refusing to answer questions on the

advice of counsel. JA.2649. But the prosecutor then elicited from Dr. Kelly

that Johnston refused to answer questions at the jail and at Bridgewater five

more times. JA.2828, 2832–35. See also JA. 3004 (prosecutor attempting to

elicit this evidence from sister). The prosecutor also elicited from Dr. Peebles

that upon admission to Bridgewater, Johnston was silent upon advice of

counsel. JA.4226–27.

The damage from these improprieties multiplied because Johnston’s

requests for counsel were recorded in detail in the medical records that the

parties pointedly called to the jurors’ attention. For example, when an

evaluator approached Johnston, he “decline[d] to answer most questions

unless his attorney is present.” JA.217. And the resulting evaluation form

includes “declines to answer” or “refuses to answer” at least 10 times.

JA.217–26. There were several other instances. App.49a-50a, 52a-53a;

JA.224, 225, 245Q, 249–50, 254, 262. Defense counsel encouraged the jurors

to review these records showing Johnston invoking his rights “day after day

after day … over and over and over again”, i.e. at least fifteen times.

JA.4436–37. There was a single mid-trial curative instruction on the issue,

and all of the offending evidence was actually submitted to the jury.

If jurors perceive that a defendant is not cooperating with authorities

— withholding evidence — they respond negatively and often assume guilt.

United States v. Hale, 422 U.S. 171, 180 (1975) (juries are likely to draw a

“strong negative inference” from the fact that a defendant remained silent).20

In cases where multiple invocations of the right to counsel are

introduced to the jurors, courts consistently find Doyle violations prejudicial.

See Wainwright v. Greenfield, 474 U.S. 284, 287, 295 (1986), affirming

20 Researchers reach a similar conclusion. Justin Sevier, Omission Suspicion: Juries,

Hearsay, and Attorney’s Strategic Choices, 40 Fl. St. Univ. L. Rev. 1, 19–20 (2012); Clyde

Hendrick & David R. Shaffer, Effect of Pleading the Fifth Amendment on Perceptions of Guilt

and Morality, 6 BULL. PSYCHONOMIC SOC’Y 449, 449–52 (1975); David R. Shaffer, Cyril

Sadowski & Clyde Hendrick, Effects of Withheld Evidence on Juridic Decisions, 42 PSYCHOL.

REP. 1235, 1236–38 (1978); David R. Shaffer & Cyril Sadowski, Effects of Withheld Evidence

on Juridic Decisions II: Locus of Withholding Strategy, 5 PERSONALITY & SOC. PSYCHOL.

BULL. 40, 41 (1979); Sharon R. Gromer, Fifth Amendment – The Right to a No Adverse

Inference Jury Instruction, 72 J. CRIM. & CRIMINOLOGY 1307, 1308–1309, 1322 (1981); see

also, e.g., United States v. Zaccaria, 240 F.3d 75, 79 (1st Cir. 2001) (“evidence of the

invocation of the right to remain silent is inherently prejudicial”).

Greenfield v. Wainwright, 741 F.2d 329, 336 (11th Cir. 1984) (no objection to

three elicitations of invocations, objection to three references in closing);21

contrast Brecht v. Abrahamson, 507 U.S. 619, 625 & n.2 (1993) (three

references harmless where jury heard many more instances of admissible

pre-trial silence); cf. Greer v. Miller, 483 U.S. 756, 764 (1987) (no Doyle

violation where single reference was stricken and jury instructed to

disregard).

Further, the evidence admitted due to counsel’s failures struck at the

heart of Johnston’s defense. Here, the SJC and the District Court found that

the prosecutor used Johnston’s invocations to rebut the defense that Johnston

was delusional at the time he committed the offense. Johnston I, 467 Mass. at

690; Johnston II, 213 F.Supp.3d at 294. There was a direct relationship

between this evidence and Johnston’s trial defense. Id. If Brecht and

Strickland are to mean anything, fifteen constitutional errors that undercut

the central thrust of the defense must warrant relief from any reasonable

judge.22

21 See also Hill v. Turpin, 135 F.3d 1411, 1418–19 (11th Cir. 1998) (multiple elicitations of

defendant’s invocations, multiple “valiant and well-intentioned” curative instructions);

United States v. Kallin, 50 F.3d 689, 693–95 (9th Cir. 1995) (Doyle error prejudicial despite

curative instruction, prosecutor’s references calculated rather than inadvertent); United

States v. Meneses-Davila, 580 F.2d 888, 891–96 (5th Cir. 1978) (four intentional references

not harmless where “[d]efendant’s story is not totally implausible and the indicia of guilt is

not overwhelming”).

See United States v. Gentry, 555 F.3d 659, 664 (8th Cir. 2009) (Doyle error prejudicial

where there were five improper references and defense was not “transparently frivolous”);

Gov’t of Virgin Islands v. Davis, 561 F.3d 159, 166–67 (3d Cir. 2009) (repeated references to

defendant’s invocation prejudicial where they went to heart of defense); United States v.

Harp, 536 F.2d 601, 603 (5th Cir. 1976) (improperly admitted “comments struck at the

jugular” of defense, thus prejudicial), cited with approval in United States v. Wright, 777 F.3d

769, 782 (5th Cir. 2015).

Conclusion

This Court should grant certiorari and hold that evidence,

inadmissible against all other defendants due to Miranda violations, is not

admissible against mentally ill defendants simply because they assert an

insanity defense. The Court should further hold that more than a dozen such

violations going to the central issue at trial constitutes prejudice.

Respectfully submitted,

DAVID NATHANSON

Counsel of Record for Petitioner

Wood & Nathanson, LLP

50 Congress Street

Boston, MA 02109

(617) 248-1806

dnathanson@woodnathanson.com

FEBRUARY 5, 2018

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.