Petition — Estelle v. Smith

IN THE i

SUPREME COURT OF THE UNITED STATES

i MiCiare on,

OCTOBER TERM, 1979 ~~~

JAN

no. 979-1127

W. J. ESTELLE, JR., DIRECTOR,

TEXAS DEPARTMENT OF CORRECTIONS,

Petitioner

V.

ERNEST BENJAMIN SMITH,

Respondent

* *

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

* *

MARK WHITE

Attorney General of Texas

JOHN W. FAINTER, JR.

First Assistant

TED L. HARTLEY

Executive Assistant

W. BARTON BOLING

Assistant Attorney General

Chief, Enforcement Division

ANITA ASHTON

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 475-3281

Attorneys for Petitioner

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21 1980

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‘A, dR CLER

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

* * *

NO.

* *« *

W. J. ESTELLE, JR., DIRECTOR,

TEXAS DEPARTMENT OF CORRECTIONS,

Petitioner

V.

ERNEST BENJAMIN SMITH,

Respondent

ok na OK

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

* * *

The Petitioner, W. J. Estelle, Jr., Director, Texas

Department of Corrections, respectfully prays that a

writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Fifth Circuit

entered in these proceedings on October 22, 1979.

OPINION BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit is reported at 602 F.2d 694 and is

reproduced in the appendix hereto as Appendix A.

JURISDICTION

The judgment of the Court of Appeals for the Fifth

Circuit was entered on September 138, 1979. Rehearing

and rehearing en banc were denied on October 22, 1979.

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This petition for a writ of certiorari was filed within

ninety days after that final judgment denying

rehearing. This Court’s jurisdiction is invoked under 28

U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether the defendant was denied due process by

the use of psychiatric testimony at the punishment trial

on the issue of future dangerousness.

2. Whether a defendant in a capital murder trial

must be advised of a right to remain silent; a right to

terminate the interview; and a right to be assisted by

counsel in deciding whether to submit to the

examination by a psychiatrist.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution as well

as Article 37.071, Vernon’s Ann. C.C.P.(a), (b)(2) all of

which are reproduced as Appendix B.

STATEMENT OF THE CASE

Respondent Ernest Benjamin Smith was convicted in

Dallas County, Texas, for the offense of capital murder.

His punishment was assessed at death. The Court of

Criminal Appeals of the State of Texas affirmed the

conviction on February 18, 1976. Smith v. State, 540

S.W.2d 693 (Tex.Crim.App. 1976). Respondent was

formally sentenced to death on October 20, 1976 by the

trial court. His execution was set for November 22,

1976. A stay of execution pending timely filing of a

petition for writ of certiorari was granted by this Court

on November 6, 1976. On March 5, 1977, this Court

denied the petition for writ of certiorari. On March 22,

1977, Respondent was again formally sentenced and the

execution was scheduled for April 26, 1977.

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On April 18, 1977, Respondent presented an

application for writ of habeas corpus to the trial court.

On April 19, 1977, Respondent presented an application

for stay of execution to the Texas Court of Criminal

Appeals. It was considered as an original writ of habeas

corpus and denied ina written opinion on April 20, 1977.

On April 21, 1977, Respondent filed an application for

stay of execution and application for writ of habeas

corpus in the United States District Court for the

Northern District of Texas, Dallas Division.

Respondent’s application for stay of execution was

granted on April 22, 1977. Respondent’s application for

writ of habeas corpus was granted by the district court

without a hearing in a 29 page memorandum “pinion on

December 30, 1977. Smith v. Estelle, 445 F.Supp. 647

(N.D.Tex. 1977). Petitioner filed a motion for new trial

on January 9, 1978, which was denied by the district

court without a hearing on March 27, 1978.

The order of the district court was affirmed by the

United States Court of Appeals for the Fifth Circuit ina

panel decision on September 13, 1979. Rehearing and

rehearing en banc were denied on October 22, 1979. This

petition for writ of certiorari followed.

REASONS FOR GRANTING THE PETITION

1. The court below based its findings that the

Respondent had been surprised by the presentation of

the psychiatric evidence on disputed issues of fact

without an evidentiary hearing.

2. The court below erred in finding a denial of due

process based on Gardner v. Florida, 430 U.S. 349 (1977)

in that the evidence upon which the jury based its

sentencing findings was presented in open court.

3. The court below erred in setting forth certain

Fifth and Sixth Amendment warnings which must be

given to a criminal defendant prior to a psychiatric

oN

examination ordered by the court, when there is no

showing that such examination was a custodial

interrogation within the meaning of Miranda v.

Arizona, 384 U.S. 436 (1966).

ARGUMENT

I. THE COURT BELOW ERRED IN

MAKING ITS FINDINGS AS TO THE

DISPUTED SURPRISE ISSUE

WITHOUT HOLDING AN EVIDEN-

TIARY HEARING.

The Court of Appeals for the Fifth Circuit based its

findings on the fact findings of the district court. No

hearing was ever conducted in this cause. Rather, the

district court resolved disputed issues of fact on the

basis of affidavits submitted by trial counsel for

Respondent and an affidavit from the trial judge. The

trial judge’s affidavit stated that to the best of his

knowledge trial counsel were informed of the

psychiatric examination. Defense counsel denied any

notification. Further, the district court found that the

prosecution had deliberately attempted to surprise the

defense attorneys. There is, at most, a conjecture as to

the events at trial with no opportunity given to fully

develop the factual record as to the presentation of the

psychiatric testimony. This case should be remanded for

a hearing so that a complete factual basis may be before

the courts before making the determinations.

Il. THE COURT BELOW ERRED IN

DETERMINING THAT THERE HAD

BEEN A DENIAL OF DUE PROCESS

BY THE PRESENTATION OF THE

PSYCHIATRIC TESTIMONY AT

TRIAL.

At the time the psychiatric testimony was presented,

the Respondent had been found guilty by a jury of the

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offense of capital murder. Respondent had testified in

his own behalf and had admitted the robbery but denied

that he intended for a murder to take place. During the

punishment stage of the trial, the State rested subject to

the opportunity to reopen after the defense had

presented its mitigating evidence.! After the

Respondent had presented his mitigating testimony the

State called Dr. James Grigson, a psychiatrist, to testify

as to the results of an examination he had performed

under court order on Respondent prior to trial.

The examination was ordered by the trial court to

determine the mental status of the Respondent. One of

the findings made by the psychiatrist was that

Respondent was a severe sociopathic personality. This

language was contained in the letter from the

psychiatrist to the court which was placed in the Clerk’s

file and available to counsel for either side.

Respondent knew he had been examined by the

psychiatrist and his attorneys could have availed

themselves of the traditional means of discovery to

ascertain the full findings of the psychiatrist. Further,

trial counsel never once made a motion for continuance

based on surprise or sought a continuance to obtain

testimony to contradict that of Dr. Grigson. Their only

objection was that Dr. Grigson’s name was not on the

witness list as ordered by the trial court. That order was

directed to witnesses, if known, at that time. There is no

showing that the State knew that it would call Dr.

Grigson at the punishment stage of the trial at the time

the witness list issued.

The Court of Appeals’ reliance on Gardner v. Florida,

430 U.S. 349 (1977) is misplaced. In that case, Petitioner

Gardner was sentenced by the trial court on the basis of

1The State contends that this unusual action was due to the

unavailability of the psychiatrist at that time. The record is at best

unclear as to these happenings.

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information which he had no opportunity to deny or

explain. In the present case, Respondent Smith was

presented with testimony in open court before the jury.

He had the opportunity to deny or explain the

conclusions of the expert witness. There was no secret

information brought before the jury or court. Cf,

Williams v. New York, 337 U.S. 241 (1949).

Under the provisions of Article 37.071, Vernon’s Ann.

C.C.P. evidence may be presented as to any matter that

the court deems relevant to sentence. Surely, an expert

witness’ evaluations of the defendant’s mental status is

crucially relevant in the jury’s determination whether

there is a probability that the defendant would commit

criminal acts of violence that would constitute a

continuing threat to society. Therefore, since the

Respondent had the opportunity to cross-examine the

expert witness and to take the stand himself and deny

any feelings of lack of remorse he may have had, there

was no denial of due process.

Ill. THE COURT BEJ.OW ERRED IN

SETTING FORTH CERTAIN FIFTH

AND SIXTH AMENDMENT WARN-

INGS WHICH MUST BE GIVEN TOA

CRIMINAL DEFENDANT PRIORTOA

PSYCHIATRIC EXAMINATION

ORDERED BY THE COURT, WHEN

THERE IS NO SHOWING THAT SUCH

EXAMINATION WAS A CUSTODIAL

INTERROGATION WITHIN THE

MEANING OF MIRANDA V.

ARIZONA, 384 U.S. 436 (1966).

There has been no showing that the examination by

the psychiatrist was an adversarial or accusatorial

proceeding. Nor has there been any showing that it was

a custodial interrogation. The purpose behind the

examination of Respondent was to determine his mental

status. The findings of the court-appointed expert were

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that Respondent was competent to stand trial, that he

was sane at the time of the commission of the offense,

and that he was a sociopathic personality.

The courts have repeatedly held the privilege against

self-incrimination does not extend to an examination by

a court-appointed psychiatrist. See, United States v.

Greene, 497 F.2d 1068 (7th Cir. 1974); United Stutes v.

Trapnell, 495 F.2d 22 (2nd Cir. 1974); United States v.

Reason, 549 F.2d 309 (4th Cir. 1977); Karstetter v.

Cardwell, 526 F.2d 1144 (9th Cir. 1975); United States v.

Ashe, 478 F.2d 661 (D.C. Cir. 1973); United States »v.

Albright, 388 F.2d 719 (4th Cir. 1968). Additionally, at

least one federal court has held that the prediction of

future dangerousness is a proper subject for expert

opinion. United States v. Ashe, supra.

The Fifth Amendment privilege against self-

incrimination should not apply to statements made

during the course of an examination by an expert

witness. The purpose of such an examination is not to

wrestle incriminating evidence from the defendant. No

coercion is involved. The purpose of such an

examination is to determire the mental characteristics

and character traits capable of measurement. It is not

the communications themselves that form the basis of

the expert’s opinion, but rather inferences from the

communications. The information provided by the

defendant is not admitted in evidence as proof of the

matter stated, but rather to show the basis for the

expert’s inferences from which his conclusions are

drawn. The expert could testify as to his inferences from

a hypothetical fact situation. Surely an actual

examination of the defendant is a more reliable form of

evidence than merely answering hypothetical questions

based on facts ‘in evidence.

Further, the psychiatrist in the case at bar brought

forward no new information. Respondent Smith had

taken the stand and testified to the facts of the crime.

-8-

There was no attempt to use any statement he made to

the psychiatrist as proof of his guilt.

Psychiatric testimony is considered expert testimony.

The statements made to the psychiatrist to form the

basis of that expert testimony should be considered as

“real or physical’’ evidence rather than

“communications or testimony,” within the meaning of

Schmerber v. California, 384 U.S. 757 (1966). See also,

United States v. Baird, 414 F.2d 700 (2nd Cir. 1979).

To uphold the decision of the Court of Appeals would

require a special psychiatric warning in addition to the

Miranda warnings adminstered to a criminal

defendant. This in itself could have a profound effect on

numerous convictions within the state of Texas as well

as other states.

CONCLUSION

For all these reasons, a writ of certiorari should issue

to review the judgment and opinion of the United States

Court of Appeals for the Fifth Circuit.

Respectfully submitted,

MARK WHITE

Attorney General of Texas

JOHN W. FAINTER, JR.

First Assistant

TED L. HARTLEY

Executive Assistant

W. BARTON BOLING

Assistant Attorney General

Chief, Enforcement Division

ANITA ASHTON

Assistant Attorney General

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P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 475-3281

Attorneys for Petitioner

APPENDIX A

A-1

Ernest Benjamin SMITH,

Petitioner-Appellee,

V.

W. J. ESTELLE, Jr., Director, Texas

Dept. of Corrections,

Respondent-Appellant.

No. 78-1839.

United States Court of Appeals,

Fifth Circuit.

Sept. 13, 1979.

Rehearing and Rehearing En Banc

Denied Oct. 22, 1979.

Before WISDOM, GOLDBERG and VANCE, Circuit

Judges.

GOLDBERG, Circuit Judge:

Ernest Benjamin Smith, Jr., the appellee in this case,

participated in an armed robbery in which a person was

killed. He was indicted for capital murder and

convicted by a jury in Dallas County, Texas. Texas law

provides that when a defendant is convicted of a capital

crime, the court must immediately hold a hearing,

before the same jury, to decide whether the defendant is

to be sentenced to life imprisonment or put to death. The

jury answers “yes” or “no” to each of three questions; if it

answers all the questions in the affirmative, the judge

must impose a death sentence. The second question!—

the only one involved in this appeal—is

1The other two questions are:

Whether the conduct of the defendant that caused the death

of the deceased was committed deliberately and with the

A-2

whether there is a probability that the defendant

would commit criminal acts of violence that would

constitute a continuing threat to society.

Tex.Code Crim.Proc.Ann. art. 37.071 (Vernon

Supp.1978).

At the sentencing hearing in Smith’s case, a

psychiatrist who had examined Smith testified for the

state and strongly urged that Smith would commit acts

of violence and would constitute a continuing threat to

society. Smith was sentenced to death. After appealing

through the state courts he petitioned for federal habeas

corpus. Judge Porter of the United States District Court

for the Northern District of Texas held that several

particular aspects of the psychiatrist’s testimony

violated Smith’s consitutional rights. He did not disturb

Smith’s conviction but he ordered that the death

sentence not be carried out. The state appeals. We

affirm.

I.

Smith and Howie Ray Robinson robbed a convenience

store in Dallas on September 28, 1973. Both carried

guns. During the robbery, the clerk in the store

“reached for something.” Smith called out to Robinson;

one prosecution witness testified that Smith said

“Watch cut, Howie,” but another asserted that Smith

had later recalled saying, “Get him, Howie.” Robinson

shot and killed the clerk. Smith never fired his gun.

There was testimony that Smith knew it was defective

reasonable expectation that the death of the deceased or

another would result;

[I]f raised by the evidence, whether the conduct of the

defendant in killing the deceased was unreasonable in

response to the provocation, if any, by the deceased.

Tex.Code Crim.Proc.Ann. art. 37.071 (Vernon Supp. 1978).

A-3

and could not be fired; there was also testimony that he

had attempted unsuccessfully to fire it during the

robbery. Smith and Robinson were both arrested and

indicted for capital murder.

Approximately six weeks later, while Smith was

awaiting trial, the state trial judge asked the prosecutor

to have Smith examined by a psychiatrist named James

P. Grigson. The judge wanted Dr. Grigson to decide

whether Smith was competent tostand trial. Noone had

ever questioned Smith’s competence; the trial judge

ordered the examination entirely on his own motion. He

later testified that he always ordered such an

examination in a capital case. Dr. Grigson spoke to

Smith for ninety minutes. Smith was never told that Dr.

Grigson was assessing anything but his competence to

stand tria!, and he cooperated fully. Dr. Grigson did

conclude that Smith was competent to stand trial, but he

filed no formal report; instead he wrote a letter

notifying the trial judge of his conclusion. Judge Porter

found that Smith’s attorneys were never told that Dr.

Grigson had examined their client.?

At the beginning of the sentencing hearing, after

Smith had been tried and convicted, the prosecution

announced that it was resting “subject to reopening.”

Smith presented three witnesses—his stepmother, his

aunt, and the owner of the gun he used in the robbery—

and rested. The prosecution then called Dr. Grigson. By

this time, the defense attorneys had seen, in the court’s

file of the case, Dr. Grigson’s letter advising the trial

judge that Smith was competent, but they did not know

that Dr. Grigson was connected to the case in any other

way. In fact, before the trial the defense attorneys had

obtained an order requiring the prosecution to disclose

all the witnesses it planned to use in its case in chief. The

state presented a list of witnesses, and the defense

successfully moved that the prosecutisii be prohibited

from presenting the testimony of any witnesses not on

2See note 5 infra.

A-4

the list. Dr. Grigson’s name was not on the list.

When Dr. Grigson was called at the sentencing

hearing, the defense objected and asked that the jury be

excused. Defense counsel then conducted a voir dire

examination of Dr. Grigson, in which he testified that he

had never told the defense attorneys about his interview

with their client. He acknowledged, however, that he

had discussed his conclusions with the prosecution. He

testified that at some time between his examination of

Smith and the trial, one of the prosecutors hau told him

that he might be called to testify against Smith. Then

five days before the sentencing hearing, at the very

beginning of the trial, the prosecution told him that his

testimony would be needed within the week. App. 122.

At this point in the voir dire defense counsel moved that

Dr. Grigson not be allowed to testify because his name

had not been included on the prosecution’s witness fist.

The trial judge denied the motion. The trial judge also

agreed that the jury could be told that it was he who had

asked Dr. Grigson to examine Smith. The jury was so

informed but was never told that the judge has

appointed Dr. Grigson only to determine Smith’s

competence to stand trial, not to decide if he was prone to

commit acts of violence.

Dr. Grigson’s testimony was extremely damaging to

the defendant. He described his extensive qualifications

and detailed the five phases of his ninety-minute

interview with Smith. He had had no other contact with

Smith or with any of Smith’s relatives, but on the basis

of the interview he concluded that Smith was “a

sociopathic personality . . . a very severe sociopath.”

App. 135, 1386. He was “[a]bsolutely . .. convinced that

[Smith] is a severe sociopath on the far end of the

sociopathic scale.” App. 141. Sociopaths, he said, “do not

have a conscience that most of us develop at an early

age.” App. 135. “They will tell the truth if it serves their

purpose. If it’s harmful, whatever distortion of the truth

A-5

is necessary is what they will use.” App. 136. And then:

Q No conscience, no remorse, no guilt feelings?

A No. He has none.

Q Now, Dr. Grigson, what is your prognosis in

this case?

A Oh, he will continue his previous behavior—

that which he has done in the past. He will again do

it in the future.

Q All right. So, were he released into society, I

take it, then, you would not expect his behavior to

differ from what it has been?

A No. If anything it would only get worse.

Q Now, Dr. Grigson, this sociopathic

personality that Smith has—is this a condition that

will improve with time? I guess—what I’m asking

you is this: Is this a stage that he is passing through

that he will grow out of?

A No. This is not what you would consider a

stage. This is a way of life. Just as you work every

day, well his personality comes out in his behavior,

but it is not a stage he is going through. It’s only

something he will continue.

Q You said get worse?

A Yes.

Q If it can?

A Right.

A... [I]t’s my opinion that really, Mr. Smith

does not have any regard for another human being’s

A-6

property or for their life, regardless of who it may

be. This is what makes him such a very severe

sociopath. He has complete disregard for another

human being’s life.

Q Dr. Grigson, does the field of medicine—

perhaps psychiatric treatment and/or

hospitalization of some sort—does that have

anything beneficial to offer someone like Ernest

Benjamin Smith?

A We don’t have anything in medicine or

psychiatry that in any way at all modifies or

changes this behavior. We don’t have it. There is no

treatment, no medicine. Nothing that’s going to

change this behavior.

Q Now, Dr. Grigson, do you have an opinion as

to whether or not there is a probability that the

Defendant, Ernest Benjamin Smith, will commit

criminal acts of violence that will constitute a

continuing threat to society?

A Yes, sir. I have an opinion as to that.

Q And what is that opinion?

A Thatcertainly Mr. Smith is going to go ahead

and commit other similar or same criminal acts if

given the opportunity to do so.

Q Now, Dr. Grigson, I believe you have stated

that this man has no remorse or sorrow for what he

has done?

A No. He has none.

App. 136-39.

The prosecution called no other witnesses at the

sentencing hearing. The jury answered “yes” to all three

questions and Smith was sentenced to death.

A-7

The Texas Court of Criminal Appeals affirmed

Smith’s conviction and sentence. Smith v. State, 540

S.W.2d 693 (Tex.Cr.App.1976). The United States

Supreme Court, over the dissent of three justices, denied

certiorari. 430 U.S. 922, 97 S.Ct. 1841, 51 L.Ed.2d 601

(1977). On federal habeas corpus, Judge Porter held that

Dr. Grigson’s testimony violated Smith’s sixth and

fourteenth amendment right to the effective assistance

of counsel, his eighth amendment right to present

mitigating circumstances, and his fifth amendment

right not to be forced to incriminate himself. Smith v.

Estelle, 445 F.Supp. 647 (N.D.Tex. 1977). Judge Porter

specified several rules that, he said, must be followed in

the future to prevent defense attorneys from being

unfairly surprised with psychiatrists’ reports about the

dangerousness of their clients.? He held that the results

of a psychiatric examination of the defendant’s

dangerousness could not be admitted at the sentencing

phase of a capital trial unless the defendant had been

advised, before the examination, that he had a right to

remain silent. Our approach is slightly different from

Judge Porter’s, but we agree with him that Texas

violated Smith’s constitutional rights, both in the way it

introduced Dr. Grigson’s evidence and in the way it

procured it. We shall address these two matters in turn.

3In the future to insure the right to effective cross examination

and the right to effectively defend the case through expert rebuttal

testimony, which the due process clause guarantees, defense

counsel must be notified that a psychiatric examination will be held

on the issue of “dangerousness” the results of which may be used at

the penalty phase of the trial. Defense counsel prior to trial, must

have meaningful access to the report, now required by state statute,

prepared by the psychiatrist stating his findings and conclusions. If

the trial court wishes to appoint a psychiatric expert on the issue of

dangerousness the order of appointment should so reflect. The

testimony of a court appointed psychiatrist and his report would

then be equally available to both defense and prosecution for

presentation to the jury. However, both sides should have a

meaningful right to obtain additional psychiatric experts to either

supplement or challenge the conclusions of the court appointed

expert.

A-8

IT.

In Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51

L.Ed.2d 393 (1977), the Supreme Court reversed a death

sentence because the judge who imposed it acted partly

on the basis of information that was not disclosed to the

defendant or his attorneys. The Court did not deny that

in an ordinary case such a procedure might be

acceptable. See id. at 357, 97 S.Ct. 1197, 1204 (plurality

opinion). But “five Members of the Court have now

expressly recognized that death is a different kind of

punishment from any other which may be imposed in

this country.” Jd. For that reason the Gardner Court,

balancing the benefits of withholding the information

against the costs, found that the advantages of

confidentiality to the state—obtaining information

more easily, avoiding delay, and, if the defendant was

not executed, preventing damage to his rehabilitation—

were easily outweighed by the damage to “the interest in

reliability.” Jd. at 358-60, 97 S.Ct. 1197.4 This damage

was caused by denying the “opportunity for...

explanation or argument by defense counsel,” and for

“counsel to challenge the accuracy or materiality of [the]

information.” Jd. at 356, 362, 97 S.Ct. at 1204.

Gardner requires us to set aside Smith’s death

sentence. The defect which the Supreme Court

identified in Gardner—defense counsel’s inability to

‘The principles of Garnder seem to be derived from both the

eighth amendment and the due process clause of the fourteenth

amendment. The Gardner plurality rested its opinion squarely on

the due process clause. See 430 U.S. at 351, 97 S.Ct. 1197. But

Justice White concurred in the judgment because he thought the

eighth amendment compelled the result. See id. at 363, 97 S.Ct.

1197 (White, J., concurring). and Gardner was clearly adumbrated

by Woodson v. North Carolina, 428 U.S. 280, 305 96 S.Ct. 2978, 49

L.Ed.2d 944 (1976) (plurality opinion), which rested on the eighth

amendment, and perhaps by discussions of the eighth amendment

in Gregg v. Georgia, 428 U.S. 153, 190, 96 S.Ct. 2909, 49 L.Ed.2d 859

(1976) (plurality opinion) and Jurek v. Texas, 428 U.S. 262, 271, 96

S.Ct. 2950, 49 L.Ed.2d 929 (1976) (plurality opinion).

A-9

challenge or answer the evidence on which the death

sentence was based, see id.—is conspicuous here as well.

As a result Smith’s sentencing hearing was at least as

unreliable as the proceedings in Gardner. And the

justifications for the unreliable procedurs were far

weaker here.

[1] Surprise can be as effective as secrecy in

preventing effective cross-examination, in denying the

“opportunity for [defense] counsel to challenge the

accuracy or materiality of’ evidence, Gardner v.

Florida, 430 U.S. at 357, 97 S.Ct. at 1204, and in

foreclosing “that debate between adversaries [which] is

often essential to the truth-seeking function of trials,”

id. at 360, 97 S.Ct. at 1206. Smith’s attorneys were

manifestly surprised by Dr. Grigson’s testimony. They

were never notified, according to Judge Porter, the trial

judge had ordered a psychiatrist to interview their

client.5 When he had completed his interview, Dr.

Grigson filed no report. No copy of the letter stating his

conclusions was ever sent to the defense attorneys.* And

5Both defense attorneys swore in affidavits that they were never

notified that Dr. Grigson had examined their client. The state trial

judge, in an affidavit, said “[a]s best I recall, I informed” one of the

defense attorneys that Dr. Grigson had been appointed. Judge

Porter held no evidentiary hearing but found that the defense

attorneys had never been notified. On this appeal the state protests

that the state judge’s affidavit conflicted with the attorneys’, and

that Judge Porter could not properly resolve the conflict without an

evidentiary hearing. But we need not decide whether the state is

correct, because it is undisputed, first, that no formal notification

was given; second, that so far as the judge knew, the only purpose of

Dr. Grigson’s examination was to help decide if Smith was

competent; and third, that the defense attorneys had no notice, and

no reason to believe, that Dr. Grigson would ever be called to testify.

‘By happenstance, they saw a copy of the letter while inspecting

the court’s files in the case, but the letter reflected that Dr. Grigson

was appointed to evaluate the defendant’s competence to stand

trial. Since the defense attorneys claimed that Smith was

incompetent, they naturally did not expect Dr. Grigson to testify.

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despite the trial court’s order that the state’s attorney

list “all the State’s witnesses whom he in good faith

expects to use at the trial of the State’s case in chief, both

during the guilt or innocence state [sic] and the

punishment stage,” App. 97, the prosecution did not list

Dr. Grigson’s name. The consequences of this surprise

were devastating.’ Thus the trial judge’s informality

7The Supreme Court in Gardner did not attempt to detail the

ways in which defense counsel might have explained or challenged

the information that was kept confidential, cf. Davis v. Alabama,

596 F.2d 1214, 1221-23 (5th Cir. 1979) (in some circumstances,

attorneys’ failure to prepare adequate defense vitiates state

conviction only if it prejudiced defendant). But in this case it is clear

that Smith’s defense attorneys—whose actual efforts to impeach

Dr. Grigson were at best ineffectual, see, e. g., App. 139-41, 146-48,

and sometimes damaging to their client, see, e. g., App. 141-43

might, with even minimal preparation, have met Dr. Grigson’s

testimony in several ways. Had they been able to do even

rudimentary research, they would have learned that a Task Force

of the American Psychiatric Association concluded that

predictions like Dr. Grigson’s “are fundamentally of very low

reliability.”

Psychiatric expertise in the prediction of “dangerousness” is

not established and clinicians should avoid conclusory

judgments in this regard.

American Psychiatric Association Task Force on Clinical Aspects

of the Violent Individual, Clinical Aspects of the Violent Individual

23, 33 (1974). The American Psychiatric Association itself, in an

amicus brief filed in this case, advised us that Dr. Grigson’s “kind of

inquiry about long-term future violence essentially does not involve

medical analysis, and is not within the realm of established

psychiatric expertise.” Amicus Br. 10-11. According to one student

of the literature, the most that any psychiatrist can predict isthata

person “is within a group which, as a whole, poses a comparative

greater risk of dangerous behavior than the general population.”

Dix, the Death Penalty, “Dangerousness,” Psychiatric Testimony,

and Professional Ethics, 5 Am.J.Crim.L. 151, 198 (1977). The APA

Task Force agreed. “Predictions of ‘dangerousness’ are judgments

of a ‘relative risk’ sort, statements of comparative probabilities that

are usually quite low.” Task Force Report at 27. And, as Judge

Porter detailed in his opinion, even such tentative predictions as

A-11

and the prosecution’s tactics combined to give Smith’s

these are not very reliable. Smith v. Estelle, 445 F.Supp. 647, 656-57

(N.D.Tex.1977). Dr. Grigson, of course, was not so restrained. He

made a “prognosis” that Smith “will continue his previous

behavior—that which he has done in the past. He will again do it in

the future .. .. If anything it will only get worse .. .. It’s only

something he will continue. . .. Nothing [is] going to change this

behavior . . ..[C]ertainly Mr. Smith is going to go ahead and commit

other similar or same criminal acts if given the opportunity to do

so.” App. 136-39 (emphasis added). Even a moderately well

prepared defense attorney would have had some success in

impeaching Dr. Grigson’s testimony or offering an opposing view.

Moreover, Dr. Grigson reached his conclusions entirely, see App.

149, on the basis of a single ninety minute “mental status

examination” of the defendant. The state, summarizing Dr.

Grigson’s testimony, explains that “[f]rom this mental status

examination, [Dr. Grigson] was able to draw opinions not only as to

[Smith’s] present competency, but also as to his entire mental and

emotional composition.” Appellant’s Br. at 26. One standard

textbook flatly asserts that it is medically impossible to draw such

conclusions on the basis of a mental status examination. Sands,

Psychiatric History and Mental Status, in A. Freedman & H.

Kaplan, eds., Comprehensive Textbook of Psychiatry 499 (1977). In

addition, if the notions of sociopathy used by Dr. Grigson have any

meaning at all—matter of some dispute in the literature, see, e. g. E.

Sutherland & D. Cressey, Criminology 159-60 (8th ed. 1970)—then

before a person may be labelled a sociopath, several elements must

be found that Dr. Grigson did not identify in Smith. The American

Psychiatric Association’s Diagnostic Manual defines “antisocial

personality” in this way:

This term is reserved for individuals who are basically

unsocialized and whose behavior pattern brings them

repeatedly into conflict with society. They are incapable of

significant loyalty to individuals, groups, or social values.

They are grossly selfish, callous, irresponsible, impulsive, and

unable to feel guilt or to learn from experience and

punishment. Frustration tolerance is low. They tend to blame

others or offer plausible rationalizations for their behavior.

American Psychiatric Association, Diagnostic and Statistical

Manual of Mental Disorders 43 (2d ed. 1968). There was no evidence

that Smith was prone to impulsive behavior, that he had a low

A-12

attorneys no chance to prepare an effective response to

Dr. Grigson’s testimony or to impeach it in any

“frustration tolerance,” or that he tended to blame others or to

rationalize his failures. And there was clear evidence that Smith

had not come “repeatedly into conflict with society”; he had no

history of antisocial behavior, and his only previous criminal

conviction was for possessing less than a matchbox full of

marijuana. One commentator, discussing Dr. Grigson’s testimony

in this case, concluded that “the views he expressed stood—

generously analyzed—at the fringes of professional acceptability”

and that Dr. Grigson “operate[d] at the brink of quackery.” Dix,

supra at 172. Whatever the merit of that view, much of this

material, easily available, might have been used to impeach or

answer Dr. Grigson’s conclusions if Smith’s attorneys had had some

reasonable time to prepare.

To be sure, as the state points out, Smith’s defense attorneys did

make some effort to suggest that Dr. Grigson was biased toward the

prosecution. Here again, however, their lack of preparation made

them ineffective. Smith’s lawyer could ask only broad,

argumentative questions. See, e. g., App. 139 (“Dr. Grigsoni, you’re

kind of the hatchet man down here for the District Attorney’s

Office, aren’t you?”); App. 154 (“Did you ever meet a person you

didn’t think was a sociopath?”). Again, the most basic research

would have disclosed some evidence of bias that might have been

used—and under Texas law, see e. g., Castro v. State, 562 S.W.2d 252

(Tex.Cr.App.1978); Evans v. State, 519 S.W.2d 868 (Tex.Cr.App.

1975); Smith v. State, 516 S.W.2d 415 (Tex.Cr.App. 1974); Wood v.

State, 486 S.W.2d 359 (Tex.Cr.App.1972), could have been used—to

impeach Dr. Grigson. For example, even in reported, appellate

cases, Dr. Grigson has repeatedly testified for the state, see, e. g.,

Bruce v. Estelle, 536 F.2d 1051, 1054-56 (5th Cir. 1976); Chambers v.

State, 568 S.W.2d 313, 324-327 (Tex.Cr.App. 1978); L. L. S. v. State,

565 S.W.2d 252, 256-57 (Tex.Cr.App. 1978); Hughes v. State, 562

S.W.2d 857, 863-64 (Tex.Cr.App. 1978); Jackson v. State, 551

S.W.2d 351, 359 (Tex.Cr.App. 1977) (dissenting opinion); Graham

v. State, 546S.W.2d 605, 609 (Tex.Cr.App. 1977); Moore v. State, 542

S.W.2d 664, 676 (Tex.Cr.App. 1976); Livingston v. State, 542 S.W.2d

655, 661 (Tex.Cr.App. 1976); Gholson v. State, 542 S.W.2d 395, 400-

01 (Tex.Cr.App. 1976); Hicks v. State, 525 S.W.2d 177, 180(Tex.Cr.

App. 1975); Hurd v. State, 513 S.W.2d 936, 944 (Tex.Cr.App. 1974);

Culley v. State, 505 S.W.2d 567, 569 (Tex.Cr.App. 1974); Armstrong

v. State, 502 S.W.2d 731, 735(Tex.Cr.App. 1974); Boss v. State, 489

S.W.2d 580, 582 (Tex.Cr.App. 1972); Blankenship v. State, 432

S.W.2d 945, 946-47 (Tex.Cr.App. 1968). He has not appeared in the

A-13

significant way. Surprise in this case impaired “the

interest in reliability,” 7d. at 359, 97 S.Ct. 1197 as much

as secrecy did in Gardner.’ Indeed, the sentencing judge

report of any case as a witness for the defense. On many occations he

has declared that a person he examined was a sociopath or was

otherwise likely to commit crimes in the future. See, e. g., Bruce v.

Estelle, 536 F.2d 1051, 1054-56 (5th Cir. 1976); Chambers v. State,

568 S.W.2d 313, 324-327 (Tex.Cr.App. 1978); L. L. S. v. State, 565

S.W.2d 252, 256-57 (Tex.Cr.App. 1978); Hughes v. State, 562 S.W.2d

857, 863-64 (Tex.Cr.App. 1978); Jackson v. State, 551 S.W.2d 351,

359 (Tex.Cr.App. 1977) (dissenting opinion); Moore v. State, 542

S.W.2d 664, 676 (Tex.Cr.App. 1976); Livingston v. State, 542

S.W.2d 655, 661 (Tex.Cr.App. 1976); Gholson v. State, 542 S.W.2d

395, 400-01 (Tex.Cr.App. 1976); Hurd v. State, 513 S.W.2d 936, 944

(Tex.Cr.App. 1974); Armstrong v. State, 502 S.W.2d 731, 735

(Tex.Cr.App. 1974). Frequently he reached this conclusion after he

was assigned to examine only for competence or sanity. See, e. g.,

Bruce v. Estelle, 536 F.2d 1051, 1054-56 (5th Cir. 1976); Livingston v.

State, 542 S.W.2d 655, 661 (Tex.Cr.App. 1976); Gholson v. State, 542

S.W.2d 395, 400-01 (Tex.Cr.App. 1976); Hurd v. State, 513 S.W.2d

936, 944 (Tex.Cr.App. 1974); Armstrong v. State, 502 S.W.2d 731,

735 (Tex.Cr.App. 1974). We dealt with Dr. Grigson’s testimony in

Bruce v. Estelle, 536 F.2d 1051 (5th Cir. 1976). There a habeas

corpus petitioner claimed that he had been incompetent to stand

trial. Dr. Grigson testified that the petitioner had been competent

'and was in fact a sociopath, whose apparent symptoms of

incompetence were actually part of an attempt to manipulate

others. The federal district court relied on Dr. Grigson’s testimony

and denied relief. We reversed, holding that the reliance on Dr.

Grigson’s testimony was clear error in view of other psychiatrists’

views and their bases.

8The state seems to suggest that Smith cannot claim unfair

surprise because his attorneys did not attempt to gain more time to

prepare by moving for a continuance. At best, this amounts to a

claim that Smith forfeited his right to object to the surprise because

he did not raise his objection in the proper form. There are

abundant reasons to reject this position. First, the state points us to

no rule of Texas law saying that moving for a continuance is the only

way to object to surprise. Even if there were such a rule, the gross

disparity between the actual cross-examination conducted by

Smith’s attormeys, see App. 139-52, 153-54, and the cross-

examination they might have conducted if they had requested and

received time to prepare, see note 7 supra, suggest that we should be

A-14

in Gardner relied upon a presentence report, prepared

by the Florida Parole and Probation Commission, see

Fla.R.Crim.Proc. 3.710-3.718, under conditions that

presumably gave some assurance that the reported

information would be accurate. Here we deal with

testimony offered by one party and not effectively cross-

examined by the other; it carries no assurance of

reliability whatever.

[2] Similarly, in Gardner, the failure to disclose the

information had a recognized, substantial justification;

under the federal rules, for example, information in a

presentence report can be kept from a defendant under

certain circumstances. See Fed.R.Crim.P. 32(c)(3). And

in some cases, procedures which allow the prosecution to

surprise the defense may have a similarly strong

justification.? In this case, however, the price of avoiding

prepared to excuse the defense attorneys’ procedural default in

order to avoid “a miscarriage of justice.” Wainwright v. Sykes, 433

U.S. 72, 97 S.Ct. 2497, 2508, 53 L.Ed.2d 594 (1977). See generally

Jurek v. Estelle, 593 F.2d 672, 680-85 (1979), reh. en bane granted,

597 F.2d 590 (1979). See also Smith v. Estelle, 445 F.Supp. 647, 658

n. 16 (suggesting that if admitting Dr. Grigson’s testimony was not

error, defense counsel provided ineffective assistance in rebutting

it). Even if we cannot excuse the forfeiture in this way, however,

Judge Porter held that the state had waived any claims that Smith

committed a procedural default, see Smith v. Estelle, 445 F.Supp.

647, 659 (N.D.Tex. 1977), and as we say, see note 19 infra, we are not

inclined to disturb his decision.

More fundamentally, however, the defense attorneys’ failure to

move for a continuance does not distinguish this case from Gardner.

Here Smith’s attorneys at least objected to Dr. Grigson’s appearing

as a witness; in Gardner, the attorneys never asked the trial judge to

disclose the confidential information. The Supreme Court

invalidated the death sentence nonetheless.

*For example, concealing a witness’s identity from the defense

may, in certain circumstances, be the only way to prevent the

witness from being intimidated.

A-15

surprise was, at most, the insignificant cost of more

regular and formal procedures. Requiring prosecutors

and judges to exercise greater care than is shown in this

record will scarcely burden them unduly; the surprise

in this case resulted, in the first instance, from several

minor irregularities that could have been easily

corrected. The state trial judge—whom we do not fault

for trying to assure himself that the defendant was

competent to stand trial—might have ordered the

psychiatric examination directly, instead of having a

prosecuting attorney contact Dr. Grigson. The trial

judge or the prosecutors might have formally notified

the defense attorneys of Dr. Grigson’s examination. Or

the prosecution might have listed Dr. Grigson’s name as

a prospective witness. Even if we assume that their

failure to list Dr. Grigson was inadvertent, Judge

Porter’s holding would follow a fortiori from Gardner;

the gains from informality and relaxed procedures

cannot possibly outweigh the risk that the state may

execute a person who would not have been sentenced to

death if the jury had had full and “accurate sentencing

information”—“an indispensable prerequisite to a

reasonable determination of whether a defendant shall

live or die.” Gregg v. Georgia, 428 U.S. 153, 190, 96 S.Ct.

2909, 2933, 49 L.Ed.2d 859 (1976) (plurality opinion).!°

The appellant insists that Smith did not exhaust his state

remedies on this issue. This is a mystifying claim. In its answer to

Smith’s federal habeas petition the state expressly abjured any

contention that Smith had failed to exhaust. App. 45-46. In its reply

brief on this appeal the state concedes that Smith’s petition for

federal habeas corpus exactly duplicated the allegations in his state

appeal and state petition for habeas corpus. Appellant’s Reply Br.

at 2. On direct appeal, Smith had claimed that Dr. Grigson’s

surprise testimony denied him a fair trial, see App. 159-60; Smith v.

State, 540 S.W.2d 693, 699 (Tex.Cr.App. 1977). In his state habeas

petition he asserted:

The introduction of the testimony of Dr. Grigson at petitioner’s

trial violated his privilege against self-incrimination and his

rights to fair notice and the effective assistance of counsel

A-16

But Judge Porter found that the prosecutors

intentionally ommitted Dr. Grigson’s name from the

witness list. In other words, they intended to surprise

the defense attorneys and leave them, at best, not fully

prepared. The state claims that Judge Porter’s finding

is clearly erroneous but it is plainly supported by the

record. Dr. Grigson testified that a prosecuting attorney

had alerted him, some time before the trial, that he

might be called as a witness. At the beginning of the

week-long trial, the same prosecutor asked him tostand

ready because the prosecution “would probably need

him to testify this week.” App. 122. Then at the start of

the sentencing hearing, the prosecution, which was

entitled to present witnesses first, rested, “subject to the

right to reopen.” It is difficult to resist the conclusions

that the prosecution was attempting to lay a foundation

for the argument—ultimately accepted by the Texas

Court of Criminal Appeals, see Smith v. State, 540

S.W.2d 693, 699 (Tex.Cr.App.1976), and apparently by

the trial judge—that Dr. Grigson was a rebuttal

witness, not a witness to be used on the case in chief, so

his omission from the witness list did not violate the trial

judge’s order. Whatever the merits of this view,! the

secured by the Fifth, Sixth and Fourteenth Amendments to

the Constitution of the United States

and said that Dr. Grigson’s surprise appearance “prevented

petitioner’s trial counsel from effectively defending against the

charge that there existed a probability that petitioner would

commit criminal acts of violence that would constitute a continuing

threat to society.” App. 220. That Smith did not anticipate the

precise arguments Judge Porter used in support of his decision to

grant relief obviously does not mean he failed to exhaust his

remedies.

The defense presented no psychiatric evidence or expert

testimony of any kind, so it is not clear what Dr. Grigson was

rebutting. In any event, the prosecution rested its case in brief

subject to the right to reopen—that is, presumably, to reopen its

case in chief—and said nothing about rebuttal evidence. In this way

the state avoided having to explain exactly whom or what Dr.

Grigson’s testimony was offered to refute.

A-17

prosecution’s unusual actions at the sentencing hearing

only support Judge Porter’s conclusion that the

prosecutors were deliberately attempting to surprise

the defense attorneys and to force them to examine Dr.

Grigson while they were unprepared. !2

This is irresponsible conduct. It lacks even the meager

benefits some might credit to informality. We have

reversed a conviction in a non-capital case where the

government’s similarly inexcusable surprise tactics left

defense counsel unable to cross-examine meaningfully.

See Riggs v. United States, 280 F.2d 750, 753-54 (5th Cir.

1960). And the Supreme Court has commented that even

a defendant has no right to treat a criminal trial as “a

poker game in which players enjoy an absolute right

always to conceal their cards until played.” Williams v.

Florida, 399 U.S. 78, 82, 90 S.Ct. 1893, 1896, 26 L.Ed.2d

446 (1970). At the sentencing phase of a capital trial,

Gardner and other cases, see e.g., Woodson v. North

Carolina, 428 U.S. 280, 304-305, 96 S.Ct. 2978, 49

L.Ed.2d 944 (1976) (plurality opinion), demand

extraordinarily fair and reliable procedures. “(T]he

penalty of death is qualitatively different from a

sentence of imprisonment, however long. ... Because of

that qualitative difference, there is a corresponding

difference in the need for reliability in the

determination that death is the appropriate punishment

in aspecific case.” Woodson v. North Carolina, 428 U.S.

280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976)

(plurality opinion); see Gardner v. Florida, 430 U.S. 349,

357-59, 97 S.Ct. 1197, 51 L.Ed.2d 393 (plurality opinion);

id. at 363, 97 S.Ct. 1197 (White, J., concurring). Tosome

extent, at least, a state’s decision to kill a person must be

insulated from the vagaries of the criminal process. “It

2The state’s explanation, in its brief on this appeal, is that the

prosecutors rested because they knew Dr. Grigson would not be

available to testify until later in the penalty trial. This suggestion

lacks support in the record and, in any event, is wholly immaterial;

it does not make Dr. Grigson a rebuttal witness, see note 11 supra,

and obviously it does not excuse the state’s failure to list him.

A-18

is of vital importance to the defendant and to the

community that any decision to impose the death

sentence be, and appear to be, based on reason rather

than caprice or emotion.” Gardner v. Florida, 430 U.S.

349, 358, 97 S.Ct. 1197, 1205, 51 L.Ed.2d 393 (1977)

(plurality opinion). For these reasons, the death

sentence imposed on Smith cannot stand.

ITI.

No one ever told Smith that Dr. Grigson’s

examination concerned more than Smith’s competence

to stand trial. No one ever revealed that their ninety-

minute interview would be used to gather the evidence

that would send Smith to his death. These facts are

undisputed and they prompted Judge Porter to hold

that the state’s using Dr. Grigson’s testimony would

have violated Smith’s fifth amendment right not to

incriminate himself even if there had been no surprise.

More specifically, Judge Porter ruled that “if the State

or Court seeks to have the Defendant examined by the

psychiatric expert on the issue of dangerousness, the

Defendant must be advised he has a right to remain

silent. If the Defendant indicates that he wishes to

exercise that right, he may not be questioned by the

psychiatrist for the purpose of determining

dangerousness.” Smith v. Estelle, 445 F.Supp. 647, 664

(N.D.Tex.1977).

[3] Before we decide whether such warnings are

required, however, we must consider the logically prior

issue of whether Smith even had a right to refuse to be

examined by Dr. Grigson.!* Ordinarily there would be

13f Texas retried Smith, Part II of this opinion, standing alone,

would permit it to use the same testimony from Dr. Grigson, based

on the same examination of Smith, provided it gave adequate notice

to the defense attorneys. As Judge Porter’s opinion thoroughly

shows however, there is a serious question about whether Dr.

Grigson’s testimony was obtained by violating Smith’s fifth and

sixth amendment rights; if it was, of course, it is not admissible in

any event. Under Texas law, evidence like Dr. Grigson’s in this case

A-19

no question; under the fifth amendment a criminal

defendant of course cannot be forced to discuss his

alleged crime with anyone who is able to use his

statements as evidence against him at his trial. But the

state insists that when the defendant is facing jury

deciding whether to impose a death sentence, this rule

does not apply, at least so long as the interrogator is a

psychiatrist.

The state argues first that the evidence Smith gave

Grigson is not “testimonial” and therefore not within the

fifth amendment privilege. See Livingston v. State, 542

S.W.2d 655 (Tex.Cr.App.), cert. denied 431 U.S. 933, 97

S.Ct. 2642, 538 L.Ed.2d 250 (1977). The Supreme Court

has held that a criminal defendant may be compelled to

wear a piece of clothing in order to show that it fits him,

Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed.

1021 (1910), to give a blood sample, Schmerber v.

California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908

(1966), or a handwriting, Gilbert v. California, 388 U.S.

263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), or voice

exemplar, United States v. Dionisio, 410 U.S. 1, 93S.Ct.

764, 35 L.Ed.2d 67 (1973), or to speak so that a witness

may hear his voice quality or tone, United States v.

Wade, 388 U.S. 218, 222-23, 87 S.Ct. 1926, 18 L.Ed.2d

1149 (1967). In these cases, the Court said, evidence

given by the defendant was not “relat[ed] to some

communicative act,” Schmerber v. California, 384 U.S.

at 765, 86 S.Ct. 1826, and was not “used .. . for the

testimonial or communicative content of what was to be

said,” United States v. Dionisio, 410 U.S. at 7, 93 S.Ct. at

768. Had Dr. Grigson drawn his conclusion from

Smith’s manner or deportment, his attention span or

facial expressions, a strong argument might be made

is apparently admissible, see, e. g., Livingston v. State, 542 S.W.2d

655 (Tex.Cr.App.), cert. denied, 431 U.S. 933, 97 S.Ct. 2642, 53

L.Ed.2d 250 (1977), so if Smith were convicted or sentenced on the

basis of that evidence another federal collateral proceeding, raising

the fifth and sixth amendment issues, would be inevitable. Since

the issues have been briefed and argued, and were decided by

Judge Porter, we see no reason not to resolve them here.

A-20

that he gathered only evidence like that involved in

these cases. If Dr. Grigson had been analyzing only the

patterns of the defendant’s speech, his grammar,

organization, logical coherence, and similar qualities,

the question would be closer but arguably the fifth

amendment would still not apply. But as we have said,

Dr. Grigson’s diagnosis of Smith rested principally on

his conclusion that Smith showed no remorse; obviously

Dr. Grigson drew that conclusion from the content of

Smith’s statements to him. Indeed, Dr. Grigson

testified, on cross-examination, that the most important

basis of his diagnosis was the account of the crime which

Smith gave him during their interview. App. 142-43.

Dr. Grigson accepted that account as accurate and drew

his conclusions accordingly, App. 192; he also based his

diagnosis on comments Smith made and failed to make

while he was recounting the crime, App. 142-43.

Plainly, then, Dr. Grigson—and therefore the

prosecution, when it called him as a witness—used the

content, not the non-testimonial aspects of Smith’s

statements.

The state also argues that United States v. Cohen, 530

F.2d 43 (5th Cir. 1976), entitles it to force Smith and

other capital defendants to undergo a psychiatric

examination designed to decide whether they are likely

to commit violent crimes in the future. In Cohen, we held

that a defendant can be required “to submit to an

examination by psychiatrists selected by the

government to determine his sanity at the time of the

commission of the crime.” Jd. at 47 (emphasis added).

But far from supporting the state’s position, Cohen

furnishes excellent arguments against it; our decision in

Cohen rested on two premises, and neither applies when

the compelled psychiatric examination concerns not the

defendant’s sanity but his propensity to be violent in the

future. The first premise was that a psychiatrist’s

conclusions about a defendant’s sanity rested on the non-

testimonial aspects of the defendant’s conduct during

the examination, see 530 F.2d at 48; for the reasons we

A-21

have just given, Dr. Grigson’s conclusions about the

defendant’s future dangerousness were based almost

entirely on the defendant’s statements. Indeed at times

they appeared to be not just the fruits of Smith’s

statements but summaries of them. The second and

more important premise of Cohen was that if a

defendant raises insanity as a defense, and introduces

psychiatric testimony, “the government will seldom

have a satisfactory method of meeting defendant’s proof

on the issue of sanity except by the testimony of a

psychiatrist it selects ... who has had the opportunity to

form a reliable opinion by examining the accused.” /d.

at 48; see United States v. Albright, 388 F.2d 719, 724-25

(4th Cir. 1968). At most, this rationale of Cohen implies

that a defendant who introduces the results of a

psychiatric examination at the sentencing phase of a

capital trial must submit to an examination by a

psychiatrist nominated by the state. But it is

undisputed that Smith never used psychiatric evidence

and never suggested that he might. This second premise

is therefore also inapposite. In Cohen, the defendant

himself raised the insanity defense and intended to

present psychiatric evidence of his own; a psychiatric

examination of such a defendant is utterly unlike an

examination initiated by the state or the court, designed

to determine not the defendant’s sanity but his future

dangerousness, and offered in an affirmative effort to

have the defendand sentenced to death, rather than asa

response to the defendant’s own psychiatric evidence.

4The crucial portions of Dr. Grigson’s testimony were his

statements that Smith showed “no guilt feelings, no remorse, no

sorrow,” and the like; these may be not just conclusions drawn from

Smith’s statements but actually reports or summaries of the

statements themselves. In either case, of course, the fifth

amendment would require Dr. Grigson’s evidence to be suppressed

if Smith’s statements were not voluntary.

‘Judge Porter imposed such a rule. See Smith v. Estelle, 445

F.Supp. 647, 663 (N.D.Tex. 1977). Because Smith did not attempt to

use any psychiatric evidence, however, we need not decide whether

Judge Porter’s quite plausible view is correct.

A-22

For these reasons, Cohen does not suggest that evidence

from a compelled psychiatric examination can be used

by the state in its efforts toshow the defendant’s future

dangerousness.

Preventing the prosecution from relying on compel-

led psychiatric examinations will scarcely disable it

from proving the defendant’s dangerousness in

appropriate cases. Many defendants may consent to

examinations in the hope of being exonerated or of

escaping a death sentence. As we have said, we leave

open the possibility that a defendant who wishes to use

psychiatric evidence in his own behalf can be precluded

from using it unless he is willing to be examined by a

psychiatrist nominated by the state. Moreover, the

inquiry demanded by Texas’s second question is not

obviously a matter for psychiatrists.'!* There seems to be

a consensus among psychiatrists that any long-term

- predictions of future violence must be very tentative if,

indeed, they can be made at all. See, e. g., American

Psychiatric Association Task Force on Clinical Aspects

of the Violent Individual, Clinical Aspects of the Violent

Individual 23, 33 (1974); note 7 supra. Indeed, many in

the psychiatric community apparently believe that

nothing about a psychiatrist’s training or skill qualifies

him to predict how dangerous a person will be in the

distant future. See note 7 supra. Dr. Grigson evidently

thinks otherwise, but even he conceded that the

16[n this way, too, the inquiry under Texas’s second question

differs sharply from the issue raised by an insanity defense. This

Circuit’s law on insanity is, in relevant part,

A person is not responsible for criminal conduct if at the

time of such conduct as a result of mental disease or defect he

lacks substantial capacity either to appreciate the

wrongfulness of his conduct or to conform his conduct to the

requirements of law.

Blake v. United States, 407 F.2d 908, 916 (5th Cir. 1969) (en banc).

The very language of this definition—“mental disease or defect,”

“substantial capacity,” and the like—point to the role of the

psychiatrist or psychologist.

A-23

“sociopathic personality disorder” be diagnosed in

Smith “is not an illness or a sickness. It’s simply a

descriptive term that does describe an individual that

has certain characteristics.” App. 1385. Moreover, when

Dr. Grigson explained how he had concluded that Smith

was a sociopath, he often reasoned in ways that

manifestly required no expertise.”

More important, however, is the legal meaning which

the United States Supreme Court has, in effect, given to

Texas’s second question. In Jurek v. Texas, 428 U.S. 262,

96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the Court refused

to hold Texas’s capital sentencing statute

unconstitutional on its face. Responding to arguments

that the second question asked for a prediction that

experts could not make, the Court said:

17Q Would you say, being a psychiatrist, that a person could

have been frightened or in a daze or state of shock, and that would

have caused him to act in such a way as Ernest Benjamin Smith

did? ’

A Well, certainly. Yeah. I think if I had shot somebody I would

certainly be in a daze or state of shock. But, you know, I think that if

I were in that sort of situation I would probably be frightened and

run like the devil. I wouldn’t step over the body to get the money. I

would want to get out of there. But an individual that is involved in,

say, a goal directed fashion certainly is not functioning in a daze or

shock type state.

Q Would it make any difference in your evaluation of Ernest

Benjamin Smith if you thought or believed that he felt that he was

not responsible for Mr. Moon’s death? Would that make any

difference with regard to his remorse?

A But, you know, he was. He at least stated he picked out the

store. You know he chose it. He was in there, so he was responsible.

So, I feel like that—you know, certainly he should feel remorse.

App. 143-44, 151-52.

A-24

[P]rediction of future criminal conduct is an

essential element in many of the decisions rendered

throughout our criminal justice system. The

decision whether to admit a defendant to bail, for

instance, must often turn on a judge’s prediction of

the defendant’s future conduct. And any sentencing

authority must predict a convicted person’s

probable future conduct when it engages in the

process of determining what punishment to impose.

For those sentenced to prison, these same

predictions must be made by parole authorities.

The task that a Texas jury must perform in

answering the statutory question in issue is thus

basically no different from the task performed

countless times each day throughout the American

system of criminal justice.

Id. at 275-76, 96 S.Ct. at 2957-2958. While the Court did

not disapprove the use of psychiatric testimony, then, see

id. at 273, 96 S.Ct. 2950, it did say that the second

question was constitutionally acceptable precisely

because it could be resolved by non-experts.

Moreover, the Court clearly held that the Texas

procedure would have been unconstitutional if the

second question did not present issues to which a

psychiatrist’s expertise was unquestionably irrelevant.

In Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct.

2978, 49 L.Ed.2d 944 (1976) and Roberts v. Lowisiana,

428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976),

decided the same day as Jurek, the Court held that a

capital sentencing procedure would violate the eighth

amendment if it did not give a defendant an opportunity

to present at least some mitigating circumstances.

Texas’s procedure did not explicitly provide such an

opportunity, but the Court concluded that Texas “will

interpret this second question so as to allow a defendant

to bring to the jury’s attention whatever mitigating

circumstances he may be able to show.” Jurek v. Texas,

428 U.S. 262, 272, 96 S.Ct. 2950, 2956, 49 L.Ed.2d 929

A-25

(1976). On this understanding, the Court upheld the

Texas procedure. /d. at 272-74, 96 S.Ct. 2950. In order to

be constitutional, then, Texas’s second question must

reach far beyond a psychiatrist’s expertise to issues that

are quite essentially the domain of lay persons. See

Witherspoon v. Illinois, 391 U.S. 510, 519, 88 S.Ct. 1770,

1775, 20 L.Ed.2d 776 (1968) (“[A] jury that must choose

between life imprisonment and capital punishment can

do little more—and must do nothing less—than express

the conscience of the community on the ultimate

question of life or death.”)!8

18In fact, the logic of the Court’s decision in Jurek suggests that

the second question must be interpreted to mandate an even

broader inquiry to which a psychiatrist’s expert knowledge is even

less relevant. The Court held that the death penalty would be

unconstitutional if it were “so totally without penological

justification that it result{[ed] in the gratuitous infliction of

suffering.” Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 929-30, 49

L.Ed.2d 859 (1976). But, the Court said, capital punishment as

Texas administers it “is not without justification and thus is not

unconstitutionally severe,” id. at 187, 96 S.Ct. at 2931, see Jurek v.

Texas, 428 U.S. 262, 274, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). The

Court identified two justifications, “retribution and deterrence of

capital crimes by prospective offenders.” Gregg v. Georgia, 428 U.S.

at 183, 96 S.Ct. at 2929. But it is not clear why killing offenders who

are likely to “commit criminal acts of violence that would constitute

a continuing threat to society” is more likely to deter others in the

future, see The Supreme Court, 1975 Term, 90 Harv.L.Rev. 56, 71-

72 (1976), than an equal number of random executions—a system

that the Court presumably would not tolerate, see Furman v.

Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

Executing particularly “dangerous” criminals would serve to

prevent them from committing crimes in the future, but the Court

declined to rely on this sort of prevention as a justification for

capital punishment, Gregg v. Georgia, 428 U.S. at 183 n. 28, 96S.Ct.

2909, and the reason is apparent: a desire to prevent recidivism does

not justify a legislature’s decision to kill an offender rather than to

imprison him for life with no possibility of parole, and the Court had

made it clear that the unique severity of capital punishment makes

it necessary to justify that choice. See, e. g., id.; Furman v. Georgia,

408 U.S. 238, 312-13, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (White, J.,

concurring). It follows, then, that Texas’s second question must be

seen as an effort to promote the goal of retribution, or “an

A-26

Finally, any attempt to compel defendants to submit

to a psychiatric inquiry into their dangerousness is

likely to be erratic and capricious. Such an examination

evidently cannot succeed unless the defendant

cooperates; Dr. Grigson for example, testified that

Smith had cooperated with him. No one has suggested

that a psychiatrist examining a defendant for future

dangerousness can simply observe him, as a psychiatrist

concerned with insanity might. Nor can a defendant be

physically forced to cooperate with an examining

psychiatrist, as he can, for example, with a doctor

extracting a blood sample or a policeman who is

fingerprinting him. Civil contempt is unlikely to movea

defendant who is contemplating the sentencing phase of

a capital trial. A defendant can be barred from pleading

insanity if he did not submit to an examination by the

state’s psychiatrist or psychologist; as we have said, we

leave open the possibility that a defendant might be

precluded from presenting psychiatric evidence of his

own if he does not agree to be examined by a psychiatrist

chosen by the state. But no such sanction is available

against a capital defendant who, like Smith, proposes to

use no such evidence. The state might, of course, be

expression of society’s moral outrage at particularly offensive

conduct.” Gregg v. Georgia, 428 U.S. at 183, 96 S.Ct. at 2930. The

Court explained these notions by saying that “the decision that

capital punishment may be the appropriate sanction in extreme

cases is an expression of the community’s belief that certain crimes

are themselves so grievous an affront to humanity that the only

adequate response may be the penalty of death.” Jd. at 184, 96 S.Ct.

at 2930. The Court must have been saying, then, that the

justification for imposing the death sentence on particularly

dangerous offenders is that it allows the jury to express its belief, on

behaif of the community, that killing the defendant is “the only

adequate response.” If this is the task which Texas’s second

question presents to the jury, then the jury must, in answering that

question, simply ask itself whether the defendant deserves todie. A

psychiatrist’s diagnosis and predictions are apparently relevant to

this horrifying inquiry, but only peripherally, and forcing the

government to rely on lay evidence—at least when the defendant

himself is not relying on experts—will not significantly hinder it.

A-27

permitted to comment on the defendant’s refusal to be

examined by a psychiatrist. But it is not clear what the

jury is to infer; surely in most cases it would be

unwarranted to conclude that the defendant knew the

clinical details of his psychiatric state and did not want

them discovered. And simply mentioning the

defendant’s refusal to be examined and allowing the

jury to draw its own conclusions might clash with the

Supreme Court’s insistence that capital sentencing

procedures be unusually reliable, see Part II supra. In

any event, it is unlikely that the threat of such a remark

by the prosecution will induce any well-informed

defendant to submit to an examination by a psychiatrist

who habitually testifies for the state and who is likely to

give an emphatic affirmative answer to the precise

question before the jury.

The principal significance of allowing compelled

examination on the question of dangerousness, then,

will be in cases like Smith’s. If the state is entitled to

compel a defendant to submit to an examination, it can,

in an effort to gain the defendant’s cooperation, mislead

him or indeed lie to him about the significance of the

examination; it can take advantage of his ignorance or

lack of understanding. It can coerce him in any way that

does not make his statements less useful to the

interrogating psychiatrist. Psychological pressure,

sharp practices, and deceit are likely to be, in effect, the

means of compelling examinations. These tactics are

inherently discriminatory. A knowledgeable defendant,

or one with vigilant attorneys, will either simply refuse

to submit to an examination or will bargain with the

state to have the examination conducted by a

psychiatrist who is more likely te favor the defense. Only

defendants who do not know better will allow

themselves to be examined by psychiatrists

antecedently favorable to the state.

[4-6] We have every reason, therefore, to give effect

to the apparent command of the fifth amendment and to

hold that a defendant may not be compelled to speak toa

A-28

psychiatrist who can use his statements against him at

the sentencing phase of a capital trial.!9 If astate wishes

to prove a defendant’s propensity to commit future

crimes of violence by using evidence gathered at a

psychiatric examination, the defendant must

voluntarily consent to the examination. It follows that

Judge Porter was correct when he held that if a

defendant indicates that he wishes to remain silent, “he

may not be questioned by the psychiatrist for the

purpose of determining dangerousness.” Judge Porter

also held that the defendant must be warned that he had

a right to remain silent; since Smith was in custody

when he was interviewed, this holding, too, was correct.

Compare Schnekloth v. Bustamonte, 412 U.S. 218, 232,

93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) with Miranda v.

Arizona, 384 U.S. 486, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966). We also agree with Judge Porter’s holding thata

defendant has no constitutional right to have an

attorney present during a psychiatric evaluation of his

dangerousness. Here Judge Porter followed United

States v. Cohen, 530 F.2d 43 (5th Cir. 1976), which held

\9The state asserts that Smith forfeited his fifth and sixth

amendment claims by not raising them when he objected to Dr.

Grigson’s testimony at the sentencing phase. There are three

sufficient answers. First, in the habeas proceeding in federal

district court, the state did not raise this argument in the pleading

or at any time until it moved for a new trial. Judge Porter held that

this constituted a waiver, see Smith v. Estelle, 445 F.Supp. 647, 659

(N.D.Tex. 1977), and we are not disposed to disagree. See LaRoche v.

Wainwright, 599 F.2d 722, 724 (1979). Second, Texas courts

interpreted the fifth and sixth amendments to permit testimony

like Dr. Grigson’s to be admitted, see, e. g., Livingston v. State, 542

S.W.2d 655, 661-62 (Tex.Cr.App. 1976), cert. denied, 431 U.S. 933,

97 S.Ct. 2642, 53 L.Ed.2 250 (1977); we have held that the apparent

futility of objecting to an alleged constitutional violation excuses a

failure to object. See Rummel v. Estelle, 587 F.2d 651, 653-54 (5th

Cir. 1978) (en banc), cert. granted, __ U.S. __, 99 S.Ct. 2403, 60

L.Ed.2d 1064 (1979). Third, Smith’s objection was, after all,

essentially surprise, see note 8 supra; his counsel can scarcely be

faulted for failing to enumerate all of the many constitutional

rights that the state violated when it unexpectedly presented Dr.

Grigson’s testimony.

A-29

that there was no right to have an attorney present when

the examinatien was to decide if the defendant was sane.

See id. at 48. Judge Porter reasoned, as we had in Cohen,

that an attorney present during the psychiatric

interview could contribute little and might seriously

disrupt the examination. See zd. In this he was correct.

But Judge Porter overlooked the role that an attorney

might have played in helping a client like Smith decide

whether he wished tosubmit to an examination. This isa

vitally important decision, literally a life or death

matter. It is a difficult decision even for an attorney; it

requires a knowledge of what other evidence is

available, of the particular psychiatrist’s biases and

predilections, of possible alternative strategies at the

sentencing hearing. For a lay defendant, who is likely to

have no idea of the vagaries of expert testimony and its

possible role in a capital trial, and who may well find it

difficult to understand, even if he is told, whether a

psychiatrist is examining his competence, his sanity, his

long-term dangerousness for purposes of sentencing, his

short-term dangerousness for purposes of civil

commitment, his mental health for purposes of

treatment, or some other thing, it is a hopelessly

difficult decision. There is no reason to force the

defendant to make it without “the guiding hand of

counsel.” Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55,

77 L.Ed. 158 (1933). The Supreme Court has spoken of

the “vital need” for counsel “at the pretrial stage,” and

has said that “whatever else it may mean, the right to

counsel granted by the Sixth and Fourteenth

Amendments means at least that a person is entitled to

the help of a lawyer at or after the time that judicial

proceedings have been initiated against him—‘whether

by way of formal charge, preliminary hearing,

indictment, information, or arraignment.’ ” Brewer v.

Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51

L.Ed.2d 423 (1977), quoting Kirby v. Illinois, 406 U.S.

682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). Smith, of

course, had been indicted when Dr. Grigson examined

him; indeed, an attorney had been appointed to

A-30

represent him. And the Supreme Court has repeatedly

held that a defendant is entitled to the assistance of

counsel when he faces decisions that may have a crucial

effect on his trial. See, e. g. Coleman v. Alabama, 399

U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Hamilton v.

Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114

(1961). See also Powell v. Alabama, 287 U.S. 45, 57, 53

S.Ct. 55, 77 L.Ed. 158 (1933). We therefore hold that at ‘

the sentencing phase of a capital trial, Texas may not

use evidence based on a psychiatric examination of the

defendant unless the defendant was warned, before the

examination, that he had a right to remain silent; was

allowed to terminate the examination when he wished;

and was assisted by counsel in deciding whether to

submit to the examination. Smith was denied these

rights; for this reason, too, his death sentence must be set

aside.2° The judgment of the district court is

AFFIRMED.

20In this appeal, Smith did not allege any errors that would

undermine his conviction, and we understand Judge Porter to have

held simply that Smith cannot be executed. We affirm his

judgment on that understanding. We of course leave to state

authorities any questions that arise about the appropriate way to

proceed when the state cannot legally execute a defendant whom it

has sentenced to death.

APPENDIX B

B-1

The Fifth Amendment to the United States

Constitution is as follows:

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 is as follows:

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 of

obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defence.

Section 1 of the Fourteenth Amendment to the United

States Constitution is as follows:

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

B-2

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.

Article 37.071, sections (a) and (b)(2) are as follows:

(a) Upon a finding that the defendant is

guilty of a capital offense, the court shall

conduct a separate sentencing proceeding to

determine whether the defendant shall be

sentenced to death or life imprisonment. The

proceeding shall be conducted in the trial court

before the trial jury as soon as practicable. In

the proceeding, evidence may be presented as

to any matter that the court deems relevant to

sentence. This subsection shall not be construed

to authorize the introduction of any evidence

secured in violation of the Constitution of the

United States or of the State of Texas. The state

and the defendant or his counsel shall be

permitted to present argument for or against

sentence of death.

(b) On conclusion of the presentation of the

evidence, the court shall submit the following

issues to the jury:

* * *

(2) whether there is a probability that the

defendant would commit criminal acts of

violence that would constitute a continuing

threat to society;