Petitioners Brief — Buchanan v. Kentucky

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IN THE

Supreme Court of the United States

OcTOBER TERM, 1986

Davip BUCHANAN, Petitioner,

COMMONWEALTH OF KENTUCKY, Respondent.

On Writ Of Certiorari To The

Supreme Ccurt Of Kentucky

BRIEF FOR PETITIONER

C. THomas Hectus*

R. ALLEN BuTTON

GITTLEMAN & BARBER

635 W. Main St., Suite 400

Louisville, Kentucky 40202

(502) 585-2100

Kevin M. McNALLy

M. Gait RoBINSON

Assistant Public Advocates

151 Elkhorn Court

Frankfort, Kentucky 40601

(502) 564-5255

*Counsel of Record

— — — —— OU

PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781 (3010 864-6662

QUESTIONS PRESENTED

DID THE FEDERAL CONSTITUTION PERMIT THE

STATE TO ELIM’NATE, BY PEREMPTORY AND CAUSE

CHALLENGE, 20% OF THE QUALIFIED VENIRE

BASED ON RELIGIOUS OR POLITICAL VIEWS ON

CAPITAL PUNISHMENT WHEN THE STATE DID NOT

SEEK THE DEATH PENALTY AGAINST PETITIONER

AT A JOINT CAPITAL/NON-CAPITAL TRIAL?

II.

CAN AJUVENILE COURT-ORDERED PSYCHIATRIC

EXAMINATION, DIRECTED AT COMPETENCY TO

STAND TRIAL WITHOUT WAIVER OF THE CHILD’S

5TH AND 6TH AMENDMENT RIGHTS, BE USED TO

REBUT A MITIGATING MENTAL STATE DEFENSE BY

READING THE REPORT TO THE JURY DURING A

MURDER TRIAL?

TABLE OF CONTENTS a

QUESTIONS PRESENTEPlůůů¹rũrr .. i

TABLE OF CONTENTS ...........- „ ii

„ iii vii

OPINION AND JUDGMENT BELOUVUVUVUVHH .. 1

eee, . . 1

CONSTITUTIONAL AND STATUTORY PROVISIONS

DDr. . eee eee e e e eee 1

STATEMENT OF THE Cg 2

SuMMARY OF ARGUMENTS. <.......cccccccscccccees 14-17

ARGUMENTS:

I. PurGcING 20% Or THE Jury PANEL (7 For CAUSE,

4 By Peremprory) DUE To RELIGIOUS OR Po.it-

ICAL Views ON CAPITAL PUNISHMENT VIOLATES

Tue First, SixtH AND FoURTEENTH AMEND-

MENTS WHEN ONE DEFENDANT IN AJoINT TRIAL

Does Nor Face THE DEATH PENALTY ........ 18-19

Il. PETITIONER’s CONVICTION Was OBTAINED IN

VIOLATION Or Due Process Or Law AND THE

FirtH AND SixtH AMENDMENTS WHERE EvI-

DENCE OBTAINED FROM A Post-ARREST~COMPE-

TENCY EVALUATION Was USED AGarnst Him Ar

2c 39-50

TABLE OF AUTHORITIES

Page

Adams v. Texas, 448 U.S. 38 (19800) 25

Apodaca v. Oregon, 406 U.S. 404 (1972) ꝶ ) 29

Ballard v. United States, 329 U.S. 187 (1946) ......... 25

Ballew v. Georgia, 435 U.S. 223 (1978) ............... 19

Batson v. Kentucky, 106 S.Ct. 1712 (1986) ............ 33

Battie v. Estelle, 655 F.2d 692 (CA5, 1981)........... 49, 50

Bishop v. United States, 350 U.S. 961 (1956) .......... 42

Booker v. Wainwright, 703 F.2d 1251 (CA11, 1983)..... 49

Boulden v. Holman, 394 U.S. 478 (1969). ............. 37

Bruton v. United States, 391 U.S. 340 (1968).......... 27

Buchanan v. Kentucky, 691 S.W.2d 210 (Ky. 1985)..... 1, 14

Burch v. Louisiana, 441 U.S. 130 (1979).............. 27

Byrd v. Wainwright, 428 F.2d 1017 (5th Cir. 1970)...... 28

Caldwell v. Commonwealth, 634 S.W.2d 405 (Ky. 1982). 37

Carrington v. Rash, 380 U.S. 89 (1965). 55 34

Carter v. Jury Commission, 396 U.S. 320 (1970) ...... 33

Castaneda v. Partida, 430 U.S. 482 (1977) ))) 21

Colgrove v. Battin, 413 U.S. 149 (1978) ............... 19

Cornelison v. Commonwealth, 2 S. W. 235 (Ky. 1886)... 13

Crawford v. Bounds, 395 F.2d 297 (4th Cir. 1968) 30

Davis v. Campbell, 465 F.Supp. 1309 (E. D. Ark. 1979). 43

Duren v. Missouri, 439 U.S. 357 (1979). .............. 30

Edmonds v. Commonwealth, 586 S.W.2d 24 (Ky..1979). 39

Estelle v. Smith, 451 U.S. 454 (1981)......... 14, 46, 48, 49

Fay v. New York, 332 U.S. 261 (1947) ................ 19

Gall v. Commonwealth, 607 S.W.2d 97 (Ky. 1980) 39

Grigsby v. Mabry, 758 F.2d 226 (8th Cir. 1985).........

Hance v. Zant, 696 F.2d 940 (11th Cir. 1983) .......... 36

Harich v. Wainwright, 106 S.Ct. 1092 (1986) .......... 29

Henson v. Wyrick, 634 F.2d 1080 (8th Cir. 1980)....... 235

Hernandez v. Texas, 347 U.S. 475 (1954 )))) 30

Hicks v. State, 414 So. 2d 1137 (Fla. App. 1982) ........ 27

Hovey v. Superior Court, 616 P. 2d 1301 (Cal. 1980) .... 19

Ice v. Commonwealth, 667 S.W.2d 671 (Ky. 1984)...... 38

Jaggers v. Commonwealth, 439 S.W.2d 580 (Ky. 1968),

Juarez v. State, 277 S. W. 1091 (Tex. 1925) 33

Table of Authorities Continued

Karcher v. Daggett, 462 U.S. 725 (1983))))) 34

Keeton v. Garrison, 578 F.Supp. 1164, rev'd, 742 F.2d 129

(4th Cir. 1984), cert. denied, 106 S.Ct. 2258 (1986) . 20

Lockett v. Ohio, 98 S.Ct. 2954 (1978ᷣ·· 77) ) 77. 18

Lockhart v. McCree, 106 S.Ct. 1758 (19860). passim

Murphy v. Florida, 421 U.S. 794 (1975 5. 37

Nettles v. State, 409 So.2d 85 (Fla.App. 1982) ......... 27

O'Connell v. State, 480 So.2d 1284 (Fla. 1986)......... 37

Owens v. Commonwealth, 277 S.W. 304 (Ky. 1925)..... 38

Parker v. Gladden, 385 U.S. 363 (19660)))⸗ 35

Pate v. Robinson, 383 U.S. 375 (1966ᷣ·ẽh· 42

Patterson v. State, 283 So.2d 212 (Va. 198177) 37

Patton v. United States, 281 U.S. 276 (1930). .......... 29

Patton v. Yount, 104 S.Ct. 2885 (1984) )))ůpͤ 37

Peek v. Kemp, 784 F.2d 1479 (1984ᷣ 9). 28

People v. Clark, 402 P.2d 856 (Cal. 1965ꝶ 7). 27

People v. Fain, 451 P.2d 65 (Cal. 1969 )uꝛ ... 30

Peters v. Ki 407 U.S. 493 (1972)... . 34

Pierce v. State, 604 So.2d 185 (Tex. Crim. App. 1980). 37

Poole v. State, 194 So.2d 903 (Fla. 1967) ᷑ 779 37

Pope v. United States, 372 F.2d 710 (8th Cir. 1967)

vacated, 392 U.S. 651 (1968). ù . ..

Rawlins v. Georgia, 201 U.S. 638 (1906))))) 34

Schowgurow v. State, 213 A.2d 475 (Md. 1965). 33

Short v. Commonwealth, 519 S.W.2d 828 (Ky. 1975).... 29

Smith v. Commonwealth, 634 S.W.2d 411 (Ky. 1982)... 6

Smith v. DeRoberts, 758 F.2d 1151 (7th Cir. 1985)...... 29

Smith * Sisters of Good Shepherd, 87 S. W. 1083 (Ky.

% ⁰⁵e ˙A⁵»ꝛ⁰AA³—³gͤͤ es

Smith v. Texas, 311 U.S. 128 (194 õ)jꝗ)ũ % 33

Spaziano v. Florida, 104 S. Ct. 3154 (1984) 28

State v. Garrington, 76 N. W. 326 (S. D. 1898). 29

State v. Lee, 60 N. W. 119 (Iowa 1894ᷣ 7) )))). 29

State v. McCarthy, 69 A. 1075 (N. J. 1908 ))) 33

State v. Mercer, 618 S. W. 2d 1 (Mo. 1981) 27

Table of Authorities Continued

Page

State v. Wilson, 11 N. W. 2d 737 (Iowa 1943)))): 29

Stroud v. United States, 251 U.S. 15 (1919) ........... 36

Taylor v. Louisiana, 419 U.S. 522 (1975) ............. 30

Taylor v. United States, 282 F.2d 16 (C. A. 8th Cir. 1960) 42

Thiel v. So.Pac.Co., 328 U.S. 217 (19400))ÿ0·94ꝗ 32

Toole v. State, 479 So.2d 731 (Fla. 1985) .............. 28

Torcaso v. Watkins, 367 U.S. 488 (1961) .............. 33

Turner v. Fouche, 396 U.S. 346 (1970) ................ 33

Turner v. Louisiana, 379 U.S. 466 (1965) ............. 35

Turner v. Murray, 106 S.Ct. 1683 (1986).............. 37

United States v. Albright, 388 F.2d 719 (CA5, 1968).... 42

United States v. Cohen, 530 F.2d 43 (CA5, 1976) 42

United States ex rel Mireles v. Greer, 736 F.2d 1160 (CA7,

. ees 43

r onehes bates bons 6 43, 44

United States v. Hayes, 676 F.2d 1359 (11th Cir. 1982).. 29

United States v. Lewis, 716 F.2d 16 (D.C. Cir. 1983).... 29

United States v. Puff, 211 F.2d 171 (2nd Cir. 1954) 36

United States v. Rimar, 558 F.2d 1271 (6th Cir. 1977)... 29

United States v. Sidmon, 470 F.2d 1158 (9th Cir. 1972). 29

Wainwright v. Witt, 105 S.Ct. 844 (1985)......... 18, 26, 31

Ward v. Hurst, 189 S.W.2d 594 (Ky. 194577ꝰꝶ̃ 2) :. 28

Wardius v. Oregon, 412 U.S. 470 (1973). .............. 36

Wellman v. Commonweaith, 694 S.W.2d 696 (Ky. 1985). 39

Winn v. United States, 270 F.2d 326 (CADC, 1959)..... 43

Williams v. Florida, 399 U.S. 78 (1970). )). 19, 30

Witherspoon v. Illinois, 391 U.S. 510 (1968)........ passim

Wood v. Zahradnick, 475 F.Supp. 556 (E. D. Va. 1979).. 43

OTHER AUTHORITIES

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eee een 41

D eee 9, 12, 13, 39

rade se dee dee 40

b ee 1. 2

Table of Authorities Continued

Page

, ᷑ .. „ 7

r ² Ar. 8

r ˙ Un...... „„ 8

s ̃Ü d i ̃ ĩ ... 2

§ͤſſͤ GAA ³⁰¹ mmm hatin easabeneee se 8

0 ͤ VTV 13

Berg and Vidimar, Authoritarianism and Recall of Evi-

dence about Criminal Behavior, 9 JOUR. of

RESEARCH & PERSONALITY 147 (1975)...... 23

Blinder, M.D., Psychiatry In The Every Day Practice of

Law, 2nd Ed., Sec. 7.3 (1982). uuu1uuͤ 45

Boehm, Mr. Prejudice, Miss Sympathy and the

Authoritarian Personality: An Application of Psy-

chological Measuri . to the Problem of

Jury Bias, 3 WISC.L.REV. . 23

Bray and Noble, Authoritarianism and Decisions 4

Mock Juries, 36 JOUR. PERSONALITY

SOCIAL PSYCHOLOGY 1424 (1978) ............ 20

Cowan, Thompson, and Ellsworth, The Effects of Death-

Qualification on Jurors Predisposition to Convict

and on the Quality of Deliberation, 8 LAW HUM.

I ere 23

Dillehay and Nietzel, Juror Experience and Jury Ver-

dicts, 9 LAW HUM. BEHAV. 179 (1985) 20

Ellsworth, Bukaty, Cowan, and Thompson, The Death-

Qualified Jury and the Defense of Insanity, 8 LAW

es Ss 5 5 24

Finch and Ferraro, The Empirical Challenge to Death-

Qualified Juries: On Further Examination, 65

NEB. LAW REV. 21 (19888))))))j/ 19

Fitzgerald and Ellsworth, Due Process vs. Crime Con-

trol: Death-Qualification and Jury Attitudes, 8

LAW HUM. BEHAV. 31 (1984). ................. 22

Gillers, Essay Review: Proving The Prejudice of Death-

Qualified Juries After Adams v. Texas, 47

UF EE MoktoRees V. BED GRUEOD cccccccsccsedeccccess 21

Goldman, Freundlich and Casey, Jury Emotional and

Deliberation Style, JOUR. PSYCHIATRY & LAW

e a eee 24

vii

Table of Authorities Continued

Haney, On the Selection of Capital Juries: The Biasi

pang 4 the Death - Qual ificution Process, 8 LAW

eee eee

Jurow, New Data on the Effects of a Death- Qualified“

Ay | on The Guilt Determination Process, 84

e ũ

McAbee and Cafferty, Degree of Prescribed Punishment

as a Function of Subjects Authoritarianism and

enders Race and Social Status, 50 PSYCHOLOG-

ICAL REPORTS 651-654 (1982)ßAu⸗i

Mitchell and Byrne, The Defendants Dilemma: _— of

Juror Attitudes and Authoritarianism on Judicial

Decisions, 25 JOUR. PERSONALITY & SOCIAL

, ͤ !A Ä

Roberts and Jessor, Authoritarianism, Punitiveness and

Perceived Social Status, 56 JOUR. of ABNORMAL

& SOCIAL PSYCHOLOGY 311 (1958) ...........

= Criteria for Competency to Stand Trial: A Check-

ist for Psychiatrists, 122 AM.J. of PSYCHIATRY

%%%ͤĩ% WWWBWBwů(. ⁵ ð ( „

Seguin and Horowitz, The Effects of “Death Qualifica-

tion” on Juror and Jury Decisioning, An Analysis

From Three Perspectives, 8 LAW & PSYCHOLOGY

F Chi ceciccusghidegnsedetsques s

nung Cowan, Ellsworth, and Harrington, Death

enalty Attitudes and Conviction Proneness, 8 LAW

re.

Wilson, Belief in Capital Punishment and Jury Perfor-

mance, (unpublished, University of Texas) (1964)

Winick, Prosecutorial Peremptory Challenge Practices in

Capital Cases: An Empirical Study and a Constitu-

tional Analysis, 81 MICH.L.REV. 1 (1981).......

Zeisel, Some Data on Juror Attitudes Towards Capital

— (University of Chicago Monograph)

page

OPINION AND JUDGMENT BELOW

Judgment was entered by the Jefferson County, Kentucky,

Circuit Court on September 17, 1982 (Joint Appendix, herein-

after A 76-79]. The opinion of the Kentucky Supreme Court

was rendered on June 13, 1985 and is reported. Buchanan v.

Kentucky, 691 S.W.2d 210 (Ky. 1985) [A 80-84].

JURISDICTION

The opinion of the Kentucky Supreme Court was entered on

June 13, 1985. No rehearing was sought. The petition for writ

of certiorari was filed on August 12, 1985 and was granted May

27, 1986. The jurisdiction of this Court is invoked under 28

U.S.C. See. 1257(3).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The First Amendment to the United States Constitution, in

pertinent part:

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech

The Fifth Amendment to the United States Constitution, in

pertinent part:

No person 5

be a witness against himself

The Sixth Amendment to the United States Constitution, in

pertinent part:

In all criminal prosecutions the accused shall “4 the

right toa... trial, ee ee ey - - . to be con-

thi

fronted with the witnesses agains . . and to have the

assistance of counsel for his defence.

The Fourteenth Amendment to the United States Constitu-

tion, Section One, in pertinent part:

. . . nor shall any State deprive any person of. . liberty

. . without due process of law; nor deny to a: person

. . . the equal protection of the laws.

KY. REV. STAT. 29A.300, entitled “Oath to petit jury”:

The court shall swear the petit jurors using geen |

the following oath: “Do you swear or affirm that you wi

impartially try the case between the parties and give a

true verdict according to the evidence and the law, unless

dismissed by the court?”

Kentucky Rule of Criminal Procedure, RCr 9.16, entitled

“Separate trials,” in pertinent part:

If it appears that a defendant or the Commonwealth is or

will be prejudic a joinder . . of defendants. . . for

trial, the court s . . . grant separate trials of defend-

ants or provide whatever other relief justice requires

STATEMENT OF THE CASE

a. Pre-Crime Psychological Reports

In the summer of 1980, David Buchanan just turned 16. He

was a ward of the Commonwealth, having been sent to Danville

Youth Development Center by the Jefferson County, Ken-

tucky, Juvenile Court [Joint Appendix, A 38]. David was a

black youth who “comes from a fairly typical poor urban home”

[A 44, 64]. He had been in juvenile court for various offenses

“ranging from theft over $100 to robbery” [A 44, 64]. Two

psychologists filed a report recommending transfer to another

juvenile facility due to Davids emotional disturbance and his

resentment of his placement

Test Results:

David obtained Full Scale, Verbal and Performance WAIS

I. Q. scores of 74, 76 and 75 respectively. These scores fall

in the Borderline range of intellectual functioning.

Among the Verbal subtests David is markedly deficient in

Verbal Comprehension .. .

* * *

David responses to projective tests suggest an individual

who is isolated, mistrustful of others and interpersonally

deficient. His reproductions of the Bender desi are

indicative of emotional disturbance. Along with fis test

behavior and flat affect, his pattern of test responses sug-

gest a mild thought disorder. [A 62].

1 All emphasis supplied by petitioner unless otherwise indicated.

So in August 1980 David was transferred to Northern Ken-

tucky Treatment Center. A licensed clinical psychologist

employed by the Commonwealth gave David various tests and

a “diagnostic clinical interview.” His report states:

David Buchanan presents as a quiet, rather withdrawn,

and at least moderately depressed sixteen-year-old black

youth. He is oriented for time, place, person. His

thinking, however, is extremely simplistic and very con-

crete. Impulse controls under even minimal stress are —

to be very poor. He is not seen as — — but rat -

as a very dependent, immature, probably pretty severely

emotionally disturbed, and very easily confused 2

Short-term auditory and visual memory skills are

impaired. David has extremely limited capacity for

i t. Judgment is impaired. Interaction with peers is

ikely to be extremely superficial and very guarded. David

uses the psychological defenses of projection, denial,

rationalization, and isolation extensively. He will be easily

led by other more sophisticated delinquents or youths. He

has very limited interpersonal skills and is likely to be seen

by other youth as a pawn to be used.

David's human figure drawings are extremely bizarre.

Combined with his flat affect and depressed mood, as well

as other s tions of a cognitive or thought disorder, it

is felt that individual has the potential for —

full blown schizophrenic disorder. At the present time, he

is at least extremely mistrustful, suspicious, and even

paranoid. He is in need of ongoing extensive mental health

intervention in addition to a highly structured but mini-

mally stressful, from a psychological point of view,

residential environment..

In view of me pee of extreme unmet dependency

needs, early sustained frustration, and minimal suc-

cess in almost any endeavor there exists the strong proba-

bility that underlying considerable passivity and

with is extensive anger and perhaps even .

Thus, under 8 proper 1 David could

expected to rous with respect to acts against

persons. While this not been a part of his history, it

needs to be considered with respect to future treatment

and eventual disposition.

DIAGNOSIS:

Undersocialized Aggressive Conduct Disorder DSM III.

Personality Disorder (paranoid personality) (The pos-

sibility exists for regression in psychological functioning

to a full blown psychotic or schizophrenic state in the

future) [A 65, 660

Based on Dr. Noelkers evaluation, David was admitted

to.. Northern. . for treatment” on August 28, 1980 [A 67].

One month later, the unit director” at Northern reported to

Martha Elam, David's social worker, that David was

“extremely resistive to all treatment methods utilized thus

far...” [A 68]. David was reading “on. . . the fourth grade

level and almost able to perform fifth grade math” [A 69].

Two weeks later, October 10, the “unit director” wrote to the

juvenile court judge informing him they were releasing David.

“Although we can not predict future behavior, we certainly feel

that David is better able to cope with personal problems

He will, of course, remain under supervision of” the Common-

wealth’s Department for Human Resources and his social

worker, Ms. Elam? [A 70].

David returned to live with his mother on October 13, 1980.

He was initially assigned to “the regular academic program” in

the 10th grade. Apparently when his teacher complained, “it

was determined that David needed to be in EMH [Educatable

mentally handicapped] classes. . David attendance was spo-

radic .. . irregular” [A 51-52]. Although “regular school at-

tendance” was required and the Commonwealth could have “re-

institutionalized the child”, no action was taken [A 52-53]

although his teacher reported to his social worker that the

As jehool was unable to find him, he was not going to school” [A

50].

b. The Killing of Baerbel Poore

January 7, 1981, was a cold, snowy winter day. avid

Buchanan and his young friend Troy Johnson “started talking

about [not having]. . any money.” David went out to shovel

2 Ms. Elam was to later testify at trial that “this letter was [not] an accurate

appraisal of Davids progress.” Under Kentucky procedure the juvenile judge

could have rejected David's release [A 49}.

snow but came back with only “change.” “(TJhat’s when he

started talking about Checker Oil Station.. robbing it.”

David “said nobody would get hurt.” When David promised

“nobody would get hurt or nothing”, Troy got a gun and “bul-

lets from where my brother keep them” without his brothers

knowledge [Transcript of Evidence, TE 1030-31).

Troy refused to actually go to the station itself but agreed to

drive. David talked to another juvenile, Kevin Stanford, about

the robbery.* They drove Troys car and picked up Kevin who

lived near the gas station [TE 1033]. David and Kevin left Troy

at the car. Stanford had the gun. They saw the white female

attendant, Baerbel Poore, getting ready to close up and

approached her. Stanford took Baerbel back to the restroom

while David tried to get the safe open. He couldn’t and so he

went and found Stanford “having intercourse with the service

station attendant . . and they took turns raping and sodomiz-

ing her [TE 484-85].

Since they didn’t have any fuel, David took $2.00 worth in a

gas can [TE 485]. While he was gone, unbeknownst to David,

Kevin stole $143.07 from the cash register [TE 1319]. Stanford

then took Ms. Poore in her car and “told [David] to get into the

car with Troy and follow” Baerbel’s car [TE 485]. David told

Troy they were following Ms. Poore’s car because they were

going “to have some more sex with her.” Troy pulled up behind

Baerbel’s car a few blocks away. David got out. As he

approached, Stanford leaned in the window of Baerbel’s car and

shot her. David turned and ran back to the car as Kevin fired

another shot at the victim, killing her [TE 1037-38].

Stanford returned to Johnsons car, got in and gave Troy the

gun back. Kevin got out near the Checker station [TE 1041].

Troy and David went home and put the gun back [TE 486].

Stanford stole 300 cartons of cigarettes from the empty gas

station, later selling them on his own [TE 946].

David Buchanan's confession differed slightly from Troys testimony.

David told Det. Hall that Stanford telephoned David and asked David to meet

him (Kevin) “and to bring a gun with him that he had a place that needed to be

taken down” (TE 484].

c. Pre-Trial Motions

After their arrest, Stanford and Buchanan, but not

Johnson,‘ were transferred from juvenile to adult court.“ Prior

to waiver, the juvenile court, apparently on his own motion,

“requested” a “mental status exam” of David by a psychiatrist.°®

Dr. Robert Lange saw David for “one hour” on August 14, 1981

after reviewing his social workers records. “The discussion

focused on the here and now, since the goal was to ascertain

meeting of the 202A criteria’ or not.” Dr. Lange reported his

“impression” to Judge Fitzgerald in a brief letter: “It is my

opinion that David is competent to stand trial and that he

presently does not meet the criteria for KRS 202A involuntary

commitment” [A 72-73].

Buchanan argued pre-trial that any death sentence would be

disproportionate considering his age, emotional disturbance

and relative culpability® [R 330-333]. He also sought to prevent

a capital prosecution since the Kentucky !egislature had abol-

ished the death penalty for juveniles although the statute

Johnson pled guilty to accomplice liability in juvenile court [TE 1029] in

return for testimony (Transcript of Record, No. 1218, R 359).

5 The judge did find Buchanan “amenable to treatment” [R 357J.

6 In circuit court Buchanan's counsel objected to evaluation of his client by a

“state expert as to his competency” since any unfavorable report might be

used “against my client” [TH 12/18/81, 6]. He asked for “an expert to help to

develop . a a defense relating to . emotional disturbance which is a

different issue obviously than competency . and until I decide to use [it]

that report would remain privileged . . . which is the difference

(from a] competency to stand trial” report [TH 12/18/81, 7).

7 KY. REV. STAT. Chap. 202A is entitled “Hospitalization of the Mentally

Ill”.

8 In Smith v. Commonwealth, 634 S.W.2d 411, 413 (Ky. 1982), the Court

held that a trial judge can preclude the death penalty prior to trial. The Court

reasoned that “the ultimate decision of penalty is within the province of the

trial judge” under Kentucky law. “It, therefore, becomes self-evident that the

court should not be required to entertain an exercise in futility . . . when it

will ultimately decide, for as significant a reason” that any death sentence

would be “disproportionate.” In Smith, the same trial judge as here had

barred the death penalty for a non-triggerman since the actual killer had

received a bargained non-death plea.

hadn’t yet taken effect® R 423-425]. Third, petitioner moved to

dismiss the capital portion of the indictment based on uncon-

tradicted evidence that: I) he was not the “trigger-man”, Stan-

ford was; 2) Troy Johnson supplied the gun; and 3) David had no

intent to kill and didn’t know Stanford was going to shoot Ms.

Poore. Troy testified:

: So both you and David thought that the wasn’t

2 to be sed, isn’t that — *

A: Yes, sir.

« « « .

So David never spoke about anything else?

No sir.

Especially shooting anybody?

A: Les sir [A 21-22].

An off-the-record hearing was held when the judge

expressed concern whether the “only evidence is that

Buchanan [was a] non-triggerman.” At the hearing, the pros-

ecutor hald] no objection” to dismissal of the “capital portion

of the indictment . . lit was] conceded by Commonwealth

Atty. [sic] death penalty would be unconst. [sic] for Buchanan,

Enmund v. Fla. [sic].”!° The judge signed the order barring the

death penalty for petitioner [A 24].

d. “Death-Qualification”

Buchanan moved to preclude “death-qualification of [the]

jury” until after the “guilt/innocence phase. Death quali-

fication’ voir dire violates the defendant's right to an impartial

jury drawn from a fair cross-section of the community under

the Sixth and Fourteenth Amendment. He also relied on

“equal protection of the law”, complaining that juror views on

the death penalty are “arbitrarily singleſd] out . . .” Petitioner

KV. REV. STAT. 208F.040(1), and the rest of a new juvenile code was

enacted but repeatedly postponed by the legislature due solely to lack of

funding [Transcript of Hearing, TH 3/8/82, 71.

10 Judges handwritten notes on order [TR 170].

complained of restriction of “voir dire by the defense on the

issues of punishment” while allowing “use by the state of

‘death-qualification’ voir dire” denies “due process of law”

because it affords the state an advantage in jury selection” [A

5-6].

Buchanan also moved for “separate juries for guilt / innocence

and sentencing phases” with no disqualification for capital

punishment views by the guilt/innocence jury. Referring to

“scientific studies” and filing one, ii petitioner complained that

“jurors who are in favor of capital punishment are

‘authoritarian types’ and are more likely both to convict and to

give greater sentences. The state interest in a single jury

was said to be minimal or non-existent [A 3-10].'* The pros-

ecutor opposed the motions as “contrary to current law” [A 11].

The trial judge told Buchanan’s lawyer his suggested

remedies showed] a lot of creativity” [A 14]. The court men-

tioned another remedy—voir dire on the death penalty after

the guilt phase with, presumably, substitute jurors replacing

anyone who couldn't follow the sentencing law [A 16-17]. How-

ever, the motions were denied, although they “involve some

unique, new creative . . . principles of law . . If you want to

strike new ground. . address. . the appellate court” [A 18].

The motions were renewed and denied as “death-qualification”

began [A 26-27].

Judge Liebson ruled that he alone would question the jurors

on the subject of the death penalty. is For the most part, this

11 Zeisel, Some Data on Juror Attitudes Towards Capital Punishment

(University of Chicago Monograph 1968) [Zeisel].

2 Buchanan pointed out that, in addition to capital prosecutions under KY.

REV. STAT. 532.025, Kentucky also provides for a bifurcated procedure in

persistent felon cases. KY. REV. STAT. 532.080(1) specifically permits a new

jury for phase II of a persistent felon trial “for good cause.” Having shown

2 petitioner argued for the same procedure to be applied to his

1 the court may permit” counsel to voir dire or may itself

conduct the examination” if it permits counsel to “supplement the examina-

tion” by tendering “such additional questions” as the court “deems proper.”

RCr 9.38.

consisted of a single question:

Do you have any personal conviction against imposing the

death penalty, such that you could not consider it under

the circumstance in this or in any other case and

regardless of what the evidence may be? [A 27].!4

Counsel for Stanford is tendered proposed death penalty

questions focusing on four essential points. First, whether the

veniremember could consider authorized punishments other

than death. For example:

1. Do you believe that all persons convicted of the crime

of murder should receive the death penalty?

2. Would you automatically vote in favor of the death

penalty . . . even if you had the discretion to give a lesser

punishment?

* * * * )

4. Would you automatically vote for the death penalty

re less of any mitigating evidence offered by the

defendant as to why he should not get the death penalty?

* * * *

17. [Could you] consider, according to the law. all

ible penalties, including the term of years in prison

a 20 and life, a life sentence and the death

ty?16

Prranccript or Record, No. 406, TR 210].

14 Often the words “conscientious scruples” were substituted for “personal

convictions” [TE 65, 69, 71, 73, 76-77, 80, 82, 85, 89, 91, 96, 99, 107, 110, 113,

115, 118, 124, 126, 131, 133-34, etc. ]. Sometimes the court referred to “religious

convictions or philosophical or ethical convictions” [TE 226].

15 The court ruled that “whenever any defendant makes an objection .

the other defendant. . automatically has] the same objection . . .” The

prosecutor agreed: “I think that would be proper because . Buchanan is

not involved in . . . death-qualification” [A 28]. The judge stated this also:

“You’re not even involved” [A 28].

16 KY. REV. STATS. 507.020 (murder) and 532.025 (penalty phase) permit

the jury a range of punishment in capital cases of 20 years to death.

Second, the proposed questions distinguished, unlike the

court's single inquiry, between the case at hand and any other

case:!7

24a. Is be a irrevocable position that you would vote

automati y against the imposition of capital punishment

no matter what case you had before you

24B. Could you think of any case in which you may

consider the death penalty? (TR 214].

Third, counsel suggested finding out if the potential jurors

could follow the law, notwithstanding personal views:

24c. Even though you believe capital punishment should

never be inflicted could you nonetheless subordinate this

personal view to your duty to abide by your oath as a juror

and to obey the law of this state which says that you should

consider such punishment in connection with other possi-

ble punishments of life imprisonment and imprisonment:

for a period of 20 years to life? [TR 214].

Fourth, a request was made to minimize any misunderstand-

ing as to why the judge was asking question(s) which seemed to

emphasize the death penalty:

25. Do you realize what you say here and your oath as a

juror does not bind you to vote for the death penalty, nor

does it bind you to vote for any punishment, but to con-

sider all punishments you are instructed on?

26. Even yy os you have been asked several questions

concerning the death penalty do you realize that you may

not even have to reach that decision? [TR 214].

All of these questions were rejected, the court permitting

“one question and one question only . . . we are not going to be

involved in any . . . brainwashing procedure [A 12].

THE COURT: I don’t think rehabilitation cures — 2

thing in my mind. If a guy says that he is unalterably

opposed to giving the death penalty and you then got him

to say that he would put aside his own personal opinion and

follow the law, I would not know what to believe about the

state of that man’s mind [A 14].

17 Another question sought to ascertain whether death penalty views

would “affect your ability to return a fair verdict on guilt or innocence

identifying so-called “nullifiers” [TR 214].

* * *

I intend to be — 1 liberal about . . . excusing people *

cause. . if somebod 7 has. some sort 1

don t intend to. . ask if you can put your personal 3

out of the way . . [A 15].

Seven jurors were wneud for cause, over objection, due to

views regarding capital punishment. ls Four others who indi-

cated some hesitancy about capital punishment!® were struck

peremptorily by the prosecutor [TR 219]. Thus the “death-

qualification” process permitted the prosecutor to identify and

excuse 11 of 53 otherwise qualified veniremembers—approx-

imately 20% of the panel.?°

18]. Aspatore: “I would hate to. . I don’t think I could . . . I haven't

never been onajury before. . . I haven’t been exposed tothis. . . I just don’t

think I could give anybody the death penalty” [A 29-30].

2. Cain: Would you repeat that . . .? don't know. . . I don’t know if I could

decide that or not. it would be hard ... Is that what this case is

about . . .? I don’t think I could decide that” [A 30-31).

3. Ehman: “I don’t know. . . just couldn't see making that kind of decision.

It’s kind of hard for me to do. . .” [A 32].

4. Englert: “I think I would have a hard time . . I wouldn't vote for the

death penalty, I know that. [A 33].

5. Roundtree: Because of “my religious convictions . . .” [A 34].

6. Sebrey: “I . . don't believe I should take a life” [A 35].

7. Frye: “I just don’t think I could do that. I was taught . . in the

church . . .” [A 36].

191. Cockerel: “If the evidence proved they were guilty and it was neces-

sary, I think I could” [TE 89].

2. Kargl: “As a mother, no, I don’t — I could personally take on that

responsibility” [TE 136].

3. Roden: “I really don’t know about that” (TE 175].

4. Williams: “I don’t know” (TE 204].

2 Judge Liebson qualified 46 potential jurors [TE 269]. Since 7 were

excused for death penalty views, 53 of the venire were qualified as to peti-

tioner. The panel of 46 was reduced to the ultimate 12 by random draw [TE

269-71; eae and peremptory strikes. Over defense objection [TE 3/1/82,

21-27], the prosecutor was permitted 6 strikes and each defendant 5 for a

combined total of 10 (TR 218-20]. Other veniremembers were excused, of

course, for reasons not in issue here.

For example, 21 of the 59 veniremembers were excused on the first day of trial

(the jurors last day of service) because they didn’t want to or couldn’t serve an

additional two weeks. The trial judge earlier had considered Buchanan's

objection and conceded such a procedure might implicate Buchanan's right

“to a jury of draftees, not a jury of professional volunteers . . .” but started

jury selection that day anyway [TH 3/1/82, 54-55).

—

e. Trial, Verdict And Appeal

Buchanan’s defense (actually the prosecution’s evidence)

established that Stanford was the main actor and emphasized

the lack of proof that David agreed, knew or should have

known?! Stanford was going to execute the victim. He called,

as his only defense witness, Davids social worker. Ms. Elam

read to the jury the pre-crime psychological reports. In

response, the prosecutor asked about “later psychological or

psychiatric reports.” Defense counsel objected to the use of a

“competency .. . evaluation [to reLut an] emotional distur-

bance [defense]. . . when the reports. . . are at the demand of

... this Court and another Court. [A 55]. Additionally,

petitioner complained that “counsel was not present and was

not informed he could be present and David was not informed,

at that time, that they could be used against him. . . I would

cite Estelle. . .”[A 57]. Ms. Elam read Dr. Langes report [A

58-59].

He was in good reality contact and reasonable knowledge

of eurrent events outside the center and seemed to

functioning in full normal I. Q. range . . David states at

times he has been very angry at certain people, staff at the

center and thought about hurting them [A 59].

In closing, defense counsel conceded David guilt of robbery

but not of sexual assault. He argued: “David Buchanan had no

21 The primary question in petitioner's case was whether the jury believed

he had the “intent to cause the death of” Baerbel Poore or “wantonly

engage(d] in conduct which ereateſd] a grave risk of death to” her. KY. REV.

STAT. 507.020(1)(a) and (b).

22 If this was the purpose of the car trip it was certainly illogical and only

created an opportunity for witnesses to view the slaying, as they did [TE

953-992]. The prosecutor agreed that petitioner was not guilty of kidnapping

Ms. Poore from the gas station and refused to proceed on the grand jury

indictment for this offense [A 4; TH 3/9/82, 4].

23 The reason that the prosecutor had to reach back to the juvenile court

competency report was that the two circuit court competency reports were

sealed in the record as “privileged at least as to . . . the Commonwealth,

because ... the Court is ordering its own evaluation . [of] the

defendant's ability to stand trial. [TH 12/18/81, 11; R396, TR 377]. Judge

Liebson stated in his order: “It appears to the Court from personal observa-

tion that there may be a need for treatment. . [K]eep as long as he needs

treatment” [TR 126].

idea whatsoever what was in Kevin Sanford’s mind” [TE 1289].

If guilty of any degree of homicide, he was under “extreme

emotional disturbance” which mitigated the offense** and the

punishment [TE 1305].

The prosecutor's first line of attack in closing was the compe-

tency exam: “[D]o you remember when he put Ms. Elam on, he

didn’t mention anything . . . [about] that last psychological or

psychiatric evaluation. [TE 1309]. However, his basic posi-

tion vis a’ vis petitioner was that there was a “conspiracy”

because David “starts the ball rolling” [TE 1319]. Contrasting

the two defendants, the Commonwealth argued that Stanford

guilt of murder “did not stem from just his participation in the

robbery” as Buchanan's did.

I am not asking you to find [Buchanan] guilty (of inten-

tional murder]. . . [T]o be perfectly honest with you

{Buchanan’s}] involvement comes up because he was

oe in the conspiracy to commit the robbery. . . [TE

The prosecutor argued for a “wanton” murder conviction.

However, he didn’t get it. The jury gave the Commonwealth a

verdict of intentional murder despite the prosecutor's candid

admission that the evidence did not support such a verdict. The

jury recommended a life sentence and took the unusual step of

insisting that it be “served consecutively with any other sen-

tence.”25 David was also convicted and given the maximum

24 Absence of “the influence of extreme emotional disturbance” was an

element of intentional murder under KY. REV. STAT. 507.020(1)(a). See note

64. But the “reasonableness” of the emotional disturbance “is to be deter-

mined from the viewpoint of a person in the defendant's situation under the

circumstances as the defendant believed them to be. Thus, this all white,

death-qualified jury of 12 was required by law to try to understand the

situation from David Buchanan perspective. The ability of this jury to do so

was critical to justice. The prosecutor, on the other hand, argued about what

“any reasonable person” would have done [TE 1312].

25 In Kentucky, the jury is the sentencing authority. RCr 9.84; see, e. g.,

Cornelison v. Commonwealth, 2 S. W. 235 (Ky. 1886). There are no standards

or guidelines for the exercise of sentencing discretion. KY. REV. STAT.

532.070(1) permits a judge to reduce a jury sentence if it is “unduly harsh.”

However he can not impose a stiffer penalty. The trial judge said he “never

had a case” where the jury volunteered “consecutive” sentencing [TE 1349].

6——

sentence (20 years) for robbery, rape and sodomy also “to be

served consecutively . . .” [TE 1347-48]. Co-defendant Stan-

ford was similarly convicted but was sentenced to death on the

murder conviction [TE 1542; R 397-400].

On appeal, the Kentucky Supreme Court held that in “a joint

trial for capital murder where the death penalty is sought

against one defendant, but not the other, the impaneling of a

death-qualified jury does not deprive the [non-capital] defend-

ant of the right to a trial by a fair and impartial jury selected

from a fair cross-section of the community . . . Such a process

furthers the interests of both the defendant?® and prosecution

.. . [A 81-82]. Buchanan, 691 S.W.2d at 211-12.

The Court also held that reading the juvenile court compe-

tency exam to the jury in rebuttal was “proper” because “the

objective observations” in the letter were admissible. Anyway,

it was “harmless beyond a reasonable doubt . . . [since] the

murder was well planned and premeditated. 7 Estelle v.

Smith, 451 U.S. 454 (1981) was inapplicable since “the report

contains no inculpatory statements . . or any accusatory

observation by the examiner . . .” and because Buchanan had

already “waived his right to silence by giving the police a

confession . . .” [A 84]. 691 S.W.2d at 213.

SUMMARY OF ARGUMENT

I. Death-Qualification

Unlike Ardia McCree, petitioner does not seek to topple a

practice deemed essential to the states concededly legitimate

use of capital punishment. Rather, David Buchanan asks only

that he not be unnecessarily and unfairly swept along by

another's capital prosecution and tried before a tribunal, if not

organized to convict, undeniably organized to punish with

uncommon severity.

26 The Court did not explain how death-qualification served any interest of

David Buchanan.

27 The Court did not point to any evidence of this relevant to David. There

was none.

Petitioner's primary reliance is upon the Sixth Amendment's

guarantee of an impartial jury—both in guilt determination

and, in Kentucky at least, sentencing. Common sense, experi-

ence, buttressed by uncontradicted social science evidence,

demonstrates that death-qualified juries are, if nothing else,

more punitive. Indeed, they are much more than that. Propo-

nents of the death penalty are demonstrably mo- likely to

treat the David Buchanans of the world lo status, juvenile,

criminal defendant—more harshly, less likely to consider miti-

gating mental state evidence, and more likely to convict, and

convict of the highest offense.

Unlike Ardia McCree, Buchanan does not argue in the

abstract. This jury was not impartial—in a constitutional

sense. This jury was unusually punitive, adopting a theory of

maximum liabillity for Buchanan even the strong-armed pros-

ecutor thought unsupported by evidence. The reason this jury

was prosecution-prone is that 20% of the qualified panel was

purged for reasons unrelated to Buchanan’s case—solely

because they held political or religious views otherwise

entitled to constitutional protection.

Surely Buchanan is then entitled to some inquiry as to the

state interest at stake. If so, petitioner must prevail because

the cost to the state is slight. It appears that in the last 10 years

of capital prosecutions in Kentucky this may be the only case

where a non-capital accused was jointly tried with a capital

defendant. At most, there are few. Available to the Common-

wealth are numerous remedies—some of which do not involve

separate trials: 1) simultaneous juries; 2) separate juries; possi-

bly 3) a jury less than 12 for capital sentencing; 4) a non-

unanimous sentencing jury; or 5) no death- qualification at all.

Buchanan also insists that due process was denied because

without question there are fair-cross section, equal protection,

and even First Amendment, ramifications from excusing 20%

of the jurors due to their viewpoint on a controversial topic

irrelevant to this defendant's case. Even if it is held that the

excluded group is not sufficiently “distinct” to satisfy McC ree’s

exacting standards, a large and important cross-section of the

community was excluded from jury service in an American

b ˙m - nent

courtroom. The overall extent of the fundamental unfairness

must be recognized by the due process clause, even if each

theory is rejected as separate, compartmentalized constitu-

tional violations. This jury's age, racial, sexual and political

orientation was demonstrably tilted by death-qualification.

Even if the practice is acceptable in a multi-defendant case

such as this, the death-qualifying process employed below still

offended due process. While 20% of the panel was excluded

because of views on a punishment irrelevant to Buchanan, no

voir dire was permitted on lesser, applicable penalties. No

probing, thus no disqualification for cause or by right, was

permitted on partiality toward the death penalty (life-qualifica-

tion). Veniremembers were excused without stating they

would not follow the law in violation of the limits set by Wither-

spoon, Adams and Witt. In the end, the jury itself was biased

on both guilt and sentencing by this dramatic emphasis on the

death penalty.

II. States Use Of Competency Evaluation At Trial

Petitioner's argument that the State should not be allowed to

use a competency evaluation to rebut a mental status defense is

twofold: first, petitioner submits that any t. ial use by the State

of a competency evaluation is fundamentally unfair since com-

petency evaluations can be compelled, and further, are irrele-

vant to the issues presented by mental defences; second, the

unwarned use of a competency evaluation denies a criminal

defendant the Fifth Amendment privilege to be free from self-

incrimination, and denies the Sixth Amendment right to con-

sult with counsel.

At trial, petitioner argued that he could not be guilty of any

degree of homicide because he did not participate in the murder

of the victim. Alternatively, petitioner argued that if the jury

were to believe that he did participate in the murder (as they

obviously did, having convicted him of intentional murder),

then he could only be guilty of Manslaughter in the First

Degree. In Kentucky, the crime of murder is distinguished

from the crime of Manslaughter in the First Degree depending

upon the presence or absence of emotional disturbance of the

perpetrator. In petitioner's case, he presented as his only

defense witness a social worker who testified from records of

the Commonwealth of Kentucky that petitioner was emo-

tionally disturbed, exhibited thought disorders, and that some

4-1/2 months prior to the charged offenses, was pre-psychotic.

Petitioner presented no evidence of a psychological or psychi-

atric nature which was obtained after the offenses were com-

mitted. Instead, petitioner relied solely upon records already

existing at the time of the offense having been obtained by the

Commonwealth during petitioner's treatment as a delinquent

juvenile.

The trial court, over petitioner's objection, allowed the pros-

ecutor to use the report of a psychiatrist who evaluated peti-

tioner pursuant to an order of the Juvenile Court for a

competency evaluation. Petitioner was not advised that the

State would make any trial use of the statements made to the

psychiatrist. Nor was he informed that the psychiatrist's

clinical observations or opinions might be used against him.

Clearly, evaluations of competency are fundamentally dif-

ferent than evaluations of a criminal defendant's mental state at

the time of the offense. Competency evaluations work merely

to protect the incompetent defendant from being tried, and

consequently maintain the integrity of the criminal justice

system. The test for competency is significantly different than

the test of insanity. In fact, defendants who might otherwise be

insane may be competent to stand trial.

Petitioner submits that to allow the use of competency eval-

uations by the State to rebut mental status defenses will

ultimately pervert the due process considerations for the

determination of competency, and may ultimately work to

obstruct competency determinations in the first instance.

Further, petitioner submits that the unwarned use of a com-

petency evaluation during the guilt/innocence phase of a crimi-

nal trial violates the defendant's Fifth Amendment privilege to

be free from compelled testimony and his Sixth Amendment

right to assistance of counsel.

—— O

ARGUMENTS

PURGING 20% OF THE JURY PANEL (7 FOR CAUSE, 4 BY

PEREMPTORY) DUE TO RELIGIOUS OR POLITICAL

VIEWS ON CAPITAL PUNISHMENT VIOLATES THE

FIRST, SIXTH AND FOURTEENTH AMENDMENTS WHEN

ONE DEFENDANT IN A JOINT TRIAL DOES NOT FACE

THE DEATH PENALTY.

Petitioner will not repeat the excellent submissions by

respondent and amici in Lockhart v. McCree, 106 S.Ct. 1758

(1986), either as to analysis of precedent or discussion of social

science literature on the general subjects of death-qualification

and “conviction-proneness.”28 McC ree, however, is the jump-

ing off point not the end point for this case.

A. McCree

Unlike McCrree, this case does not involve the possibility that

the veniremembers in question “might frustrate administra-

tion of a state's death penalty scheme,” Wainwright v. Witt, 105

S.Ct. 844, 848, 851 (1985). Nor does this action involve “that

‘class’ of veniremen whose views would prevent or substantially

impair the performance of their duties. Witt, 105 S.Ct. at

852, since the capital punishment attitudes of the venire were

wholly irrelevant to Buchanan case and since the trial court's

summary exclusion procedure, coupled with the prosecutor's

peremptory challenges, created a significant danger that the

“class” was expanded beyond the narrow confines of Wither-

spoon/Witt. Nor does Buchanan argue “the right to be tried by

jurors who have explicitly indicated an inability to follow the

law and instructions . . .” Lockett v. Ohio, 98 S.Ct. 2954, 2960

(1978), since those excluded where fully qualified as to his case.

Available to the Court and incorporated here, to the extent relevant, are

the briefs and summaries of social science studies in the McC ree appendix.

meer

Unlike Mccree, Buchanan claim does not rise and fall on

eonvietion- proneness. 2 Nor does he depend on presenting

conclusive proof - using actual jury deliberations.*! Unlike

McCree, the state interest here is slight —if it exists at all. The

holding in McCree, 106 S.Ct. at 1764, was that “the Constitu-

tion does not prohibit . . . ‘death-qualifying’ juries in capital

cases.” Buchanan was not a capital case.

B. Burden Of Proof

Assuming arguendo there are “serious flaws in the evi-

dence ? that ‘death-qualification’ produces ‘conviction--

29 “In a large sense, death-qualification may have more to do with wrongful

prison terms than with wrongful executions.” That is so because “[i)t is

plausible that juror characteristics can be particularly influential when juries

are asked to distinguish among the lesser forms of homicide.” Finch and

Ferraro, The Empirical Challenge to Death-Qualified Juries: On Further

Examination, 65 NEB.LAW. REV. 21, 61 (1986).

30 The Court's “serious doubts about the value of. . studies in predicting

the behavior of actual jurors” must be read in the context of the “per se

constitutional rule” sought by McCree. Surely, the Court's reliance on social

science as an adjunct to judicial experience and common sense is firmly

entrenched. See Williams v. Florida, 399 U.S. 78 (1970); Colgrove v. Battin,

412 U.S. 149, 160 n.15 (1973); Ballew v. Georgia, 435 U.S. 223 (1978).

31 Fay v. New York, 382 U.S. 261 (1947) presented the “blue ribbon jury”

for review. This panel was screened for “all who possess .. such con-

scientiovs opinions with regard to the death penalty as would preclude

finding a defendant guilty . 332 U.S. at 267-68. So-called “nullifiers,”

which is a much narrower class than at issue here, McC ree, 106 S. Ct. at 1764,

didn’t serve on the special panel. Complaint about sex discrimination—only

11% were women—was said to be “almost frivolous.” Fay, 332 U.S. at 266 n.4.

“A more serious allegation against the special jury panel is that it is more

inclined than the general panel to convict.” 332 U.S. at 278. “Extensive

studies” were made by “the New York State Judicial Council” which “indi-

eateſd] that special juries are prone to convict. In a study of certain types of

homicide cases, it found that in 1933 and 1934, special juries convicted in

eighty-three and eighty-two percent of the cases while ordinary juries . . .

convicted in forty-three and thirty-seven percent respectively.” 332 U.S. at

278, 279.

It is not without significance that this Court, and others who have

studied the issue, have not rejected out-of-hand the unquestionably

impressive array of social science studies. See, e.g., Hovey v. Superior Court,

616 P2d 1301, 1341 (Cal. 1980) (“Most of the criticisms do not have merit.”).

Nor does McCree, 106 S. Ct. at 1764n.11, seriously dispute the ‘essen-

prone’ juries,” McCree, 106 S.Ct. at 1762, petitioner still must

prevail. While the empirical evidence may not be sufficient to

bar the practice in prosecutions where it is essential, surely the

social science data, buttressed by “the more intuitive judg-

ments of . . judges. defense attorneys, and prosecutors,”™

is enough to carry the day in a non-capital case.

“In light of the presently available information,” this Court is

“not prepared to announce a per se constitutional rule requiring

the reversal of every conviction” by a death-qualified jury.

tial unanimity’ of support among social science researchers and other aca-

demics for MeCrees assertion that ‘death-qualification’ has a significant

effect on the outcome of jury deliberations at the guilt phase of capital trials,”

(quoting the dissent, 106 S.Ct. at 1773). There are no studies which

contradict” the empirical records developed in Hovey, McC ree and Keeton v.

Garrison, 578 F.Supp. 1164, 1171-79, rev'd, 742 F.2d 129 (4th Cir. 1984), cert.

denied, 106 S.Ct. 2258 (1986). See Grigsby v. Mabry, 758 F.2d 226, 238 (8th

Cir. 1985) (en banc), rev'd, McCree. This remains true.

One study not discussed in McC ree is Bray and Noble, Authoritananism and

Decisions of Mock Juries, 36 JOUR. PERSONALITY & SOCIAL PSY-

CHOLOGY 1424 (1978) [Bray and Noble). 280 students were divided into 6

member juries and categorized as high or low authoritarians. They listened to

an audio-recording of a murder trial, made initial judgments, deliberated,

and then announced verdicts. As other researchers discussed in Sec. C(ii)

infra, Bray and Noble, at 1429, found “greater endorsement of the death

penalty by high authoritarians.” More importantly, again social science found

that these jurors (high authoritarians) and juries “reached guilty verdicts

more frequently.” /d. at 1.

33 The trial judge implied there are “prosecution-prone” jurors. In limiting

each defendant to 5 peremptory challenges he said “there isnt any

inconsistency in the type of juror that [each defendant} would want” to strike

(TH 3/9/82, 23).

34 Recent studies have shown that “veteran” jury panels—those who have

served in other cases—may perceive fundamental principles of law (i. e.

presumption of innocence) differently from jury panels composed of citizens

who have never served. Additionally, It he results indicated that as the

number of jurors with prior jury service increased there was a modest, but

significant, increase in the probability of conviction.” Dillehay and Nietzel,

Juror Experience and Jury Verdicts, 9 LAW HUM. BEHAV. 179 (1985).

Buchanan objected to a panel “who has become prosecution oriented” by

their length of service [TH 12/18/81, 36). Nevertheless, most of the jurors

called were on their very last day of jury service. Once again, social science

demonstrates what trial lawyers and judges know from experience. The

prosecutor below candidly admitted: “I would rather have (a juror) who has

more experience. You get a brand new jury and. . . you say reasonable doubt

and everybody panics and gets hung up” (TH 12/1881, 37].

Witherspoon v. Illinois, 391 U.S. 510, 518 (1968). “It does not

follow, however, that . . . petitioner is entitled to no relief

because there is no reason he should be held to such a high

burden of proof. Witherspoon, 391 U.S. at 518. Since we seek so

much less than McCree, we should be held to a lesser burden.

See generally Hovey, 616 P.2d at 1308 n.37 (“substantial doubt”

must be shown whether a death-qualified jury is neutral].

Second, Buchanan has certainly established a prima facie case,

calling for rebuttal evidence from the State. Cf Castaneda v.

Partida, 430 U.S. 482, 498 (1977). Third, and most important,

since there was little or no state interest in death-qualifying

petitioner's jury, the Commonwealth must bear the burden of

justifying the exclusion and of demonstrating lack of preju-

dice.

C. Social Science Research

The death-qualified** are not just more prone to convict, as

was the focus in McCree. Death-qualified jurors also share a

“cluster” of pro-prosecution, anti-accused values—some of

which are directly relevant to this case and not specifically in

issue in MeCree. See, e.g., 106 S.Ct. at 1778 (Marshall J.

dissenting). Principal among the findings, and crucial to

Buchanan argument—is that death-qualified juries tend to

Even “assuming . it is not currently possible to prove or disprove a

relationship between death-qualification and prejudice” as to “conviction-

proneness,” and McC ree, 106 S. Ct. at 1764 [“we will assume .”], did not go

so far, “we choose the victor when we assign the burden of proof.” Gillers.

Essay Review: Proving The Prejudice of Death-Qualified Juries After

Adams v. Texas, 47 U. PIT T. L. REV. 219, 240 (1985). Since Buchanan did not

face the death penalty, why should he have this burden?

— anete — —— conuat unter tn

temporary research on desth qualication is based on a study group defined

more narrowly than in practice or, after Witt, as a matter of law.” This is

certainly true here because even if the exclusion met the Witherspoon stan-

dard, the prosecutor's peremptory strikes may legitimately be considered.

See note 50.

F ˙-ꝛa m—ô m—xꝝ

give more harsh sentences than Witherspoon-excludables

[WES].

i. Punitiveness and Pro-Death Penalty Views

Researchers have consistently and without exception found

proponents of the death penalty more punitive than opponents.

Wilson, Belief in Capital Punishment and Jury Performance,

(unpublished, University of Texas (1964) [Wilson]; Jurow, New

Data on the Effects of a “Death-Qualified” Jury on The Guilt

Determination Process, 84 HAR.L.REV. 657 (1971) [(Jurow):

Fitzgerald and Ellsworth, Due Process vs. Crime Control:

Death-Qualification and Jury Attitudes, 8 LAW HUM.

BEHAV. 31 (1984) [Fitzgerald and Ellsworth]. “Death-

qualified respondents were more punitive than excludable

respondents—less likely to consider mercy, more likely to

favor harsh punishment as a means o. reducing crime, and more

likely to believe in the strict enforcement of all laws, no matter

what the consequences. These differences are dramatic.” Fitz-

gerald and Ellsworth at 43-44.

ii. Authoritarianism And Pro-Death Penalty Views

Significantly, jurors who favor the death penalty tend to be

more “authoritarian” than capital punishment opponents. “The

more a subject is in favor of capital punishment, the more likely

he is to be politically conservative, authoritarian and punitive

in assigning penalties upon conviction.” Jurow at 588. “A con-

siderable body of research conducted since Witherspoon indi-

cates that individuals who favor the death penalty have

correlated attitudes which may bias them toward the prosecu-

tion. One such attitude, ‘authoritarianism,’ is characterized by

conservatism, rigidity, moralism, punitiveness, intolerance of

deviant behavior, and hostility toward low-status persons.”

Seguin and Horowitz, The Effects of ‘Death Qualification’ on

Juror and Jury Decisioning, An Analysis From Three Per-

spectives, 8 LAW & PSYCHOLOGY REV. 49, 61 (1984). While

the best predictor of voting severity (higher degree of offense)

* This proposition seems so obvious as to not need confirmation by social

science. “{I)t is self evident .” Witherspoon, 391 U.S. at 518.

on the first ballot was a favorable attitude toward the death

penalty, the legal authoritarianism score from Boehm's (1968)

Legal Attitudes Questionnaire** also correlated with more

severe first ballot votes. Cowan, Thompson, and Ellsworth,

The Effects of Death-Qualification on Jurors Predisposition to

Convict and on the Quality of Deliberation, 8 LAW HUM.

BEHAV. 53, 69 (1984) [Cowan—deliberation]. These two

attitudes were highly intercorrelated (4= 46, p.2.001).”

iii. Authoritarianism And Punitiveness

Researchers have repeatedly and consistently concluded

that high authoritarians mete out more severe punishments

than low authoritarians. Berg and Vidimar, Authoritarianism

and Recall of Evidence about Criminal Behavior, 9 JOUR. OF

RESEARCH & PERSONALITY 147, 151-152 (1975) [Berg

and Vidimar]: McAbee and Cafferty, Degree of Prescribed

Punishment as a Function of Subjects Authoritarianism and

Offenders Race and Social Status, 50 PSYCHOLOGICAL

REPORTS 651-654 (1982); Bray and Noble, 36 JOUR. PER-

SONALITY. & SOCIAL PSYCH. at 1427 [“High

authoritarians gave significantly longer sentences than low

authoritarians.”]; Mitchell and Byrne, The Defendants

Dilemma: x ffects of Juror Attitudes and Authoritarianism on

Judicial Decisions, 25 JOUR. PERSONALITY 7 SOCIAL

PSYCH. 123, 125-126 (1972).

iv. Authoritarianism And Dissimilar Defendants

Aside from their punitiveness, high authoritarians behave in

other ways disturbing to all concerned about the fairness of our

criminal justice system. They do not follow instructions to

disregard evidence about the defendant's character. Mitchell

and Byrne. In fact they are more inclined to punish severely

when the defendant is dissimilar to themselves or has a per-

ceived “bad character.” Mitchell and Byrne. High

authoritarians tend to base their verdicts on subjective impres-

38 Boehm, Mr. Prejudice, Miss Sympathy and the Authoritarian Person-

ality: An Application of Psychological Measuring Techniques to the Prob-

lem of Jury Bias, 3 WISC. L. REV. 734, 739-742 (1968) [Boehm].

sions of the defendant’s character. Boehm at 746. Particularly

relevant here is the finding that “high authoritarians are prone

to place personal blame on juvenile delinquents and minimize

the role of other contributing factors.” Centers, Shomer, and

Rodrigues (1970), cited in Berg and Vidmar at 148.3 “It

appears clear that high authoritarians, more often than low

authoritarians, tend to respond with personal hostility to low

status figures Roberts and Jessor, Authoritarianism,

Punitiveness and Perceived Social Status, 56 JOUR. OF

ABNORMAL & SOCIAL PSYCHOLOGY 311, 314 (1958).

Berg and Vidimar also found that high authoritarians are more

punitive to “low status” defendants. Unfortunately, David

Buchanan falls into this category.

v. Authoritarianism And Mental-State Defenses

A critical area where the views of pro-death penalty jurors

differ substantially from those of the death-scrupled is per-

spective on the insanity defense, and, by analogy, the type of

mental state mitigation defense offered here. Early on Wilson

found death penalty proponents more likely to reject the

insanity defense. The 1971 Louis Harris and Associates poll

found significantly more jurors who favored capital punishment

mistrusted the insanity defense. And a recent study found

death-scrupled jurors significantly more likely to vote not

guilty by reason of insanity than were the death penalty propo-

nents when the defense was psychologically based. %

Ellsworth, Bukaty, Cowan, and Thompson, The Death-

Qualified Jury and the Defense of Insanity, 8 LAW HUM.

BEHAV. 81, 88-89 (1984). Jurors favoring the death penalty are

much more likely to believe most defendants who plead not

guilty by reason of insanity are not “really” insane. Id. at 89.

One study suggests a desire to avoid “anxiety laden situations . . may

steer authoritarian juries away from dealing with some important issues.”

Goldman, Freundlich and Casey, Jury Emotional and Deliberation Style,

JOUR. PSYCHIATRY & LAW 319 (Fall 1983).

“ Interestingly, there were no significant differences when organicity was

the premise for the defense.

vi. Miscellaneous Views Of Death Penalty Supporters

Those inclined toward capital punishment are significantly

predisposed to evaluate evidence more favorably to the pros-

ecution. Thompson, Cowan, Ellsworth, and Harrington, Death

Penalty Attitudes and Conviction Proneness, 8 LAW HUM.

BEHAV. 95, 104 (1984). Moreover, the death-scrupled are more

regretful than death penalty proponents for harsh errors in

convicting when acquittal was appropriate or finding a higher

degree of offense than was warranted. Id. at 107. On the other

hand, the death-scrupled are less regretful for lenient errors.

If these studies prove anything, it is that “a community made

up exclusively of” the death-qualified “is different from a com-

munity composed of both . . Ballard v. United States, 329

U.S. 187, 193 (1946).

D. Impartial Jury

Unless Witherspoon and Adams v. Texas, 448 U.S. 38 (1980)

are to be wholly repudiated, Buchanan was denied his right to

an impartial jury. U.S. CONST., 6th AMEND. Even if it “has

not been shown that this jury was biased with respect to

guilt . . 1 [I]t is self-evident that, in its role as arbiter of.

punishment .. this jury fell woefully short of that impar-

tiality to which the petitioner was entitled under the Sixth and

Fourteenth Amendments.” Witherspoon, 391 U.S. at 518.

Witherspoon involved a state procedure for selecting jurors

in capital cases, where the jury did the sentencing and had

comlete discretion . .. Adams, 448 U.S. at 43. The same is

true here, even though death was not a possible punishment.

As in Witherspoon, “the jury assessed punishment at the same

time it renders its verdict. . and had “unfettered discretion”

in sentencing. Adams, 448 U.S. at 46. Adams’ reaffirmation of

Witherspoon was in a different context, where “the jury plays a

somewhat more limited role . . .” one of “guided jury discre-

tion.” 448 U.S. at 47. Buchanan's jury had unbridled freedom in

41 Considering the empirical evidence of “conviction-proneness,” in gen-

eral, and this jurys actions in particular, Buchanan can not and does not

concede this.

sentencing and, in this sense, his case is closer to Wither-

spoon’s than Adams’.

The degree of jury discretion is relevant because McC ree

dictates so. McCree'’s criticism of death-qualification ultimately

failed because “both Witherspoon and Adams dealt with the

special context of capital sentencing, where the range of jury

discretion . . .” was wider than it is in the determination of

guilt and innocence. 106 S. Ct. at 1769. [The traditional role of

finding the facts and determining guilt or innocence .. . is

more channelled.” 106 S. Ct. at 1770. Therefore, the fatal flaw i in

MeCrees case is precisely Buchanan strength. “Witherspoon

is not grounded in the Eighth Amendment. but in the Sixth

Amendment. Witt, 105 S.Ct. at 852. Death-qualification most

certainly “stacked the deck against the petitioner” excactly as

meant by Witherspoon—on punishment. 391 U.S. at 523.

E. State Interest

Witherspoon immediately turned to the States “justification

. . . offered for the jury-selection technique it employed

391 U.S. at 518, as did McCree ultimately. 106 S.Ct. at 1768.

The McCree Court posited three reasons why the state’s valid

interest outweighed any countervailing considerations recog-

nized by Witherspoon and Adams. Only the first of these is

arguably relevant: “a single jury that could impartially decide

all of the issues in McC ree’s case.” 106 S.Ct. at 1768. Here the

states interest is much less. Rather than proviciing two juries

in every capital case, Kentucky would, at worst, have to permit

one separate trial for a non-capital co-defendant every few

years.

42 Buchanan had nothing to gain from “residual doubt,” even if it existed, at

the penalty phase since there was to be no bifurcated trial in his case. 106

S.Ct. at 1769. Nor is “consistency” a concern here. /d.

43 The Department of Public Advocacy routinely provides extensive homi-

cide date to the Kentucky Supreme Court in capital appeals as part of a

challenge to the application of the death penalty statute and for use in

proportionality review. While not of record here, the Attorney General is

aware of this public information. There are, therefore, known to the Attorney

General, at least 36 defendants who have received the death penalty, 61 who

have received a lesser sentence after a penalty phase, and 23 others who have

been convicted of manslaughter. Some of these cases involved joint trials. All

Theoretically, if Buchanan were to prevail, any decision

would apply to those instances where the prosecutor “will

request the death penalty in particular cases solely . . . [to]

‘death-qualifly]’ the jury” only to waive the death penalty at the

presentence hearing.“ 106 S.Ct. at 1766 n.16. Putting aside

the problems of proof, 106 S.Ct. at 1772 n.4 (dissent), hopefully

such cases are rare.

Petitioner prays that the minimal expense of requiring some

alternative procedure in these infringement situations not be

held to outweigh the compelling case of prejudice he presents

both in theory and in fact. Death-qualification, in this case,

“sufficiently threatens . . . constitutional principles . . . that

any countervailing interest of the State should yield.” Burch v.

Louisiana, 441 U.S. 130, 136 (1979). The alternatives are many

and could have “accommodate[d] the States legitimate interest

in obtaining jurors who could follow tl.eir instructions and obey

their oaths” as to both Buchanan and Stanford at little addi-

tional cost. Adams, 448 U.S. at 44.

First, and most obvious, a separate trial could have been

granted. Separate trials are not unusual in other multi-defend-

ant cases where constitutional rights are in danger.* See Peo-

of the juries were death-qualified. To petitioner's knowledge, not a single

capital case, other than this one, involved a co-defendant who was not “death-

eligible.” The reason is quite simply that, for other reasons, separate trials

are granted or, much more likely, the less culpable co-defendants usually

plead guilty. Respondent is free to point the Court to similar cases.

“This certainly occurs. State v. Mercer, 618 S.W.2d 1, 17 (Mo. 1981)

(Seiler, J. dissenting) [discussing two such cases]. In at least three Kentucky

cases prosecutors have “death-qualified” juries, obtained a conviction and

dropped their request for the death penalty. Commonwealth v. Whittinghill

(Muhlenberg Co. Ind. No. 82-CR-027) (“Man pleads guilty to murder

charge,” Herald-Leader at B2 (10-16-83)}; Commonwealth v. Pen-

nington (Letcher Co. Ind. No. 84~CR-023) (“Pennington to serve at least 25

years,” The Mountain Eagle at 1 (May 29, 1985)); Commonwealth v. Wilson

Gefferson Co. Ind. No. 84-CR-1521), appeal pending. See also Hicks v. State,

414 So.2d 1137 (Fla.App. 1982); Nettles v. State, 720 (1966), cert. dis. as

improvidently granted, 392 U.S. 616 (1967).

45 It may well have been in the Commonwealth's interest to grant separate

trials in this case for other reasons—because the defenses of Buchanan and

Stanford were directly in conflict and because there were serious Bruton v.

United States, 391 U.S. 340 (1968) problems when neither defendant testified

ple v. Clark, 402 P.2d 856 (Cal. 1965) [violation of speedy trial

rights of one defendant not justified by need for joint capital

trial].

Second, the analogous relief of a separate sentencing jury

was requested. This would have conserved some time and

expense as the guilt phase evidence need not have been

repeated in full. The initial voir dire would have taken one-

fourth the time. McCree, 106 S.Ct. at 1781 (dissent). Third,

Buchanan asked, and the judge considered, death-qualification

only after the guilt phase with substitution of alternates*

should any WEs be present on the guilt-finding jury assuming

a conviction of intentional murder.

Fourth and fifth, if Stanford had been willing to waive jury

unanimity in recommending punishment, or a 12 person jury

for capital sentencing, Buchanan's interests could have been

protected without any cost to the state. Sixth, the most

but various confessions and admissions were introduced.

For example, in closing, Buchanan counsel went after Stanford's “indig-

nant” argument that Kevin was “set up” presumably by Buchanan. “It's not

very indignant to brag and boast and laugh about sodomy” like Stanford did

ee 18

1294].

Without detailing the facts surrounding the Bruton issues, suffice it to say

the prosecution may have endangered its case by insisting on a joint trial.

See, e.g., Byrd v. Wainwright, 428 F.2d 1017 (5th Cir. 1970).

The dissent in McCree, 106 S.Ct. at 1781, suggests this alternative. In

Peek v. Kemp, 784 F.2d 1479 (1984) (en banc), the Eleventh Circuit upheld a

death sentence where an alternate was substituted for a juror who allegedly

was unable to continue in the midst of the penalty deliberations. In Toole v.

State, 479 So.2d 731, 735 (Fla. 1985), the trial judge used exactly this

procedure and the prosecutor had no trouble obtaining a death sentence.

47 Spaziano v. Florida, 104 S.Ct. 3154 (1984), Williams v. Florida, 399

U.S. 78 (1970) and Apodaca v. Oregon, 406 U.S. 404 (1972), indicate that

Kentucky could simply employ a jury of less than 12 or non-unanimous jury

(as in Florida) for the sentencing portion of a bifurcated captial trial. KY.

REV. STAT. [KRS] 532.025(1)(b) requires the jury “to recommend a sen-

tence.” There is no reason why this recommendation must be by 12—or all 12.

If so, any “death-qualification” could occur after the guilt phase of a joint

trial such as this with no additional time or expense

involved—indeed less: 12 instead of 46 interviews. Alternatively, with a non-

unanimous jury, there seems no need for death-qualification at all.

unanimous jury for sentencing, thereby avoiding — pre-

logical alternative, at little additional expense, would be to

empanel simultaneous juries. * Finally, the state is always free

not to death-qualify the jury at all.“ As in Balle v. Georgia,

435 U.S. 223, 243-244 (1978), the states interest in saving

“court time and. . financial costs” is insufficient to outweigh

the obvious prejudice in being tried before a death-qualified

jury—even if such juries are only “somewhat” more likely to

convict and punish severely than non-capital juries. McCree,

106 S.Ct. at 1764.

F. Fair Cross-Section

Buchanan's jury was, in attitude toward punishment (and a

constellation of other criminal justice concepts) “unlike one

chosen at random from a cross-section of the community . . .”

Witherspoon, 391 U.S. at 517. A jury which is unnecessarily

“culled of all who harbor doubts about the wisdom of capital

punishment,” 391 U.S. at 520, lacks the “common-sense judg-

phase for his own case, no change in procedure would be required. See

Patton v. United States, 281 U.S. 276, 293 (1930); Short v. Commonwealth,

519 S. W.2d 828 (Ky. 1975) [wavier of 12 person jury or unanimity possible]

Ward v. Hurst, 189 S.W.2d 594 (Ky. 1945) [no KY. CONST. right to jury on

punishment).

The “double jury procedure” is an effective and widely used “economy

measure” sath ä —— 2 — e

defendants. Smith v. De Roberts, 758 F.2d 1151 (7th Cir. 1985); United States

v. Lewis, 716 F.2d 16, 19 (D.C. Cir. 1983); United States v. Hayes, 676 F.2d

1359, 1366 (11th Cir. 1982); United States v. Rimar, 558 F.2d 1271 (6th Cir.

1977); United States v. Sidmon, 470 F.2d 1158, 1167-70 (9th Cir. 1972). The

only additional time would be spent in jury selection—and that would be

shortened by keeping WE's for the non-capital panel.

Some states operate capital punishment schemes without death-

qualification. See State v. Lee, 60 N. W. 119 (Iowa 1894); State v. Wilson, 11

N.W.2d 737 (lowa 1943); State v. Garrington, 76 N.W. 326 (S.D. 1898).

It is legitimate to consider the prosecutor's peremptory strikes, to the

extent (4 of 6) they can be linked to hesitation regarding the death penalty,

because were it not for the joint trial, the Commonwealth would have had no

opportunity to find out what the veniremembers views were—and therefore

no opportunity to exclude these jurors either for cause or by peremptory

challenge. Cf. Batson v. Kentucky, 106 S.Ct. 1712 (1986); Harich v. Wain-

wright, 106 S.Ct. 1092 (1986) (stay denied) (Powell J., concurring) [“The

ment” and “public confidence” which comes from full “com-

munity participation” and “shared responsibility” essential to

“group determination” of punishment. Williams v. Florida,

399 U.S. 78, 100 (1970); McCree, 106 S.Ct. at 1765, quoting

Taylor v. Louisiana, 419 U.S. 522, 530-31 (1975).

There is no doubt that Witherspoon, in relying on the “cross-

section” aspects of the problem, 391 U.S. at 519-521, recog-

nized that death-scrupled citizens are a part of the community,

a “broad categorſy] of persons”, which must be represented on

juries and not systematically swept from either the jury pool or

panel.5! Duren v. Missouri, 439 U.S. 357, 370 (1979); Tay/or,

419 U.S. at 533-35. Petitioner's claim may not be based on so

obvious a characteristic as skin color or sex. Nevertheless,

what is in issue is a definable characteristic which, in a non-

racist and non-sexist democratic society, is the most important

of all—how a citizen thinks and feels about important issues.

From time to time other differences from the community

norm may define other groups which need the same protec-

tion.” Hernandez v. Texas, 347 U.S. 475, 478 (1954). Buchanan

can prove what other cross-section cases can only assume—the

presence of the excluded group can make a difference in the

jury room.

Perhaps more important for conventional cross-section anal-

ysis, this exclusion process demonstrably changes the sexual,

racial, age and political makeup of juries—and did so in this

Winick, Prosecutornal Peremptory Challenge Practices in Capital Cases: An

Empirical Study and a Constitutional Analysis, 81 MICH. L. REV. 1 (1981);

Crawford v. Bownds, 395 F.2d 297, 301 (4th Cir. 1968); McCree, a" at

1773-74 (dissent). Indeed, a ee: a

more devastating than the studies show . . at least in this case.

place before or after the names are placed in the drum. McCree, 106 S.Ct. at

1775 n.6 (dissent); compare Fay, 322 U.S. at 267-68, where the death-

qualification was done before the jury panel was assigned to a particular

courtroom. See also People v. Fain, 451 P.2d 65, 73 (Cal. 1969) [pre-screening

jurors for views on death penalty].

case:®2 modestly as to sex but significantly as to race, age and

52 The Jefferson County, Kentucky, Clerk's Voter Registration Books

reveal the race, sex, age and political party of the veniremembers excluded

for cause, by peremptory and the actual jurors in this case:

a. Challenges For Cause

: AGE

JUROR NO. NAME RACE SEX AT TRIAL PARTY

#192 Della Aspatore Ww F 65 Dem.

#124 David Cain Ww M 43 Dem.

#105 David Ehman Ww M 19 Dem.

#167 Sharon Englert Ww F 23 Dem.

111 Belinda Roundtree F 28 Ind.

#112 Louise Sebrey Ww F 56 Dem.

# 71 John Frye B M 38 Dem.

b. Commonwealth Peremptory Strikes

#145 Denise Cockere! Ww E 20 Dem.

#187 Amelda Karg! Ww F 49 Rep.

#135 James Roden Ww M 19 Dem.

# 70 Louise Williams Ww M 29 Rep.

c. Jury

# 26 Charles Kelly Ww M 52 Ind.

#193 Charles Cornish W M 10 Rep.

(foreman)

# 73 Alice Eichenberger W F 55 Dem.

* 80 Franklin Sabo! Ww M 39 Rep.

* % Robert Sands Ww M 60 Rep.

#128 Ethel Zimmerer Ww F 64 Dem.

* Warren Adkins, Ir W M 54 Dem.

# 81 Mary Mitchell Ww F 2 Dem.

* 46 Mary Quaife Ww F 58 Rep.

#68 Donald Black Ww M 26 Dem.

#141 Donald Romans Ww M 32 Rep.

#182 Haze! Miles Ww F 49 Dem.

A majority of those excluded were women (6 of 11), young—under 30 (6 of 11)

and overwhelmingly Democrats (8 of 11). More significantly, two blacks, who

might have otherwise served on this all white jury, were eliminated. The

actual jury was slightly less female (5 of 12), dramutically less young (2 of 12)

and less Democratic (6 of 12) than it would have been but for death-qualifica-

tion.

This microcosm of death-qualification appears to accurately reflect what the

social scientists tell us. “Among the members of this excludable class are a

disproportionate number of blacks and women,” McC ree, 106 S.Ct. at 1772

(dissent), as well as young people and Democrats. There is “evidence of a

strong political coloration . 1 ID eS Enea ay oS

to-1 margin while among Republicans support reaches 7-to-1 . Gallup

THE GALLUP POLL (March 3. 1986).

political party. Ballew’s, 435 U.S. at 237, concern for the

“minority viewpoint”, in a political sense, and “representation

of minority groups”, in a racial sense, is implicated here.

“(C]ounterbalancing of various biases is critical to the accurate

application of the common sense of the community. . .” 435

U.S. at 233-34. Wholesale exclusion of those “opposed to cap-

ital punishment” to one degree or another, “keeps an identifia-

ble class of people off the jury...” and implicates “the

established right of every criminal defendant to a jury drawn

from a fair cross-section of the community.” Witt, 105 S.Ct. at

861 (Brennan, J., dissenting). “[S)ystematic. . . exclusion” of

any “religious . (or] political . . groups of the community”

implicates the Sixth Amendment right to “an impartial jury

drawn from a cross-section of the community.” Thiel v.

So.Pac.Co., 328 U.S. 217, 220 (1946) [error to excuse day

laborers}.

G. Freedem Of Speech And Religion

McCree recognizes the legitimate “right as citizens” venire-

members have in not being unnecessarily excluded from crimi-

nal jury service. [The removal for cause of [WE’s] .. . in

capital cases does not prevent them from serving. . . in other

criminal cases ” There i is no “substantial™ deprivation of

53 McC ree, 106 S.Ct. at 1765, does not control because this case does not

involve a “group defined solely in terms “ shared attitudes that would

prevent or substantially impair members of the group from performing one of

their duties as jurors As to Buchanan, WES “were excluded for reasons

completely unrelated to the ability of members of the group to serve as

jurors

54 Petitioner must respectfully disagree. Jurors in capital cases play sig-

nificantly greater role in the criminal justice system than jurors in non-capital

cases. The power of life and death over a fellow citizen is not the only

difference. Capital trial jurors command the attention of the public and speak

with authority, sometimes, on important issues in the criminal justice sys-

tem. Recently, capital trial jurors led a successful fight to change Kentucky

Criminal Procedure. “After emotional testimony from [seven] jurors in (a

capital) murder trial, a House committee approved a bill to allow juries to

be told about a defendant's criminal record and parole eligibility before they

recommend a sentence.” Louisville Courier Journal at 1 (3/14/86). “Bill

passed to get tough with criminals.” Lexington Herald-Leader at B

(3/22/86). These jurors help shape public opinion. They are perceived as

spokespersons for the non-legal community. “2 say jury believed Taylor would

kill again.” Louisville Times at B1 (5/1/86).

their basic rights of citizenship” since they are “unable to follow

the law . . 106 S.Ct. at 1766. Cf Batson, 106 S.Ct. at 1724

“discrimination against black jurors”). Here, at least as to

petitioner's case, the jurors in question were not unqualified.

They had a constitutional right to serve. Carter v. Jury Com-

mission, 396 U.S. 320 (1970); Turner v. Fouche, 396 U.S. 346

(1970). While racial discrimination was not involved, except

indirectly, constitutionally protected speech and religious

beliefs were. Exclusion of citizens due solely to political or

religious beliefs, in this context, “is at war with our basic

concepts of a democratic society and a representative govern-

ment.” Smith v. Texas, 311 U.S. 128, 130 (1940). Cf Torcaso v.

Watkins, 367 U.S. 488 (1961).

Participation of WE’s in non-capital prosecutions is critically

important to “preserving ‘public confidence in the fairness of

the criminal justice system’” and implementing the Court's

“belief that ‘sharing in the administration of justice is a phase of

civic responsibility. McCree, 106 S.Ct. at 1765, quoting Tay-

lor, 419 U.S. at 530-31.

H. Equal Protection

“(T)he evidence suggests that ‘death-qualification’ will dis-

ly affect the representation of blacks on capital

juries” McCrree, 106 S.Ct. at 1779 (dissent). This is both true in

theory, and in fact—at least in this case. Since this black

defendant was ultimately tried by an all white jury, there are

undeniable equal protection concerns at stake. While the dis-

crimination may be indirect and perhaps not intentional, in

contrast to Batson, it is equally unnecessary and similarly

prejudicial. The reduction in minority representation has “con-

55 See Schowgurow v. State, 213 A.2d 475 (Md. 1965) (Maryland constitu-

tional provision requiring belief in God for jury service violated due process]

Juarez v. State, 277 S. W. 1091 (Tex. 1925) (exclusion of Roman Catholics from

jury denied due process}; Smith v. Sisters of Good Shepherd, 87 S.W. 1083

(Ky. 1905) (no error in refusing to exclude Catholics from jury where defend-

ant was a Catholic institution); State v. McCarthy, 69 A. 1075, 1076 (N.J.

1908) (“fundamental principles” required dismissal of indictment by grand

jury from which rival political faction excluded).

stitutional significance”, especially where the defendant is

black. Ballew, 435 U.S. at 239.

Aside from race, Buchanan is denied equal protection in the

sense that he has been singled out for a joint trial before a less

“favorable” jury [A 6]. “[A] discretion, even if vested in the

court, to shunt a defendant before a jury so chosen as greatly to

lessen his chances while others accused of a like offense are

tried by a jury so drawn as to be more favorable to them, would

hardly be ‘equal protection of the law.’” Fay, 332 U.S. at 285.

Equal protection is also denied since the exclusion falls along

party lines and strips a certain political viewpoint of their

“right to vote” as jurors. Cf Karcher v. Daggett, 462 U.S. 725,

746 (1983) (Stevens, J., concurring); Carrington v. Rash, 380

U.S. 89 (1965).

I. Due Process

Admittedly complaining about exclusion of a group not yet

legally “cognizable” for “fair cross-section” purposes,

Buchanan alternatively submits that the death-qualification in

his case violated fundamental fairness and thus due process.

Unlike women or Mexican- Americans, a “significant difference

in viewpoint between those permitted to serve has been

proved. Fu 332 U.S. at 291-92. In this sense, Buchanan

presents a more compelling constitutional claim that must be

recognized by due process.“ “The nature of the classes

excluded was. . such as was likely to affect the conduct of the

jury .” Rawlins v. Georgia, 201 U.S. 638 (1906).

The second prong to this due process analysis is the concept

of impartiality. “Long before this Court held” the Sixth

Amendment Impartial Jury Clause applicable to the States, “it

was well established that the Due Process Clause” protected

the right to an impartial decisionmaker and against “circum-

stances that create the likelihood or the appearance of bias.”

Peters v. Ki, 407 U.S. 493, 502, 503 (1972). Cf pre-Duncan

5 In this case, the exclusion raised more than the possibility that the

composition of juries would be arbitrarily skewed” in a way actually detri-

mental to criminal defesdants. McC ree, 106 S.Ct. at 1765.

cases: Parker v. Gladden, 385 U.S. 363 (1966); Turner v. Loui-

siana, 379 U.S. 466 (1965). This fundamental fairness”

approach has been applied to jury selection practices that only

raise the “potential for a conviction-prone jury.” Henson v.

Wyrick, 634 F.2d 1080, 1082, 1084 (8th Cir. 1980) (sheriff or his

deputy picked bystander jurors). The “unmistakable import”

of pre-Taylor cases “is that due process and equal protection

prohibit jury selection systems which are likely to result in

biased or partial juries.” Taylor, 419 U.S. at 540 (Rehnquist, J.,

dissenting). This is such a case.

J. Unconstitutional Death-Qualification Under Wither-

spoon Adams/Witt

i) Ome-Sided Punishment Qualification

Jury selection is, in its essence, a “quest . for jurors who

will conscientiously apply the law and find the facts . . .” Witt,

105 S.Ct. at 852. Thus, “death-qualification” is “no different

from excluding jurors for innumerable other reasons which

result in bias . . 105 S.Ct. at 855. Viewed in light of Adams

and Witt, “death-qualification” is a misnomer. If there is to be

“punishment-qualification” it must be even-handed. The trial

judge here asked only of the death penalty, rejecting tendered

questions on the entire punishment range of 20 years to

death.®’ Perhaps more important, he asked only of views

opposed to the death penalty—not about extreme support for

execution. The trial judge “crossed the line of neutrality” and

“produced a jury uncommonly willing” to impose the maximum

sentence for the highest degree of the offense. Witherspoon,

448 U.S. at 520, 521.

The trial court’s anomalous approach, at least as to

Buchanan, of qualifying the venire only on attitudes regarding

an irrelevant punishment denied due process. “It is fundamen-

tally unfair” for the state to employ such a potent, yet one-

57 It seems reasonable to argue that as many jurors may be “substantially

impaired” in their punishment function due to the 20 year option as are by the

death option considering the facts of this case. Witt, 105 S.Ct. at 850.

sided, skewing procedure. Cf Wardius v. Oregon, 412 U.S.

470, 475-76 (1973).

There is little doubt under Witt that veniremembers must be

disqualified for views in favor of the death penalty**—as well as

the opposite. “I would not dream of foisting on a criminal

defendant a juror who admitted that he had conscientious or

religious scruples against not inflicting ... death.. .”™

Witherspoon, 391 U.S. at 536 (Black, J., dissenting).

Prior to Witherspoon, the 4th Circuit recognized the unfair-

ness of a one-sided qualification process. Each of the jurors in

Crawford v. Bounds, 395 F.2d 297, 301 (4th Cir. 1968) (en banc)

“professed a belief in capital punishment. Indeed, one

stated he believed . . an eye for an eye’, and that it would be

his duty” to vote for death. Id. The 4th Circuit unanimously

found “a double standard of inquiry” because the judge ques-

tions did not focus on pro, as well as anti-death penalty views

and held that the jury was selected in an “inherently unfair

manner.” 395 F.2d at 303. See Hance v Zant, 696 F.2d 940, 956

(11th Cir. 1983) (“{Tyhe . . . [Adams] standard should apply to

a veniremember in favor of the death penalty]; Pope v. United

States, 372 F.2d 710, 725 (8th Cir. 1967) (en banc) (Blackmun,

J.) vacated, 392 U.S. 651 (1968) (“Among those excused . . .

were three persons who indicated a tendency toward insistence

on capital punishment, apart from other evidence . . .”);

United States v. Puff, 211 F.2d 171, 182 (2nd Cir. 1954) (“Nor

* Sixty-five years ago this Court said “it may well be” that a challenge for

cause to a veniremember who was “in favor of nothing less than

” should have been sustained. Stroud v. United States, 251 U.S.

15, 20-21 (1919).

Herald-Leader A2( 1/29/85). Adams, 448 U.S. at 50, suggests otherwise. At

any rate, the “question is not one of statistical parity, but of logical consis-

tency.” 448 U.S. at 565 (Rehnquist, J. dissenting).

was the selection of the jury unfair in that only those with

scruples or bias against capital punishment were excused. };

Patterson v. State, 283 So.2d 212 (Va. 1981) [error to refuse

questions designed to expose cause challenges to pro-death

jurors}; Poole v. State, 194 So.2d 903, 905 (Fla. 1967) (voir dire

on “mercy” required]; Pierce v. State, 604 So.2d 185 (Tex.

Crim. App. 1980) [automatic death (ADP) juror should have

been excused]; O’Connell v. State, 480 So.2d 1284, 1287 (Fla.

1986) [3 ADP’s should have been excused].

ii) Refusal To Ask Whether The Excluded Veniremem-

bers Could Follow The Law

It is entirely possible that a person who has a ‘fixed

opinion against’. . . capital punishment might nevertheless be

perfectly able . . to abide by existing law . . .” Boulden v.

Holman, 394 U.S. 478, 483-484 (1969). It is important to

remember that not all who oppose the death penalty are sub-

ject to removal for cause . . . those who firmly believe that the

death penalty is unjust may nevertheless serve as jurors in

capital cases so long as they state clearly that they are willing

to temporarily set aside their own beliefs in deference to the

rule of law.” McCree, 106 S.Ct. at 1766.

Buchanan's venire never got a chance to “state clearly” their

answer to this crucial question because the judge wouldn’t ask

whether they could “subordinate . . personal views. . and]

abide by {the] oath as a juror and to obey the law of the

State . . Witherspoon, 391 U.S. at 514-15 n.7. Cf Turner v.

Murray, 106 S.Ct. 1683 (1986). Compare Patton v. Yount, 104

S.Ct. 2885, 2893 (1984) (Jurors with opinions on guilt could “lay

aside . - opinion(s) and render a verdict based on the evi-

dence . . .” quoting Irvin v. Dowd, 366 U.S. 717, 723 (1961). ];

see also Murphy v. Florida, 421 U.S. 794 (1975). This failure

0 Contrast the approach taken by the trial judge in “rehabilitating” a juror

unfavorable to the defendant after she said she might have formed an opinion

from pretrial publicity. THE COURT: “{I}f my instructions. . . [are] that you

have to put out of your mind anything that you heard or read. . . could you do

that?” 128]. This is the uniform approach taken under Kentucky law to

other issues. See, e.g., Caldwell v. Commonwealth, 634 S.W.2d 405, 407 (Ky.

1982) (“That is not the point. Can you lay aside.

seems fatal under McCree’s impartiality analysis. 106 S.Ct. at

1767.

iii) “A Broader Basis”

As the abbreviated colloquies [A 29-37] indicate, there can be

no assurance that the 7 jurors in question were not excluded on

“‘any broader basis’ than inability to follow the law .. .”

Adams, 448 U.S. at 49; Witherspoon, 391 U.S. at 522. No input

from defense counsel was permitted.®!

Of special concern is that the judge’s two-part question

focused on “this case.” But “this case” involves a juvenile

defendant. If the panel is to be purged of all those who have

substantial qualms about executing children, we truely have a

“hanging jury” in the Witherspoon, 391 U.S. at 523, sense. A

juvenile’s youth, after all, is his most powerful mitigating cir-

cumstance. @

iv) Process Effects

Death-qualification in this case could only have served to

confuse and mislead the jury. Veniremember Cain: “Is that

what this case is about. [A 31]. The approach taken by the

trial judge did not distinguish between the defendants. The

veniremembers could have only concluded that all this discus-

sion of the death penalty applied equally to Buchanan. “There

is considerable evidence that the very process of determining

61 The Court has often relied upon defense counsel's implicit satisfaction

with a veniremembers allegedly ambiguous response. “Defense counsel did

t.. attempt rehabilitation. Witt, 105 S. Ct. at 848, 856. While this doesn’t

suggest defense input is constitutionally necessary, the judge should be held

to a strict standard if he decides to “go it alone.”

62 Even follow up questions focused on “this case”: “Do you think it would

be. . impossible for you to decide on the death penalty in this case?” [A 31).

In Ice v. Commonwealth, 667 S. W.2d 671, 676 (Ky. 1984), involving another

juvenile defendant, “in this case” questions were condemned in an opinion

joined by the trial judge, sitting as justice of the Kentucky Supreme Court.

See also Jaggers v. Commonwealth, 439 S.W.2d 580 (Ky. 1968), rev'd, 403

U.S. 946 (1971) (in this case” question].

Obviously, a veniremembers views can change depending on what “this” case

is. See, for a sad example, Owens v. Commonwealth, 277 S. W. 304 (Ky. 1925)

[Excused as death-scrupled in a white defendant case, the same juror votes

for death for a black defendant two days later].

iene

{who the WE’s are]! . . predisposes jurors to convict.”

McCree, 106 S.Ct. at 1780 (dissent). See Haney, On the Selec-

tion of Capital Juries: The Biasing Effects of the Death-

Qualification Process, 8 LAW & HUM. BEHAV. 121 (1984);

Hovey, 616 P.2d at 1349.

CONCLUSION

Given the various constitutional rights at stake, it is difficult

to fit all within a “single analytical umbrella. Peters v. Kiff,

407 U.S. 493, 500 (1972). Petitioner suggests the Due Process

Clause. Whatever constitutional handle one attaches to the

problem presented by this case, one fact is clear. David

Buchanan was prejudiced. He not only demonstrated “a sub-

stantial threat” to his basic rights, but a case-related denial of

his “Sixth and Fourteenth Amendment rights to a fair jury

trial.” Compare McCree, 106 S.Ct. at 1779 (dissent).

PETITIONER’S CONVICTION WAS OBTAINED IN

VIOLATION OF DUE PROCESS OF LAW AND THE FIFTH

AND SIXTH AMENDMENTS WHERE EVIDENCE

OBTAINED FROM A POST-ARREST COMPETENCY

EVALUATION WAS USED AGAINST HIM AT TRIAL.

At the time of petitioner's trial, the absence of extreme

emotional disturbance was an element of the offense of murder.

KRS 507.020; Edmonds v. Commonwealth, Ky. , 586 S.W.2d 24

(1979). Although petitioner argued that he was not guilty of

Perhaps this is not necessary. This Court has employed a “hybrid doc-

trine” in analogous cases before. Duren, 439 U.S. at 372 (Rehnquist, J.,

dissenting).

* The Kentucky Supreme Court purportedly overruled Edmonds in Weil-

man v. Commonwealth, Ky., 694 S. W. 2d 696 (1985), in holding that absence

of extreme emotional distress is not an element of the crime of murder None-

theless, the Court, citing Gall v. Commonwealth, Ky. , 607 S. W. 2d 97 (1980),

stated that “an instruction on murder need not require the jury to find that

the defendant was not acting under influence of extreme emotional distur-

bance, unless there is something in the evidence to suggest that he was,

thereby affording room for a reasonable doubt in that respect.” Wellman at

697. The Court apparently placed the burden of going forward on the defend-

ant, and in such event, placed the burden of non-persuasion on the Common-

eee eee

any homicide, he called Ms. Elam, a social worker, as his only

defense witness in order to establish that, if the jury were to

believe that he were otherwise guilty of murder, he was acting

under the influence of extreme emotional disturbance, and

could therefor be guilty only of Manslaughter in the First

Degree.

Ms. Elam testified that petitioner had been committed to the

Department on May 1, 1980, and was placed at a Vouth Devel-

opment Center in Danville, Kentucky. Approximately one

month later, petitioner was evaluted by a psychologist, Dr.

Michael Nietzel. The test results showed petitioner to have an

IQ of 74. Dr. Nietzel interpreted the test results in tems of

“emotional disturbance” and a “mild thought disorder.”

Petitioner was transferred to Northern Kentucky Treat-

ment Center, a facility for emotionally disturbed youths, where

he was evaluated by Dr. Robert Noelker. Dr. Noelker con-

curred in Dr. Nietzels previous diagnosis of thought disorder.

Further, Dr. Noelker found Petitioner to be “pretty severely

emotionally disturbed . . . very easily confused. . extremely

limited capacity for insight . . . [and] easily lead by other more

sophisticated delinquents or youths” [A 65]. Dr. Noelker’s

report was dated August 21, 1980 [A 64], some 4% months

prior to the offenses for which the petitioner stood trial.

During cross-examination of Ms. Elam, the prosecutor was

allowed, over petitioner’s objection, to elicit the results of

another evaluation, performed subsequent to petitioner's

arrest, the purpose of which was to determine whether or not

the child was competent to understand the juvenile waiver

proceedings and to assist his attorney, and further, to deter-

wealth. Petitioner submits that the holding in Wellman in no way affects the

a.sposition of petitioner's case, since he in fact did go forward with evidence of

extreme emotional disturbance, and therefore, the trial court properly

ins ructed the jury under either Edmonds or Wellman.

% Pursuant to KRS 507.020, both wanton murder and intentional murder

are punishable by imprisonment for 20 years to life. KRS 507.030, on the

other hand, provides that Manslaughter in the First Degree is punishable

only by 10 to 20 years imprisonment.

mine whether or not David met the criteria for involuntary

commitment pursuant to KRS Chapter 202A.

After petitioner's objection was overruled, Ms. Elam was

allowed to read to the jury Dr. Lange’s report, which provided

in part “David was appropriate inneractionally [sic] . . . He

was in good reality contact and reasonable knowledge of cur-

rent events outside the center and seemed to be functioning in

full normal I.Q. range. Short and long term memory appeared

intact. There was not evidence of hallucinations or delusions.

Affects was. generally shallow without imporia or disporia”

[A 59].

Importantly, the evaluations and tests used to establish peti-

tioner’s mental status shortly before the offenses in question

were not procured at the instance of petitioner or his counsel in

order to prepare a defense to the charges. Rather, they had

been obtained incident only to the State’s custody of David as a

result of his delinquent juvenile status. Accordingly, there can

be no inference of feigning, fabrication, or malingering in order

to “manufacture” a defense to the charges in question.

Petitioner submits that he was particularly prejudiced by

the evidence contained in the report of Dr. Lange’s competency

evaluation. Dr. Lange’s report was the only evidence upon

which the jury could possibly have relied to find the absence of

emotional disturbance in convicting petitioner of intentional

murder.

6 At the time of the juvenile proceedings, David Buchanan was still a

of the State pursuant to his earlier commitment. Because he was being helc in

a juvenile detention facility, inquiry was made to see whether he might be

involuntarily committed to a state mental hospital or institution. KRS

202.026 provides that:

No person shall be involuntarily hospitalized unless such person is a

1 — threat of danger to himself, famil

( presents a or to hi ily or

others as a result of the mental illness; 4

(2) Who can reasonably benefit from treatment; and

(3) For whom italization is the least restrictive alternative mode of

treatment available.

Dr. Lange determined that David did not meet the criteria for involuntary

commitinent, without specifying which criteria were not met, or why he felt

that David did not meet the criteria.

eet

(i) The Court Should Adopt A Per Se Rule Barring The

Use Of Competency Evaluations As Evidence Of A

Defendant’s Mental Status At The Time Of An

Alleged Defense.

It is elementary, of course, that the conviction of a person

while he is legally incompetent violates the guarantee of due

process. Pate v. Robinson, 383 U.S. 375 (1966); Bishop v.

United States, 350 U.S. 961 (1956). In order both to protect an

incompetent defendant and to maintain the integrity of crimi-

nal proceedings, this Court has placed an obligation upon trial

courts to determine competency. In appropriate circum-

stances, a trial court must act sua sponte. Pate v. Robinson,

supra. In order that trial courts can meet this obligation, the

use of compelled competency examinations have been upheld.

See e.g., United States v. Cohen, 530 F.2d 43 (CA5, 1976), cert.

denied 429 U.S. 855 (1976); United States v. Albright, 388 F.2d

719 (CA5, 1968).

Needless to say, if this Court allows any trial use of the

results of a competency evaluation, defendants and their coun-

sel will be extremely hesitant to request competency evalua-

tions, even where the need is indicated. Further, this may well

result in a situation where defendants refuse to participate,

and “sandbag” any issue of competency until after a finding of

guilt. This would effectively vitiate the import of this Court's

holding in Pate v. Robinson, and render the competency eval-

uation a tool of defendants and their counsel to use tactically as

they saw fit. Since competency cannot be waived,*®’ defendants

who refused to participate would then raise the issue in post-

conviction proceedings. Simply put, this would result in an

intolerable burden on the effective administration of criminal

justice.

Furthermore, if the state is allowed to use the results of a

competency evaluation to rebut evidence of a mental status

defense (i.e., in this case, extreme emotional disturbance), a

It is contradictory to argue that a defendant may be incompetent,

and yet knowingly and intaligentiy ‘waive his right to have the court deter-

mine his capacity to stand trial.” Pate v. Robinson, supra, 86 S.Ct. at 841,

citing Taylor v. United States, 282 F.2d 16, 23 (C.A. 8th Cir. 1960).

jury almost certainly will be confused by evidence of compe-

tency versus evidence pertaining to culpability for an offense.

Obviously, It here is a vast difference between that mental

state which permits an accused to be tried and that which

permits him to be held responsible for a crime.” Winn v. United

States, 270 F.2d 326, 328 (CADC, 1959). See also United States

ex rel Mireles v. Greer, 736 F.2d 1160 (CAT, 1984). “[Tjhere is a

difference between the concept of ‘insanity’ and mental compe-

tency to stand trial. The former concept relates to the merits of

the case. . . Mental competency to stand trial, on the other

hand, implicates constitutional standards with regard to pro-

cedural fairness. A showing that an accused is mentally incom-

petent to proceed to trial does not establish a defense to the

substantive charge, but rather mandates a continuation of the

trial until such time as the accused is mentally capable of

proceeding.” Davis v. Campbell, 465 F.Supp. 1309, 1317 (E.D.

Ark., 1979). Otherwise stated, “a persons mental competency

to stand trial and his mental condition at the time the offenses

were committed are two fundamentally different issues.”

Wood v. Zahradnick, 475 F.Supp. 556, 558 (E. D. Va., 1979)

In fact, the Fifth Circuit Court of Appeals has emphasized that

“trial courts should be vigilant in minimizing unnecessary ref-

erences to competency issues. References that are irrelevant

and are elicited in bad faith may indeed have a prejudicial effect

on the defendant's right to a fair trial on the issue of sanity. This

must not be tolerated.” United States v. Fortune and Barfield,

513 F.2d 883, 888-889 (CA5, 1975). In Fortune, despite the

references to a competency evaluation, the Fifth Circuit

affirmed the defendant's conviction. However, there were cir-

* That jurors would be confused by the introduction of evidence from a

competency evaluation, introduced to rebut evidence on a mental status

defense, should come as no surprise. Apparently, the medical profession

itself often confuses the two legal concepts. As one commentator has noted,

“Indeed, there is repeated evidence that psychiatrists often misunderstand

— 22 —-E-— en Cont ae

81 L. Rev. 454, 470 (1967); See also Robey, Criteria for

— j 7 2. A Checklist For Psychiatrists, 122 Am. J. of

Psychiatry 616 (1965). Of course, because the State never called Dr. Lange as

a witness, petitioner was unable to confront or cross-examine him as to the

basis of his opinion, further compounding the prejudice.

—

cumstances in Fortune not present herein. In the first place,

the trial court had ordered the defendants evaluated to deter-

mine both competency to stand trial and sanity at the time of

the offense. The defendants had called as their witness the

psychiatrist who had evaluated them. The psychiatrist was

asked on cross-examination by the governments counsel! the

reason for his examining Barfield. The doctor replied that he

was referred for “a psychiatric evaluation to determine

whether he was competent to stand trial.” When defense coun-

sel objected, the trial court “told counsel that the prosecution

was entitled to cross-examine the witness, but that he did not

want to get into the issue of competency to stand trial because

it had no bearing on the case.” Id at 887. In affirming, the Fifth

Circuit stated that:

While we agree with Barfield that any reference to a

competency examination is undesirable in the context of a

defense based on insanity, we think that the statutory

construction he suggests is both unwarranted and unre-

alistic. In circumstances, as here, where the same psychi-

atrist has examined the defendant to determine sanity at

4 — — rences to

the fact of a competency examination. Indeed, judicial

gymnastics directed toward the annihilation of all such

references may, in some circumstances, have a more

undesirable e in terms of distortion of testimony,

than would the references themselves. Id at 887.

Unlike the facts in L’nited States v. Fortune, supra, the

reference to the competency evaluation in petitioner's case was

not limited to merely demonstrating the circumstances in

which the psychiatrist, Dr. Lange, came to examine petitioner.

In contradiction of the earlier evaluations, the jury heard that

Dr. Lange was of the opinion that petitioner demonstrated

“appropriate interaction,” “good reality contact,” and

exhibited a “full normal I. C. range.”

At trial, the absence of emotional disturbance was an ulti-

mate material fact which the state was obligated to prove in

order to convict petitioner of intentional murder. The Com-

monwealth sought to disprove the presence of emotional distur-

bance at the time of the offense by showing that petitioner was

competent to stand trial. However, whatever basis Dr. Lange

relied upon in his determination of petitioner's competency is

not relevant to a pre-existing emotional disturbance. Clearly,

even an extremely emotionally disturbed person m: be com-

petent. In reality, very few criminal defendants who are men-

tally or emotionally impaired are ever found to be incompetent

to stand trial. As stated by a prominent clinical professor of

psychiatry, “[e]ven a man floridly psychotic and plagued by

hallucinations may very well comprehend, for example, that he

is being charged with murder, that the evidence for and against

this charge will be presented to twelve people who will then sit

in judgment upon him, and that his life may depend upon his

testimony and upon his telling his attorney all that he can about

himself and his role, if any, in the offense charged against him.

Neither amnesia nor an incredibly fantastic concept of his

activities at the time of the offense necessarily denies the

accused his right to stand trial, though clearly either may add

significantly to the burdens of defense counsel.” Blinder, M. D.,

Psychiatry In The Every Day Practice of Law, And. Ed., § 7.3,

pp. 303-304, (1982).

This Court should not countenance the States use of evi-

dence which is not only irrelevant to any issues invovied in the

case, but further, when that very evidence comes into being

only because a court has exercised its constitutional mandate in

attempting to determine the competency of a criminal defend-

ant to proceed to trial. The constitutional guarantee of due

process acts as a shield to protect defendants from being tried

while incompetent; the State should not be allowed to batter

and twist that shield into a sword to be used by the State

against that very defendant.

(ii) The Use Of An Unwarned Competency Evaluation

Violates The Defendant's Fifth Amendment Priv-

ilege To Be Free From Compelled Testimony And

Also His Sixth Amendment Right To Assistance Of

Counsel.

This Court has already determined that an unwarned pre-

trial psychiatric evaluation cannot be used in the sentencing

phase of a capital proceeding. Estelle v. Smith, 451 U.S. 454

(1981).

Of course, it is of no consequence that the competency eval-

uation was used during the trial in chief herein rather than

during sentencing: “We can discern no basis to distinguish

between the guilt and penalty phases . so far as the protec-

tion of the Fifth Amendment privilege is concerned.” Estelle,

supra, 101 S.Ct. at 1873.

In Estelle, Dr. Grigson, who had interviewed Smith prior to

trial to determine his competency, testified based upon infor-

mation he derived from the “mental status examination” of

Smith. Dr. Grigson informed the jury of his diagnosis of Smith,

his opinion as to Smiths poor prognosis, and Smith lack of

remorse.

On appeal, this Court specifically refuted the States conten-

tion that neither the Fifth nor the Sixth Amendments were

implicated. With regard to the Fifth Amendment, this Court

observed that:

In Miranda v. Arizona, [cite omitted], the court acknowl-

edged that “the Fifth Amendment privilege is availabie

outside of criminal court proceedings and serves to protect

persons in all settings in which their freedom of action is

curtailed in any significant way from being compelled to

incriminate themselves.” Miranda held that “the prosecu-

tion may not use statements, whether exculpatory or

inculpatory, r — custodial inte l the

defendant unless it demonstrates the use of procedural

effective to secure the privilege against self-

inerimination. [Cite omitted]. Thus, absent other fully

effective procedures, a person in custody must receive

certain warnings before any official interrogation, includ-

ing that he has a “right to remain silent” and that “any-

thing said can and will be used against the individual in

court.” [Cite omitted]. The purpose of these admonitions

is to combat what the Court saw as “inherently compellin

pressures” at work on the person and to provide him wit

an awareness of the Fifth Amendment privilege and the

cons2quences of forgoing it, which is the prerequisite for

“an intelligent decision as to its exercise.

This Court held that Smiths Fifth Amendment rights were

violated by the admission of Dr. Grigson’s testimony at the

penalty phase. The same considerations compel that result

here. Petitioner was in custody when the examination was

conducted at the instance of the Juvenile Court. Petitioner was

given no warnings that his responses could be used against him

at trial. Even though Dr. Lange did not testify, his report was

nonetheless used to discredit petitioner's claim of emotional

disturbance. As in Estelle, there is no doubt that the Fifth

ported statements by petitioner. The clear import of Dr.

Lange report is that he based his clinical opinion on the

* For example, the jury heard evidence that “David states at times he has

been very angry at certain people, staff at the center and thought about

hurting them.” [A 59).

testimonial content of what petitioner said. As in Estelle v.

Smith, there is no evidence that the psychiatrist's diagnosis

had been founded only upon petitioner's “mannerisms, facial

expressions, attention span or speech patterns. . . Estelle v

Smith, 101 S.Ct. at 1873, fn. 8. As this Court stated, citing the

Amicus Brief of the American Psychiatric Association in

Estelle, “absent a defendant's willingness to cooperate as to

the verbal content of his communications, . . a psychiatri

examination in these circumstances would be meaningless.”

Id. Simply put, a psychiatric evaluation based upon a clinical

interview is readily distinguishable from non-testimonial evi-

dence such as voice exemplars, handwriting exemplars, line-

ups, blood samples or fingerprints.

Further, this Court concluded in Estelle v. Smith that peti-

tioner therein had a Sixth Amendment right to the assistance

of counsel before he submitted to the psychiatric examination.

This Court stated:

Here, po = Sixth Amendment right to counsel

clearly attached when Dr. Grigson examined him at

the Dallas County Jail, and their interview to be a

“critical s ” of the a p against

respondent. Cite omitted]. Defense counsel, however,

were not notified in advance that the psychiatric examina-

tion would encompass the issue of their elient future

dangerousness, and respondent was denied the assistance

of his attorneys in making the significant decision of

whether to submit to the examination and to what end the

— 52 findi could be employed.” Estelle v.

mith, supra, 451 U.S. at 470-471.

Notably, this Court did not find that Smith had the right to

have counsel actually present at the competency evaluation.

Rather, the crux of the holding was that Smith had a Sixth

Amendment right to consult with counsel prior to the evalua-

tion, and further, to make an intelligent decision as to whether

or not to participate in the examination, based upon counsel's

advice as to any use to which the state might put the results of

the examination. The same holds true for petitioner herein.

The Juvenile Court ordered the evaluation in question. There

was never any notice to counsel that the state would use the

results of that evaluation to prejudice a material aspect of

petitioner's defense. This was precisely the concern of this

Court in Estelle in finding a violation of Smiths Sixth Amend-

ment right to counsel:

S. 471.

In analyzing the applicability of the principles enunciated in

Estelle v. Smith, this Court should distinguish the circum-

stances of petitioner's trial from those instances in which other

courts (and this Court in dicta in Estelle have indicated that

a criminal defendant waives his constitutional rights by intro-

ducing defense evidence of insanity. For example, the Eleventh

Circuit Court of Appeals has held that “the introduction by the

defense of psychiatric testimony constituted a waiver of the

defendant's fifth amendment privilege in the same manner as

would the defendant's election to testify at trial. Booker v.

Wainwright, 703 F.2d 1251 (CA11, 1983), citing Battie v.

Estelle, 655 F.2d 692, 702 (CA5, 1981). However, the facts of

petitioner's case are clearly distinguishable from the facts of

either Booker or Battie. For example, in Booker, the defendant

had filed a notice of insanity defense, and also had requested a

psychiatric evaluation in order to determine his sanity at the

time of the offense. Accordingly, when Booker testified during

the sentencing proceedings that he had no recollection of the

day of the crime, the Eleventh Circuit found that the pros-

mation Booker gave to the psychiatrist during the evaluation.

Unlike the situation in Booker, however, petitioner never

testified at his trial. Therefore, the state should not have been

% Estelle v Smith, 101 S. Ct. at 1874.

— — ] 0

allowed to use Dr. Langes report as “impeachment,” even

though the report may have contradicted the reports put into

evidence by petitioner. It must be remembered that at the time

of petitioner's early evaluations, he was not facing any pending

criminal charges. He had been previously adjudicated delin-

quent and committed to a state facility for treatment. Accord-

ingly, he had no fifth amendment privilege to “waive.”

The Fifth Circuit in Battie v. Estelle, supra, has also stated

that “the introduction by the defense of psychiatric testimony

constituted a waiver of the defendant's fifth amendment priv-

ilege in the same manner as would the defendant's election to

testify at trial.” Battie v. Estelle, 655 F.2d at 701-702. The

Court further stated, noting agreement by “virtually every

other federal and state court addressing this issue,” that this

result is justified by the States overwhelming difficulty in

responding to the defense psychiatric testimony without its

own psychiatric examination of the accused and by the need to

prevent fraudulent mental defenses.” /d. at 702. Neither of the

justifications relied upon by the Fifth Circuit and other federal

courts are present in petitioner's case. In the first place, the

evidence presented by petitioner in fact was the State's “own

psychiatric examination of the accused,” dating from peti-

tioners commitment as a juvenile. The reports were not

“defense” psychiatric evaluations. Further, it would be absurd

to assert in petitioner's case that the State had any interest in

preventing “fraudulent mental defenses,” in that petitioner

was relying upon evidence which was in existence long before

the offense was ever committed. Consequently, assuming

arguendo that there may in some circumstances be an implied

waiver of the fifth amendment privilege by the introduction of

psychiatric evidence, no such “waiver” can be found to exist by

the type of evidence introduced by petitioner at his trial.

Because the introduction of evidence from petitioner's com-

petency evaluation by Dr. Lange was introduced against him at

were advised that his responses would be used against him, the

introduction of such evidence violated both the Fifth and Sixth

Amendments. Accordingly, petitioner respectfully requests

this court to reverse his conviction and to grant him a new trial.

CONCLUSION

For all the reasons stated, petitioner respectfully requests

that the decision of the Kentucky Supreme Court in his case be

reversed.

Respectfully submitted,

Kevin M. McNALLy C. THomas Hectus*

M. Gait RoBINSON R. ALLEN BuTTON

Assistant Public Advocates GITTLEMAN & BARBER

151 Elkhorn Court 635 W. Main St., Suite 400

Frankfort, Kentucky 40601 Louisville, Kentucky 40202

(502) 564-5255 (502) 585-2100

*Counsel of Record

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.