Petition — Janice Buttrum v. Georgia

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‘ * | Office Supreme Cour US.)

82-55 28 FILED

CASE NOL = OCT 6 i982

Soli ioe a a ER oc an | ALEXANDER L. STEVAS.

1N THE

MARES. ete CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1982

JANICE BUTTRUM,

Petitioner,

-VS-

STATE OF CEORGIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE ST!

MR. MICHAEL J. BOWERS

Attorney General

Judicitai Build ing, Roon 132

Atlanta, Georgia 30324

MR. STEPHEN A. WILLLAHS

District Attorney

Conasaug2? Judictal Cireutt

Whitfield County Courtheuse

Daiton, Georgia 30720

Counsel for Respondert

State of Georgle

Tr, OF GEORGIA

MARCERY MALKIP KOOSED

Assoctate Professor oF

The University cf Akron

School of Law

Akron, Ohto "hss

“(A1G) 375-6793

Counsel for Petitia..o»

Jonice Buttrur,

QUESTIONS PRESENTED

IS EXPERT WITNESS TESTIMONY WHICH PREDICTS

THE LIKELIHOOD OF THE CAPITAL DEFENDANT'S

COMMITTING FUTURE ACTS OF VIOLENCE SUFFI-

CIENTLY RELIABLE TO BE ADMISSIBLE AT A

CAPITAL SENTENCING PROCEEDING?

IF EXPERT WITNESS TESTIMONY AS TO THE LIKELI-

HUOD OF FUTURE ACTS OF VIOLENCE IS NCT BARRED

ALTOGETHER BY THE FEDERAL CONSTITUTION, ARE

THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS

VIOLATED IF;

1. THE EXPERT WITNESS HAS NOT EXAMINED

THE DEFENDANT;

2. BASES HIS CONCLUSION LARGELY ON

HEARSAY AND FACTS NOT IN EVIDENCE

BEFORE THE SENTENCING JURY;

3. THE INDIGENT DEFENDANT IS REPEATEDLY

DENIED REQUESTS FOR AN INDEPENDENT

PSYCHIATRIC EXAMINATION AT STATE

EXPENSE; AND

4, THE EXPERT IS THE ONLY WITNESS CALLED

BY THE PROSECUTION TO ESTABLISH

AGGRAVATING CIRCUMSTANCES AT THE

SENTENCING PROCEEDING?

Ab,

TABLE OF CONTENTS

Questions Prescntcd Os ee a Se a Se a a a ee ee |

Mupamrer MEUMOPEGSOS « «cc s.c 0 ems i ae

SIN SC se

Jurisdiction ,.

Constitutional and Statutory Provisions ....

Statement of the Case ... ea soca te 6 -e ly. @

Argument

II,

THE EIGHTH AND FOURTEENTH AMEND-

MENTS BAR THE ADMISSION OF EXPERT

WITNESS TESTIMONY REGARDING THE

LIKELIHOOD OF THE CAPITAL DEFEN-

DANT'S COMMISSION OF FUTURE ACTS

OF VIOLENCE, AS SUCH PREDICTIONS

ARE NOT SUFFICIENTLY RELIABLE TO

BE CONSIDERED BY THE CAPITAL SEN-

TENCING JURY, AND IF CONSIDERED,

MAY YIELD ARBITRARY AND CAPRI-

vIOUS SENTENCES OF DEATH .....

THE ADMISSION OF AN EXPERT WITNESS

OPINION THAT JANICE BUTTRUM WOULD

ENGAGE IN FUTURE ACTS OF VIOLENCE

DENIED HER A PAIR AND RELIABLE

DETERMINATION THAT DEATH IS HER

APPROPRIATE PUNISHMENT AS REQUIRED

BY THE EIGHTH AND FOURTEENTH

AMENDMENTS, CONSIDERING THE TOTAL-

ITY OF THE CIRCUMSTANCES .....

1. EXPERT WITNESS TESTIMONY OF

THIS TYPE IS GENERALLY OF

VERY LOW RELIABILITY .....

2. THE EXPERT WITNESS NEVER PER-

SCNALLY EXAMINED OR INTERVIEWED

EMCEE O° 6 « ce ec ce

3. THE EXPERT WITNESS BASED HIS

CONCLUSION ON HEARSAY AND

MATERIALS NOT IN EVIDENCE

BEPORE THE JURY ....eee

4. THE TRIAL COURT REPEATEDLY

REFUSED THE INDIGENT JANICE

BUTTRUM'S REQUESTS FOR AN

INDEPENDENT PSYCHIATRIC

EXAMINATION AT STATE EXPENSE;

AND . . . . . . . . . . . . .

5. THE EXPERT WITNESS WAS THE

ONLY WITNESS CALLED BY THE

PROSECUTION TO ESTABLISH

AGGRAVATING CIRCUMSTANCES

AT THE SENTENCING PROCEED]

Lae 6. 6: eb Wes ae ohn oe

COAGZUBLON. « & «6 «6s %

Certificate of Service a er eae a oe ek a a ee

{A separate Appendix is provided,

pursuant to R. 21.1(k).)

TABLE OF AUTHORITIES

Addington v. Texas, 441 U.S. 418 (1979) ...e. 7

Beck v. Alabama, 447 U.S. 625 (1980)... . 2. 8,14,22

Brown v,. Wainwright, ¥ U.S. ema 102

Bela ore ete le wee 26 807 CISL 6k ones 8 13,14

California v. Green, 339 U.S. 149 (1970)... 62. 13

Chambere v. Misetssippt, 410 U.S. 284 (1973)... 15

Betelle v. Smith, 451 U.S. 454 (1981) . 2... e . 8

Ford v. Strickland, 399, 676 F. 2d. 434

(llth Cir. 1982), reh. granted, en banc. . ... 13

Frye v. United Statee, 293 F. 2d 1013

Coues Cae Beene 6 6 Ole # <4 eel be eaeks le eee eae

Green v. Georgta, 442 U.S. 95 (1979) . «. « «© ew we 213

Holloway v. Terrase, 613 S.W. 2d 497 (1981) .... 11,12

Jenkine v. United States, 307 F. 2a 637

LDiGe: Cle SAGA) 5 3 616-0 a0 Oe + 014-4 he ee

Little v. Streater, 452 U.S, 1 (1981) ....e se 15

Lockett v. Ohio, 438 U.S. 586 (1978) ....eweece 7,10

People v. Murtisehaw, 29 Cal. 3d 733, 175 Cal.

Rptr. 738, 631 P. 2d 446 (1981), cert. dented

5 Beh ie '5 OO UR. UsU.-S9R sb o6 6 Sak ches ee CaS sk keee

Powell v. Alabama, 287 U.S. 45 (1932) ... eee 15

Presnell v. Gecrgta, 439 U.S. 14 (1978) ....e«-. 10

Roses v. Moffitt, 417 U.S. 600 (1974)... . « « « « 15

Stanctll v. MeKenzte Tank Lines, 497 P. 2d

San USSR Cara RTS a a oe a a eee ole Cee alk 13

Taylor v. Kentucky, 436 U.S. 478 (1978) ..,... 11

United States v., Alvares, 519 F. 2d 1036

Cave: Clip. 90S). <0) sae hee ae bore ew we

United States v. Fortune, 513 F. 2d 883

CSR Chis S978 se See eae SO a Oe ee ee ee. ae

United States v. Taylor, 437 F. 2d 371i

C9CR: Che. A972) os. 6 0 ee terete

United States v. Walker, 537 F. 2a liye

(4th Cir. 1976) ... o 6 te

Williame v. Martin, 618 F. 1021

(aen-Civ. 3900): 3s 2 3 gieliote «

Woodson v. North Carolina, 428 U.S,

Zant v. Stephens,

1856 (1982) ..

Constitutional Provisions

Other

utory Pr

U. S.

U.S.

Constitution

Amendment V

Amendment

Fed. R. Evid.

Fed. R. Evid,

Ga. Code

§ 38-301

§ 38-302

§ 36-305

§ 38-306

§ 38-310

$§ 38-409

§ 38-411

§ 38-414

§ 38-418

Aut horities

Brief, Amt ue

Psychiatric

VIII

XIV

visions

403

703

(1982)

(1981)

Curtae,

een a

. . . .

. . .

. . . .

Ct.

for the American

Association, filed in

Estelle v. Smith, supra . ....-

280 (1976)

Page

8,10,12,18,19

“American Psychiatric Association Task Force on

Clinical Aspects of the Violent Individual,"

quoted in Amteus Curtae Brief, supra. . «es

"Report of the Task Force on the Role of

Psychiatry in the Criminal Justice System,"

32 Am, Peychologiet 1099 (1978) . 1... « «

Bonnie & Slobogin, "The Role of Mental Health

Professionals in the Criminal Process,"

Oe Wess (Ns ROT. CLOOOR xc ca as aa a

Bonnie, "Foreword, Psychiatry and the Death

Penalty: Emerging Problems in Virginia,"

Oe -0a, bs - Bees 10 CAOR8) : kis tee a Wow wee

Diamond & Loujsell, "The Psychiatrist as an

Expert Witness: Some Ruminations, and

Speculations,” 63 Mich, L. Rev. 1335 2... « «

Dix, "Expert Prediction Testimony in Capital

Sentencing: Evidentiary and Constitutional

Constructions," 19 Amer. Crim, L. Rev. 1 (1981)

Kozol, et ali., "The Diagnosis and Treatment of

Dangerousness," 18 Crime and Delinquency

Hie CAGTRD. 2 SR OIG RCE ACR ech eLW b

McElhaney, "Expert Witnesses and the Federal

Rules of Evidence," 28 Mercer L. Rev. 463

CASE) oo Sete ee 6 he 6b e bles ates 5

Mergergee, "The Prediction of Dangerous

Behavior,” 3 Crim, Jua. & Behavior 1 (1976) .

Note, "People v. Murtishaw: Applying the Frye

Test to Psychiatric Predictions of Dangerous-

ness in Capital Cases," 70 Calif. L. Rev.

ROPE SIGE Do 6. 66 ee ae saa ie

Schmidt, "Biochemical Methods in the Treatment

of Sexual Disorders," Vol. 3 No. 1 Pechtatric

Clinics of North America 189 (April, 1980) .

7,8

OPINIONS BELOW

The decision of the Supreme Court of Georgia, affirming

the conviction and sentence of Pelivivier, Lo not ye acpo. ccd,

but is reproduced in the Appendix of this Petition at pages A-1

through A-16.

The decision of the Supreme Court of Georgia 1s not

reported; trial proceedings are reproduced in the Appendix at

pages A-22 through A-60,

JURISDICTION

Petitioner respectfully requests this Court to tnvoke

Jurisdiction under 28 U.S.C. § 1257(3). The Superior Court of

Whitfield County convicted Petitioner of murder and theft by

taking on August 30, 1981. On the next day, Petitioner was

sentenced to die in the electric chair. Both the convictions

and sentences were affirmed by the Supreme Court of Georgia. On

August 26, 1982, Justice Powell extended the time in which to

file a Petition for a Writ of Certiorari until October 6, 1982.

Petitioner prays that this Court grant the Writ of Certiorar!

for the reason that the state courts in the Instant case have

incorrectly decided important federal questions that should be

settled by this Court.

vit

CONSTITUTIONAL AND STATUTORY PROVISIONS

United States Constitution’

Amendment VI

Amendment VIII

Amendment XIV

Full Text of Amendments Are Reproduced in the Appendix

at A-61 .

Georgia Code

Chapter 38-3 (Hearsay)

Selected Provisions

Full Text of Selected Provisions Are Reproduced in the

Appendix to this Petition, at pages A-62 to A-64,

viit

STATEMENT OF THE CASE

In the early morning hours of September 3, 1980, |

Demetra Faye Parker was murdered near Dalton, Georgia. Qn :

September 4, 1980, seventeen year old Petitioner Janice Buttrum

and her husband, Danny Buttrum, were arrested in Pensacola,

Florida and transported to Dalton. The two were indicted by a

grand Jury on October 13, 1980 on the capital charge of the

murder of Henetre Parker, as well as theft of her automobile.

On October 23, 1980, defense counsel filed a Special

Plea of Incompetency to Stand Trial, and a trial on this issue

was held on the 4th, Sth, and 6th of February, 1981. The Jury

found her competent to stand trial. At the time the Special Plea

was made, defense counsel also made motions for a state- funded,

private psychiatrist and other witnesses to participate in the

defense's preparation for trial (A=-51). The Superior Court of

Whitfield County overruled these motions (A-51). The Motion for

a private psychiatric examination and testing was re-urged on

February 24, 1981, and denied the following day (A-52).

On August 13, 1981, the date set for the final motions

in the case (A-55), the District Attorney disclosed that a psy-

chologist, Dr. Henry Adams, had reviewed the case, and formed an

opinion and clinical impression of Janice Ruttrum (A-56). A copy

of Dr. Adams’ report was provided to defense counsel at that

time (A-56).

In response to this disclosure, defense counsel, at a

hearing on August 19, 1981, again moved for a state-funded

private psychiatrist to assist in Janice Buttrum's defense--spec-

ifically in regard to Dr. Adams’ opinion and expected testimony.

Defense counsel stated:

"We don't have access to a person like

Dr. Adams, and we feel in fundamental fair-

ness, the dictates of the Fourteenth Amend-

ment, Sixth Amendment, anc Poursh Amendment.

of the State and Federal Constitutions demand

that we be treated fairly and that we have an

adequate opportunity to countermand this sort

of very significant evidence . . . when the

District Attorney senses the need to go out

and secure private psychiatric assistance in

the prosecution, we sense the need; and these

motions are simply in response to that--"

(A-57. )

The trial court denied the motion (A-57). Counsel then

requested a continuance of a few days in order "Lo prepare to

deal with this sort of adverse evidence," (Adams! anticipated

testimony). (A-59.) The trial court denied the motion for con-

tinuance, concluding that the five days remaining before trial

provided ample time to confer with the State psychologists and

psychiatrists who had earlier evaluated Janice Buttrum and found

her competent to stand trial. (A. 60.)

The Guilt-Innocence phase of Janice Buttrum's bifur-

cated trial began on August 24, 1981. On August 30, 1981, she

was found guilty of murder and theft by taking.

The sentencing phase commenced immediately thereafter,

and continued to the next day, when the jury sentenced her to

death by electrocution, During the sentencing proceedings, the

sole witness presented by the prosecution for the purpose of

establishing aggravated circumstances was psychologist Henry

Adams. He informed the jury that eighteen year old (A-39) Janice

Buttrum was “an anti-social personality, and a case of paraphilia

sexual sadism." (A=-30.) He explained that, “when (this) dis-

order really becomes severe the [individual] may torture, kill,

mutilate their victims. It is a repetitive kind of activity that

continues until the individual is apprehended, or stopped in some

way or another." (A-22.) When asked if he had an opinion as to

the potential for other acts, Adams testified that, "Part of the

definition of sexual sadism is repetitive acts; . . . you would

expect it to continue." (A-21.)

A personal examination of Ms. Buttrum was never

Henry Adams, however, nor was any attempt made to do so.

“

(A-

33.) The conclusions reached by Henry Adams were claimed t

based on a non-specified package of psychiatric reports,

Buttrum's confessions, F.B.I. Reports, the autopsy report

photographs of the victim, and interviews with certain unid:

fied jailers. (A-25, A-26.)

With the exception of some photographs, none of

material was placed in evidence at the sentencing phase.

2 ie t ¥

nti-

( A-25 F

A-26, A-38.) Some aspects of the confessions, F.B.I. Reports,

autopsy report, and photographs had been placed before the

yury

in the guilt phase but were not re-introduced. Further, the

psych

purportedly relied upon were not placed in evidence at the

or sentencing phases.

Counsel objected strenuously and continuouasly

course of testimony of Henry Adams:

"We would raise the objection that, one

it's based upon hearsay, two; it's based upon

conclusions made by others--opinions of others,

people not under his control or authority;

that it contains--based upon facts not evidence

facts not supported by the evidence that the

testimony is irrelevant and calculated to in-

flame and prejudice the jury; and that it is

an improper area for expert opinion... ,

and Your Honor, we feel that all of this is

improper, and to allow this gentleman to go on

would be to deny Janice Buttrum her rights to

due process and to a fair trial, as stated In

the Fifth, Sixth, Eighth, and Fourteenth Amend-

ments." (A-27, A-28, A-29.)

Counsel further objected that any:

"speculation or predict[ion] [as to]

criminal behavior .. . is totally improper,

on the same constitutional grounds that we

urged before." (A-31.)

{atric reports and interviews with unidentified Jailer

——— mm

The trial judge overruled all objections to this testimony (A-28,

A-31). Defense counsel cross-examined Henry Adams, then proceeded

to present lay witnesses in mitication, testifying to her very

"deprived upbringing." (A-8.)

In closing argument, the District Attorney invited the

sentencing jury to consider this “deviant pervert, a murderer, a

butcher,” (A-41), as one who “potentially could do it again,"

(A-42), adding, “Who «will be next? You? Your wife? Your

Gaughter?" (A-42), and finally, “God save us all from Janice

Buttrum .. . may Janice Buttrum never again haunt society.”

(A-43.)

The trial Judge proceeded to inform the Jury of the

aggravating circumstances: murder in the commission of aiding

and abetting rape; murder which was outrageously and wantonly

vile, horrible or inhuman, - that it involved either torture to

the victim; or depravity of mind of the Defendant; or an aggra-

vated battery to the victim (A-44, A-45, A-46, A-47, A-48). The

jury found all aggravating circumstances existed and imposed the

death penalty. (A-50.)

Janice Buttrum argued on appeal to the Georgia Supreme |

Court that the trial court erred in admission of Henry Adams‘

testimony, as it was based upon hearsay and facts not in evidence,

that it was “inappropriate to speculate about the (Petitioner's)

future behavior,” and “patently unfair" to allow this information

to be considered in determining if the aggravating circumstance

of “depravity of mind” was present. (Brief of Appellant, Assign-

ment of Error No. 1, (A-12, A-13, A-24)) Purther, Petitioner

Buttrum contended that the use of this expert testimony collec-

tively with other actions by the judge and prosecutor resulted in

an “arbitrary and capricious” sentencing decision “infected by

emotionalism, passion, and prejudice,” in violation of the Eighth

and Fourteenth Amendments. [Jd., Assignment of Error No. 2.

(A-15, A-16, A-17).)

me a ee

The Georgia Supreme Court affirmed Janice Buttrum's

conviction and death sentence on July 8, 1982. The Court con-

Cluded that the expert witness’ tesvimony was admissivic:

"The fact that an expert's opinion may

be based in part on facts not in evidence

goes to the weight and credibility, not to

its admissibility. Redfield v. State, 240 Ga.

460(1), 241 S.E. 24 217 (1978) and cases

cited." (A-7.)

The Court's senterce review concluded;

"The sentence of death imposed in this

case was not imposed under tne influence of

passion, prejudice, or any other arbitrary

factor." (A-8.)

In respect to the denial of a private psychiatric exam-

ination at state expense to respond to Henry Adams’ testim

counse) for Janice Buttrum addressed this in Enumeration of Error

No. 8, contending:

"The trial court’s

expert assistance for the Appel :

denied her due process of law, but denied

her her Sixth Amendment right to effective

{stance of counsel as well.” (A-18.)

failure to appoint

. e

ellant not only

rane that), "The Court erred in denying the

Appellant expert assistance equivalent to

that provided by the State." (A=-19.)

The Georgia Supreme Court concluded that there had been

"no abuse of discretion in denying the motion for funds for

expert witnesses.” (A-5.) The Court relied on a statement of

defense counsel to conclude there was “no critical evidence sub-

ject to varying opinion." (A-5.) «+

: However, the statement the Georgia Supreme Court relied

upon was made at the February 1981 hearing, and related to a

request for a forensic criminologist. This «#5 unrelated and

irrelevant to the other issue briefed by the Appellant in the

Georgia Supreme Court, in the latter portion of Enumeration of

Error No. 8, (ending at A-19). This issue, the trial court's

denial on August 19, 1981 of an independent psychiatric examina-

tion to ccuntermand the eapecteu Lestimuny Of Henry Adaio Lvere-

fore was not accurately addressed by the Georgia Supreme Court.

A Motion for Extension of Time in which to file a Petition for

Certiorari was granted by Justice Powell on August 26, 1982, ans

the case is now before this Court.

ARGUMENT

I. THE EIGHTH AND FOURTEENTH AMENDMENTS

BAR THE ADMISSION OF EXPERT WITNESS

TESTIMONY REGARDING THE LIKELIHOOD OF

THE CAPITAL DEFENDANT'S COMMISSION OF

FUTURE ACTS OF VIOLENCE, AS SUCH PRE-

DICTIONS ARE NOT SUFFICIENTLY RELIABLE

TO BE CONSIDERED BY THE CAPITAL SENTEN-

CING JURY, AND IF CONSIDERED, MAY YIELD

ARBITRARY AND CAPRICIOUS SENTENCES OF

DEATH.

The only witness called by the State of Georgia at

Janice Buttrum's sentencing proceeding for the purpose of estab-

lishing aggravating circumstances was Henry Adams, a psychologts

Adams testified that he believed Janice Buttrum had an anti-

social personality, was a case of paraphilia sexual sadism

(A-30), and that he would expect her to continue to commit simi

lar acts of sexual assault and homicide in the future. (A-31.)

Counsel for Mrs. Buttrum entered a continuing object!

to this testimony:

" . , the testimony is irrelevant and

calculated to ‘nflame and prejudice the

jury; and thar it's an improper area for

expert opinion. . . that to allow this

gentieman to go on would be to deny Janice

Buttrum her rights to due process and to a

fair trial, as stated in the Fifth, Sixth,

Eighth, and Fourteenth Amendments."

(A-27, A-28.) :

Motions for mistrial were made at the close of direct

examination (A-30), cross examination (A-37), and at the close <:

—_—_—— <n

"“serlous question” as to whether psychiatric diagnosis can ever

the evidence (A-40). All objections and mistrial motions were

overruled.

Tnis Court has recugtiecu that the Elghth and datum

Ameainents demand a greater “reliability in the determination that

death is the appropriate punishment," (Woodson v. North Carolina,

428 U.S. 280, 305 (1976) (plurality opinion).

The evidence presented in aggravation at a capital sen-

tencing proceeding should thus possess "a greater degree of reli-

ability,” so as not to "create the risk that the death penalty

will be imposed in spite of factors which may call for a less.

severe penalty." Lockett v. Ohio, 438 U.S. 586, 604 (1978).

Even if one assumes that the risk posed to the safety of others

by a convicted capital defendant is relevant in the capital sen-

tencing proceeding, o.f. People v. Murttichaw, 29 Cal. 3d 733, 175

Cal. Rptr. 738, 631 P. 2d “46, 469-470 (1981), cert. denied

___ U.S. __, 50 U.S.L.W. 3591 (1982), expert witness testimony

as to future dangerousness is a constitutionally insufficient

method of assessing this possibly relevant factor.

This Court has recognized that, "Given the lack of

certainty and fallibility of psychiatric diagnosis," there is a

establish a defendant's future dangerousness beyond a reasonable

doubt. Addington v. Terae, 441 U.S. 418, 429 (1979). The

Court's statement as to the very questionable reliability of

these expert predictions is strongly supported by those very

persons expected to make them. The American Psychiatric Asso-

ciation's Task Foree Report on Clinteal Aspects of the Violent

Individual, at 23, described such testimony as "fundamentally of

very low reliability.” (Emphasis added.)

A Task Force of the American Psychological Association

similarly concluded that:

", . . the validity of psychological

edict 1ons of violent behavior, at least

n the sentencing and release situations

» « 18 extrerely poor." Penort of the

Taek Force on the Role of Peychology in the

Criminal Justice System, 33 Am. Peychologist

1099, 1110 (1976). (Empnasis added.)

In the 1979 Term of this Court, the American Psyc’ latri

Association, in an extensive Amicus Curtae Brief to Estelle v.

Smith, 451 U.S. 454 (1981), requested that:

"In the unique circumstances of a

capital case, this Court should prohibit

the use of such testimony altogether,

and thereby bar false claims to expere

tise that inevitably distort the Jury's

fact-finding process." Brief Amteus Curtae

of the American Psychiatric Association at

10, Estelle v. Smith, 451 U.S. 454 (1981).

In Estelle, this Court concluded that exéluding expert testinony

as to future dangerousness on grounds of violation of the Fifth,

Sixth, and Fourteenth Amendments, would not prevent the State of

Texas from proving the defendant's future dangerousness as

required by their statute, as the “issue {s in no sense confined

to the province of psychiatric experts." Id., at 472.

Given the availability of lay witness testimony;

almost universally acknowledged unreliability of expert predic-

tions of future dangerousness, Brief Amicus Curtae, supra, at

11-14; Dix, "Expert Prediction Testimony in Capital Sentenc'

Evidentiary and Constitutional Considerations," 19 Amer, Crim. L,.

Rev. 1, 1621 (1981); and that such "osychiatric testimony is

especially susceptible to uncritical acceptance by sentencing

juries," Dix, supra, at 43, n. 215, such testimony should be

excluded from capital sentencing proceedings. Expert witness

testimony as to the likelihood of future dangerousness simply

"introduces a level of uncertainty and unreliability Into the

factfinding process that cannot be tolerated in a capital case."

Beck v. Alabama, 447 U.S. 625, 643 (1980).

°:

This issue is ripe for decision, Expert testimony as

to future dangerousness is still rather widely permitted in capi-

tal prosecutions and across the country, see Dix, supra, at 4-6. |

One court has already ruled euch tovimony ts generally ina 'rie-

sible due to its unreliability, People v. Hurtishav, eupra, 631

F. ed, at 470. See Note, "People v. Murtishaw: Applyine t

Frye Test to Psychiatric Predictions of Dangerousness in Capita

Cases," 70 Calif. Law Rk, 1069, 1077-1084 (1982). The professional

associations affected have given thelr opinion of this forn of

testimony and one, as noted, has already requested this Court ruld

in accordance with Petitioner Buttrum's argument.

II. THE ADMISSION OF AN EXPERT WITNESS

OPINION THAT JANICE BUTTRUM WOULD

ENGAGE IN FUTURE ACTS OF VIOLENCE

DENIED HER A FAIR AND RELIABLE DE- |

TERMINATION THAT DEATH IS HER APPROP~ '

RIATE PUNISHMENT AS REQUIRED BY THE i

KIGHTH AND FOURTEENTH AMENDMENTS,

CONSIDERING THE TOTALITY OF CIRCUM-

STANCES:

1. EXPERT WITNESS TESTIMONY OF THIS TYPE

LS GENERALLY OF VERY LOW RELIABILITY; j

2, THE EXPERT WITNESS NEVER PERSONALLY

EXAMINED OR INTERVIEWED JANICE BUTTRUM,

3. THE EXPERT WITNESS BASED HIS CONCLUSION

ON HEARSAY AND MATERIALS NOT IN FVIDENCE

BEFORE THE JURY;

4, THE TRIAL COURT REPEATEDLY REFUSED THE

INDIGENT JANICE BUTTRUM'S REQUESTS FOR AN

INDEPENDENT PSYCHIATRIC EXAMINATION AT

STATE EXPENSE; AND

5, THE EXPERT WITNESS WAS THE ONLY WITNESS

CALLED BY THE PROSECUTION TO ESTABLISH

AGGRAVATING CIRCUMSTANCES AT THE SENTENC:NG |

PROCEEDING.

"Fundamental principles of procedural fairness apply

at the penalty phase of a trial in a capital case," Preenell v.

Georgia, 439 U.S. 14, 16 (1978) (per curiam). As earlier noted, |

the Eighth and Fourteenth Amendments also require "a greater !

degree of reliability when the sentence of death is imposed."

Lockett, supra, at 604,

Under the totality of the circumstances herein, Janice

Buttrum was dented her right to a fair and reliable determinat fon

that death is her appropriate punishment.

1. Expert Witness Opinion Testimony of This

Type is Generally of Very Low Reliability

As more fully discussed in the Argument for the First

Question Presented, expert witness prediction testimony is gener-

ally acknowledged to be of low accuracy., Fxperts Wtoo often pre-

dict dangerousness, especially in the case of the mentally 111]

offender," and exhibit a “tendency toward false positive errors

in prediction, Brief Amtcue Curtae, American Paychiatric Asso-

ciation, supra at 15, n. 8,

If this be true of such testimony generally, in Janice

Buttrum’s ise the odds that an accurate and reliable predictior

uture dangerousness was presented to the sentencing jury are

2. The Expert Witness Never Personally

Fxamined or Interviewed Janice Buttrum

The trial court qualified Henry Adams as an expert and

allowed him to give his own frightening predictions of eighteen

year-old Janice Buttrum's future witjout Adams ever having seen

her, observed the course of the trial, or been advised of the

facts before the jury (A-32, A-33). He had not attempted to

examine her (A=22, A-33), nor were any examinations administered |

by another under Adams' supervision or control.

The extensiveness of an examination as to future danger-

ousness clearly reflects on the likely reliability of any

conclusions therefrom, see People v. Murtishaw, eupra, 631 F. ed,

at 470; and Holloway v. Texas, 613 S.W. 2d 497, 502-3 (1981).

Here, no examination was mate by thta witnees, and yet he oe

permitted to make 4 claim of expertise and testify on this very

likely damning issue. The "leading texts on forensic psychiatry

——_—

take for granted that the clinician will interview the subject

before testifying about {her)." Bonnie & Slobogin, “Tne hKo.e oO}

Mental Health Professionals in the Criminal Process," 66 Va. L.

Rev. 427, 496, n. 204 (1980). When no personal examination is

made, the testimony is “or doubtful worth and often of dubious

ethical quality." Diamond & Louisell, "Tre Psychiatrist as an

Expert Witness; Some Ruminations and Speculations," 63 Mich, L.

Rev. 1335, 1347 (1965), as California, Texas, and even Henry

Adams himself recognize .+/ While gross psychopathology may oc-

casionally be based on observation of the defendant in the c¢ irte

rcom, Henry Adams made no such observation, and went beyond an

evaluation of gross psychopathology. Additionally, the issue was

not framed as a hypothetical question, and cannot be sustained

under this approach.

3. The Expert Witness Based His Conclusion

on Hearsay and Materials Not in Evidence

Before the. Jurye a ead MN ts a

In Taylor v. Kentucky, 436 U.S. 478, 485 (1978), this

Court declared that one accused of a crime is entitled to have

— ae —

+/ adams himself admitted, in cross-examination:

"Granted, if you actually examine the

patient, you would feel much more comfortable

about the accuracy of your opinion, (A-33.)

He further stated in his letter to the District Attorney:

", . , the conclusions I have reached

in this case should be viewed with caution

since I have not examined the patient.”

(A-36.)

ee nnn

his guilt or innocence determined "solely on the basis of the

evidence introduced at trial" and that due process may well be

violated if "circumstances not adduced #9 reeof at tpiar® -

considered by the fact-finder. Adams’ testimony created a fen-

uine danger that the Jury would sentence Defendant to death on

the basis of facts not in evidence before them. The great rajor-

ity of the materials which Henry Adams relied upon in forming his

opinion were not admitted into evidence at the sentencing pro-

ceeding. The hospital and psychiatric reports and interviews

with unidentified Jailers were not placed in evidence at the

guilt or sentencing phases. (A=-25, A-26, A-38.)

Allowing opinion testimony under such circumstances in

a capital case is patently unfair, as it substantially forecloses

any opportunity for the Jury to assess the reliability of the

predictions made. Even if these jurors were in fact willing to

inquire into the appropriateness of the prediction, and to some-

how "sift the mystique from the facts," Brief, Amicue Curtae,

American Psychiatric Association, @upra at 17, they were at a

substantial disadvantage as there was insufficient introduction

and description of the facts relied upon.

Testimony as to future dangerousness has been barred

under similar circumstances, Holloway v. Terag, @upra, On tradi-

tional evidentiary principles ,2" and a similar result should be

reached under the Eighth and Fourteenth Amendments,

2/ Although Fed. R. Evi. 703 may admit this form of tes-

timony, one can question whether the cases preceding it, and upon

which the rule was supposedly based,* would support this view.

See Jenkine v. United States, 307 F. 2d 637, 642 (D.C. Cir.,

1962) (expert opinion did not rely solely on reports not then in

evidence but also on his own earlier examination). Further, the

facts or data relied on must be of a type reasonably relied upon

by experts in the particular field. One may question whether

this form of testimony meets the general acceptance in the sclen-

tific community test of Frye v. United States, 293 F. 1013 (D.C. ,

Cir., 1923), see Dix, supra at 8-22, and whether such predictions |

are reasonably made when relying upon these forms of materials, '

- 12 -

ee Oe ee Seem

The Sixth Amendment right to confrontation 1s also im-

plicated by this practice. Much, if not all, of the material

relied upon was and/or contained heurssy. One, admitted Im the

guilt phase, apparently fit into an exception to the Georgia

hearsay rules, It is difficult to assess if the other materials

would have been admissible under Georgia's hearsay exception or

other provisions, see Ga. Code Ann. §§ 38-301, 38-302, 38-305,

38-306, 38-310, 38-409, 38-411, 38-414, and 38-418 (A-62, A-63),

as the nature and contents of the materials were not particular-

{zed, One similarly cannot assess whether "substantial reasons

existed to assume [the hearsay's]) reliability," Green yp. Georgta,

W42 U.S. 95, 97 (1979). The prosecution did not proffer, and

was not required by the Court to proffer, these materials. It

would appear that as there was no opportunity to cross-examine

whatever declarants were involved, a violation of the Sixth

Amendment right arose. Caltfornta v. Green, 399 U.S. 14g (19790).

If a substantial constitutional question potentially

arises from an appellate court's reliance upon extra-record

material to affirm the death sentence, see Brown v. Watnuright,

__ U.S. ___, 102 S. Ct. 542, 70 L. Ed. 2d 407 (1981) (dissent

from denial of certiorari of Justices Marshall and Brennan), and

Ford v. Strickland, 676 F. 2d 434, 450-456 (llth Cir., 1982),

reh. granted en bane, then certainly a sentencing jury's reliance

—— ——— a + ee ee - — —- EE Lt

2/ (Continued)

and without any personal observation by the expert. See

McElhaney, "Expert Witnesses and The Federal Rules of Evidence,"

28 Mercer L. Rev. 463, 483-487, and am. 93 (1977). Further,

Fed, R. 403 may preclude such evidence due to its potential

for prejudice.

Georgia had traditionally required that testimony

be based on facts then in evidence, see Stanctll v, MeKenate

Tank Lines, 497 F. 2d 529, 536 (5th Cir., 1974), but recently

altered that position.

-13-.

upon an expert's opinion drawn from extra-record material 15s

deserving <f this Court's reviews”

Petitioner Buttrum believes the Georgia Supreme Court's

characterization of Henry Adams’ opinion as proper under Georgia

law because it was only "based in part on facts not in the

’

record," Buttrum v. State at 7, seriously understates the rela-

tive amount of extra-record evidence considered--some of the

photographs may have been in evidence before the sentencing jury,

the remainder was not. In any event, a state procedural or evi-

dentiary rule which "diminishes the reliability of the sentencing

determination" must be {invalidated by this Court to insure that

the death penalty is indeed imposed on the basis of “reason

rather than caprice or emotion." Beek v, Alabama, eupra, at

637-638.

——aEE

3/ tn the dissent from denial of certiorari, Brown v.

Wainwright, 2d, 408, Justice Marshall expressed concern that

the consideration of material not presented at trial and not

a part of the trial record or record on appeal was:

"tnconsistent with this Court's past

insistence on strict procedural regularity

in the imposition and review of capital

sentences. See Gardner v. Florida, 430

U.S. 349 « « « (1977), (as) much of the

information appears to be inadmissible '

and unreliable hearsay," Id.

Justice Marshall feared that the information "untested by the

adversary process" would “distort the State Supreme Court's

appellate functions” of review of the propriety of a death sen-

tence. Id.

Similarly, here information is being relied upon by an

expert to form an opinicn that may very well be dispositive to

the jury considering whether to impose the death penalty.

Although the expert here was subject te cross examination,

counsel was at a substantial disadvantage in attempting to

impeach his opinion as much of the basis for it was not clearly

identified or explained.

- 14 -

Z 4, The Trial Court Repeatedly Refused the Indigent

Janice Buttrum's Requests for an Independent

Psychiatric Examination, _

—_-——_- — ee ee eee

Under the ciroumstanocs of thic case, the rejection of

Janice Buttrum's repeated requests for an independent psychiatrie |

examination at state expense denied her a "fair and adequate

opportunity" to defend against the expert witness prediction tes-

timony, as required by the Fourteenth Amendment due process,

Chambere v. Mieotevippt, 410 U.S. 284, 294, 302 (1973) and equal

protection clauses, Rose v. Moffit, 417 U.S. 600, 616 (1974), and

the Sixth Amendment right to effective assistance of counsel,

Povell v. Alabama, 287 U.S. 45, 71 (1932). Any of these three

provisions may be denied when the court refuses to expend state

funds and the expert services requested are necessary to the

preparation and presentation of an adequate defense. Williame v.

Martin, 618 F. 2d 1021 (4th Cir., 1980).

The standard for determining whether expert assistance

is constitutionally required by the equal protection or right to

counsel clauses 18:

"Whether a substantial question requiring

expert testimony arose . « «+ « and whether

{Petitioner Buttrum's) defense could be

fully developed without professional assistance,"

Id., at 1026.

In Little v. Streater, 452 U.S. 1, 6 (1981), this Court required

analysis of three factors tn determining whether the defendant

is deprived of his due process right to "a meaningful opportunity

to be heard:"

"the private interests at stake,

the risk that the procedures fotherwise)

used will lead to erroneous results and

the probable value of the suggested pro-

cedural safeguard, and the governmental

interests affected."

= 48 «

When these analyses are applied in the instant case,

the deprivation of rights {s plain, Here, the interests of

Janice Buttium are the gieavcot tic luw abd nature recognic:-=

life itself. The prosecution, by its own action in presenting !

Adams as their sole witness at sentencing, has made expert analy- |

sis of eighteen year old Janice Buttrum's future dangerousness *

critical, if. not dispositive, factor for the Jury's decision

whether she should live or die.

Further, as noted earlier, very substantial questions

are raised as to whether experts can give reliable predictions

as to future dangerousness, let alone under the methods engaged

in by Adams. A clear likelihood existed that Adams' prediction

was erroneous.

One can question the value of the procedural safeguard

requested by counsel, that of an independent psychiatric examina-

tion, since as Janice Ruttrum has earlier argued, any prediction

made is likely to be unreliable, and should be therefore {tnadmis-

sible in capital sentencing proceedings. However, if such a

prediction is to be admitted, as it was in this case, a capital

defendant is entitled to a fair opportunity to rebut the dlag-

nosis and prediction made. That fair opportunity requires a

resort to the same type of evidence, expert testimony, but, hope-

fully of a more reliable type, that based on a personal exami-

nation engaged in for this purpose.

Rejection of this assistance served no substantial

governmental interest. The Georgia Supreme Court's conclusion

that "the Petitioner made no contention that any critical evi-

dence was subject to varying opinion,” (A-5) 1s totally inaccur-

rate in respect to the request for this assistance. The Georgia

Supreme Court relied upon a response given by defense counse! at

a hearing on February 24, 1981, six months before trial. Even

= 16 @

—_—-——-

ts ro

the Prosecution admitted in its appellate brief that this

response related to the request for an independent forensic

pendent. psychiatrist at issue here was made when defense counse!

received, just ten days prior to trial, the report which Adams

had provided the prosecution, At a hearing on August 19, 1981

(A-53, A-54, A-55), defense counsel strongly argued that:

"The conclusions which he (Adams) reaches

are vastly different and in excess of the con=

elusfons reached by the team at Mi lledgeville--

the state psychologists and psychiatrist.

We're very concerned about the potential impact

of testimony of the nature which we would anti-

cipate ... We don't have access to a person

[private, non-state system psychologist or psy~

ehfatrist] like Dr. Adams, and we feel like in

fundamental fairness, the dictates of the Four-

teenth Amendment . . . demand that we be treated

fairly and that wa have an adejuate opportunity

to countermand this sort of very Significant

evidence." (A-56, A-57.) (Emphasis added.)

Clearly, this was eritical evidence and it already

appeared capable of being subject to some varying opin! a2

By the Georgia Supreme Court's own standard of abuse of discre-

tionary review, then, it appears Janice Buttrum should have been

given an independent psychiatric examination, Yet, she was not,

and her life is at this time forfeited.

/ Further, it is not constitutionally:

"“tncumbent upon [Janice Buttrum) to prove

. « « that an independent expert would have

provided helpful testimony at trial. An

indigent prisoner ‘should hot be required

to present proof of what an expert would say

when he is denied access to an expert.'"

Williame, eupra at 1026-1027.

if -

criminologist. (A-20, A-21.) The request for funds for an inde |

The fact that defense counsel had an eouetaniite to

cross-examine Adams does not suffice; a fair opportunity to rebut

this testimony required an independent psychiatric examination,

Firstly, the jury was still permitted to rely upon what purported

to be an expert opinion, and had no witness of similar or equal

qualifications before them with which to compare his opinion.

Although reference was made in cross that the State, when examin-~

ing Janice Buttrum's competency to stand trial, had reached a

conclusion of "no mental disorder," (A-36), there was ambiguity

as to whether there was actually "no medical diagnosis" made

(A-34), as displayed by Adame’ testimony, "I went through all of

their information, and simply because they did not decide that

there was no medical diagnosis .. . I don't have to come to

their same conclusion..." (A=-34, A-35.) The ability to

cross-¢xamine was thus tnsufficitent to overcome the very substan-

tial disadvantage at which Petitioner Buttrum was placed without

an independent psychiatric examination to assess the likelihood

of future criminal acts.

Adams’ reliance on these competency evaluation reports

to form an opinion as to future dangerousness is itself particu-

larly dubious. A prediction of future dangerousness requires

substantially expanded clinical predicates, Kozol, et al., "The

Diagnosis and Treatment of Dangerousness,” 18 Crime and Delin-

quency 371, 380-384 (1972); Mergergee, “The Prediction of Danger-

ous Behavior" 3 Crim. Jue. 6 Behavior 1, 8-9 (1976), and, as the

experts and courts have recognized, varies considerably from the

clinical predicates for 4@ competency evaluation. Amitcue Brief,

eupra at 20, n. 11; United Statee v. Taylor, 437 F. 2d 371 (4th

Cir., 1971); United States v. Alvares, 519 F. 2d 1036 (3rd Cir.,

1975); United States v. Fortune, 513 F. ed 883 (5th Cir., 1974);

United States v. Walker, 537 F. 24 1192 (4th Cir., 1976).

“Under no circumstances should an examination focused on compe-

tency to stand trial, or even on the defendant's mental

>: Sitle

——— eg See

~~ . . ».

* .

state at the time of the offense, be used as a basis for formu-

lation of an opinion on dangerousness," Bonnie, "Foreword:

Psychiatry and the Death Penalty; Emerging Problems in Virginia, '

66 Va. L. Rev. 167, 177 (1980), yet this is the primary clirical

data that Henry Adams relied upon. |

This very significant distinction between competercy

evaluations and evaluations for future dangerousness is even more

troubling because the trial court's apparent reason for denying

an independent psychiatric examination was that the state psy-

chologists and psychiatrists at Milledgeville could be presented

on Janice Buttrum's behalf to counter the anticipated testimony

of Henry Adams. (A-53.) As these evaluations were simply for

competency purposes, and there was ambiguity even as to whether

any medical diagnosis had been made, theSe experts could provide

no viable expert witness testimony as to future dangerousness.

Janice Buttrum required what she repeatedly requested,

an independent psychiatric examination, if she was to attempt to

refute Henry Adam's medical diagnosis and prognosis for her

future. Janice Buttrum doesn't have to prove that with a

further psychiatric examination there would have been, see fn. 4,

infra, a different medical diagnosis, but that possibility is

clear. Even if examination ylelded the same medical diagnosis,

some question may have been raised as to whether such an indi-

vidual could be treated, or eventually rehabilitated. As noted

in the Amicue Brief of the American Psychiatric Association, at

20, n. 11, “Some techniques may be effective in the treatment of

anti-social personality in Juvenile offenders .. ." Paraphiltac

sexual sadists may have some capabilities for treatment, also.

Schmidt, "Biochemical Methods in the Treatment of Sexual Dis- j

orders," Vol. 3, No. 1 Psychiatric Clinics of North America 189,

195-196 (April, 1980). With expert testimony on her behalf,

= 19.6

oo. ee ee

Janice Buttrum may have been able to challenge the picture of

never-ending sexual violence so carelessly painted by Henry

Adams. To add a further nail to the coffin, after the trial court]

denied counsel's request for 4 psychiatric examination at the

August 19th hearing, (A-53, A-54), the defense then requested a |

continuance to respond to Adams' proposed testimony, if not by |

an independent examination, then by:

“either a trip to Milledgeville or to

sit down with Dr. Bullard to prepare to deal

with this sort of adverse testimony; and we

feel like we were pushing very closely with

the time of the trial and that this disclo-

sure {Adams' Report] comes very late." (A-59.)

This too was denied. The trial court apparently believed that

the five days left prior to trial was adequate since initial

overtures to these persons had been made. Of course, much re-

mained to be done in that time period, and there was no recess

between the guilt and sentencing phases in which to engage in

the extensive preparation for this testimony. This further

diminished the capability of counsel to "cure" the error in deny-

ing a psychiatric examination by the cross-examination of the

state's witness.

Taken singly, the failure to provide an independent

~_-_————— eee

psychiatric examination to capital defendants when evidence of

future dangerousness is presented by the State violates the

Sixth and Fourteenth Amendments. When combined with the other

issues presented herein, it 1s clear that Janice Buttrum did not

receive a fair and reliable determination of sentence.

5. The Expert Witness was the Only Witness Called

by the Prosecution at the Sentencing Proceed'ng.

The prejudice to Petitioner Buttrum is quite obvicus.

Henry Adams was the only witness called by the prosecution at

the sentencing proceeding. He testified that Janice Buttrum war,

-_ 20 - -

sadism," of “polymorphous sexual perversion," (emphasis added),

who would be "expect(ed) to continue" to engage in "“aimost any l

activity that will turn [her] on of a sexual nature, varying from '

heterosexual or homosexual to whatever." (Emphasis added. )

(A-29, A-30.) Adams further testified that sexual sadists:

"“tnduce their sexual pleasure" "by the

pain of the victim,” [and that) “When the

disorder really becomes severe, they may torture,

kill, mutilate their victims. It is a repetitive

kind of activity that continues until the indi- —

vidual 1s apprehended, or stopped in some way

or another. .s It is a biological drive with

biological rhythm." (A-22, A-23, Aw-24.)

(Emphasis added.)

His testimony paralleled the definition of the aggra-

vating circumstances. The trial court instructed the jury that

it may only impose the death sentence if it found one or more of

the aggravating circumstances beyond a reasonable doubt. (A-48.)

The court charged on four aggravating circumstances. As to the

first, murder committed while the Defendant was engaged in the |

comission of rape, the Court instructed; a ee you would have

to find that this Defendant aided and abetted a male individual”

(A-46) "to rape the victim." For the second, the court instruc-

ted that "the offense of murder was outrageously and wantonly

vile, horrible and inhuman in that it involved torture to the

yictim.” (A-47.) For the third, that "it involved depravity of

mind of the Defendant," and that "the word depraved has also been

defined as ‘marked by corruption or evil, or especially perver-

ted.'" (A-47, A-48.) The fourth, that of aggravated battery to

the victim, was described as "maliciously causing bodily harm

to another . .. by seriously disfiguring a body or a member

thereof." (A-48.)

- 21 @

The relationship between the testimony offered and

the aggravating circumstances {s obvious. This was the only

witness the prosecution called at the sentencing proceeding to

establish aggravating circumstances. The Jury was free to und

‘apparently did rely on it in reaching their conclusion that i

Janice Buttrum was guilty of each of these aggravating cire:m-

stances.2/

Although evidence was presented as to releyant miti-

gating circumstances, particularly Janice Buttrum's youthful age,

and her deprived upbringing, the expert prediction of future

sexually sadistic violence, of apparent incurability of her

condition, may have deprived ‘her of hope for life imprisonment.

The prosecutor's closing argument exhorted the senten-

cing jury to consider this “deviant pervert, a murderer, a

butcher (A-41), as one who “potentially could do it again."

(A-42.) He impressed on the jury the fear that this youthful

offender will kill again: "Who will be next? You? Your wite?

Your daughter?" (A-42), and finally, "God save us all from

Janice Buttrum... May Janice Buttrum never again haunt

society." (A-43.) |

The prediction of future dangerousness herein clearly

"Implant{ed} in the mind of each juror the message that the death)

penalty . .. is the only way to protect society from the defen-

dant," Murtishaw, supra, 631 P. 2d at 470, even though some mitie}

gating factors were present. Thus, substantial likelihood exists

that this fear of future dangerousness 50 infected the jury de-

termination as to result in a sentence based on emotion or cap-

rice rather than reason. Beck, supra, at 638.

— nnn!

2/ A constitutional issue arises if the jury improperly,

concluded that one of several aggravating circumstances was

proven. See Zant v. Stephens, _U~.S. , 102 S. Ct. 1856

(1982). Although the photographs of the victim placed in evi-

dence at the sentencing hearing may possibly help to support a4

finding of torture or aggravated battery, the prosecution pre-

sented no other witnesses at the sentencing hearing to testify

to depravity of mind or rape of the victim.

a 22's

CONCLUSION

For the State to forfeit a human life on the basis of

unreliable evidence is shocking. To be unable to effectively re-

but that evidence because OF wie's puverey so palerdtay voce ion

to any sense of fair play.

Yet, "expert" predictions as to future dangerousness |

are being made in many sentencing hearings in this country. In

some, the fate of indigent capital defendants like Janice Buttrun

are being sealed, while they are deprived of expert assistance

with which they could at least dispute the forecast made.

This Court has already gone to some extraordinary

measures to ensure that the capital defendant is afforded process

that will guarantee, as much as 1s humanly possible, that the

sentence is not imposed out of whim, passion, prejudice or mis-

take. An Amtcue Brief has already been presented to this Court

attesting to the substantial Likelihood of mistakes in expert wit.

ness predictions of future dangerousness, an Amicue Brief pre-

pared by those very persons expected to make these predict fons,

Their doubts, and fears of capricious impositions of the ultimate

penalty, are as well-founded today as they were then.

Yet, if this Court should be willing to permit expert

witness prediction testimony, it must recognize and act now upon +

its constitutional responsibility to assure that indigent capital

defendants across this country have an adequate opportunity to

contest this expert testimony.

For the reasons presented in the foregoing argument,

Janice Buttrum respectfully requests that this Court grant her

"Petition for Writ of Certiorari to the Georgia Supreme Court.

Respectfully submitted,

Sn cu Mh lhe kee

Uae beg =a

Associate Professor of Law

The University of Akron

School of Law

Akron, Ohio 44325

(216) 375-6793

Counsel for Petitioner

Janice Buttrum

Oe" ee ee . ——— = - -

a ee

so +

: CERTIFICATE OF SERVICE

] hereby certify vias a Wry ve the Petition Sus

| Writ of Certiorari was sent by ordinary mail to Mr. Michael J.

Bowers, Attorney General, Judicial Building, Room 132, Atlanta,

Georgia 30334, and Mr. Stephen A. Williams, District Attorney,

Conasauga Judicial Circuit, Whitfield County Courthouse, Daiton,

“ofl

| Georgia, 30720, Counsel for the Respondent, on this Ot aay

of October, 1982.

Diiarcet 4 Willers Kee

MARGERW MALKIN KOOSED

Assoctate Professor of Law

The University of Akron

School of Law

Akron, Ohio 44325

(216) 375-6793

Counsel for Petitioner

Janice Buttrum

- 24 -

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.