# Petition — Janice Buttrum v. Georgia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1319%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 459 U.S. 1156 ## Text => ‘ * | 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 . . . . . . . . . . . . . tt 10 10 1] 15 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).) e. v. . 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 # 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 i 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 - --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1319%3A1. Public record. Not legal advice.