Petition for Writ of Certiorari — Christopher L. Whitaker, Petitioner v. Ohio

Supreme Court briefMar 24, 2023

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CASE NO. _________________

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER 2022 TERM

___________________________________________

CHRISTOPHER WHITAKER, Petitioner,

vs.

STATE OF OHIO, Respondent

___________________________________________

On Petition for a Writ of Certiorari to

the Supreme Court of Ohio

___________________________________________

PETITION FOR A WRIT OF CERTIORARI

JEFFREY M. GAMSO (OH 0043869)*

Law Office of Jeffrey Gamso

1252 Homestead Road

South Euclid, Ohio 44121

(419) 340-4600

ERIKA B. CUNLIFFE (OH 0074480)

Assistant Public Defender Cuyahoga County

310 West Lakeside Avenue, Suite 200

Cleveland, Ohio 44113

(216) 443-8353

Counsel for Petitioner Christopher Whitaker

*COUNSEL OF RECORD

CAPITAL CASE

QUESTIONS PRESENTED

By compelling the Petitioner to undergo a pretrial psychological evaluation to

rebut a mitigation claim it knew he was not making, and prohibiting him from

presenting significant evidence of his acceptance of responsibility, the trial court

violated his Fifth Amendment right against self-incrimination and his Sixth

Amendment right to present a defense, thereby violating his Eighth Amendment

protection against cruel and unusual punishment, all as protected by his rights under

the Fourteenth Amendment. To secure those rights, Petitioner presents these two

questions:

Is it possible that a jury might find some indication of character regarding

willingness to accept responsibility – and thereby find some mitigating

value – in a capital defendant’s offer to plead guilty, accept a sentence of

life without the possibility of parole, and waive his right to direct appeal

and any other post-conviction proceedings in exchange for the state’s

dropping death specifications? And if so, does an absolute prohibition

against telling the jury of that offer violate the Sixth and Eighth

Amendments as made applicable to the states through the Fourteenth

Amendment?

Is the accused in a capital case entitled to investigate, develop, and

introduce, as mitigating evidence for the penalty phase, expert testimony

explaining the accused’s personal and childhood history without exposing

himself to a compelled examination by the prosecution’s expert? If so, then

any evidence obtained during that improperly compelled examination may

not be used against the accused, all as required by the Fifth, Sixth,

Eighth, and Fourteenth Amendments to the U.S. Constitution.

LIST OF PARTIES TO THE PROCEEDINGS IN THE COURT BELOW

AND RULE 29.6 STATEMENT

All parties appear in the caption of the case on the cover page. None of the

parties thereon have a corporate interest in the outcome of this case.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED .......................................................................................... ii

LIST OF PARTIES TO THE PROCEEDINGS IN THE COURT BELOW AND

RULE 29.6 STATEMENT ............................................................................................ iii

TABLE OF CONTENTS ............................................................................................... iv

TABLE OF AUTHORITIES ......................................................................................... vi

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 1

STATEMENT OF THE CASE AN.D FACTS ............................................................... 3

Trial Court Proceedings ..................................................................................... 3

Appeal to the Ohio Supreme Court .................................................................... 5

REASONS FOR GRANTING THE WRIT .................................................................... 6

I. A capital defendant’s offer to plead guilty and waive all post-trial

procedures in exchange for a sentence of life without the possibility of parole

indicates something about the defendant’s character and may have mitigating

value. Excluding evidence of that offer from the jury violates the Sixth, Eighth,

and Fourteenth Amendments. ............................................................................... 6

II. The accused in a capital case may investigate, develop, and introduce, as

mitigating evidence in the sentencing phase, expert testimony explaining the

accused’s personal and childhood history without exposing himself to a

compelled examination by the State’s expert, and any evidence from any such

improperly compelled examination may not be used against the accused, all as

required by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S.

Constitution. ......................................................................................................... 11

Introduction................................................................................................ 11

Mitigation Phase Preparation ................................................................... 12

C. The prosecution used their evaluation of Petitioner to undercut his own

mitigation evidence. .......................................................................................... 15

D. Capital defendants have a right under the Eighth Amendment to present

a broad range of mitigating evidence at sentencing. ....................................... 17

E. The psychiatric evaluation compelled in this case violated Petitioner’s

right to remain silent. ....................................................................................... 21

F. The compelled mental exam in Petitioner’s case unconstitutionally forced

him to abandon his Fifth Amendment right to secure the protection of these

other constitutional rights which are indispensable in the penalty phase of a

capital case. ....................................................................................................... 23

G. The compelled mental exam was also unconstitutional in Petitioner’s

case because there were other effective means of rebuttal for the penaltyphase evidence at issue. .................................................................................... 29

CONCLUSION............................................................................................................. 32

TABLE OF AUTHORITIES

Cases

Ake v. Oklahoma, 470 U.S. 68 (1985) ......................................................................... 20

Bobby v. Van Hook, 558 U.S. 4 (2009) ........................................................................ 21

Buchanan v. Kentucky, 483 U.S. 402 (1987) ............................................ 24, 27, 30, 31

Busso-Estopellon v. Mroz, 238 Ariz. 553, 554, 364 P.3d 472 ..................................... 10

California v. Brown, 479 U.S. 538 (1987) ................................................................... 18

Colorado v. Dunlap, 173 P.3d 1054 (Colo. 2007) ........................................................ 10

Culombe v. Connecticut, 367 U.S. 568 (1961) ............................................................ 22

Delaware v. Van Arsdall, 475 U.S. 673 (1986) ........................................................... 28

Eddings v. Oklahoma, 455 U.S. 104 (1982) ...................................................... 9, 18, 19

Estelle v. Smith, 451 U.S. 454 (1981) ..................................... 22, 23, 24, 25, 27, 29, 30

Hitchcock v. Dugger, 481 U.S. 393, 398–399 (1987) .................................................. 19

Johnson v. United States, 860 F.Supp.2d 663 (N.D. Iowa 2012) ............................... 10

Kansas v. Cheever, 571 U.S. 87 (2013) ............................................... 22, 24, 27, 29, 30

Kansas v. Marsh, 548 U.S. 163 (2006) ........................................................................ 19

Leftkowitz v. Cunningham, 431 U.S. 801 (1977) ....................................................... 25

Lockett v. Ohio, 438 U.S. 586 (1978)........................................................... 9, 17, 19, 27

McCleskey v. Kemp, 481 U.S. 279, 304 (1987 ............................................................ 19

McWilliams v. Dunn, 137 S. Ct. 1790 (2017) .............................................................. 20

Mincey v. Arizona, 437 U.S. 385 (1978) ...................................................................... 29

New Jersey v. Portash, 440 U.S. 450 (1979) ............................................................... 29

Owens v. Guida, 549 F.3d 399, 420 (6th Cir. 2008) ..................................................... 10

Penry v. Johnson, 532 U.S. 782, 797 (2001) ............................................................... 27

Penry v. Lynaugh, 492 U.S. 302 (1989) ................................................................ 18, 20

Rompilla v. Beard, 545 U.S. 374, 387 (2005) .............................................................. 21

Simmons v. United States, 390 U.S. 377 (1968)................................................... 25, 26

State v. Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585, 805 N.E.2d 1042 .......... 3, 5, 8, 9

State v. Hoffner, 102, Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48 ...................... 9

State v. Madison, 2020-Ohio-3735, 160 Ohio St. 3d 232 (2020) .......................... 24, 25

State v. Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, 71 N.E.3d 1034................ 3,5, 8

State v. Steffen, 31 Ohio St.2d 111, 129, 509 N.E.2d 383 (1987)................................. 9

United States v. Byers, 740 F.2d 1104 (U.S. App. D.C. 1984) ................................... 30

United States v. Biaggi, 909 F.2d 662, 690-92 (2d Cir. 1990).................................... 10

United States v. Roof, No. 2:15-CR-00472 ................................................................. 10

White v. Woodall, 572 U.S. 415, 421 (2014);............................................................... 22

Woodson v. North Carolina, 428 U.S. 280 (1976) ....................................................... 18

Constitutional Provisions and Statutes

Ohio Revised Code Section 2929.03(D) ....................................................................... 20

Ohio Revised Code Section 2929.04(A)(7) ..................................................................... 3

Ohio Revised Code Section 2929.04(B) ................................................................... 9, 30

U.S. Constitution, Fourth Amendment ...................................................................... 26

U.S. Constitution, Fifth Amendment .............................................................. 2, passim

U.S. Constitution, Sixth Amendment ............................................................. 2, passim

vii

U.S. Constitution, Eighth Amendment........................................................... 2, passim

U.S. Constitution, Fourteenth Amendment ................................................... 2, passim

Other Authorities

American Bar Association: Guidelines for the Appointment and Performance of

Defense Counsel in Death Penalty Cases & commentary, 31 Hofstra L. Rev. 913

(2003) .................................................................................................................. 20, 21

Russell Stetler, Mental Health Evidence and the Capital Defense Function:

Prevailing Norms, 82 UMKC L. REV. 407 (2014) .................................................... 20

Kathleen Wayland and Sean D. O’Brien, Deconstructing Antisocial Personality

Disorder and Psychopathy: A Guidelines-Based Approach to Prejudicial

Psychiatric Labels, 42 HOFSTRA L. REV. 519 (2013) ............................................... 32

viii

PETITION FOR A WRIT OF CERTIORARI

Petitioner Christopher Whitaker (“Petitioner”) respectfully petitions for a writ

of certiorari to review the judgment of the Supreme Court of Ohio in State v. Whitaker,

Slip Opinion No. 2022-Ohio-2840.

OPINIONS BELOW

The opinion of the Supreme Court of Ohio in State v. Whitaker, ___ Ohio

St.3d ___, 2022-Ohio-2840, ___ N.E.3d ___. (Appx., infra, at A-0001.)

The Supreme Court of Ohio’s order of October 25, 2022, denying Petitioner’s

timely motion for reconsideration is reported at State v. Whitaker, 168 Ohio St. 3d

1420, 2022-Ohio-3752, 2022 Ohio LEXIS 2203, 196 N.E.3d 863 (Ohio, Oct. 25, 2022).

(Appx., infra, at A-79)

JURISDICTION

The Supreme Court of Ohio issued its opinion in Petitioner’s direct appeal on

August 18, 2022. (Appx., infra, at A-0001) Petitioner’s timely filed Motion for

Reconsideration was denied on October 25, 2022. (Appx., infra, at A-79) Petitioner’s

motion to stay the mandate pending exhaustion of all state court remedies was

granted on November 9, 2022. (Appx., infra, at A-80) On January 4, 2023, Petitioner

was granted until March 24, 2023 to file this Petition. This Court has jurisdiction

over this cause under 28 U.S.C. §1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment, which provides in part: “ No person shall be held to

answer for a capital, or otherwise infamous crime, unless on a presentment or

indictment of a grand jury . . . .; nor shall any person be subject for the same offense

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[.]”

The Sixth Amendment, which provides in part: “In all criminal prosecutions,

the accused shall enjoy the right to a speedy and public trial, by an impartial jury . .

. .; 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

defense.”

The Eighth Amendment, which provides: “Excessive bail shall not be

required, nor excessive fines imposed, nor cruel and unusual punishments

inflicted.”

The Fourteenth Amendment, which provides in part, “Section 1. All persons

born or naturalized in the United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the state wherein they reside. No state shall

make or enforce any law which shall abridge the privileges or immunities of citizens

of the United States; nor shall any state deprive any person of life, liberty, or

property, without due process of law; nor deny to any person within its jurisdiction

the equal protection of the laws.”

STATEMENT OF THE CASE AND FACTS

Trial Court Proceedings

On February 13, 2017, a Cuyahoga County grand jury returned a ten-count

indictment charging Petitioner, Christopher Whitaker (Petitioner), with felony

aggravated murder (Counts 1-3), aggravated murder with prior calculation and

design (Count 4), rape (Count 5), kidnapping (Counts 6 and 7), aggravated burglary

(Count 8), tampering with evidence (Count 9), and gross abuse of a corpse (Count

10). As relevant here, each of the aggravated murder counts was accompanied by

three Ohio Rev.Code §2929.04(A)(7) felony murder death specifications: one each for

rape, kidnapping, and aggravated burglary.

Months before trial, Petitioner offered to plead guilty, waive all post-trial

avenues for relief, and accept a sentence of life in prison without the possibility of

parole. The state, determined to seek the death penalty, rejected that offer.

Petitioner asked the trial court to allow him to tell the jury that he’d made the offer

and that the state refused it. The court first agreed, then reversed itself after the

Supreme Court of Ohio ruled in State v. Sowell, 148 Ohio St.3d 554, 2016-Ohio8025, 71 N.E.3d 1034, that “‘[A] defendant’s offer to plead guilty, never accepted by

the prosecutor, is not relevant to the issue of whether the defendant should be

sentenced to death.’” Id. at ¶ 130, quoting State v. Dixon, 101 Ohio St.3d 328,

2004-Ohio-1585, 805 N.E.2d 1042, ¶ 69.

In preparation for trial, in particular the potential penalty phase, Petitioner’s

defense team retained Robert Kaplan, a clinical and forensic psychologist, to

undertake an evaluation. Dr. Kaplan found no mental illness. Nevertheless, he did

develop a number of mitigating factors stemming from Petitioner’s personal

history.

When the prosecutors saw Kaplan’s report, they asked for an order directing

Petitioner to submit to their own psychological expert for an examination to rebut a

mental illness diagnosis that Dr. Kaplan did not make. Over defense objection, the

court granted the motion. What the prosecution really wanted, and eventually got,

was a chance to have their psychiatrist question Petitioner and get him to say

things that would contradict Dr. Kaplan’s observations. The prosecution’s expert

evaluation of Petitioner amounted to a wide-ranging interrogation.

Petitioner’s jury trial proceeded in January 2018. During voir dire, his

counsel told the prospective jurors that they would not be contesting Petitioner’s

guilt. Specifically, counsel said, “We’re not contesting liability in this case. Mr.

Whitaker is responsible for taking the life of this child.” (TR 1737) Petitioner’s

acknowledgement of the fact that he committed the crimes charges and was

remorseful for that conduct was a major defense theme. The jury found him guilty

of all charges and specifications. (TR 2836-2840)

At the penalty phase, the defense team underscored Petitioner’s remorse for

the crimes. But the jury never learned of his offer to plead guilty and resolve the

case short of a trial. The defense team also pointed to the mitigation that Dr.

Kaplan uncovered consequent to his examination of Petitioner. However, employing

the fruits of the interrogation intended to rebut the Doctor’s findings, the

prosecution’s expert testified that everything Dr. Kaplan said was wrong and that

Petitioner was – despite not meeting the diagnostic criteria – a sociopath.

At the close of the penalty phase, the jury returned a verdict recommending a

death sentence. (TR 3275-3277) The court adopted that recommendation and

sentenced Petitioner to consecutive terms of death plus 48 years in prison.

Appeal to the Ohio Supreme Court

Among the issues Petitioner, raised in his appeal to the Supreme Court of

Ohio, he argued that a defendant’s pretrial offer to plead guilty, accept a sentence of

life without the possibility of parole, and waive all appellate and post-conviction

rights is admissible as mitigation evidence, because jurors may find that it

evidences some acceptance of responsibility. Petitioner argued that the court had

been wrong in Dixon and Sowell – or at least that his case was distinguishable –

that the evidence should have been admitted, and that the refusal to admit it

violated his constitutional rights. Over one justice’s dissent on the issue, the court

rejected the argument. State v. Whitaker, ___ Ohio St.3d ___, 2022-Ohio-2840, ___

N.E.3d ___, ¶¶ 140-149, and see Brunner, J., concurring in result but dissenting on

the issue, id., at ¶¶ 248-264.

Petitioner also challenged the trial court’s order compelling him to submit to

a psychiatric evaluation by a prosecution expert, for purposes of developing evidence

that undermined his case. Petitioner argued that such an evaluation literally forces

the defendant to be a witness against himself.

On August 18, 2022, the Ohio Supreme Court vacated the counts and

specifications involving aggravated burglary because the evidence thereon was

insufficient. The court, however, affirmed Petitioner’s death sentence after

concluding that the charges and remaining specifications were valid, and the

aggravating circumstances outweighed the mitigating factors.

REASONS FOR GRANTING THE WRIT

A capital defendant’s offer to plead guilty and waive all

post-trial procedures in exchange for a sentence of life

without the possibility of parole indicates something

about the defendant’s character and may have mitigating

value. Excluding evidence of that offer from the jury

violates the Sixth, Eighth, and Fourteenth Amendments.

The theme of Petitioner’s case at both the trial and penalty phases was that

he accepted responsibility and felt remorse for what he had done. His counsel told

the venire during voir dire that they were “not contesting liability in this case. Mr.

Whitaker is responsible for taking the life of this child. “[T]hat,” counsel added, “is

information that you need to have right now.” (TR 1737) The point was echoed

repeatedly.

In his opening statement counsel told the seated jury:

Mr. Whitaker, at his direction, is why Mr. Mack told you that

yesterday. At his direction that he doesn’t want to make a circus out of this.

That’s why Mr. Mack got up there and told you we aren’t contesting liability.

And at Mr. Whitaker’s direction is why I’m standing here today telling

you again we’re not contesting that. We’re not contesting that he did it.

We’re not contesting that he’s taking responsibility for the awful things

that you saw in here in opening statement, the awful things you saw on the

jury view, and unfortunately the awful things you’re about to see over the

next several days.

(TR 1825-1826)

Counsel elaborated during the trial phase closing argument:

Look, at the outset of this case, during voir dire, we came to you, we

waved that white flag and we told you we’re not challenging whether or not

he’s responsible for taking her life.

There’s nothing in this world that could justify the events that

occurred in this case.

There may be explanations as to what occurred, but we still stand by

no justifications and no excuses. And he knows that, which is the reason why

he said during the course of that interview, he did not want a circus. He

acknowledged his wrongdoing and said give me my time, or what I deserve.

The reason for defending Mr. Whitaker in this manner which we have,

but we’re not challenging witnesses and the evidence, because he required it.

Mr. Shaughnessy and I feel like fish out of water.

It’s counterintuitive not to challenge witnesses, not to challenge their

credibility.

But in this case we’re required to follow our client’s instructions. And

it’s the right thing to do. It really is in this case. And I’m glad that Mr.

Whitaker gets that. We cannot defend him in this way without his approval.

(TR 2767-2768)

It remained a defense theme during the mitigation phase, never more so than in

Petitioner’s own statement to the jury.

From the beginning I’ve accepted full responsibility for my actions.

I assisted the detectives as to where to find my clothes and boots I was

wearing that day.

I never wanted this to happen, and ever since that day I’ve been feeling

regret and remorse.

Through the year I made a lot of phone calls, and in those calls I’ve

said things, a lot about things in order to protect my family’s feelings.

I’ve admitted to my guilt to the detectives and to my lawyers.

I asked my lawyers not to contest or challenge anything in this case

because I really wanted the DeFreeze family to have closure.

I will not try to hide behind drugs or alcohol. I will not pretend or lie

because it wouldn’t be fair to the family.

I apologize to the family and the community for my actions. There is no

excuse for what I’ve done.

I can’t imagine the pain the family feels, but I know the pain I feel

when I had to look at what I’ve done.

If I could go back to that day in January, I’d change everything, but I

can’t, so I have to live with each day with the shame, hurt and guilt.

And although the trial is over, the regret and painful memories will

remain with me. Just that’s sometimes -- that’s just things I can’t shake.

(TR 3100-3101) Counsel echoed those thoughts speaking to the jury during closing

argument:

It’s no defense to what happened here. It’s no defense to what we saw,

that he said he did it. It’s no excuse or justification.

But the fact that he said he did it, the fact that he showed remorse, the

fact that he waived his Fifth Amendment right and agreed that he did it, the

fact that he didn’t want to turn this into a circus, the fact that he sent the

police to find more evidence against him, that’s mitigation.

(TR 3228-3229)

Evidence in support of Petitioner’s acceptance of responsibility stretches back

to the day of his arrest when he cooperated with officers investigating the case and,

after an hour or so of dissembling, began acknowledging his guilt. And the jury

heard that.

The prosecution disputed Petitioner’s claims that he had accepted

responsibility. His cooperation with law enforcement, they argued, was dilatory and

dishonest, admitting what he did only when detectives “forced him to.” And they

offered a series of calls from jail in which he presented himself to friends and family

as innocent.

But what the jury did not hear, was not allowed to hear, was that Petitioner

had offered to plead guilty, waive all post-conviction proceedings, and accept a

sentence of life without the possibility of parole – death in prison. And they did not

hear that because the trial court, after originally granting permission to let the jury

know, reversed itself in light of the Ohio high court’s decision in State v. Sowell, 148

Ohio St.3d 554, 2016-Ohio-8025, 71 N.E.3d 1034, that “‘[A] defendant’s offer to

plead guilty, never accepted by the prosecutor, is not relevant to the issue of

whether the defendant should be sentenced to death.’” Id. at ¶ 130 (quoting State

v. Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585, 805 N.E.2d 1042, ¶ 69).

Sowell and Dixon were wrong when decided, and Ohio’s continuing to adhere

to their holding remains wrong. An offer to plead in exchange for a life sentence is

relevant and should be understood to be admissible evidence. As an indication of

acceptance of responsibility, it offers some, even if minimal, mitigatory value.

Indeed, three months to the day after the court held in Dixon that such a

conditional offer was “not relevant,” it found an identical offer relevant, according it

some, albeit “minimal,” weight in the capital appeal of Dixon’s co-defendant. State

v. Hoffner, 102, Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, ¶ 117.

Of course, a juror might find such an offer merely a self-serving attempt to

avoid execution and afford it no weight in mitigation. As Ohio cases make clear, a

jury “may properly choose to assign absolutely no weight to [proffered] evidence if it

considers it to be non-mitigating.” State v. Steffen, 31 Ohio St.2d 111, 129, 509

N.E.2d 383 (1987). Even then, even if Petitioner’s offer were deemed nonmitigatory, it would be admissible as an indication of the defendant’s character.

See Ohio Rev.Code § 2929.04(B) (“the court, trial jury, or panel of three judges shall

consider, and weigh . . . the . . . character . . . of the offender . . . “). The Eighth

Amendment requires no less. See, e.g., Lockett v. Ohio, 438 U.S. 586, 605 fn. 12

(1978) (acknowledging “the traditional “authority of a court to exclude, as

irrelevant, evidence not bearing on the defendant’s character . . . “); Eddings v.

Oklahoma, 455 U.S. 104 (1982).

Ohio’s blanket prohibition on admission of a rejected conditional offer to

plead guilty in exchange for a life sentence thus violates the Eighth and Fourteenth

Amendments. As wrongfully excluding properly admissible evidence proffered by

the defense, it violates also the Sixth Amendment right to present a defense.

This Court should resolve this question on which the lower courts

are divided.

Ohio’s position, that a conditional offer cannot ever have mitigatory value, is

not unique. Indeed, in holding that any conditional offer to plead in a capital case is

irrelevant, the court in this case relied on the reasoning of the Sixth Circuit’s

decision in Owens v. Guida, 549 F.3d 399, 420 (6th Cir. 2008). Whitaker at ¶145.

But if Ohio’s view on the issue is not unique, it is also far from universally

accepted. Various state and federal courts take a different view.

In Arizona, for instance, a capital defendant’s offer is recognized as

admissible as it “tends to make his acceptance of responsibility for the murders

more probable.” Busso-Estopellon v. Mroz, 238 Ariz. 553, 554, 364 P.3d 472, 473.

Colorado agrees, see, Colorado v. Dunlap, 173 P.3d 1054 (Colo. 2007).

Federal courts, too, have found such evidence admissible. See, for instance,

United States v. Fell, 372 F.Supp. 2d 773, 784-85 (D.Vt. 1005) (citing United States

v. Biaggi, 909 F.2d 662, 690-92 (2d Cir. 1990)), and Johnson v. United States, 860

F.Supp.2d 663, 900, fn. 67 (N.D. Iowa 2012). And in Dylann Roof’s trial, the

evidence of his offer to plead guilty “in exchange for a sentence of life in prison

without the possibility of release” was not only admitted but was found by all twelve

members of the jury to be mitigatory. United States v. Roof, No. 2:15-CR-00472,

Sentencing Phase Verdict Form, p. 15 (D. S. Carolina, Jan. 10, 2017) (Appx. infra at

96).

The question is broadly relevant in capital cases. This Court should resolve

the disagreement and hold that the Sixth, Eighth, and Fourteenth Amendments

require that a capital defendant’s offer to plead guilty and accept a sentence of life

in prison without the possibility of parole while waiving all post-trial procedures is

admissible evidence in the mitigation phase of a death penalty trial.

II.

The accused in a capital case may investigate, develop,

and introduce, as mitigating evidence in the sentencing

phase, expert testimony explaining the accused’s personal

and childhood history without exposing himself to a

compelled examination by the State’s expert, and any

evidence from any such improperly compelled

examination may not be used against the accused, all as

required by the Fifth, Sixth, Eighth, and Fourteenth

Amendments to the U.S. Constitution.

A. Introduction

In facing the charges in this case, Petitioner did not claim that he was not

guilty by reason of insanity (NGRI) when he committed the charged misconduct.

There was no claim that a serious mental illness was a contributing factor in the

case. Nor was his competence to stand trial questioned at any time while the case

was pending. The mitigation his lawyers and other members of the defense team

developed on his behalf focused on trauma he experienced as a young child,

domestic abuse he witnessed, and a family dynamic that provided no positive role

models and little guidance or emotional support. That history undermined his

ability to develop skills that might have helped him cope with the various setbacks

he faced. Without them he fell into a drug habit and struggled with impulse control

and anger management, among other things. (Tr. 2880, penalty phase opening

statement)

These difficulties, while mitigating, do not constitute mental health

diagnoses. In seeking to rebut Petitioner’s mitigation case, the State asked the trial

court to order him to submit to an evaluation to enable the prosecution’s

psychological expert “to opine on Whitaker’s mental state.” (Motion to have

Defendant Submit to Psychological Examination by the State’s Expert, 2/5/18, p. 2)

The explicit purpose of that evaluation was to obtain information from the accused

intended to undercut the mitigation his lawyers intended to present to save

Petitioner’s life. And, indeed, as the State expert’s testimony demonstrates, that is

exactly what happened.

Requiring the defendant to help the State generate evidence that the State

explicitly acknowledges it will use against him is contrary to law and offends rights

guaranteed under the State and Federal Constitutions. Using that evidence to then

secure the defendant’s death sentence is likewise repugnant.

B. Mitigation Phase Preparation

In the wake of Petitioner’s indictment for capital murder, his counsel

determined that the case’s outcome would largely be driven by the penalty phase.

Given the evidence, including Whitaker’s admissions to police concerning the

crimes, it was reasonable trial strategy to largely concede liability for the criminal

misconduct, focusing instead on investigating Whitaker’s personal and

psychological history to gather and develop mitigation evidence.

To that end, Petitioner was referred to Robert G. Kaplan, a psychologist

located in Northeast Ohio. Dr. Kaplan evaluated Whitaker to determine what if any

psychological factors were relevant to the criminal charges. Following multiple

interviews, a battery of psychological tests, review of the prosecution’s case file, and

Petitioner’s social history, which included his education, prison, and family service

records, Dr. Kaplan found the following mitigating factors to be present in

Petitioner’s case:

1) Due to witnessing domestic violence against his sister at an early age, Mr.

Christopher L. Whitaker learned to repress feelings of anger and developed a

maladaptive coping mechanism of dissociation, which prevented him from

being aware of negative emotions until they reached a point where they

disrupted his capacity to control them and conform his behavior according to

the requirements of the law.

a) At the time that the alleged instant offenses occurred, he was under

the influence of repressed anger that was released in an uncontrolled

and violent manner. He lacked the capacity to control his behavior due

to a combination of dissociation and intoxication by cocaine.

2) As a consequence of losing his mother at an early age and witnessing

domestic violence at an early age Mr. Christopher L. Whitaker developed the

following problems:

a) Bedwetting

b) School behavior problems.

c) Rebelliousness and oppositional behavior

d) Decreased capacity for empathy

e) Reduced ability to control his impulses

f) Devaluation of women

g) Substance abuse

3) Mr. Christopher L. Whitaker had no positive male role model in his life who

could inspire self-discipline or values that would lead to achievement and

better self-control. This situation impaired his psychological development and

capacity to regulate his behavior.

4) Within a week of losing his mother, Mr. Christopher L. Whitaker lost the

support of his father’s family, his home and school, and was uprooted from all

that was familiar, to be moved to a community in the Cleveland metropolitan

area, Garfield Heights, where, at the time, he and his family were subject to a

lot of racist treatment and suffered financial hardship. These stressors affected

his psychological development and capacity to regulate his behavior.

5) Mr. Christopher L. Whitaker’s main source of social support, his older sister,

developed a life-threatening illness over the past two years, which has

presented another stressor that taxed his already limited resources for coping

at the time the alleged offenses occurred, further impairing his capacity to

regulate his behavior.

6) Had it not been for the death of his mother at an early age of his life, the

lack of a positive male role model in his life, and the witnessing of domestic

violence against his sister, Mr. Christopher L. Whitaker’s life would have

taken a different direction and he would not currently be facing capital murder

charges.

7) At the time that the alleged offenses occurred, Mr. Christopher L. Whitaker

was under the influence of cocaine, which impaired his ability to control his

impulses and conform his behavior to the requirements of the law.

8) The prison records indicate that Mr. Christopher L. Whitaker made a

sincere effort to reform himself by participating in drug treatment and anger

management programs, and by getting good evaluations for his work as an

inmate and participation in GED classes.

9) Mr. Christopher L. Whitaker was able to refrain from violent behavior while

incarcerated in prison and while awaiting trial. Therefore, if he received a

sentence of Life Without Parole, it is unlikely that he would act violently in

prison.

10) Mr. Christopher L. Whitaker does not qualify for a diagnosis of Anti-Social

Personality Disorder because he has no history of Conduct Disorder before the

age of 15.

11) Although Mr. Christopher L. Whitaker is a sexually promiscuous

individual, a review of DSM-5 criteria indicates that he does not qualify for the

diagnosis of any Paraphilic Disorder, including a Pedophilic Disorder.

12) Mr. Christopher L. Whitaker had no pre-existing desire to have sexual

relations with adolescent females.

13) Mr. Christopher L. Whitaker is remorseful about his behavior related to

the instant offenses.

As part court the ordered discovery process, the defense team provided Dr. Kaplan’s

report to the State of Ohio. On February 5, 2018, the State moved the Court to issue

an order directing Petitioner to submit to a psychological evaluation by their expert.

According to the State, the psychiatric examination was justified because Dr.

Kaplan’s report indicated that Petitioner suffered from cocaine, marijuana, and

alcohol abuse disorders and adjustment disorder with mixed anxiety and depressed

mood.

One of the observations Dr. Kaplan made was that Petitioner dissociated at

some point during the underlying misconduct and does not recall precisely what he

did due to a combination of cocaine use and resulting lack of impulse control. The

State argued that the only way it could rebut this observation was by having its

own expert evaluate him. (TR. 2249-2253) The defense countered that the law only

provided for such an evaluation when the defendant’s competence, sanity, or mental

health is raised at the guilt phase of litigation. Dr. Kaplan’s opinions did not

exculpate Petitioner and would only be offered to explain his conduct and memory of

what transpired. (TR. 2246-2247) Noting the defense objection, the court ordered

him to participate in the requested evaluation.

C. The prosecution used their evaluation of Petitioner to undercut his own

mitigation evidence.

When the matter proceeded to the penalty phase, the State cross-examined

Dr. Kaplan extensively in its effort to challenge the validity of his findings in

mitigation. (TR. 2985-3042) In particular, the prosecutor underscored the fact that a

lot of the information Dr. Kaplan reported about Petitioner’s condition and mindset

at the time of the incident – came from Petitioner himself. (TR. 3029-3033) In

addition, the prosecutor’s cross-examination questioned Dr. Kaplan’s conclusion

that Petitioner did not meet the criteria for anti-social personality disorder. (TR.

3039-3042)

In further rebuttal of Petitioner’s mitigation case, the state introduced

testimony from their expert, Dr. Sara West, the psychiatrist who interviewed

Petitioner with the sole purpose of undercutting and dampening the impact of

whatever mitigation Dr. Kaplan had found. Dr. West, a staff psychiatrist at

Heartland Behavioral Healthcare Center, undertook a clinical interview with

Petitioner on 2/14/18. In preparation for her testimony, she reviewed Dr. Kaplan’s

report and Petitioner’s social history. She also listened to his jail phone calls,

reviewed police records and the autopsy report. (TR. 3141)

Dr. West testified about her interview with Petitioner, during which she

questioned him about the specifics of the underlying incident. She also talked with

him about his personal and family history – including the factual details of that

history. When she testified at the penalty phase, the doctor opined that the

accounts Petitioner provided to her were inconsistent with the mitigation narrative

his defense team had provided. At one point she noted that Petitioner failed to tell

her he witnessed domestic violence perpetrated on his sister by her boyfriend –

other than a single incident when Petitioner claimed he stood up to the boyfriend.

(TR. 3149)

Although Dr. West is not a psychologist and is not qualified to do

psychological testing, she went on to dispute the validity of Dr. Kaplan’s testing and

his conclusions. (TR. 3148) Dr. West further concluded that Petitioner did not meet

the diagnostic criteria to support many of his findings and that Dr. Kaplan’s

opinions about the things Petitioner experienced were questionable. (TR. 3148,

3153, 3167) She also discounted Dr. Kaplan’s finding that Petitioner likely

dissociated during or after the misconduct. (TR. 3150)

Dr. West also opined that Petitioner more likely has a conduct disorder,

rather than the difficult personal history upon which Dr. Kaplan based his

conclusions. (TR. 3152) Dr. West also suggested that Petitioner had been

malingering during Dr. Kaplan’s evaluation. This, even though Dr. Kaplan did

several tests to rule out malingering. In the end, Dr. West’s testimony made it clear

that, in her mind, Petitioner had an anti-social personality disorder.

Notwithstanding the fact that he did not meet that condition’s diagnostic criteria.

(TR. 3168)

This was the final piece of information the jury received before it retired to

deliberate on whether Petitioner should receive a death sentence.

D. Capital defendants have a right under the Eighth Amendment to present a

broad range of mitigating evidence at sentencing.

The Eighth Amendment guarantees a defendant facing a possible death

sentence the right to present mitigating evidence. That right ensures that capital

sentencing is both individualized and reliable – a need that is heightened in capital

cases due to the uniquely severe and irrevocable nature of the punishment. See

Lockett v. Ohio, 438 U.S. 568, 604 (1978). This Court has acknowledged that the

nature of that potential punishment renders “the penalty of death [ ] qualitatively

different from a sentence of imprisonment, however long” and there is a

“corresponding difference in the need for reliability in the determination that death

is the appropriate punishment.” Woodson v. North Carolina, 428 U.S. 280, 305

(1976).

Therefore, the penalty phase, should it occur, must ensure that any capital

sentence is “humane and sensible to the uniqueness of the individual.” Eddings v.

Oklahoma, 455 U.S. 104, 110 (1982). That interest requires an “individualized”

sentencing determination, one which satisfies “the principle that punishment

should be directly related to the personal culpability of the criminal defendant,”1

has duly considered the “compassionate or mitigating factors stemming from the

diverse frailties of humankind,”2 and is attentive to “the belief, long held by this

society, that defendants who commit criminal acts that are attributable to a

disadvantaged background, or to emotional and mental problems, may be less

culpable than defendants who have no such excuse.”3

The Eighth Amendment’s protection of human dignity––its “fundamental

respect for humanity”––mandates the requirements of individualized sentencing

which this Court’s precedent imposes in the penalty phase; it is a “constitutionally

indispensable part of the process of inflicting the penalty of death.” Eddings, 455

U.S. at 112 (quoting Woodson, 428 U.S. at 304). That “constitutionally

indispensable” requirement of an individualized sentencing determination in capital

cases “confer[s] upon defendants the right to present sentencers with information

relevant to the sentencing decision and oblige sentencers to consider that

information in determining the appropriate sentence.” Kansas v. Marsh, 548 U.S.

163, 175 (2006).

The use of mitigation evidence is a necessary component of the individualized

sentencing requirement. And decisions surrounding which evidence to use in

mitigation uniquely belong to the capital defendant and his counsel. Id.; Lockett,

1 Penry v. Lynaugh, 492 U.S. 302, 319 (1989), abrogated on other grounds,

Atkins v. Virginia, 536 U.S. 304 (2002).

2 Woodson, 428 U.S. at 304.

3 California v. Brown, 479 U.S. 538, 545 (1987) (O’Connor, J., concurring).

438 U.S. at 604 (plurality)(“[T]he Eighth and Fourteenth Amendments require that

the sentencer . . . not be precluded from considering, as a mitigating factor, any

aspect of a defendant’s character or record and any of the circumstances of the

offense that the defendant proffers as a basis for a sentence less than death.”)

(emphasis supplied).

Further, when a jury weighs that evidence in determining how to sentence in

a capital case, it may “not be precluded from considering, as a mitigating factor, any

aspect of a defendant’s character or record and any of the circumstances of the

offense that the defendant proffers as a basis for a sentence less than death.”

Lockett, 438 U.S. 586 at 604. Moreover, “[j]ust as the State may not by statute

preclude the sentencer from considering any mitigating factor, neither may the

sentencer refuse to consider, as a matter of law, any relevant mitigating evidence.”

Eddings v. Oklahoma, 455 U.S. 104, 113–114 (1982). See also Hitchcock v. Dugger,

481 U.S. 393, 398–399 (1987).

The Constitution also “limits a State’s ability to narrow a sentencer’s

discretion to consider relevant evidence that might cause it to decline to impose the

death sentence.” McCleskey v. Kemp, 481 U.S. 279, 304 (1987). “Indeed, it is

precisely because the punishment should be directly related to the personal

culpability of the defendant that the jury must be allowed to consider and give effect

to mitigating evidence relevant to a defendant’s character or record or the

circumstances of the offense.” Penry v. Lynaugh, 492 U.S. 302 at 327-328.

Further, Ohio Rev.Code §2929.03(D) imposes a burden upon those accused of

capital murder to develop and present evidence that mitigates against a sentence of

death. This kind of evidence –

is relevant because of the belief, long held by society, that defendants who

commit criminal acts that are attributable to a disadvantaged background, or

to emotional or mental problems, may be less culpable than defendants who

have no such excuse.

Penry, 492 U.S. 302 at 327-328. Further, those accused in capital cases are entitled

to the assistance of experts in conducting the necessarily thorough investigation the

development of such evidence requires. See, e.g., Ake v. Oklahoma, 470 U.S. 68

(1985); McWilliams v. Dunn, 137 S. Ct. 1790 (2017).

This will include, in almost every capital case, assistance of mental health

experts in the investigation, such as those used by Petitioner in his case. See, e.g.,

ABA Guidelines, Guidelines 4.1, 10.7, 10.11 & commentary, 31 Hofstra L. Rev. at

952-60, 1015-27, 1055-70; Russell Stetler, Mental Health Evidence and the Capital

Defense Function: Prevailing Norms, 82 UMKC L. REV. 407, 422 (2014) (“appellate

courts have recognized trial counsel’s specific duty to investigate signs of mental

health issues thoroughly, choose experts wisely, and provide experts with the

appropriate background information that will enable them to render trustworthy

opinions”).

In this case, Petitioner did not raise a mens rea, NGRI, or other mental

health defense to these charges. In fact, he conceded liability at the adjudication

phase of the proceedings. The evidence he sought to introduce bolstered his

mitigation case, the only purpose of which was to support a sentence other than

death. Petitioner’s lawyers were legally and ethically required to investigate and

present this evidence. Indeed, counsel in capital cases are obligated to conduct a

thorough investigation in preparation for the sentencing phase of a capital trial. See

American Bar Association, Guidelines for the Appointment and Performance of

Defense Counsel in Death Penalty Cases (rev. 2003) (2003 ABA Guidelines); Bobby v.

Van Hook, 558 U.S. 4, 16 (2009) (discussing those Guidelines); Rompilla v. Beard,

545 U.S. 374, 387 (2005).

As noted below, mitigation covers a wide variety of evidence that may or may

not include evidence of mental illness. The ABA Supplementary Guideline 10.11(B)

explains:

The (mitigation) investigation into a client’s life history must survey a

broad set of sources and includes, but is not limited to: medical history;

complete prenatal pediatric and adult health information; exposure to

harmful substances in utero and in the environment; substance abuse

history; mental health history; history of maltreatment and neglect; trauma

history; educational history; employment and training history; military

experience; multi-generational family history, genetic disorders and

vulnerabilities, as well as multi-generational patterns of behavior; prior adult

and juvenile correctional experience; religious, gender’ sexual orientation,

ethnic, racial, cultural and community influences; socio-economic, historical,

and political factors.

As these Guidelines demonstrate, the range of mitigation evidence a capital

defendant may introduce at sentencing is comprehensive. A social history that

includes this information may well include information that relates tangentially to

an accused’s mental health. But if it is not presented to undermine an element of

the charged offense, the accused has an Eighth Amendment right to present it –

without interference – as mitigation.

E. The psychiatric evaluation compelled in this case violated Petitioner’s right

to remain silent.

The accused in a criminal case has a right under the Fifth and Fourteenth

Amendments, as well as parallel rights in Ohio’s Constitution, to not be compelled to

be a witness against himself. Kansas v. Cheever, 571 U.S. 87 (2013); Section 10,

Article I of the Ohio Constitution. The essence of that constitutional principle “is the

requirement that the State . . . produce the evidence against [the defendant] by the

independent labor of its officers, not by the simple, cruel expedient . . . of forcing it

from his own lips.” Culombe v. Connecticut, 367 U.S. 568, 581-82 (1961). This Court

has made clear that the privilege against self-incrimination extends to the penalty

phase of a capital case. White v. Woodall, 572 U.S. 415, 421 (2014); citing Estelle v.

Smith, 451 U.S. 454, 463 (1981).

For sure, Fifth Amendment protections can be waived when the accused

introduces psychiatric evidence that places his state of mind directly in issue at trial.

In that scenario, the court may compel the accused to submit to a psychiatric

examination. Cheever, 571 U.S. 87 at 96. For example, in Cheever, the accused had

presented evidence that he lacked the requisite mens rea to commit the charged

offense. Specifically, Cheever’s expert had diagnosed him with brain damage

resulting from “long-term methamphetamine use . . .[which] had rendered [him]

incapable of premeditation.” Id. The ability to premeditate was directly relevant to

the question of whether Cheever was guilty of aggravated murder. Since the

expert’s testimony involved a mental status diagnosis, this Court resolved that the

prosecution could offer counter evidence from their own or a court-ordered

examination without violating the Fifth Amendment. Id.

But a capital defendant, like Petitioner, who does not assert any mentalillness or mental status defenses in either phase of his trial, cannot be compelled to

sacrifice his Fifth Amendment privilege against self-incrimination, and be forced to

undergo a pretrial mental exam by a prosecution-retained psychiatrist, merely

because he was interviewed by one or more of his own mental health experts for

purposes of developing a mitigation case of childhood trauma, abuse, and neglect.

The compulsion of such a mental exam, in those circumstances where no mentalstatus defenses were asserted, transformed Petitioner into a “‘deluded instrument’

of his own execution,” Estelle v. Smith, 451 U.S. 454, 462 (1981); the admission of

evidence from that compelled exam during Petitioner’s penalty phase violated his

rights under the Fifth, Sixth, Eighth and Fourteenth Amendments.

F. The compelled mental exam in Petitioner’s case unconstitutionally forced

him to abandon his Fifth Amendment right to secure the protection of these

other constitutional rights which are indispensable in the penalty phase of

a capital case.

Moreover, the trial court’s order compelling Petitioner to participate in the

mental exam further violated Petitioner’s constitutional rights here because it

forced him to sacrifice one constitutional right to exercise another. When it obtained

the court order directing Petitioner to submit to the State’s psychiatric evaluation,

the prosecution basically argued that – by choosing to present a mitigation case at

the penalty phase – Petitioner had waived his right to remain silent. Given the

heightened role the mitigation case played here, Petitioner had no choice but to

submit. But that scenario is constitutionally offensive. A defendant fighting a

potential death sentence in Ohio should not be forced to either surrender his Eighth

Amendment right to present mitigating evidence at sentencing; or submit to an

unrestricted intrusion on his Fifth Amendment privilege against self-incrimination.

In concluding otherwise, the Ohio Supreme Court relied on its decision in

State v. Madison, 160 Ohio St.3d 232, 2020 Ohio 3735, 155 N.E.2d 867. That

decision, however, ignored the constitutional ceiling this Court established in

Cheever. There, the court broadly held that “when the defense uses expert testimony

from a mental examination in the penalty phase, the state may rebut that evidence

by presenting expert testimony derived from the court-ordered mental

examination.” Id. at ¶ 120-121.

But the expansive and ill-considered ruling in Madison disregarded the

guardrails this Court has put in place to restrict compelled examinations and the

admission of evidence from such examinations. Specifically, before such an

examination may take place, Cheever, Buchanan, and Estelle requires the defendant

to assert a mental-status defense – placing his mental state directly at issue for

trial – before triggering a mental examination. Cheever (defense of voluntary

intoxication); Buchanan v. Kentucky, 483 U.S. 402 (1987) (defense of “extreme

emotional disturbance”); Estelle (example of insanity defense).

This Court adopted such a prerequisite largely because those kinds of

defenses seek to negate guilt to charged crimes, compel acquittal, and/or otherwise

avoid criminal liability (such as by pleading insanity). These are disputed issues of

potentially dispositive importance which the defendant has injected into the

criminal case. In that circumstance, this Court has recognized that there will be

some circumstances where the defendant’s evidence is of such a nature that

allowing his silence “may deprive” the State of its “only effective means” of

“controverting” that mental-status evidence. Estelle, 451 U.S. at 465.

The Madison decision, which the Ohio Supreme Court again embraced in

Petitioner’s case, also disregards, without analysis, other rulings from this Court

consistently rejecting the notion that the exercise of one constitutional right may be

conditioned on the substantial impairment of another. See Simmons v. United

States, 390 U.S. 377, 394 (1968) (describing the forced surrender of one right “in

order to assert another” as “intolerable”); Lefkowitz v. Cunningham, 431 U.S. 801

(1977). In Simmons, this Court held that a criminal defendant cannot be compelled

to give up his Fifth Amendment privilege against self-incrimination in order to

assert his Fourth Amendment right against illegal searches and seizures. 390 U.S.

at 390-394.

In Simmons, the defendant moved to suppress the contents of a suitcase he

maintained was seized illegally. But the problem was that the seized evidence, if

shown to have been in his possession, would implicate him in a crime. Id. at 391.

Nevertheless, to establish standing for Simmons’ suppression motion, he needed to

testify that he was the owner of the suitcase, which required him to testify to that

effect at the suppression hearing. Id. After the trial court denied the motion to

suppress, the matter proceeded to trial, where the prosecution used the defendant’s

testimony from the suppression hearing to link him to the crime. Id.

Simmons appealed and this Court reversed, holding that the defendant’s

testimony from the suppression hearing was inadmissible at trial. This Court

reasoned that allowing the prosecution to use Simmons’ suppression-hearing

testimony against him at trial would chill the exercise of Fourth Amendment rights.

Specifically, this Court observed:

It seems obvious that a defendant who knows that his testimony may

be admissible against him at trial will sometimes be deterred from

presenting the testimonial proof of standing necessary to assert a

Fourth Amendment claim. … In such circumstances, a defendant with

a substantial claim for the exclusion of evidence may conclude that the

admission of the evidence, together with the Government’s proof

linking it to him, is preferable to risking the admission of his own

testimony connecting himself with the seized evidence.

Id. at 393. Accordingly, this Court resolved that it was “intolerable that one

constitutional right should have to be surrendered in order to assert another.” Id. at

394.

As in Simmons, Petitioner was forced to abandon one constitutional right so

that he could exercise another. Given the reasoning underlying the State’s request

for the psychiatric evaluation, it was Petitioner’s mitigation evidence that prompted

the prosecution to request the evaluation. But if Petitioner were to exercise his

Eighth Amendment right to present mitigating evidence at the penalty phase of his

capital murder trial, the forced evaluation required him to forego his Fifth

Amendment right to remain silent. This is not a reasonable “choice.” It

impermissibly burdens the exercise of both rights, while also potentially

compromising the reliability of the capital sentencing verdict.

To preserve his Fifth Amendment right against self-incrimination, Petitioner

should not have been forced to surrender a right to present evidence – a surrender

which would also force him to forgo his right to a “reliable determination that death

is the appropriate sentence.” Penry v. Johnson, 532 U.S. 782, 797 (2001). In a case

where the ultimate penalty is irreversible, the State should not be entitled to coerce

a defendant into giving up his right to a reliable sentencing process. See Lockett,

438 U.S. at 604.

Petitioner did not assert any mental-status defense or otherwise place his

mental state directly in issue for his trial. He, indeed, unambiguously disclaimed

any such defenses before trial, and that fact alone should have barred the state26

requested mental exam. Moreover, the fact that he used psychologists to help

explain and contextualize his mitigation evidence of an abusive childhood and

troubling family history did not place his mental status in issue at all, much less

directly in issue.

Further, the evidence Petitioner presented via the mental health professional

that interviewed him, in support of his mitigation case of childhood trauma, is not

evidence of the same character as the mental-status defenses the Court addressed

in Cheever, Buchanan, and Estelle. Mental-status defenses in the guilt phase are

fundamentally, analytically, legally, and morally different than mitigation evidence

for a capital sentencing proceeding. The former seek to avoid criminal liability and

are thus potentially dispositive of the prosecution’s “central purpose.” Delaware v.

Van Arsdall, 475 U.S. 673, 681 (1986) (“central purpose of a criminal trial is to

decide the factual question of the defendant’s guilt or innocence”).

By contrast, the only purpose of the latter is to humanize a defendant whose

guilt has already been determined. This information is developed to enable the

jury’s fair assessment of his moral culpability – which is constitutionally essential

in the determination of whether the defendant’s sentence should be life or death.

Such mitigation evidence is hardly dispositive of the prosecution because that

capital defendant will be punished greatly for his crime in all events.

In Petitioner’s case, that would be by either a sentence of life without parole

(dying prison after a lifetime) or the death penalty (dying sooner by lethal injection).

Moreover, the capital defendant for purposes of penalty is permitted to make an

unsworn statement to his jury, and to make allocution, without triggering any

entitlement that the prosecution may cross-examine him about those statements;

the fact that he has likewise “spoken” to mental health professionals in preparation

for his penalty phase is on the same footing, especially when he is not asserting any

mental illness or any mental-status defense.

In sum, the prosecution’s interest in, and need for, its own mental health

expert to interview any capital defendant, merely because that individual may

present mitigation evidence derived from an interview with a mental health

professional, is minimal if non-existent with respect to most mitigation evidence.

That is especially here, where Petitioner was presenting no mental-status defenses

at the penalty phase either. The prosecution, with guilty verdict in hand, is more

than capable of fully addressing the relevant moral issue of life or death without

forcing the defendant to submit to a mental exam by its own psychiatrist and

presenting testimony stemming from such a compelled exam.

For these reasons, and with “psychiatric evidence” defined narrowly as this

Court did in Cheever to mean a qualifying mental-status defense by which

defendant seeks to limit or avoid criminal liability for the charged crimes, Petitioner

is in the same position as the defendant (Smith) in Estelle, and the rule of that case

should also apply to him:

A criminal defendant, who neither initiates a psychiatric evaluation nor

attempts to introduce any psychiatric evidence, may not be compelled to

respond to a psychiatrist if his statements can be used against him at a

capital sentencing proceeding.

Estelle, 451 U.S. at 468. The Fifth Amendment barred such evidence in Estelle, and

required a new sentencing proceeding; it does so here too. See also, New Jersey v.

Portash, 440 U.S. 450 (1979) (compelled incriminating statements inadmissible

even for impeachment purposes); Mincey v. Arizona, 437 U.S. 385, 398 (1978) (a

defendant’s involuntary statements could not be used to impeach his credibility at

trial).

G. The compelled mental exam was also unconstitutional in Petitioner’s case

because there were other effective means of rebuttal for the penalty-phase

evidence at issue.

Estelle, Cheever, and these other cases, are concerned with avoiding the

“unfairness” created when the court permits testimony from a defense mental

health professional without allowing the state a means to rebut that testimony. But

that “rebuttal” does not necessitate that the State obtain a compelled mental exam

by a prosecution-selected psychiatrist, and certainly not when no mental-status

defense is presented as to guilt. See Buchanan, 483 U.S. at 422-23 (prosecution may

rebut “with evidence from the reports of the examination that the defendant

requested”); United States v. Byers, 740 F.2d 1104, 1114 (U.S. App. D.C. 1984) (a

personal interview by a competing expert is “ordinarily” necessary to rebut

psychiatric testimony about insanity and delusional “spells”).

Estelle, suggested that the real question is whether allowing the defendant to

remain silent would deprive the State of the “only effective means” of

“controverting” testimony of a mental health professional the defendant might

choose to present. Estelle, 451 U.S. at 465 (emphasis supplied). And the Cheever

Court’s requirement of a “limited rebuttal purpose” and its suggestion that there

is a “constitutional ceiling” on “the scope of expert testimony that the prosecution

may introduce in rebuttal,” confirms the same point – that the rebuttal need not be

via a court-ordered mental exam. Cheever, 571 U.S at 97-98 & n. 4.

In Petitioner’s case, given that he asserted no mental-status defenses or

mental diagnoses and did not rely on the (B)(3) mitigator,4 there were many

alternative means for the prosecution to effectively rebut the penalty-phase

testimony that Dr. Kaplan provided, which did not necessitate Petitioner’s

participation in a court-ordered mental exam by Dr. West.

For example, the prosecution had full access to the detailed reports of all the

expert witnesses and the documents on which they relied. In Buchanan, this Court

suggested that access to such reports can itself be sufficient for rebuttal, Buchanan,

483 U.S. at 422-23. It surely was in the instant case. The prosecution and its expert

also had access Petitioner’s video-taped interrogation by the police, all of the many

documents and reports about Petitioner’s history and family, the social-service

interventions in his case, his education, his criminal record, his prison records, and

hours of jail calls. The prosecution did not also need a mental exam of Petitioner,

where he was forced to answer the questions of a state-selected psychiatrist, to

rebut what Petitioner presented.

Here, there was no dispute about, and no allegation of, any mental illness or

diminished mental capacity. The issue was whether Petitioner’s difficult personal

history might be sufficient to reduce his moral culpability in the eyes of at least one

juror such that his life should be spared. With so many effective means of rebuttal

available and, giving due concern to avoiding compulsion of the constitutionally-

4 “Whether, at the time of committing the offense, the offender, because of a mental

disease or defect, lacked substantial capacity to appreciate the criminality of the

offender’s conduct or to conform the offender’s conduct to the requirements of the

law.” Ohio Rev.Code §2929.04(B)(3).

dubious choice, there were absolutely no grounds, in fairness or justice, under which

a compelled mental exam was necessary for fair rebuttal.

The compelled mental examination in this case also enabled the prosecution,

through Dr. West, to announce that Petitioner had Anti-Social Personality Disorder

(ASPD) – a finding that was not supported by Dr. Kaplan’s evaluation or the

objective criteria. That such a “diagnosis” is dehumanizing and prejudicial goes

without saying. “Testimony labeling a capital defendant antisocial or psychopathic

has one overriding purpose: to obtain and carry out a sentence of death. In the most

general sense, such evidence is dehumanizing.” Kathleen Wayland and Sean D.

O’Brien, Deconstructing Antisocial Personality Disorder and Psychopathy: A

Guidelines-Based Approach to Prejudicial Psychiatric Labels, 42 HOFSTRA L. REV.

519, 525 (2013). “The overwhelming weight of legal authority views evidence that

the defendant has ASPD as inherently aggravating.” Id. at 529 & n.68 (citing cases).

Yet, by allowing that testimony largely based on West’s mental exam of Petitioner,

the court forced Petitioner to be the deluded instrument of a dehumanizing

“diagnosis” which would help send Petitioner to death row.

CONCLUSION

For all of the reasons set out above, and in the interest of justice, the petition

for a writ of certiorari should be granted.

Respectfully Submitted,

Jeffrey M. Gamso

JEFFREY M. GAMSO

Law Office of Jeffrey Gamso

1252 Homestead Road

South Euclid, Ohio 44121

(419) 340-4600

Erika B. Cunliffe

ERIKA CUNLIFFE

Assistant Public Defender Cuyahoga County

310 Lakeside Avenue, Suite 200

Cleveland, Ohio 44113

216-443-7583

Counsel for Petitioner

CHRISTOPHER WHITAKER

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.