Petition for Writ of Certiorari — Saffle v. Liles

| upreme Cour, UB

? = 306 FILED

DEC 6 19a)

OSGCE OF THE GLERK

Case No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1991

JAMES SAFFLE, WARDEN, and

GARY MAYNARD, DIRECTOR, OKLAHOMA

DEPARTMENT OF CORRECTIONS

Petitioners,

Vv.

MARK ROY LILES,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

SUSAN BRIMER LOVING

ATTORNEY GENERAL OF OKLAHOMA

A. DIANE HAMMONS

ASSISTANT ATTORNEY GENERAL

SANDRA D. HOWARD*

ASSISTANT ATTORNEY GENERAL

CHIEF, CRIMINAL DIVISION

112 State Capitol Building

Oklahoma City, Oklahoma 73105

(405) 521-3921

ATTORNEYS FOR PETITIONERS

October, 1991

*Counsel of Record

QUESTION PRESENTED

Whether the Tenth Circuit was

correct in expanding the holding of Ake

v. Oklahoma, 470 U.S. 68, 105 S.Ct.

1087, 84 L.Ed.2d 53 (1985) to compel the

State to furnish a mental health expert

where the defendant did not raise or

plead insanity as a defense, was found

competent to stand trial, and

psychiatric evidence was not’ used

against him in the sentencing stage of

a trial which occurred before the

decision in Ake was handed down.

ii

TABLE OF CONTENTS

QUESTION PRESENTED .

TABLE OF AUTHORITIES ....

OPINIONS BELOW

JURISDICTION.

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT.

CONCLUSION

iii

iii

TABLE OF AUTHORITIES

CASES CITED

Ake v. Oklahoma, 470 U.S. 68,

105 S.Ct. 1087, 84 L.Ed.2d 53

eS ees ee ee

Castro v. State, 745 P.2d 394

(Okl.Cr. 1987) "So ae a ee Ge ee ee 21

is v. Ge ia, 402 S.E.2d 41

Cr ore. oy le laters <.-ae

Clisby v. Jones, 907 F.2d 1047

a re

arris v. Va ez, 913 F.2d 606

i + oe

Harris v. Vasquez, 943 F.2d 930

RS | ob

Jackson v. Yilst, 921 F.2d 882

[eam Gar. 3990) . . : = ee

v. Owens, 807 P.2d 101

PO M—EE © «© «© © © «© © oe ee eo we 48

Kordenbrock v BEkosgy. 919 F.2d 1091

(6th Cir. 1990) Ss 6 « « «ee 84, B85

Liles v. Oklahoma, 110 S.Ct. 353

(1989) a we es ¢ « « »« « « » « « @

Liles v. Oklahoma, 476 U.S. 1164,

106 S.Ct. 3341, 92 L.Ed.2d 749

ee. el ye es te eh lhl CU Oe

iv

Liles v. Oklahoma, 484 U.S. 933,

108 S.Ct. 308 (1987),

rehearing denied 108 S.Ct. 738

Pt omitererers, . 6 — . 6 4 ye « eo

Vv . F.2d ,

1991 WL 180096

(10th Cir. Sept. 16, 1991) 0 « Be ae

, 702 P.2dad 1025

(GReeGeeaweer «© «© « «© 0 0 tl ew S 39, 22

° ina v. Roper, 402 S.E.2d 600

2. eae . |

Silagy v. Peters, 905 F.2d 986

cya Gees Gee «@ « 6 © 6 @ 6 6 eo 14

Teague v. Lane, 489 U.S. 288,

109 S.Ct. 1060, 103 L.Ed.2d 334

(1989) > 7 . . o .* . >. bell .* oo . . 17

STATUTES CITED

21 0.S. 1981, § 701.12 on ae oe ee er

ee Se ae a” ee eee

oo Beas 2 Bee 6 ee ee wt ere ee ee

oe wVemeGe | Sane 4+ «+ « «ee 8 8 8 ee

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1991

JAMES SAFFLE, WARDEN, and

GARY MAYNARD, DIRECTOR, OKLAHOMA

DEPARTMENT OF CORRECTIONS

Petitioners,

MARK ROY LILES,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

OPINIONS BELOW

In a federal habeas corpus action,

the defendant was granted summary

judgment on his claim that Oklahoma

violated his rights by not granting his

motion for a mental health expert at

state expense. The State appealed to

the Tenth Circuit, which affirmed the

action of the federal district court in

2

Liles v. Saffle, _.._— F.2d ___s,:~« 1991 WL

180096 (10th Cir. Sept. 16, 1991).

It is from that decision that the State

of Oklahoma now seeks certiorari from

this Court.

JURISDICTION

Jurisdiction of this Court is

invoked pursuant to 28 U.S.C. § 1254

(1). Jurisdiction in the district court

was conferred by 28 U.S.C. § 2254.

Jurisdiction in the Tenth Circuit Court

of Appeals was conferred by 28 U.S.C. §

1291.

STATEMENT OF THE CASE

Defendant Liles is incarcerated

pursuant to a Judgment and Sentence

rendered on July 11, 1983, in the

District Court of Oklahoma County, State

of Oklahoma, Case No. CRF-82-4268.

3

Defendant was convicted by a jury of

his peers of the crime of Murder in the

First Degree. During the sentencing

phase of defendant’s trial the jury

found that the murder was especially

heinous, atrocious, or cruel and the

existence of a probability that the

defendant would commit criminal acts of

violence that could constitute a

continuing threat to society. Having

found the existence of two of the

aggravating circumstances necessary

under Okla. Stat. Ann. tit. 21, § 701.12

before a penalty of death can be

imposed, the jury then assessed the

death penalty. The trial court followed

the recommendation of the jury.

Defendant filed a direct appeal from his

conviction, which was affirmed by the

Oklahoma Court of Criminal Appeals in

4

Case No. F-83-427, recorded at Liles v.

State, 702 P.2d 1025 (Okla. Crim. App.

1985).

Following the affirmance of his

conviction, the defendant filed for a

writ of certiorari from the United

States Supreme Court which was denied in

Liles v. Oklahoma, 476 U.S. 1164, 106

S.Ct. 3341, 92 L.Ed.2d 749 (1986). The

defendant then filed his first

application for post-conviction relief

in the District Court of Oklahoma County

on October 24, 1986. -After the original

application was amended, the trial court

denied the application on April 28,

1987. Defendant appealed that denial to

the Oklahoma Court of Criminal Appeals,

which affirmed the denial in an

unpublished order dated July 9, 1987.

On September 8, 1987, the defendant

5

filed a second petition for writ of

certiorari with the United States

Supreme Court, which was also denied.

Liles _v. Oklahoma, 484 U.S. 933, 108

S.Ct. 308, 98 L.Ed.2d 266 (1987),

rehearing denied 484 U.S. 1021, 108

S.Ct. 738, 98 L.Ed.2d 685 (1988). On

May 23, 1988, the defendant filed a

second post-conviction application in

the District Court of Oklahoma County.

That application was denied on June 27,

1988. The Court of Criminal Appeals

affirmed the denial of that application

on April 25, 1989. In the latest

petition for writ of certiorari to the

United States Supreme Court, the

defendant was denied relief on October

30, 1989. Liles v. Oklahoma, 110 S.Ct.

353, 107 L.Ed.2d 341 (1989).

The defendant then filed his

Petition for Writ of Habeas Corpus in

the United States District Court for the

Western District of Oklahoma, where he

was granted summary judgment on his

claim that he was unconstitutionally

denied his right to a fair trial by the

denial of a state provided mental health

expert. The Tenth Circuit Court of

Appeals affirmed the holding of the

district court, and it is from that

order that the State now seeks

certiorari relief.

REASONS FOR GRANTING THE WRIT

In Ake, this Honorable Court found

five factors which it felt mandated the

appointment of a State provided-for

psychiatrist for a criminal defendant.

Those relevant factors in the Ake case

were:

ee

5

1) Ake’s sole defense was that

of insanity.

2) Ake’s bizarre behavior at

arraignment caused the trial

court, sua sponte, to have Ake

examined for competency.

3) A state psychiatrist found

Ake to be incompetent to stand

trial, and suggested that he be

committed.

4) When Ake was later found to

be competent, it was only on the

provision that he be sedated

with Thorazine three times a

day, during trial.

5) The psychiatrist who

examined Ake for competency

described to the trial court the

severity of Ake’s mental illness

less than six months after the

offense, and suggested that the

mental illness might have begun

many years earlier.

Recognizing that insanity is a

recognized defense in Oklahoma under

which the defendant has the initial

burden of producing evidence, this Court

then found that “[(t]jaken together, these

factors make clear that the question of

Ake’s sanity was likely to be a

significant factor in his defense.”

Ake, 470 U.S. at 86. In an accompanying

footnote, the Court said “[w]Je express

no opinion as to whether any of these

factors, alone or in combination, is

necessary to make this finding.” Ibid,

footnote 12. It is the legal question

reserved in that footnote which must now

‘“-be resolved.

Only one of the factors found in Ake

is present in this case. Applying those

factors to defendant Liles’ case, it is

apparent that the defendant:

1) Never raised, or attempted to

raise, the defense of insanity.

2) Never displayed any signs of

bizarre behavior before the

trial court, and was examined

for competency at the request of

his trial counsel. (Doc. 28,

State court O.R.’, pp. 36 - 37).

* Original Record

3) Was found competent to stand

trial by the state psychiatrist.

(Doc. 28, State court O.R., pp.

47 - 48).

4) Was to remain on Thorazine

“to retain his present degree of

stability” and was’ further

advised that possible follow-up

care at an out patient mental

health clinic might be needed.

(Doc. 28, State court O.R., p.

48).

5) Although diagnosed as being

aggressive, and having an

"intermittent explosive

disorder,” as well as suffering

from alcohol abuse, he was ruled

to be competent -= and *“not

psychotic.” (Doc. 17, Discharge

Summary from Eastern State

Hospital, Defendant’s

Documentation of Ake Claim).

The only common factor between defendant

Liles’ case and the Ake case is that

both men were prescribed Thorazine after

their release from the state mental

health hospital.

The question presented for

certiorari review revolves around a

10

critical issue which has not yet been

decided by this Court: "To what extent

does the Ake case apply in a pre-Ake

criminal trial which did not involve an

insanity defense or mental health

evidence in aggravation?” Under the

Tenth Circuit’s holding, Ake has been

extended to require that a mental health

expert be provided in any criminal case

in which an expert could possibly be

beneficial to the defense.

The federal district court’s opinion

held that the Ake doctrine requires that

“a state provide access to the

psychiatric assistance necessary to

prepare an effective defense based on

mental condition if a criminal defendant

cannot otherwise afford such

assistance.” (Liles v. Saffle, Western

District Case No. CIV~89-2271-w,

11

Judgment dated November 7, 1990, pp. 4 -

5). The decision below would not

require a defendant to plead insanity as

a defense, but would rather allow a

court appointed psychiatrist in the

first instance, before insanity was

plead or raised, to determine whether or

not sanity should or could be utilized

as a defense. Such a holding, the State

submits, makes a mental health expert an

integral part of every criminal trial

which involves a crime requiring

specific intent.

Neither did the lower courts accept

the narrow dictates of Ake which hold

that a State appointed psychiatrist must

only be provided for second stage

assistance where the State first uses

psychiatric evidence in aggravation. In

Ake, this Court found that where the

12

State presents psychiatric evidence of

the defendant’s future dangerousness,

the defendant is entitled to psychiatric

assistance to attempt to rebut that

evidence. Ake, 470 U.S. at 83 - 86;

is _v. Vas , 913 F.2d 606 (9th

Cir. 1990). Recognizing that the Liles

decision is an expansion of this Court’s

holding in Ake, the Tenth Circuit held:

Although the Court discussed the

necessity of psychiatric

assistance to enable a defendant

to respond to and challenge the

state’s psychiatric assistance

to enable a defendant to respond

to and challenge the state’s

psychiatric evidence concerning

future dangerousness, the Court

did not expressly limit a

defendant’s right of psychiatric

assistance to situations where

the state first presents

psychiatric evidence. . . In

this case, because the state

presented evidence concerning

petitioner’s future

dangerousness, albeit § not

psychiatric evidence, and

because petitioner established

the likelihood that his mental

condition could have been a

| nr

13

significant mitigating factor,

the district court correctly

determined that the state trial

court deprived petition of due

process by denying him court-

appointed psychiatric assistance

at the sentencing phase of his

trial.

Liles v. Saffle, ___ F.2d ___, 1991 WL

180096, pp. 7 - 8 (10th Cir. Sept. 16,

1991). The Tenth Circuit has held that

psychiatric assistance in second stage

is not limited to those instances where

the State uses psychiatric evidence in

aggravation, but in all cases where

future dangerousness is an issue. Thus,

any time the aggravating circumstance of

continuing threat to society is alleged,

a mental health expert must be appointed

for the defendant.

The holding of Ake is narrow. A

defendant is entitled to state provided

mental health assistance only if he

makes a threshold showing that his

14

mental condition is to be a significant

factor at trial. Clisby v. Jones, 907

F.2d 1047 (11th Cir. 1990); Jackson v.

Ylst, 921 F.2d 882 (9th Cir. 1990);

Silagy v. Peters, 905 F.2d 986 (7th Cir.

1990); Harris v. Vasquez, supra.

For a thorough discussion on the

breadth of the Ake holding, see

Kordenbrock v. Scroggy, 919 F.2d 1091

(6th Cir. 1990). As Judge Kennedy wrote

in his separate opinion in that case:

Appellant’s constitutional

rights under Ake were not

violated. Ake’s guarantee of a

state-funded psychiatrist arises

only after defendant shows that

his sanity will be "a

Significant factor at trial.”

(Citations omitted). Appellant

never attempted to raise

insanity as a defense. At most

he sought to show that his

capacity was diminished through

drug and alcohol use, thus

depriving him of the specific

intent necessary to convict him

of intentional murder. Although

Ake does not establish a bright

line test for determining when

a eEEEeEeEeEeEeEeEeEeEEEEE——

15

a defendant has demonstrated

that “sanity at the time of the

offense will always be a

significant factor,” it is clear

that "Ake requires that the

defendant, at a minimum, make

allegations supported by a

factual showing that the

defendant’s sanity is in fact at

issue in the case.” (Citations

omitted). Such a showing is not

made by merely positing that

appellant was a habitual drug

and alcohol abuser.

Kordenbrock, 919 F.2d at 1119.

Defendant Liles never made a factual

showing that his sanity was to be an

issue in his case. In the underlying

federal habeas action, the defendant

attempted to show that he could have

made such a showing, utilizing in part

new psychiatric evidence to attempt to

prove that his sanity was a real issue

at the time of the crime, and at trial.

In the most recent denial of federal

16

habeas relief’ in the Harris case, the

Ninth Circuit refused to consider the

testimony of new psychiatric experts who

attempted to rebut the _ psychiatric

evidence presented at trial. The Ninth

Circuit stated:

The availability of such a

judicial evaluation in a federal

habeas proceeding would allow a

defendant who has been given

access to competent psychiatric

assistance under Ake to

establish a constitutional

infirmity to his death penalty

through the opinions of new

psychiatrists who, eleven years

later, offer different opinions.

*The latest Harris decision is to

be reported at Harris v. Vasquez, 943

F.2d 930 (9th Cir. 1991), but has not

yet been reported. It was accessed on

WestLaw. An earlier case, Harris v.

Vasquez, 913 F.2d 606 (9th Cir. 1990)

has been cited above.

ee

17

Harris v. Vasquez’. The Ninth Circuit

went on to hold that to allow an

evidentiary hearing utilizing the “new”

psychiatric evidence in an attempt to

rebut the evidence at trial would be to

establish a new rule under Teague v.

Lane, 489 U.S. 288, 109 S.Ct. 1060, 103

L.Ed.2d 334 (1989), and was

impermissible.

In a case such as this, which was

tried before Ake, the Tenth Circuit has

held that the defendant must show that

he could have made a threshold showing

under Ake that his sanity at the time of

the offense was to be a significant

issue at trial. Cartwright v. Maynard,

802 F.2d 1203 (10th Cir. 1986). Here,

‘publication page references for

the federal reporter are not yet

available. This citation occurs at page

87 in the WestLaw edition of this

opinion.

18

the Tenth Circuit allowed the defendant

to use new evidence to attempt to meet

this standard. The Tenth Circuit

considered defendant Liles’ “new”

psychiatric evidence presented by Dr.

Russell Monroe, who examined only the

defendant’s hospital records some eight

(8) years after the fact, and by self-

serving affidavits from the defendant’s

family made some seven (7) to eight (8)

years after trial. The Tenth Circuit

wrongly considered this evidence in

deciding whether or not the defendant

could have made a showing that his

Sanity was to be a significant issue at

trial. What should have been used to

decide the issue was the existing

medical records at the time, which

Clearly indicated that the defendant,

though perhaps mentally disturbed, was

19

competent to stand trial, and was

legally sane.

In originally deciding this case,

the Court of Criminal Appeals considered

the holding of Ake and found that the

defendant had failed to demonstrate to

the trial court his sanity was to be a

significant factor at trial. Liles, 7092

P.2d at 1033. As the Court explained:

Appellant never plead or

attempted to prove an insanity

defense. In applying for the

funds, appellant failed to show

cause for doubting his sanity.

Counsel on appeal suggests that

the fact appellant was placed on

psychotropic drugs at the State

mental hospital is sufficient to

raise doubts as to his mental

state. But we consider this

circumstance inadequate to

demonstrate that insanity would

be a key factor to appellant’s

defense at trial, or that his

mental condition was seriously

in question.

20

Liles, 702 P.2d at 1034. The Court of

Criminal Appeals distinguished the facts

of Mr. Liles’ case to Ake.

This case is much different

than that of Ake, supra, which

involved a defendant diagnosed

as psychotic and who advised the

court that he would raise a

defense of insanity at trial.

In that case, the State

presented psychiatric evidence

against the defendant. we find

that the trial court in the

instance case did not err in

denying appellant’s motion for

the requested funds.

Liles, 702 P.2d at 1034. The holding of

Ake is that:

(Wjhen a defendant has made a

preliminary showing that his

Sanity at the time of the

offense is likely to be a

Significant factor at trial, the

Constitution requires that a

State provide access to a

psychiatrist’s assistance on

this issue, if the defendant

cannot otherwise afford one.

Ake, 84 L.Ed.2d at 60. The Oklahoma

Court, in interpreting Ake, has held

that mere undeveloped assertions that

nnn

as

the requested psychiatric or

psychological assistance would be

beneficial is insufficient to establish

a due process violation. See, Castro v-

State, 745 P.2d 394, 399 (Okla. Crim.

App. 1987); Liles, 702 P.2d at 1033.

Other states have also applied a

narrow interpretation to the Ake

decision. In the very recent case of

° j Vv oper, _402 S.E.2d 600

(N.C. 1991), the North Carolina Supreme

Court held:

(Tj)his Court, consistent with

post-Ake decisions, has held

that in addition to a threshold

showing of a “significant

factor,” which has been

interpreted to mean a “specific

necessity,” the defendant “must

demonstrate either that without

expert assistance he will be

deprived of a fair trial, or

that there is a reasonable

likelihood that it will

materially assist him in the

preparation of his case.”

(Citations omitted).

22

North Carolina v. Roper, 042 S.E.2d at

609. And, in the case of Christenson v.

Georgia, 402 S.E.2d 41 (Ga. 1991), the

Georgia court held that Christenson had

presented no evidence by which the trial

could reasonably have inferred that the

question of sanity would be a

Significant factor at trial. As the

court in that case stated:

The evidence in this case shows

that the defendant is selfish

and manipulative, lacks regard

for the rights of others, has

abused drugs and alcohol, and

has committed numerous crimes.

But it does not show that the

defendant’ suffers from any

serious mental disorder. It was

not abuse of discretion to deny

the defendant’s request for

court-funded Psychiatric

assistance.

Chris s Vv. la, 402 S.E.2d at

46. See also Kansas v. Owens, 807 P.2d

101 (Kan. 1991).

——————_—— i LL

23

The Tenth Circuit’s holding has

expanded Ake beyond its original intent,

contrary to this Court’s holding, the

decisions in other circuits, and the

highest state courts. Under the Tenth

Circuit’s holding, a criminal defendant

is entitled to a state appointed mental

health expert merely on an assertion

that such an expert would be beneficial

and could possibly provide assistance to

the defense at trial or during second

stage. The Tenth Circuit’s very

specific holding also requires that

state provided psychiatric assistance is

mandated where the defendant’s future

dangerousness is an issue, regardless of

the lack of psychiatric evidence

presented by the State. Thus, in all

cases in which Oklahoma’s aggravating

circumstance of “continuing threat to

24

society” is alleged, the defendant must

be furnished with a court appointed

expert to assist him.

CONCLUSION

The Tenth Circuit has impermissibly

expanded the holding of Ake v. Oklahoma

beyond the dictates of this Court, and

the clear weight of authority from the

other circuits, and the highest state

courts. Thus, this Honorable Court

should grant certiorari in order to

Clarify the reserved issue of law in the

Ake decision and to provide uniform

guidance to the circuits regarding the

breadth of that holding.

25

Respectfully submitted,

SUSAN BRIMER LOVING

ATTORNEY GENERAL OF OKLAHOMA

D. Aovaed

SANDRA D. HOWARD

ASSISTANT ATTORNEY GENERAL

CHIEF, CRIMINAL DIVISION

2300 N. Lincoln Blvd.,

Suite 112

Oklahoma City, OK 73105

(405) 521-3921

ATTORNEYS FOR PETITIONERS