Petition for Writ of Certiorari — Ford v. Wainwright
Supreme Court brief1986
Ask Donna
What actually matters in this document.
Text
EDITOR'S NOTE
THE FOLLOWING PAGES WERE POOR HARD COPY
AT THE TIME OF FILMING. IF AND WHEN A
BETTER COPY CAN BE OBTAINED, A NEW FICHE
WILL BE ISSUED.
* 85-5542 aoe
2 1 ‘aes
— OFFICE OF THE CLERK
SUPREME COURT, US.
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1984
ALVIN BERNARD FORD, OR CONNIE FORD,
individually, and as next friend
on behalf of ALVIN BERNARD FORD,
Petitioner,
v.
LOUIE L. WAINWRIGHT, Secretary
Department of Corrections,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
POR THE ELEVENTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
RICHARD L. JORANDBY
Public Defender
15th Judicial Circuit of Florida
224 Datura Street/l3th Floor
West Palm Beach, FL 33401
(305) 837-2150
CRAIG S. BARNARD
Chief Assistant Public Defender
RICHARD H. BURR III
Assistant !ublic Defender
Counsel for Petitioner
Of Counsel
LAURIN A. WOLLAN, JR.
1515 Hickory Avenue
Tallahassee, FL 32303
QUESTION PRESENTED
Whether the Eighth and Pourteenth Amendments permit the
states to execute a person who appears to be mentally incompetent
without having first determined his competency through a reliable
and accurate factfinding procedure?
TABLE OF CONTENTS
PAGE
QUESTION PRESENTED ld ee ee „„ „„ „„ „„ „ 1
TABLE OF AUTHORITIES lie ee ee ee ee ee a a a iv
CITATION TO OPINION BELOW „„ „„ „ 1
JURISDICTION eee eee ee „„„ „„ „4 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ..... 2
STATEMENT OF THE CASE
A. Course of Prior Proceedings 2
B. Material Facts ——— 2 * ee »-n „„ „„ „„ 4
C. How the federal question was presented
and decided in the courts below ............. 9
REASONS FOR GRANTING THE WRIT
THE EIGHTH ANDO FOURTEENTH AMENDMENTS CAN NO
LONGER TOLERATE EXECUTION OF THE QUESTIONABLY
COMPETENT WITHOUT A PRIOR DETERMINATION OF
COMPETENCY THROUGH A RELIABLE PROCEDURE ......... 10
A. Introduction i ee ee ee „ „„ 10
8. Solesbee v. Balkcom did not decide
whether the Constitution prohibits
execution of the incompetent, but
modern Eighth Amendment jurisprudence
requires that this issue be decided ......... 13
S. The evolution of due process juris-
prudence since Solesbee requires that
the Court reconsider whether a
state-created entitlement to be spared
from execution if incompetent gives
rise to a federally-protected right to
a fair and reliable determination of
competency in a particular case 21
D. The ex parte, non-adversarial, non-
record procedure by which the Florida
Governor determines competency fails
to satisfy the minimum constitutional
Standards necessary to safeguard the
reliability, fairness and accuracy of
the competency-determination process 26
1. Plorida's ex parte, non-adversarial
procedure eee ee eee ee eee eee „ ee 26
2. Plorida's statutory competency-
determination procedure fails to
provide the reliable fact-finding
procedure required by the Consti-
tution's prohibition against
execution of the incompetent ............ 27
- ii -
PAGE
3. Plorida’s statutory competency-
determination procedure fails to
provide the reliable fact-finding
procedure required by the Consti-
tution in the administration of
the state-crevted right to be
spared from execution if incom-
a) ee „„ 30
E. Alvin Pord’s competency cannot be re-
liably determined without an eviden-
tiary hearing vee ee „ „„ er „„ 33
CONCLUSION —— 9 ** ‚ K ͤ „h 22 25525%⅔2ö „„ „„ „„ „„ 44
— iii -
AUTHORITIES
CITED
CASES
Addington v. Texas, 441 U.S. 418
(1979)
Ake v. Oklahoma, U.S. ’
105 S. cc. 1087 (1985)
Arnett v. Kennedy, 416 U.S. 134
(1974)
Barefoot v. Estelle, 463 U.S. 880
(1983)
Beck v. Alabama, 447 U.S. 625
(1980)
Bell v. Burson, 402 U.S. 535
(1971)
Bounds v. Smith, 430 U.S. 817
(1977)
Caldwell v. Mississippi, U.S.
PAGE
29
passim
21-22
15
15
22, 30,32
19
105 S.Ct. 2633 (1985)
Coker v. Georgia, 433 U.S. 584
(1977)
Dixon v. Love, 431 U.S. 105
(1977)
Eddings v. Oklahoma, 455 U.S. 104
(1982)
Enmund v. Florida, 458 U.S. 782
(1982)
Escoe v. Zerbst, 295 U.S. 490
(1935)
Ex parte Chesser, 93 Fla. 291
(1927)
Ex parte Chesser, 93 Fla. 590
(1927)
Pord v. State, 451 So.2d 471
(Fla. 1984)
Ford v. Strickland, 696 F.2d 804
(llth Cir.), cert. denied,
U.S. „ 104 S.Ct. 201 (1983)
Pord v. Strickland, 734 F.2d 538
(llth Cir. 1984)
Ford v. Wainwright, 747 F.2d 1357
(llth Cir. 1984)
Ford v. Wainwright, 752 F.2d 526
(lith Cir. 1985)
Fuentes v. Shevin, 407 U.S. 67
(1972)
— iv
15
18
31
15
18
21,23
26
24
3,24, 26
3,11,15
passim
Furman v. Georgia, 408 U.S. 238
(1972) 15,16
Gagnon v. Scarpelli, 411 U.S. 778
(1973) 23
Gardner v. Florida, 430 U.S. 349
(1977) 15,24,29
32
Godfrey v. Georgia, 446 U.S. 420
(1980) 15
Goldberg v. Kelly, 397 U.S. 254
(1970) 22,32
Goode v. Wainwright, 448 So.2d 999
(Pla. 1984) 26,27
Goode v. Wainwright, 731 F.2d 1482
(llth Cir.), cert. denied, U.S. 9
104 S.Ct. 1721 (1984) 10,15, 26
Goss v. Lopez, 419 U.S. 565
(1975) 29
Graham v. Richardson, 403 U.S. 365
(1971) 22
Gray v. Lucas, 710 F.2d 1046
(Sth Cir.), cert. denied, U.S. 7
104 S.Ct. 211 (1983) 11,15
Green v. Georgia, 442 U.S. 95
(1979) 15
Greenholtz v. Inmates of Nebraska Penal
& Correctional Couplex, 442 U.S. 1
(1979) 23
Gregg v. Georgia, 428 U.S. 153
(1976) 18,20
Hicks v. Oklahoma, 447 U.S. 343
(1980) : 22
Hysler v. State, 136 Fla. 563
(1939) 24,26
Johnson v. Avery, 393 U.S. 483
(1969) 19
Joint Anti-Pascist Refugee Comm. v. McGrath,
341 U.S. 123 (1951) 29
Lockett v. Ohio, 438 U.S. 586
(1978) 15
Logan v. Zimmerman Brush Co., 455 U.S. 422
(1982) 22,31
Maggio v. Fulford, 462 U.S. 116
(1983) 28
Mattheson v. King, 751 F.2d 1432
(Sth Cir. 1985) 29
Mathews v. Eldridge, 424 U.S. 319
(1976) 31
McGautha v. California, 402 U.S. 183
(1971) 15,16
- 9 —
Memphis Light, Gas, Water Div. v. Craft,
436 U.S. 1 (1978) 31
Morrissey v. Brewer, 408 U.S. 471
(1972) 1 22,23
Mullane v. Central Hanover Trust Co.,
339 U.S. 306 (1950) 29
Phyle v. Duffy, 34 Cal.2d 144 (1949) 21
Robinson v. California, 370 U.S. 660
(1962) . 14
Shriner v. Wainwright, 735 F. 2d 1236 (llth Cir.),
cert. denied, U.S. „ 82 L. Ed. 2d 852
(1984) 19,20
Solem v. Helm, U.S. „ 103 S.Ct. 3001
(1983) 16
Solesbee v. Balkcom, 339 U.S. 9
(1950) passim
Townsend v. Sain, 372 U.S. 293
(1963) 28,29
Ughbanks v. Armstrong, 208 U.S. 481
(1908) 21,23
United States ex rel Smith v. Baldi,
344 U.S. 561 (1953) 25,26
Vitek . Jones, 445 U.S. 480
(1980) 22
Wainwright v. Ford, U.S. „ 104 S.Ct.
3498 (1984) 3,11,16
Williams v. New York, 337 U.S. 241
(1949) 14,24
Woodard v. Hutchins, U.S. e 104 6.Ct. 752
(1984) 10
Woodson v. North Carolina, 428 U.S. 280
(1976) 15,25
STATUTES
Section 927.07, Florida Statutes (1983),
as amended (1985) passim
SECONDARY AUTHORITY
American Psychiatric Association, Diagnostic
and Statistical Manual of Mental Disorders
(Third Edition 1980) 4,35,39
American Psychiatric Association, “Report of
the Task Force on the Role of Psychiatry
in the Sentencing Process," Issues in
Forensic Psychiatry (1984) 41,42
S. Arieti, American Handbook of Psychiatry
(Second Edition 1974) 38
4 W. Blackstone, Commentaries on the Laws
of England (1768) 10,17
- vi -
1 J. Chitty, A Practical Treatise on the
Criminal Law (Amer. ed. 1819) 17
E. Coke, Third Institute (1644) 10,16,
17,20
Collinson, A Treatise on Law Concerning Idiots,
Lunatics, and Other Persons Non Compos Mentis
(1812) 20
T. Cooley, A Treatis on Constitutional Limitations
7th ed. 1903) 16
Dept. of Econ. and Soc. Affairs, United Nations Doc.
ST/SOA/SD/9, Capital Punishment (1962) 18
Dept. of Econ. and Soc. Affairs, United Nations Doc.
ST/SOA/SD/10, Capital Punishment:
Developments 1981138871387 18
PitzHerbert, Natura Brevium (1534) 16
I M. Hale, The History of the Pleas of the Crown 17,32
(1736)
S. Halleck, Law in the Practice of Psychiatry
(1980) 41
Hawles, Remarks on the Trial of
Mr. Charles Bateman, II State Trials 474 (1816) 32
Hazard and Louisell, Death, the State,
and the Insane: Stay Of Execution,
9 UCLA L. Rev. 381 11887 19
1 4. Kaplan, B. Sadock, Comprehensive Textbook
of Psychiatry (Fourth Edition 1985) 38
Note, Incompetency to Stand Trial, 8l Harv. L. Rev.
(1967) 20
S. Pollack, Psychiatric Consultation
for the Courts,1 Bull. Am. Acad. Psych. & L. 267
(1973) 41
Royal Commission on Capital Punishment,
1949-53 Report (1953) 10,19
I W. Russell, A Treatise on Crimes and Indictable
Misdemeanors ( Amer. e ) 17
Sayre, Mens Rea, 45 Harv. L. Rev. 974 (1931-32) 16
2 J. Stephen, A History of the Criminal Laws of
England (1883) 16
F. Wharton, A Treatise on the Criminal Law
of the United States ed. ) 17
- vii -
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1984
ALVIN BERNARD FORD, OR CONNIE FORD,
individually, and as next friend
on behalf of ALVIN BERNARD FORD,
Petitioner,
vs.
LOUIE L. WAINWRIGHT, Secretary
Department of Corrections,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
Petitioner, ALVIN BERNARD FORD, prays that a writ of
certiorari issue to review the judgment of the United States
Court of Appeals for the Eleventh Circuit filed January 17, 1985,
upon which rehearing was denied on June 3, 1985.
CITATION TO OPINION BELOW
The opinion of the Court of Appeals is reported at 752 F.2d
526 (llth Cir. 1985), and is set out at pages la-l0a of the
Appendix. The order denying rehearing is set out at App.
lla.
JURISDICTION
The judgment and opinion of the Court of Appeals were filed
on January 17, 1985, and petitioner's timely petition for
rehearing was denied on June 3, 1985. Thereafter, this Court
entered an order extending the time within which the petition for
writ of certiorari could be filed to and including October l,
1985. Jurisdiction is invoked pursuant to 28 U.S.C. § 1254(1).
1 Citations to the Appendix accompanying this petition are
designated App. .
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
This case involves the Eighth Amendment to the Constitution
which provides in relevant part:
Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments
inflicted;
and the Fourteenth Amendment to the Constitution, which provides
in relevant part:
{[Nlor shall any State deprive any person of life,
liberty, or property, without due process of
law....
It also involves Section 922.07, Florida Statutes (1983), which
is set out at App. 122.
STATEMENT OF THE CASE
A. Course of Prior Proceedings
Alvin Bernard Pord is under sentence of death in the State
of Florida. The validity,of his conviction and death sentence
has previously been litigated, see Ford v. Strickland, 696 F. 2d
804 (llth Cir.), cert. denied, U.S. „ 104 S.Ct. 201
(1983), and is no longer in issue. The present proceedings are
concerned solely with the constitutionality of Plorida's effort
to execute Mr. Pord despite the substantial evidence of his
present insanity.
On October 20, 1983, counsel for Mr. Ford invoked the
procedures of Pla. Stat. § 922.07 (1983), relating to the
competency of a condemned inmate. Pursuant to this statute, the
Florida governor appointed a commission of three psychiatrists to
evaluate Mr. Ford's current sanity. The commission members each
reported their findings to the governor in writing, and without
further proceedings, on April 30, 1984 the governor signed a
Meath Warrant for Mr. Ford.
On May 21, 1984, Mr. Ford's attorneys filed in the state
trial court a Motion for a Hearing and Appointment of Experts for
Determination of Competency to be Executed, and for a Stay of
Execution During the Pendency Thereof, together with a supporting
memorandum of law and an extensive appendix containing documenta-
tion of Ar. Ford's incompetency. The trial court denied the
motion without a hearing and without findings. On appeal, the
Plorida Supreme Court also denied relief, holding that there is
no judicial review in Florida of the governor's determination of
competency to be executed. Ford v. State, 451 So.2d 471, 475
Thereafter, counsel for Mr. Ford filed a petition for habeas
corpus in the United States District Court for the Southern
District of Florida, claiming inter alia that the Constitution
prohibited his execution if presently insane and accordir y.
entitled him to a determination of his present sanity in an
evidentiary hearing. On May 29, 1984, the District Court denied
the petition without a hearing, holding in the alternative that
it constituted abuse of the writ, and that Florida's compliance
with § 922.07 adequately protected Mr. Pord's constitutional
right, if any, not to be executed when insane. App. 18a-30a.
On May 30, 1984, the Court of Appeals granted a certificate
of probable cause and stayed Mr. Ford's execution. FPord .
Strickland, 734 F.2d 538 (llth Cir. 1984). App. 3la-38a. This
Court thereafter denied respondent's motion to vacate the stay,
Wainwright v. Ford, U.S. „ 104 S.Ct. 3498 (1984). App.
39a-40a. Respondent Wainwright then filed a suggestion in the
Court of Appeals that the appeal be heard initially en banc,
because
the question of whether there is an Eighth
Amendment right not to be executed while insane
and if so, what procedures are required to
satisfy it, is one of first impression. Its
determination will affect capital litigation in
this Circuit and nationwide.
Respondent's Suggestion of En Banc Consideration, August 23,
1984, at 7. Following argument before a panel, respondent's
suggestion was noted to be moot, Pord v. Wainwright, 747 F.2d
1357 (llth Cir. 1984), and the panel thereafter affirmed the
District Court's disposition of the merits of Mr. Ford's claim by
a 2—1 vote. Ford v. Wainwright, 752 F. 2d 526 {llth Cir. 1985).
Rehearing en banc was denied.
B. Material Pacts
In the two-year period following December, 1981, Alvin
Ford's mental health gradually but pervasively deteriorated. By
November, 1983, a psychiatrist confirmed prior opinion that Mr.
Ford had become psychotic and found him incompetent to be
executed. At that time Mr. Pord thought that he was on death row
at Florida State Prison only because he chose to be there. He
thought that the case of rord v. State" had ended capital
pun.shment in Florida and, in particular, had deprived the State
of Plorida of the right to execute him. After November, 1983,
his incapacity worsened. He lost the ability to communicate by
conventional means. He could only mutter softly to himself,
making gestures in which there seemed to be a message, but a
message that no one could decipher. This was his condition at the
time these proceedings began in May, 1984.
The process of Mr. Pord's deterioration to this condition
began so gradually that at first it was almost imperceptible.
Until late December or early January, 1982, he seemed to be in
relatively good mental health. There were no symptoms, nor even
precursors to the symptoms, of psychosis. Wor had there been
taring any of the time since Mr. Ford's arrest in 1974. Thus, no
jees" ion of competency had been raised before, during, or after
5 i But gradually, from December, 1981 on, Mr. Ford lost
ach with external reality.
The most obvious sign of Mr. Ford's loss of contact with
reality has been his experience of delusions.2 at first, in
late 1981 and early 1982, Mr. Pord's delusions appeared as
occasional peculiar ideas and misperceptions. App. 53a-S6a.
Scadually, however, delusions took over his entire conscious
existence. The delusions eventually centered on his belief that
2 A delusion is “[a] false personal belief based on incorrect
inference about external reality and firmly sustained in
Spite of what almost everyone else believes and in spite of
what constitutes incontrovertible and obvious proof or
evidence to the contrary." American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders 356
r tion 7 usiona nking t]he major
disturbance in the content of thought“ that accompanies
schizophrenia, id. at 181, and is thus, "“[d]irect evidence of
psychotic behavior...," id. at 367.
the Ku Klux Klan was holding his family and other people hostage
in Plorida State Prison in order to drive him to insanity and
suicide. App. 72a-9la.3 As Mr. Ford's delusions took hold,
some auditory and olfactory hallucinations began accompanying the
delusions. See, e.g., App. 75a, 85-86a. By the summer of 1983,
however, his delusions began to change. Mr. Ford somehow gained
the power to free the hostages, to fire and prosecute the
officers responsible, and to replace and add to the Justices of
the Florida Supreme Court. App. 88a-92a. In this period, he
also began to refer to himself as Pope John Paul III. Id. tt was
during this time that he began to say, for the first time, that
the state could not execute him.
By November, 1983, Mr. Ford's communications became more
fragmented. He was no longer centered on any particular subject,
Sut would “carry on“ about a multiplicity of subjects all in one
uninterrupted breath. See, e.g., App. 93a-94a. An example of
this behavior was recorded by Dr. Harold Kaufman, a psychiatrist
who evaluated Mr. Ford on November 2, 1983 at the request of Mr.
Pord's counsel:
Mr. Ford:
The guard stands outside my cell and
reads my mind. Then he puts it on tape
and sends it to the Reagans and CBS...I
know there is some sort of death penalty,
but I'm free to go whenever I want
because it would be illegal and the
executioner would be executed...CBS is
trying to do a movie about my case...I
know the KKK and news reporters all
disrupting me and CBS knows it. Just call
CBS crime watch...there are all kinds of
people in pipe alley (an area behind ur.
Ford's cell) bothering me -- Sinatra,
Hugh Heffner, people from the dog show,
Richard Burr, my sisters and brother
trying to sign the death warrants so they
don't keep bothering me...I never see
them, I only hear them especially at
night. (Note that Mr. Pord denies seein
these people in his delusions. This
suggests that he is honestly reporting
what his mental processes are.) I won't
be executed because of no crime...maybe
because I'm a smart ass...my family's
back there (in pipe alley)...you can't
3 The Klan undertook this campaign against Mr. Ford because he
had found strong evidence, through his ability to perceive
events occurring beyond the normal limits of perception,
implicating the Klan in the arson of a house in Jacksonville
in which a black family was killed. App. 56a-68a.
evaluate ne. I did a study in the
army...a lot of masturbation...I lost a
lot of money on the stock market. They're
back there investigating my case. Then
this guy motions with his finger like
when I pulled the trigger. Come on back
you'll see what they're up to -- Reagan's
back there too. Me and Gail bought the
prison and I have to sell it back. State
and federal prisons. We changed all the
other countries and because we've got a
eretty good group back there I'm con-
pletely harmless. That's how Jimmy Hoffa
got it. My case is gonna save me.
App. 157a (Comments in parentheses are those of Dr. Kaufman).
In this same interview that Dr. Kaufman asked Mr. Ford, “Are
you going to be executed?" Mr. Ford replied, "I can't be
executed because of the landmark case. I won. Ford v. State will
prevent executions all over." App. 158a. Dr. Kaufman continued:
Dr. Kaufman (Q): Are you on death row?
Mr. Ford (A): Yes.
Q: Does that mean that the State intends to
execute you?
A: No.
Q: Why not?
A: Because Ford v. State prevents it. They
tried to get me with the FCC tape but when the
KKK came in it was up to CBS and the Governor.
These prisoners are rooming back there raping
everybody. I told the Governor to sign the
death warrants so they stop bothering me.
In December, 1983, communication with Mr. Ford became
virtually impossible. In two interviews, on December 15 and
December 19, he spoke in a fragmented, code-like fashion. At
times during these interviews, Mr. Ford appeared to be trying to
respond to questions posed to him, but he seemed incapable of
communicating by any of the conventional methods with which
people communicate. See App. 102a-107a.4
Pour psychiatrists evaluated Mr. Ford's competency during
this latter part of 1983: Dr. Harold Kaufman and the three
psychiatrists appointed by the governor pursuant to Fla. Stat. §
4 The second of these interviews, on December 19, was the
interview conducted by the psychiatrists appointed by
Governor Graham pursuant to Fla, Stat. § 922.07.
922.07 (Drs. Peter Ivory, Umesh Mhatre, and Walter Afield). Dr.
Kaufman, Dr. Mhatre, and Dr. Afield concluded that Mr. Ford
suffered from psychosis. App. 158a, 164a, 1662. Dr. Kaufman
further concluded that Mr. Ford's psychosis was of such severity
"that he cannot sufficiently appreciate or understand either the
reasons ‘why the death penalty was imposed upon hin! or ‘the
purpose’ of this punishment." App. 159a. Despite their agree-
ment with Dr. Kaufman concerning Mr. Ford's psychosis, Dr. Mhatre
and Dr. Afield concluded nevertheless that Mr. Ford was compe-
tent. 5 N
Substantial grounds were proffered to the District Court for
believing that the opinions of the three psychiatrists appointed
by the governor were based upon inadequate procedures. In
preparation for the hearing which counsel for Mr. Ford anticipa-
ted in the state trial court, counsel asked two forensic psychia-
trists, Dre. Seymour Halleck and Dr. George Barnard, both of whom
are widely acclaimed within their field, to review the process by
which Dr. Ivory, Dr. Mhatre, and Dr. Afield evaluated Mr. Ford.
Dr. Halleck and Dr. Barnard concluded that the evaluations
conducted by the three appointed psychiatrists were unreliable,
and that they failed to measure up to the minimum standards for
forensic evaluation. The reasons for this were the appointed
psychiatrists’ failure to consider much of the available data
concerning Mr. Pord's mental status, their failure to document
the factual basis for their conclusions concerning competency in
the face of pervasive data supporting the contrary corclusion of
Dr. Kaufman, and the great likelihood that the inappropriate
5 Thus, only the third psychiatrist appointed by Governor
Graham, Dr. Ivory, found Mr. Ford to be suffering from no
genuine illness. As to the genuineness of Mr. Ford's
illness, however, it should be noted that a fifth psychia-
trist, Dr. Jamal Amin, also evaluated Mr. Ford. Dr. Amin
evaluated Mr. Ford periodically during the course of his
deterioration, from before December, 1981 through June, 1983.
Dr. Amin concluded that Mr. Ford had developed a profound
form of schizophrenia during this time and documented why Mr.
Pord's illness was genuine. App. 153a-155a. Dr. Amin was
not able to render an opinion concerning Mr. Pord's competen-
cy after June, 1983, however, because Mr. Ford refused to be
interviewed thereafter by him,
conditions under which Mr. Ford was interviewed would produce
insufficient data for reliable forensic evaluation. See App.
169a-1l73a, 187a-193a.
Even with these serious deficiencies, however, Dr. Mhatre
and Dr. Afield found that Mr. Ford suffered from a psychotic
illness. Dr. Mhatre observed that “without [appropriate anti-
psychotic] medication [Mr. Ford] is likely to deteriorate further
and may soon reach a point where he may not be competent for
execution.” App. 164a. In the months following Dr. Mhatre's
observation, his prediction of further deterioration was strik-
ingly confirmed.
On May 23, 1984, Dr. Kaufman attempted to interview Mr. Ford
for two hours at Florida State Prison. He observed the follo-
wing: b
(Mr. Ford) appeared to have lost at least
twenty (20) pounds since I had last examined
him on November 3, 1983. He was neatly dressed
and was wearing rubber shower sandals. He did
not greet the four of us as we entered and sat
down. He sat with his body immobile and his
handcuffed hands in a prayerful position in
front of his mouth. Occasionally he moved his
hands, still in the praying mode, to each of us
for no apparent reason. His lips were pursed
intermittently, but his head moved little. His
eyes were closed or fluttering most of the
time, although he occasionally glanced at one
or more of us. His hands and fingers appeared
to be trembling. We took turns asking him
questions, and little or no response was
forthcoming. He began muttering to himself
after about five minutes. These utterances
were largely unintelligible. This is the
overall picture of what took place for two
hours.
App. 167a. These observations led Dr. Kaufman to conclude that
"Mr. Pord's condition, severe paranoid schizophrenia, has
seriously worsened, so that he now has only minimal contact with
the events of the external world,” and to reconfirm his opinion
that Mr. Ford was incompetent to be executed. App. 168a.
These were the facts that were proffered in the District
Court on May 29, 1984, in response to which the court -- like the
governor and the state courts before it -- held no hearing.
C.
How the federal question was presented and decided in the
courts ow
After exhausting state remedies, counsel for Mr. Pord filed
the present federal habeas corpus petition presenting the
question herein as shown in the Appendix, at pages 48a, 110a-
llla.
The District Court denied the petition with the following
statement:
App.
I find that there is an abuse of the writ
throughout this matter. But reaching the
merits as well I find no reason to grant the
relief sought by the Petitioner. The Governor
of this State acting under 922.07 the Court
finds that he has acted properly, has followed
the steps. Each of the three psychiatrists
whom he appointed has found the Defendant
sufficiently competent to be executed under the
law and so on the merits, as well as on this
issue, the petition must fail.
27a-28a.
In his appeal to the Court of Appeals thereafter, Mr. Pord's
counsel presented the question herein in the form of three
issues:
1. Whether the eighth amendment's prohibition
of cruel and unusual punishment forbids the
execution of a condemned person who is incom-
petent at the time of execution?
2. If the eighth amendment does forbid the
execution of the incompetent, whether a federal
habeas court must hold an evidentiary hearing
to determine the competency of such a person,
here the only prior state determination of
competency was made in an ex parte, non-judi-
cial proceeding?
3. Whether a state-created entitlement not to
be executed when incompetent can be withdrawn
without due process of law?
Brief for Petitioner-Appellant, at 1. The Court of Appeals
decided these issues as follows:
If the matter were being presented for the
first time, Ford's contention might present
considerable difficulty. The panel majority,
however, feels that Ford's contention is
foreclosed by binding authority. In Solesbee
[ve Balkcom, 339 U.S. 9 (1950)] the Supreme
Gurt examined a Georgia procedure which was
virtually identical to that now incorporated
in the Plorida statute. In the controlling
portion of the opinion the Supreme Court held
“We are unable to say that it offends due
process for a state to deem its Governor an
‘apt and special tribunal’ to pass upon a
question so closely related to powers that from
the beginning have been entrusted to gover-
nors.“ Solesbee v. Balkcom, 339 U.S. at 12, 70
S. ct. at 48 (footnote Omitted).
752 F. 2d at 528 (App. 3a).
REASONS FOR GRANTING THE WRIT
EEE LITRE WRIT
THE EIGHTH AND POURTEENTH AMENDMENTS CAN NO
LONGER TOLERATE EXECUTION OF THE QUESTIONABLY
COMPETENT WITHOUT A PRIOR DETERMINATION OF
COMPETENCY THROUGR A RELIABLE PROCEDURE
A. Introduction
All of the states which have the death penalty agree that a
condemned person cannot be executed if, at the time of execu-
tion, he or she is mentally incompetent. Among civilized people,
this consensus is not new. For at least seven hundred years, the
common law has forbidden execution of the presently incompetent
as a “savage and inhuman" act® and "a miserable spectacle ...
of extreme inhumanity and cruelty,"? that is “repugnant to the
moral traditions of Western civilization. 8
Notwithstanding the consensus of the states and the singular
command of the common law from the middle ages to the present,
the Court has never decided whether the Constitution prohibits
the execution of a presently incompetent person. bor has the
Court decided, since the demise of the right-privilege distinc-
tion, whether a state-created entitlement to be spared from
execution if incompetent gives rise to a federally-protected
right to a fair and reliable determination of competency in a
particular case.
Florida should not be allowed to take the life of Alvin Ford
until these questions are answered, for ur. Pord's case -- unlike
any other post-Furman case -- presents these questions on the
merits, without any serious question of abuse of the writ or
ether procedural bar,? and upon a record that creates, at a
s 4 W. Blackstone, Commentaries on the Laws of England 24
(1768).
7 8. Coke, Third Institute 6 (1644).
8 Royal Commission on Capital Punishment, 1949-1953 Report
98 (1953).
9 Cf. Woodard v. Hutchins, u. 8. : 104 S.Ct. 752 (1984);
Goode v. Wainwright, 731 Ftda 1482 {llth Cir.), cork. *
a «= > 104 eet. 1721 (1984). ta contrast to these
cases, in its opinion staying r. Pord's execution, the Court
of Appeals found, after extensive discussion, “no evidence in
the record to suggest that the incompetency issue was
minimum, substantial doubt about his present competency that has
not been resolved satisfactorily through the summary proceedings
before the governor and the lower courts, and that cannot be
resolved satisfactorily without a bear ing. 10
Throughout the proceedings in the courts below, the State of
Florida has sought to avoid decision of these questions by
arguing alternatively that Solesbee v. Balkcom, 339 U.S. 9
(1950), has already decided the questions, and in any event, that
Florida is not about to execute an incompetent person, because
the governor of Florida has found Mr. Ford to be competent. Thus
far, the State's strategy has worked, for no court -- state or
federal -- has decided the questions through a considered
analysis of the merits.
Such reasoning must not be allowed to dissuade the Court
from deciding these difficult, unanswered questions. The Court
has already declared unequivocally in Mr. Pord's case, in
refusing to dissolve the stay of execution previously ordered by
the Court of Appeals, that “[t]his Court has never determined
whether the Constitution prohibits execution of a criminal
defendant who curren iy is insane...." 104 S.Ct. at 3498 n.*
(emphasis supplied). Since the Court made this statement in the
face of the State's argument that Solesbee was controlling, see
available in December of 1981 when Ford's first [federal
habeas] petition was filed. . 734 F.2d at 539. Indeed the
process of Mr. Ford's deterioration only began in December of
1981. Because that process was gradual, the question of
competency did not even begin to arise until late 1982 or
1983. Since Mr. Pord's appeals from the District Court's
denial of his first petition were pending from December 10,
1981 through October 3, 1983, the Court of Appeals concluded
that Mr. Pord had not abused the writ by failing to file a
second petition while the appeals from the first petition
were still pending. 734 F.2d at 540 & n.1. Further, the
Court indicated that if the iaw “might and should evolve to
impose such a duty, we would not be inclined to [find abuse
of the writ] without the benefit of an evidentiary hearing to
give Ford and his counsel an opportunity to explain their
actions [,j... [which] would fall more clearly under Rule
9(a) of the Rules governing § 2254 cases ...." 734 F.2d at
540 n.1. on appeal, the panel did not readdress this matter,
simply noting that, “The summary holding of abuse of the writ
on the insanity issue is troublesome under the facts presen-
ted. In light of our resolution of the merits of this issue,
however, it is not necessary that we reach the question.” 752
P. 2d at 327 n. 1.
10 cf. Gray v. Lucas, 710 F.2d 1046 (Sth Cir.), cert. den.,
nS Sw | ; t. 211 (1983).
° ih -
Application of the State of Florida to Vacate Order of Eleventh
Circuit Granting Stay of Execution, and Supplement thereto, at
6-9 and 5-6 respectively, May 31, 1984 (No. A-980), the Court
plainly considered whether Solesbee controls and decided that it
does not. And, whether Florida is about to execute an incompe-
tent person cannot be answered simply by saying that the governor
has found Mr. Ford competent. Whether that finding rests upon
procedures consistent with the Constitution is the very question
that this Court is being asked to address in Mr. Ford's case.
As we demonstrate, this issue should be addressed in Mr.
Pord's case. The time is right, because
eee executions are now occurring with sufficient
frequency that the issue will continue to arise
until it is decided by the Court;!! and
eee constitutional principles have evolved over the
past two decades that now forbid the question-
ably competent to be executed solely upon the
whim of the state executive, but without
guidance from this Court the lower courts may
well decide to avoid the analysis required by
that doctrinal evolution -- as the Eleventh
Circuit did in Mr. Pord's case --through
misplaced adherence to Solesbee v. Balkcom.
Purther, Mr. Ford's case is the right case in which to review
this issue. No case could demonstrate any better the need for
the reliable factfinding procedure that the Eighth and Fourteenth
Amendments would require in the determination of competency to be
executed. Only that procedure -- not the ex parte procedure of
determining competency wholly on the basis of three psychi-
atrists“ written reports, as now utilized by Florida -- can
assure accuracy in the determination of competency in a case like
Mr. Pord's, for in his case
eee four of the five psychiatrists who have
evaluated him have concluded that he suffers
from a severe psychotic illness;
11 this is not to say, however, that a determination by the
Court would encourage frivolous assertions of incompetency.
See p. 32 & n. 26, infra. The current record in Florida has
established that it would not. And even if it did, the
courts are well-equipped to identify and dispose of such
claims quickly and efficiently. Id.
e 12 -
eee among these five psychiatrists, four have also
rendered opinions about Mr. Ford's competency,
and these opinions are in sharp conflict;
eee one of these psychiatrists has concluded that
Mr. Ford is incompetent to be executed, and in
comparison to the other psychiatrists who have
addressed the competency issue, has spent
substantially more time interviewing Mr. Ford
in an appropriate setting, has more thoroughly
reviewed his history, and has fully explained
and documented the relation between Mr. Ford's
psychosis and his competency to be executed;
eee in contrast, the three psychiatrists who have
concluded that Mr. Ford is competent have
interviewed him perfunctorily in a setting not
conducive to reliable mental status evaluation;
and one of these three has failed as well to
consider most of the available historical and
Symptomatic data necessary to evaluate Mr.
Pord, while the other two have failed al-
together to explain why, in light of their
conclusions that Mr. Pord is psychotic, they
nonetheless believe that he is competent; and
ese nationally-recognized experts in forensic
psychiatry have concluded that the manner in
which these three psychiatrists evaluated Mr.
Ford's competence to be executed was not likely
to produce reliable conclusions, because of
these deficiencies in their examination
procedures and reasoning.
If the Eighth Amendment prohibits execution of the incompetent,
or if the Pourteenth Amendment requires procedural safeguards in
the determination of competency under a state law prohibition
against execution of the incompetent, the Constitution cannot
tolerate the resolution of Mr. Ford's competency -- on these
facts -- by a procedure which has allowed no opportunity for Mr.
Pord's counsel to prove, as these facts so clearly suggest, that
Mr. Ford is incompetent.
B. Solesbee v. Balkcom did not decide whether the Constitution
rohibits execution of the incompetent, but modern Eighth
eT urisprudence requires that this issue be de-
¢
The Court of Appeals held that Mr. Pord's claim that the
Eighth Amendment prohibits the execution of the presently
incompetent had already been decided in Solesbee , Balkcon,
which held that a Georgia procedure similar to Pla. Stat. §
922.97 does not “offend[] due process.. . , 339 U.S. at 12. Ford
v. Wainwright, 752 F. 2d at 528. In so disposing of Mr. Ford's
Eighth Amendment claim, the Court of Appeals fundamentally
confused and intermingled the due process analysis of Solesbee
with the Eighth Amendment analysis required by Mr. Pord's claim.
In plain terms, Solesbee did not decide whether the Constitu-
tion substantively prohibited the execution of the presently
incompetent; it decided only whether the Due Process Clause of
the Fourteenth Amendment, as then interpreted, was offended by
"the method applied by Georgia here to determine the sanity of an
already convicted defendant...." 339 U.S. at 11. The Court did
not reech the substantive issue, because in 1950 the only
constitutional limitation upon the states" power to punish was
the Due Process Clause. The Eighth Amendment's prohibition
against cruel and unusual punishment was not to be incorporated
into the Due Process Clause for another twelve years. See
Robinson v. California, 370 U.S. 660 (1962). And in 1950, the
Due Process Clause guaranteed only the fundamental procedural
rights attendant to trials of guilt or innocence, which were
generally held to be unavailable in sentencing proceedings. See
Williams . New York, 337 U.S. 241, 245-46 (1949). Accordingly,
the Solesbee Court held that the procedural rights guaranteed by
the Due Process Clause were unavailable to challenge the manner
in which sanity was determined after conviction and sentencing.
339 U.S. at 12.
That Solesbee, in 1950, did not decide the Eighth Amendment
issue presented by counsel for Mr. Ford is even clearer when one
examines the doctrinal evolution brought about by the incorpora-
tion ot the Eighth Amendment into the Fourteenth Amendment. With
that development, the Constitution for the first time began to
limit the states" power to punish -- both as to sentencing
procedures and as to sentences themselves. As a result, the
Court has felt compelled to reconsider many of its earlier due
process decisions, most frequently and notably with respect to
the states’ procedures for inflicting capital punishment. The
Court has expressly recognized that its earlier precedents
upholding state capital procedures against due process challenges
require reconsideration and often a contrary result when the same
- 16 -
procedures are challenged under the Eighth Amendment. See, 24
Gardner v. Florida, 430 U.S. 349, 355-58 (1977) (plurality
opinion); id. at 363-64 (White, J., concurring); Lockett v. Ohio,
438 U.S. 586, 597-99 (1978) (plurality opinion of Burger, C.J.)
("Thus, what had been approved under the Due Process Clause of
the Fourteenth Amendment in McGautha [v. California, 402 U.S. 183
(1971)] became impermissible under the Eighth and Fourteenth
Amendments by virtue of the judgment in Furman [v. Georgia, 408
U.S. 238 (1972)]"). The reason for this is that under the Eighth
Amendment there must be greater reliability “in the determina-
tion that death is the appropriate punishment in a specific
case," Woodson v. North Carolina, 428 U.S. 280, 305 (1976), than
due process requires generally for determinations in criminal
cases. See, e.g., Eddings v. Oklahoma, 455 U.S. 104 (1982);
Lockett v. Ohio, supra; Gardner v. Plorida, supra. I2 accord,
Caldwell v. Mississippi, 9. 8. „ 105 S.Ct. 2633 (1985).
Hence, procedures that otherwise comport with the Fourteenth
Amendment have been held not to satisfy the Eighth Amendment's
requirement of enhanced reliability. See, e.g., Beck v. Alabama,
447 U.S. 625 (1980); Green v. Georgia, 442 U.S. 95 (1979);
Gardner v. Florida, supra.
For these reasons, until the Court of Appeals rendered its
anomalous decision in Mr. Pord's case, every lower federal court
confronted with the same issue had held, as the Eleventh Circuit
itself had in Goode v. Wainwright, that “[t]here has been no
conclusive determination whether there is such a constitutional
entitlement [not to be executed if incompetent] under federal
law." 731 F.2d at 1483 (citing Gray v. Lucas, 710 F.2d at
1053-54). Accord Ford v. Strickland, 734 F.2d at 539 (granting
Stay of execution). Thus, when Justice Powell wrote for the
plurality, in upholding Mr. Ford's stay, that “[t]his Court has
12 see also Barefoot v. Estelle, 463 U.S. 880, 924 (1983)
ackmun, J.. ssenting); ings v. Oklahoma, 455 U.S. at
118 (O'Connor, J., concurring); Sad rey vs Georgia, 446 U.S.
420, 443 (1980) (Burger, C.J., dissenting).
@ 1§ «
*
never determined whether the Constitution prohibits execution of
a criminal defendant who currently is insane,” Wainwright v.
Ford, 104 S.Ct. at 3498, he was demonstrably correct.
Because of its mistaken deference to Solesbee, the majority
of the panel in the Court of Appeals refused to consider the
merits of the Eighth Amendment question presented by counsel for
Mr. Ford. The panel majority did recognize, however, that "[iJf
the matter were being presented for the first time, Ford's
contention might present considerable difficulty." 752 F.2d at
528. The reason that the Court of Appeals majority was so
troubled about the merits of Mr. Ford's claim -- and the reason
that this Court should decide to review his claim -- is that the
principles of Eighth Amendment jurisprudence provide powerful
support for the claim that the Constitution prohibits execution
of the incompetent.
Ficst, the original intent of the Framers of the Bill of
Rights in prohibiting “cruel and unusual punishments" was “to
provide at least the same protection [to United States citizens]
-- including the right to be free from excessive punishments,”
Solem v. Helm, U.S. „ 103 S.Ct. 3001, 3007 (1983), as had
been accorded English subjects. See also Furman v. Georgia, 408
U.S. 238, 264 (1972) (Brennan, J., concurring) (summarizing the
Court's early Eighth Amendment decisions as "concluding simply
that a punishment would be ‘cruel and unusual’ if it were similar
to punishments considered ‘cruel and unusual’ at the time the
Bill of Rights was adopted"); McGautha v. California, 402 U.S.
183, 226 (1971) (Black, J., concurring) (same). Accord, T.
Cooley, A Treatise on Constitutional Limitations, 472-73 (7th ed.
1903). At the time the Bill of Rights was framed, the execution
of the incompetent had been strictly forbidden in England for at
least five hundred years as “savage and inhuman" and “a miserable
spectacle ... of extreme inhumanity and cruelty.” See, ; 2 J.
Stephen, A History of the Criminal Law of England 151 (1883)
(tracing the treatment of insanity from the mid-thircteenth
century); FPitzHerbert, Natura Brevium 202 (1534) (quoted in
Sayre, Mens Rea, 45 Harv. L. Rev. 974 (1931-32)); E. Coke, Third
Institute 6 (1644); 1M. Hale, The History of the Pleas of the
Crown 35 (1736); 4 W. Blackstone, Commentaries on the Laws of
England 24-25 (1768).13 Accordingly, even under the most
restrictive reading of the Eighth Amendment -- that it was
intended to prohibit only those punishments forbidden as cruel
and unusual under English law at the time the Bill of Rights was
enacted -- there is no doubt that it proscribed as “cruel and
unusual" the execution of the incompetent. It would require
blinders to history to hold otherwise.
Moreover, there is absolutely no indication that the Pramers
intended the execution of the incompetent to be excepted from the
punishments deemed cruel and unusual at the time the Eighth
Amendment was adopted. To reach this conclusion, one would have
to assume that the Framers intended “American law [to be] more
brutal than what is revealed as the unbroken command of English
law for centuries preceding the separation of the Colonies.”
Solesbee v. Balkcom, 339 U.S. at 20 (Prankfurter, J., disse
ting). As to the execution of the incompetent particularly,
there is no basis for such an assumption. See, : 1 J-
Chitty, A Practical Treatise on the Criminal Law 620 (Amer. ed.
1819) (carrying forward the proscription on execution of the
incompetent, noting that it “was always thought cruel and
inhuman"); 1 W. Russell, A Treatise on Crimes and Indictable
Misdemeanors 15 (3d Amer. ed. 1836)(same); F. Wharton, A Treatise
on the Criminal Law of the United States 50 (2d ed. 1852) (same).
13 even though the prohibition against executing the incompetent
was so entrenched in English law, some have mistakenly
referred to it as falling within the prerogative of the Crown
as an act of grace. This, however, is a misreading of common
law history. Though as a technical matter, one who was
incompetent was excused from execution only by a “reprieve,”
this kind of reprieve was not a matter of grace but a matter
of right. As Blackstone explained, there were two types of
ceprieves, the first was the “arbitrary reprieve” ("ex
arbitria judicis") which was discretionary and could be
granted, as S$ name implies, for any or no reason. The
second was “ex necessitate legis” which as its name implies,
was mandatory. The stay at execution due to incompetence
fell into this latter category. It was a reprieve as a
matter of right -- an “invarible rule" -- and could be raised
by the judge or “plead[ed) in bar of execution." Blackstone
Second, apart from the “intent of the Framers" analysis, the
execution of the incompetent fails as well to pass constitutional
muster under the “evolving standards of decency* analysis. Under
the first part of this two-stage analysis, execution of the
incompetent falls below “contemporary standards of decency” as
measured by the objective indicia of such standards. See gener-
ally Enmund v. Florida, 458 U.S. 782, 788-89 (1982) (discussing
the objective indicia of contemporary standards -- “the histori-
cal development of the punishment at issue, legislative judg-
ments, international opinion, and the sentencing decisions juries
have made" -- that were considered in Coker v. Georgia, 433 U.S.
584, 592 (1977)). From the perspective of historical development,
we have already shown that for seven hundred years the common law
nations have prohibited execution of the incompetent. From the
perspective of legislative judgments, all the states which have
capital punishment forbid the execution of the incompetent.!4
And finaliy, from the perspective of international opinion, the
prohibition is just as uniform, as reported by members of the
United vat ions. 15
Under the second part of contemporary Eighth Amendment
analysis, in which the Court, “informed by [the foregoing]
objective factors to the maximum possible extent,* Coker v.
Georgia, 433 U.S. at 592, “bring[s) its own judgment to bear on
the matter,” Enmund v. Florida, 458 U.S. at 788-89, execution of
the incompetent should be determined as well to fall below “the
basic concept of human dignity at the core of the [Eighth]
Amendment,” Gregg v. Georgia, 428 U.S. 153, 182 (1976) (plurality
opinion). The very reason that such executions have been
proscribed for seven centuries is that they offend the concept of
human dignity: as already noted, history has condemned the
execution of an incompetent person as a “savage and inhuman act“
14 See Pord e inwright, 752 F. 2d at 530-31 6 n.2 (Clark, J.,
dissenting).
15 See Dept. of Econ. and Soc. Affairs, United Nations Doc.
SOA/SD/10, - 5 10
(1967); Dept. o ° ons 0
a airs,
ST/SOA/SD/9, Capital Punishment 15-16, 88 (1962).
and a “miserable spectacle ... of extreme inhumanity and cruel-
ty," that is "repugnant to the moral traditions of Western
civilization." It offends the most basic notions of fairness and
decency to execute human beings in such a helpless condition --
unable to understand what is happening to them, to defend
themselves as the law might still allow, to prepare for imminent
death or to make peace with their God, 16
Purther, execution of the incompetent interferes with the
condemned's right of access to collateral remedies -- a right of
"fundamental importance ... in our constitutional scheme,"
Johnson v. Avery, 393 U.S. 483, 485 (1969). Just as a person
must be competent in order to make the myriad of decisions,
voluntarily and intelligently, that must be made at trial, a
person must be competent in order to exercise meaningfully his
right of access to collateral remedies. Unlike appeals, which
concern claims already litigated, collateral proceedings are
“original actions seeking new trials ... frequently raising!
heretofore unlitigated issues ...," Bounds v. Smith, 430 U.S.
817, 827-28 (1977), and, like trials, require voluntary and
intelligent decision-making by the petitioner. See Shriner v.
Wainwright, 735 F. 2d 1236, 1240-41 (lith Cir.), cert. denied,
16 A number of logical explanations have been advanced over the
years to explain the prohibition against execution of the
insane, some of which have been the subject of debate over
their efficacy. see: „ Hazard and Louisell, Death, The
tion, 9 UC - Rev.
State
7 s ate, however, is quite beside
the point, for regardless of “the explanation it remains that
execution of the insane has been prohibited and disapproved
as savage, cruel and inhuman for centuries. "The more
fundamental the beliefs [of a civilized society] are the less
likely they are to be explicitly stated." Sri *
Balkcom, 339 U.S. at 16 frankfurter, J., dissenting).
"miserable spectacle" of execution of the insane is an act
that thus strikes to the essence of basic human dignity:
Such doctrines have been preached and
practiced in National Socialist Germany,
but they are nant to th moral
ad
are con y
tatingly — A the great majority of
the population of this country. We assume
the continuance of the ancient and humane
principle that has long formed part of our
common law.
Royal Commission on Capital Punishment, 1949-1953 Report 98
(1953) (emphasis supplied).
-19-
. s. + 82 L. 6d. 2d 852 (1984) (a habeas corpus petitioner
will be held to have waived his right to present facts and claims
if he personally fails to assert such facts and claims as were
known to him at the time of the habeas corpus proceeding, upon
counsel's negligent or deliberate failure to assert such facts
and claims).
Finally, execution of the incompetent does not measurably
contribute to the penological justifications for capital senten-
cing: retribution and deterrence Retribution is ill-served by
the execution of the incompetent, for if it is meant to impress a
moral lesson on the offender, the condemned person, by reason of
his incompetence, cannot be brought by that specter to feel the
respect for the law and society that a competent person should
feel. If it is intended instead to act as a release or an
“expression of society's moral outrage,” Gregg, 428 U.S. at 183,
then execution of the incompetent fails in that goal or even
counteracts it. Under this theory of retribution, each wrong must
be offset by a punitive act of the same quality. But when the
prisoner is incompetent, a punishment of lesser value is being
imposed. Accordingly, “the social goal of institutionalized
retribution may be frustrated when the force of the state is
brought to bear against one who cannot comprehend its signifi-
cance", Note, Incompetency to Stand Trial, 81 Harv. L. Rev. 454,
458-59 (196717
Por similar reasons, deterrence of others is not served by
execution of the incompetent. Lord Coke wrote centuries ago that
executing an incompetent person “can be no example to others."
Third Institute, at 6. This is so because “prospective offen-
ders“ of capital crimes, Gregg, 428 U.S. at 183, cannot identify
with an incompetent person who is executed. See also Collinson,
A_ Treatise on Law Concerning Idiots, Lunatics, and Other Persons
Non Compos Mentis 472 (1812). Moreover, whatever the overall
17 This retributive theory -- that the prisoner must know what
is happending to him in order to satisfy the public need for
vengeance -- may seem “unappealing to many, but,” as the
Court has said, “it is essential in an ordered society.”
Gregg, 428 u.S. at 183.
deterrent effect of the death penalty is itself, it would not be
weakened by the withholding of it for those relatively few
prisoners who become incompetent.
r es t our a ‘on
* ~protect :
min Ln @ part re .
Apart from his claim that the Eighth Amendment substantively
prohibits the execution of the insane, Mr. Ford's counsel also
argued in the courts below that the procedural due process
protections of the Pourteenth Amendment are triggered by
Florida's state-created right to be spared from execution when
insane, but that Florida's procedure for determining the compe-
tence of a condemned person at the time of execution, pursuant to
Pla. Stat. § 922.07, fails to afford the protections required by
the Pourteenth Amendment. Even though Solesbee decided this
procedural due process issue, the principles underlying its
analysis have evolved to such an extent in the intervening
decades, that we submit it is no longer of precedential value.
Because of this, we urge the Court to reconsider the applica-
bility of the Due Process Clause to the states’ procedures for
determining whether a condemned person is incompetent and thus
entitled to be spared from execution under a state-created
prohibition against executing the incompetent.
Since the decision in Solesbee, three significant evolution-
ary developments in due process jurisprudence have effectively
overruled Solesbee as controlling precedent.
First, esb was decided at a time when the procedural
protections of the Due Process Clause were applicable only to
rights,“ not “privileges.” See, e.g., Ughbanks z Armstrong, 208
U.S. 481 (1908); Escoe v. Zerbst, 295 U.S. 490 (1935); Phyle v.
Duffy, 34 Cal. 2d 144, 208 P.2d 668, 677-78 (1949) (Traynor, J.,
concurring in judgment). The classification of a particular
interest as a right or a privilege turned critically upon the
procedure which had been used historically to protect the
interest. See Arnett v. Kennedy, 416 U.S. 134, 166-67 (1974)
- 21 -
(Powell, J., joined by Blackmun, J., concurring in part); id. at
210-11 & n. 7 (Marshall, J., joined by Brennan and Douglas, J. J.,
dissenting); Logan v. Zimmerman Brush Co., 455 U.S. 422, 432
(1982). There is no better example of the operation of these
principles than the Court's analysis in Solesbee, which relegated
the interest of a condemned person in being spared from execution
if incompetent to the status of a privilege, solely because of
the procedure which the Court found to have been used historical-
ly to determine the cumpetency of a person at the time of
execution:
The heart of the common-law doctrine has been
that a suggestion of insanity after sentence is
an appeal to the conscience and sound wisdom of
the particular tribunal which is asked to
postpone sentence.
339 U.S. at 13,18
Since Solesbee, the Court has firmiy discarded “the concept
that constitutional rights turn upon whether a governmental
benefit is characterized as a ‘right’ or as a ‘privilege,'*
Graham v. Richardson, 403 U.S. 365, 374 (1971). See also Morris-
sey v. Brewer, 408 U.S. 471, 481 (1972); Bell v. Burson, 402 U.S.
535, 539 (1971); Goldberg v. Kelly, 397 U.S. 254, 262 (1970).
Rathec than examining the historical procedural protection
accorded a particular interest, the post-right/privilege analysis
focuses upon the objective expectation [of the individual],
firmly fixed in state law and official ... practice, Vitek z.
Jones, 445 U.S. 480, 489 (1980). If the individual has a
"justifiable expectation,” id., that the state will not arbitrar-
ily withdraw a benefit conferred or withhold a benefit expected
to be conferred, due process protects that individual's interest
against “arbitrary disregard ...," Hicks v. Oklahoma, 447 U.S.
343, 346 (1980). In the post-right/privilege era of analysis,
therefore, the Court has increasingly embraced the concept that
18 Even here, however, it should be noted that sb
Court's rceliance upon the procedure by which the s
interest had historically been protected was misplaced. As
we have demonstrated in footnote 13, 777540 the suggestion of
insanity after sentence historical was not an appeal to
discretion but an appeal to enforce an absolute right.
State-created substantive rights do enjoy the procedural protec-
tion of the Due Process Clause, because of the “justifiable
expectation" that such rights will not be withdrawn arbitrarily.
While there has been no application of the state-created
cights analysis to the interest of a condemned person in being
spared from execution if incompetent, the analysis has been
applied to two related interests -- parole and probation. Under
the right/privilege analysis, these interests were seen as
identical to the interest of the condemned in being spared from
execution if incompetent: each had previously been classified
only as “privileges,” which the state could grant or revoke
wholly within its discretion because each “comes as an act of
grace to one convicted of crime.” Escoe v. Zerbst, 295 U.S. at
492; Ughbanks vy. Armstrong, supra. See Solesbee v. Salkcom, 339
U.S. at 11 ("*(plostponement of execution because of insanity
bears a close affinity not to trial for a crime but rather to
reprieves of sentences in general"). Despite this view, the
Court has since held -- under the state-created rights analysis
-- that the states could nonetheless create entitlements to
parole and probation that were protected by due process. Such an
entitlement was first found in connection with the interest of a
parolee in not having his parole arbitrarily revoked, Morrissey
v. Brewer, 408 U.S. at 481-82, then applied to the revocation of
probation, Gagnon v. Scarpelli, 411 U.S. 778, 782 & n.4 (1973),
and finally, to the initial grant of parole, Greenholtz v.
Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1,
11-12 (1979).
Since the application of the state-created rights analysis
hes produced these results with cespect to probation and parole,
the application of this analytical method to the interest of the
condemned in being spared from execution when incompetent should
produce the same results in a state like Florida, for Floridas has
created a “justifiable expectation” that a condemned person will
not be executed when incompetent by its unconditional prohibition
of the execution of the incompetent for more than sixty years.
See, . Ex parte Chesser, 93 Fla. 590, 112 So. 87, 89 (1927);
ysler v. State, 136 Fla. 563, 187 So. 261 (1939); Ford v.
Wainwright, 451 80. 24 at 475.
Finally, two remaining post-Solesbee developments in due
process jurisprudence confirm the necessity of evaluating anew
the applicability of the Due Process Clause to the determination
of execution competency. These two developments have thoroughly
undermined Williams v. New York, supra, upon which the Solesbee
Court relied to hold that the Due Process Clause did not protect
the interest of the condemned in competency at the time of
execution. Solesbee, 339 U.S. at 12. These developments were
noted succinctly in Gardner v. Florida.
First, five Members of the Court have now
expressly recognized that death is a different
kind of punishment from any other which may be
imposed in this country.... [Citations omit-
ted.) It is of vital importance to the
defendant and to the community that any
decision to impose the death sentence be, and
appear to be, based on reason rather than
caprice or emotion.
Second, it is now clear that the sentencing
process, as well as the trial itself, must
satisfy the requirements of the Due Process
Clause....
430 U.S. at 357-58 (footnotes omitted). Because Solesbee was
significantly the product of Williams v. New York, Solesbee has
etfectively been overruled to the same extent as Williams -- by
the subsequent jurisprudential developments which led to the
application of the Due Process Clause to sentencing proceedings
and to the requirement of particularly stringent due process
protections in sentencing proceedings that involve the death
penalty.
Mr. Ford recognizes that the heightened due process protec-
tions which the Court began to require in capital sentencing
proceedings in the decade of the 1970's were developed to assure
reliability in the decision to impose death, not the decision to
carry out an already-imposed (and otherwise legally proper) death
sentence. However, the rationale for heightened due process in
the sentence imposition proceeding is equally compelling in a
proceeding to determine whether to carry owt a death sentence
we. Sf N OR,
. —
against a person who appears to be incompetent. Because “the
penalty of death is qualitatively different from a sentence of
imprisonment, however long, Woodson z. North Carolina, 428 U.S.
at 305, there must be correspondingly greater reliability in the
"determination that death is the appropriate punishment in a
specific case." Id, The “qualitatively different" character of a
death sentence requires as well that the determination of
competency at execution be reliable, even if all the safeguards
attendant to the initial sentencing decision are not required. As
Justice Frankfurter recognized in his dissent in Solesbee, Since
it does not go to the question of guilt 119 but to its conse-
quences, the determination of the issue of insanity after
sentence does not require the safeguards of a judicial proceed-
ing.” 339 U.S. at 24. Rowever, the inquiry into competency
nevertheless
must be fair in relation to the issue for
determination. In the present state of tenta-
tive and dubious knowledge as to mental
diseases and the great strife of schools in
regard to them, it surely operates unfairly to
make such determinations not only behind closed
doors but without any opportunity for the
submission of relevant considerations on the
part of the man whose life hangs in the
balance.
Id. at 24-25. Echoing these strains in dissent in Mr. Ford's
case, Judge Clark brought the need for “fair[ness] in relation to
tne issue for determination” into post-Furman perspective:
Admittedly, we are not reviewing here the
question of whether death is the appropriate
punishment for Mr. Ford and the procedures used
to make that decision. Nevertheless, the
procedures used to determine whether the death
penalty is a permissible punishment for him at
this time is being reviewed. The reliability
required for capital decisions is still
relevant and adequate procedures to determine
the present death eligibility are still re-
quired.
752 F. 2d at $33 (emphasis in original).
Por these reasons, Mr. Ford urges the Court to reconsider
the question decided thirty-five years ago in Solesbee. 20
19 and, we should now add (in light of post-Furman jurispru-
dence), to the question of the propriety of the sentence.
20 The request he makes is just as compelling as the request
cecently made by the petitioner in Ake v. Oklahoma, U.S.
105 S.Ct. 1087 (1985), where the Court reconsidered
another Solesbee-era due process decision, United States ex
- 25 -
e ex rte, non-adversarial, non-record procedure by which
e Or ids vernor determ
the minimum constitut
the reliabilit
etermination process.
Under either constitutional theory discussed in the pre-
ceding two sections, Florida's procedure for deter ing compe-
tency fails to protect the constitutional interests at stake. At
bottom, these interests require that there be a reliable fact-
finding procedure for determining the facts of competency. And in
this respect, the Florida procedure is an utter failure.
Be Plorida's ex parte, non-adversarial procedure
By statute, Plorida has created an administrative proceeding
for the governor to examine a death-sentenced individual's
competency to be executed. Fla. Stat. § 922.097 (1983). In Mr.
Ford's case, for the first time, the Supreme Court of Florida
held that “the statutory procedure is now the exclusive procedure
for deternining competency to be executed." Ford v. Wainwright,
451 80. 2d at 475.21
rel. Smith v. Baldi, 344 U.S. 561, 568 (1953), because of the
erosion of the jurisprudential basis of that decision by
subsequent developments. The Court explained that its
decision to reconsider Smith was primarily the result of the
evolution since Smith of “elemental constitutional rights,
each of which has enhanced the ability of an indigent
defendant to receive a fair hearing,” as well as “the
extraordinarily enhanced role of psychiatry in criminal iaw
today.” 105 S.Ct. at 1098. The evolution of the “elemental
constitutional rights“ referred to in Ake is not precisely
the evolution that requires reconsideration of the issue
previously decided in Solesbee. However, the evolution of
the Due Process Clause in the three respects just discussed
is rallel to -- and just as significant as -- the evolution
that Ted the Court to reconsider the issue previously decided
in Smith.
21 the Plorida Court had previously held, prior to the enactment
of the statute, that there was a right to a judicial deter-
mination by the trial judge where a condemned person was
alleged to be incompetent. Ex parte Chesser, 93 Fla. 291,
111 So. 720 (1927); HBysler v. ate, a. 563, 187 So.
261 (1939). The court had not had an opportunity to address
the effect of § 922.07 on this right, however, until 1984, in
Mr. Pord's case and in Goode z. Hainwrignt, 448 So.2d 999
(Fla. 1984). In Goode, decided one mont fore Mr. Ford's
case, the court appeared to leave open the prospect of
judicial proceedings for the determination of execution
competency. See Goode v. Wainwright, 731 F.2d at 1483 (“he
was free to assert this Uu in state and federal
courts from the time that he was sentenced to death" (emp-
hasis supplied)).
22
This procedure is ex parte within the executive branch. When
the governor is informed that a person may be insane, he must
stay the execution of sentence and appoint three psychiatrists to
examine the convicted person “to determine whether he under-
stands the nature and effect of the death penalty and why it is
is to be imposed upon him." 5 922.07(1). The examination is to
take place with all three psychiatrists present at the same time.
Defense counsel and the prosecutor “may be present at the
examination.” And if the convicted person has no counsel, the
trial court “shall appoint counsel to represent hin.“ Id.
Though provision is made for appointment of counsel, no
provision is made for a hearing or other adversarial activity by
counsel on behalf of her client. Consistent with these provi-
sions, the present Plorida governor has a “publicly announced
policy of excluding all advocacy on the part of the condemned
from the process of determining whether a person under sentence
of death is insane.” Goode v. Wainwright, 448 So.2d at 1001
(emphasis supplied).22 after receiving the report, if the
governor “decides” that the convicted person does not meet the
competency test set out in the statute, then he orders the verson
committed to the state hospital. If he “decides” that he meets
the test, then the governor issues a death warrant ordering
execution. §§ 922.07(2), (3). There are no written findings and
there is no judicial review of the decision.
2. Florida's ste competency-determination
rocedure fail act-
tion's
tent.
Under Mr. Ford's theory that the Eighth Amendment prohibits
execution of the incompetent, the writ of habeas corpus provides
a remedy for the enforcement of this guarantee. However, the
decision to issue or deny the writ must be made upon reliable and
accurate fact-finding. And as we demonstrate, Plorida's § 922.07
22 Thus, as in Solesbee, the Florida Governor makes the compe-
tency determination “not only behind closed doors but without
any Opportunity for the submission of relevant considerations
on the part of the man whose life hangs in the balance." 339
U.S. at 25 (Frankfurter, J., dissenting).
procedure -- without more -- cannot provide the kind of accurate
and reliable fact-findings upon which a federal habeas court can
decide whether the writ should issue.
In order to vindicate federal rights, habeas corpus depends
critically upon accurate and reliable fact-finding. If the facts
have been reliably found by the state courts on the basis of a
full hearing, the federal habeas court need not hold a new
fact-finding proceeding. However, if there has been no such
fact-finding by the state courts, the federal habeas court must
hold a de novo evidentiary hearing. Townsend v. Sain, 372 U.S.
293, 312 (1963). If Mr. Pord's claim that the Eighth Amendment
prohibits the execution of the incompetent is well-taken, the
federal habeas court must, therefore, hold an evidentiary hearing
to determine the factual questions underlying his competency,
“unless the state-court trier of fact has after a full hearing
reliably found the facts.“ Id. at 312.23
As we have shown, in Mr. Ford's case neither the governor,
the state courts, nor the District Court held an evidentiary
hearing. There was only an ex parte § 922.07 proceeding. And
even if a non-judicial state trier of fact could make reliable
fact-findings, the governor acting under § 922.07 cannot.24 The
922.07 proceeding in Mr. Ford's case was woefully inadequate when
measured against the Townsend standard. As just noted, the
fact-finder was not a court; moreover, there was no hearing, much
less a full and fair hearing, to serve as a basis for fact-
finding; and there were no findings of fact, except for those
implied in the finding that Mr. Ford was competent by virtue of
his death warrant having been signed. Finally, there was no
23 As the Court made clear in Maggio v. Pulford, 462 U.S. 116
(1983), resolution of the facts og gE a competency claim
may, like any other factual matter, be determined in the
state courts.
24 Townsend, as well as its statutory counterpart, 28 b. 8. 2. §
„ have always required a de to find the facts in
order to assure the reliability of t act-finding process.
—
judicial review of the governor's implied fact-finding or his
fact-finding procedure; nor can there be under the Florida
Supreme Court's decision in Mr. Ford's case. 25
While these defects in the 922.07 proceeding, without
further discussion, clearly compel a de novo hearing in the
district court, it is worth emphasizing why this is so. The
Townsend Court's requirement of fact-finding on the basis of a
full and fair hearing -- as the only acceptable means of assuring
reliable fact-finding -- is well-rooted in the Court's jurispru-
dence, both before and after the Townsend decision. The Court
has long recognized that a hearing is necessary to provide the
“adversarial debate our system recognizes as essential to the
truth seeking function,” Gardner v. Plorida, 430 U.S. at 359, for
"no better instrument has been devised for arriving at the
truth,” Joint Anti-Pascist Refugee Comm. v. McGrath, 341 U.S.
123, 171 (1951) (Frankfurter, J., concurring). See also Goss v.
Lopez, 419 U.S. 565, 579 (1975); Fuentes v. Shevin, 407 U.S. 67,
80 (1972); Mullane v. Central Hanover Trust Co, 339 U.S. 306,
313 (1950).
There is no more compelling example of the crucial role of
the hearing in the truth seeking function than in the resolution
of mental health issues. As the Chief Justice has observed, “The
subtleties and nuances of psychiatric diagnosis render certain-
ties virtually beyond reach in most situations.” Addington v.
Texas, 441 U.S. 418, 430 (1979). It is for this reason that
juries or judges -- lay fact-finders -- retain the fact-finding
role in determining mental health issues. But without a hearing,
in which the experts explain their opinions, as well as the data
and reasoning process upon which their opinions are based, lay
fact-finders cannot make accurate, reliable determinations of
mental health facts when the experts’ opinions are in conflict.
Although made in the context of explaining the crucial role of an
25 cf. Mattheson v. King, 751 F. 2d 1432, 1447 (Sth Cir. 1985)
(deferring to state court's determination of competency
following an evidentiary hearing, though not deciding whether
the Constitution prohibits execution of the mentally incompe-
tent).
expert in the process of resolving mental health issues, the
Court's observations in Ake v. Oklahoma are equally insightful in
explaining the crucial role of a hearing in the resolution of
these issues.
Psychiatry is not ... an exact science, and
psychiatrists disagree widely and frequently on
what constitutes mental illness, on the
appropriate diagnosis to be attached to given
behavior and symptoms, on cure and treatment,
and on likelihood of future dangerousness.
Perhaps because there often is no single,
accurate psychiatric conclusion on legal
insanity in a given case, juries remain the
primary factfinders on this issue, and they
must resolve differences of opinion within the
psychiatric profession on the basis of the
evidence offered by each party .... By organi-
zing a defendant's mental history, examination
results and behavior, and other information,
interpreting it in light of their expertise,
and then laying out their investigative and
analytic process to the jury, the psychiatrists
for each party enable the jury to make its most
accurate determination of the truth on the
issue before them.
105 S.Ct. at 1096. Without a hearing, however, the crucial
process of experts “laying out their investigative and analytic
process” to the factfinder -- in the cauldron of adversarial
debate -- cannot occur, and the “most accurate determination of
the truth" cannot be made.
Accordingly, because it provides for no full and fair
hearing upon which the facts must be reliably found, the 922.07
procedure fails to provide the kind of fact-finding procedure
necessary to determine whether the Eighth Amendment's prohibition
against executing the incompetent applies in a particular case
3.
With respect to the Pourteenth Amendment claim, once a
State-created entitlement or substantive right is identified, the
extent of procedural protection required by the Constitution must
then be ascertained. Since “[a] procedural rule that may
satisfy due process in one context may not satisfy procedural due
process in every case,” Bell v. Burson, 402 U.S. at 540, in
order to determine the procedural safeguards that are due, the
Couct has employed a balancing process that weighs three factors:
- 30 -
the private interest that will be affected by the government
action at issue, the public interest that will be affected if the
safeguards are provided, and the probable effect such safeguards
will have on reducing the risk of erroneous decisions. See Logan
v. Zimmerman Brush Co., 455 U.S. at 434; Memphis Light, Gas &
Water Div. v. Craft, 436 U.S. 1, 17-18 (1978); Dixon v. Love, 431
U.S. 105, 112-15 (1977); Mathews v. Eldridge, 424 U.S. 319,
334-35 (1976). See also Ake v. Oklahoma, 105 S.Ct. at 1094. men
appiied in the context of determining competency at the time of
execution, these factors weigh in favor of requiring the state
courts to provide the very same procedural safeguards in enfor-
cing the state substantive right which they must provide if, in
the context of the Eighth Amendment claim, their fact-findings
are to be sufficiently reliable to avoid the need for a federal
evidentiary hearing: a full and fair evidentiary hearing, on
the basis of which the fact-finder reliably finds the relevant
facts.
The private interest that is affected by a state's deter-
mination of competency at the time of execution is obvious and
compelling: the right of a condemned person to have a final
Opportunity to assert matters known only to him which would make
his execution unlawful or unjust, as well as the cight to
appreciate the meaning of, and to prepare for, the termination of
his life. Just as compelling is the interest of the condemned
that his competency be determined accurately, for only by
accurate determination will the interests of the truly incompe-
tent be protected. While the Court has “repeatedly recognized
the defendant's compelling interest in fair adjudication at the
sentencing phase of a capital case, Ake v. Oklahoma, 105 S.Ct.
at 1097, that interest clearly extends to the determination of
competency at the time, of execution.
The public interest has three aspects. The first two -- the
interest in reducing the cost of criminal proceedings and the
interest in avoiding undue delay in executions occasioned by
frivolous claims of incompetence -- weigh against additional
safeguards. The third -- the interest in sparing the truly
incompetent from execution -- weighs in favor of additional
safeguards. With respect to costs, Florida already pays three
psychiatrists to evaluate the condemned. The additional cost
occasioned by a hearing should not be burdensome, and in any
event, does not justify denying a hearing meeting the ordinary
standards of due process, Goldberg v. Kelly, 397 U.S. at 261.
See also Bell v. Burson, 402 U.S. at 540-41. With respect to
undue delay, the courts and the states are well-equipped, under
Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts and Rules 12 and 56 of the Rules of Civil
Procedure, to dispose quickly and efficiently of frivolous
claims. These or similar devices could be incorporated into
state hearing procedures.26 Where a claim of incompetency is
not frivolous, as in Mr. Ford's case, “the time invested in
ascertaining the truth will surely be well spent if it makes the
difference between life and death." Gardner v. Florida, 430 U.S.
at 360.
The interest of the public that will be affected most
Significantly by the safeguards is the same as the interest of
the condemned: the interest in accurate determinations of
competency, to avoid executing the truly incompetent. Accord Ake
v. Oklahoma, 105 S.Ct. at 1094-95 (“[t]he State's interest in
peevailing at trial ... is necessarily tempered by its interest
in the fair and accurate adjudication of criminal cases").
Moreover, when life and death are at issue, the Court's post-
Furman jurisprudence demands that the interest in reliability
and accuracy be given paramount importance. Id. at 1097 (elde
State ... has a profound interest in assuring that its ultimate
26 wowever, the Court should take notice that there has not been
— not is there any sign that there will be in the future
a flood of frivolous claims of incompetence. Governor Graham
has signed well over 100 death warrants in his six-and-
one-half years in office, and in only four of the death
waccant cases have claims of incompetence been asserted.
Pears of frivolows claims and undue delay have been raised
for centuries, but the courts have always been found capable
of dealing with the “difference between pretenses and
realities." Hawles, 2
fe the ll State 85 *. 11 ETS See 8 t 7
e, Hi~*or 2 own 35 .
- 32 <-
sanction is not erroneously imposed"). Accordingly, the public
interest is very much in accord with Justice Prankfurter's
expression of it in his Solesbee dissent:
It is a groundless fear to assume that it would
obstruct the rigorous administration of
criminal justice to allow the case to be put
for a claim of insanity, however informal and
expeditious the e for dealing with the
claim. The time needed for such a fair
procedure could not unreasonably delay the
execution of the sentence unless in all
fairness and with due respect for a basic
principle in our law the execution should be
delayed. The risk of an undue delay is hardly
comparable to the grim risk of the barbarous
execution of an insane man because of a
hurried, one-sided, untested determination of
the question of insanity, the answers to which
are as yet so wrapped in confusion and conflict
and so dependent on elucidation by more than
one-sided partisanship.
339 U.S. at 25.
Finally, as we have already shown, a full and fair eviden-
tiary hearing is the only procedural mechanism that assures the
accurate determination of the truth of a claim of incompetence.
Accordingly, the probable effect of such a safeguard is to reduce
the risk of erroneous decisions. Without it “the risk of an
inaccurate resolution of sanity issues is extremely high," Ake v.
Oklahoma, 105 S.Ct. at 1096.
Por these reasons, the FPourteenth Amendment demands that the
states determine competency, under a state-created right to be
spared from execution if incompetent, on the basis of a full and
fair evidentiary hearing. Without this, the Constitution cannot
tolerate the execution of one who appears to be incompetent.
. Alvin 2 ac mnot be liabl termined
w
Notwithstanding the preceding argument, there may be rare
cases in which competency can be reliably determined without an
evidentiary hearing. Where psychiatric and psychological opinion
respecting competency is unanimous, a finding of competence or
incompetence may well be reliable. But where opinions differ, no
accurate resolution can be made in the absence of a hearing,
where the competing views of competent professionals can be
explained, and the more accurate view determined. This princi-
ple is at the heart of Ake v. Oklahoma, and it is also at the
- 33 -
heart of Mr. Pord's case. Indeed there can be no better example
than Mr. Pord's case of the critical need for “an evidentiary
hearing.
In his case, psychiatric opinion was nearly uniform that he
suffers from a severe form of psychosis.27? However, the conclu-
sions drawn concerning his competency, in light of that psycho-
sis, were sharply conflicting. The psychiatrist who spent the
most time interviewing “r. Ford, under conditions conducive to
reliable psychiatric assessment, and who most carefully reviewed
Mr. FPord's history as well as the opinion of psychiatrists who
had previously evaluated him, concluded that he is incompetent,
because his psychotic delusional processes have fundamentally
impaired his ability to understand why he is to be executed. The
other psychiatrists who also concluded that Mr. Ford is psychot-
ic, determined nevertheless, that Mr. Ford is competent. However,
these psychiatrists offered no explanation as to how this
conclusion could be squared with Mr. Ford's psychotic delusional
processes. In the opinion of nationally-acclaimed experts in
forensic psychiatry, the conclusions of this latter group of
psychiatrists were, accordingly, unreliable -- precisely because
they failed to account for the compelling data that linked Mr.
Pord's delusional processes to incompetency. Upon analysis of
these conflicting opinions, the Court will see quite clearly that
the conflicts cannot be resolved accurately in the absence of a
hearing, where the psychiatrists “organiz[e) [Mr. Ford's] mental
history, examination results and behavior, and other information,
interpret[) it in Light of their expertise, and then lay[) out
theic investigative and analytic process to the [factfinder])
++++" Ake v. Oklahoma, 105 S.Ct. at 1096. Such an analysis shows
the following:
(1) In the two-year period following December, 1981, Alvin
Pord's mental health gradually but devastatingly deteriorated.
Mr. Pord's deteriorating mental health was documented in two
27 Only one of the five psychiatrists who evaluated Mr. Pord
‘Or. Ivory) found him free of psychosis, and as we demon-
strate infra, because that psychiatrist's evaluation was
procedurally inadequate, his opinion cannot be credited.
ways: by his voluminous correspondence and by periodic psychi-
atric evaluation, at the request of counsel for Mr. Ford, by Dr.
Jamal Amin.
(2) A sampling of Mr. Ford's correspondence was set forth
in the tLabeas petition filed in the District Court. See App.
Sla-94a. This correspondence showed a gradual but relentless
loss of contact with reality from December, 1981, forward. Over
time, Mr. Ford expressed, in his correspondence, virtually all
the recognized hallmarks of psychosis, particularly of paranoid
schizophrenia. He expressed bizarre delusions; grandiose and
religious delusions without persecutory or jealous content;
delusions with persecutory eoatent, accompanied by hallucina-
tions; auditory hallucinations in which two or more voices
conversed with each other; and finally, incoherence, marked
loosening of associations, markedly illogical thinking, and
poverty of content of speech, associates with blunted, flat, or
inappropriate effect. See American Psychiatric Association,
Diagnostic and Statistical Manual of Disorders at 188-190.
(3) During the period of time that Mr. Pord's mental health
was deteriorating, Dr. Amin conducted four separate in-person
evaluations of Mr. Ford, ending with an interview in August,
1982. Dr. Amin also reviewed the correspondence from Mr. Ford;
talked with Mr. Pord's relatives, with his attorneys, and with
other inmates, prison personnel, and other people who had
directly observed Mr. Ford's behavior over this period of time;
and reviewed Mr. Pord's mental health and medical records
maintained at Florida State Prison. On the basis of the data he
reviewed from all these sources, Dr. Amin identified the above-
noted features of psychosis and concluded on June 9, 1983, that
Mr. Ford suffered, in an “overwhelmingly convincing” fashion,
from paranoid schizophrenia. See App. 153a-155a.
(4) On the basis of this history, Dr. Amin's evaluation,
and Mr. Pord's continuing deterioration after Dr. Amin's evalua-
tion, counsel for Mr. Ford initiated a § 922.07 proceeding on
behalf on Mr. Ford on October 20, 1983.
(5) Because at that time, Mr. Ford would no longer talk
with Dr. Amin (due to his delusional belief that Dr. Amin was
persecuting him along with members of the Klu Klux Klan who
served as correctional officers at Florida State Prison), counsel
for Mr. Ford requested that another psychiatrist, Dr. Harold
Kaufman, of Washington, b. C., interview and evaluate Mr. Ford.
Prior to his evaluation, Dr. Kaufman reviewed the history of Mr.
Pord's illness as well as Dr. Amin's evaluation of Mr. Ford. On
the basis of this review and his lengthy interview with Mr. Ford,
Dr. Kaufman agreed with Dr. Amin that Mr. Pord suffered from
schizophrenia. Moreover, because at this time Mr. Ford's
competency had come into question, Dr. Kaufman assessed Mr.
Pord's competency in light of the criteria set forth in § 922.07.
Dr. Kaufman concluded as follows:
It is my conclusion, using the Florida statu-
tory standard you have supplied me with, that
because of . illness, while he
does understa the nature of the death
penalty, he lacks the mental capacity to
understand the reasons why it is being imposed
on him. His ability to reason is occluded,
disorganized and confused when thinking about
his possible execution. He can make no connec-
tion between the homicide that he committed and
the death penalty. Even when I pointed this
connection out to him he laughed derisively at
me. He sincerely believes that he is not going
to be executed because he owns the prisons,
could send mind waves to the governor and
control him, President Reagan's interference in
the execution process, etc.
App. 158.
(6) Thereafter, in early December, 1983, Governor Graham
appointed three psychiatrists pursuant to § 922.07 to evaluate
Mr. Pord: Dr. Umesh Mhatre, Dr. Walter Afield, and Dr. Peter
Ivory. On December 15, 1983, four days before their scheduled
interview with Mr. Ford, counsel for Mr. Ford provided each of
these doctors with an excerpt of the transcript of Mr. FPord's
teial in December, 1974, in which a psychiatrist had provided a
“psychiatric profile" of . Pord (to provide to the doctors in
1983 a psychiatric baseline against which to measure Mr. Pord's
then-curcent condition), a large sampling of the correspondence
from Mc. Pord over the period of time that his mental health had
deteriorated, the psychiatric evaluation by Dr. Amin, and the
psychiatric evaluation by Dr. Kaufman. While Dr. Mhatre and Dr.
Afield accepted these materials, Dr. Ivory refused them.
(7) Om December 19, 1983, Or. Mhatre, Dr. Afield, and Dr.
Ivory conducted an interview with Mr. Ford in the courtroom at
Florida State Prison. Present in the courtroom along with the
three psychiatrists and Mr. Ford, were counsel from Governor
Graham's office, one or two correctional officers, two paralegals
who had worked with Mr. Pord, and the two lawyers who had worked
with Mr. Ford. The interview lasted approximately thirty
minutes. During the course of the interview, the psychiatrists
asked very simple, straight-forward questions directed to whether
Mr. Ford understood the nature and effect of the death penalty
and why the death penalty was being imposed upon hia. He
responded in the same bizarre manner to these questions as he had
responded in an interview with counsel on December 15, 1983. See
App. 160a and 102a-107a.
(8) After approximately thirty minutes, the three psychia-
trists determined that further interview of “r. Ford would be
fruitless and terminated the interview. Thereafter, they
requested that they be able to examine Mr. Ford's cell. They
were allowed to do that, and after this inspection, they reviewed
Mr. Pord’s prison medical records and discussed his condition
with the prison’s correctional and medical staff.
(9) Before leaving the prison on December 19, 1983, Dr.
Ivory requested that he be provided the historical materials and
other psychiatric evaluations of Mr. Ford which he had refused on
December 15. A copy was provided at approximately noon on
December 19%, 1983.
(10) Om December 20, 1983, Dr. Ivory sent his report to
Governor Graham. dy his own report, DOr. Ivory based his opinion
solely upon the thirty-minute interview with Mr. Ford, the
examination of & Ford's cell, and the conversations Dr. Ivory
had with prison personnel concerning Mr. Ford. See App. 160a-
162a. On the basis of this data, Dr. Ivory concluded that “in
spite of the verbal appearance of severe incapacity, from his
e 39 «
consistent and appropriate general behavior, (Mr. Ford] showed
that he is in touch with reality,” and that he “comprehend([ed)
his total sitwation including being sentenced to death, and all
of the implications of that penalty.” Id.
(11) Without considering Mr. Fords“ documented history of
psychosis or the opinions of Dr. Amin and DOr. Kaufman respect ing
Mc. Pord’s condition, however, Dr. Ivory was at a distinct
disadvantage, for the interview with Mr. Ford on December 19
presented only a very small part of a much larger picture. 20 the
only symptom of illness presented there was marked incoherence of
speech. Because of his refusal to consider matters not apparent
in the interview on December 19, rather than evaluating this
symptom in the context of all of Mr. FPord’s other previously
documented symptoms of illness, DOr. Ivory treated this symptom as
the only one. Within this framework, when he observed Mr. Ford's
alert and appropriate non-verbal behavior during the interview,
his well organized cell, and his apparent ability to function
independently on a day-to-day level, he found a sharp conflict
with the “pervasive disorganization" suggested by Mr. Ford's
verbal behavior during the interview. Thus, DOr. Ivory quite
naturally concluded that r. Pord’s “disorder, although severe,
seems contrived and recently learned.” The pervasiveness of the
disorder suggested by his verbal behavior simply was not con-
ficmed by anything else Or. Ivory observed.
(12) On December 28, 1983, Or. Mhatre sent his report to
Governor Graham. Unlike DOr. Ivory, Dr. Mestre did review the
documented history of Mr. Pord’s psychosis, as well as the prior
evaluations by DOr. Amin and Or. Kaufman. On the basis of his
28 To avoid misdiagnosis due to failure to consider all the pos-
sible -- and varied -- manifestations of mental illness, the
psychiatric profession has for sany years saintained that a
comprehensive examination is necessary before a diagnosis can
be reached. At @ @inimus, such examination requires «4
thorough review of medical and psychiatric history, as well
as prior psychiatric assessments. The history “focuses on
those factors affecting growth and development as —
pertain to the patient's ical, social, intellectual,
interpersonal functioning. + Kaplan, 8. Sadock,
* 487-88 (Pourth Edition
. eti,
ition 1974).
review of these materials, along with his interview with Mr.
Ford, his inspection of Mr. Ford's ceil, and his conversations
with prison personnel, Dr. Mhatre concluded that Mr. Ford suffers
from “psychosis with paranoia.” App.163a-164a. Nonetheless, Dr.
Mhatre also concluded that Mr. Ford was competent under the
eriteria set forth in § 922.07:
In spite of psychosis, he has shown ability to
carry on day-to-day activities, and relate to
his fellow inmates and guards, and appears to
understand what is happening around him. It is
my medical opinion that though Mr. Ford is
suffering from psychosis at the present time,
he has enough cognitive functioning to under-
stand the nature and the effects of the death
penalty and why it is to be imposed upon him.
App. 164a. Dr. Mhatre gave no further indication of the reason-
ing process that brought him to this conclusion about competency.
He did not attempt to explain the apparent contradiction between
finding Mr. Ford psychotic -- the central feature of which was
his delusions, and in particular, his belief that he could not
be executed -- with his finding of competency under the criteria
of the Plorida statute. 29 despite this gap in Dr. Mhatre's
reasoning process, he did predict that if left untreated Mr. Ford
would likely become incompetent. App. 164a. Six months later,
without treatment, Mr. Pord's condition did substantially worsen.
App. 167a-168a. Dr. Mhatre's opinion concerning competency was,
therefore, accurate in this respect.
(13) On January 19, 1984, Dr. Afield sent his report to
Governor Graham. on the basis of his review of ali the data
concerning Mr. ford -- his correspondence, the evaluations by Dr.
Amin and Dr. Kaufman, the interview with Mr. Ford, the conversa-
tions about Mr. Ford with prison personnel, the inspection of Mr.
29 pr. Mhatre’s finding that Mr. Pord “has shown ability to
carry on day-to-day activities, and relate to his fellow
inmates and guards, and appears to understand what is
happening around him,” does not support his conclusion that
Mr. Ford is able to perceive external reality -- particularly
as to why he may be executed -- in an accurate manner. His
finding shows only that Mr. Ford appears to function adequate-
ly and appropriately on a day-to-day level. But the ability
to function in such a way does not avoid the psychiatrist's
obligation to assess the pertinent delusional processes, for
"“(the] impairment in functioning may be minimal if the
delusional material is not acted upon, since gross disorgani-
zation of behavior is extremely rare." American Psychiatric
Association, Diagnostic and Statistical Manual at 191.
Ford's cell, and the review of Mr. Ford's prison medical records
-- Dr. Afield concluded that while Mr. Ford “does not fit any
classical description of psychiatric illness," the profoundness
of his disorganization “forces me to put a ‘psychotic’ label on
the inmate." App. 166a. Notwithstanding this diagnosis, Dr.
Afield also concluded that “although this man is severely
disturbed, he does understand the nature of the death penalty
that he is facing and is aware that he is on death row and may be
electrocuted. The bottom line in summary is, although sick, he
does know fully what can happen to him." Id. Dr. Afield
reported nothing further concerning his evaluation of Mr. Ford.
(14) It is thus apparent that Dr. Afield failed to express
an opinion on the matter that was at issue: whether Mr. Ford
understood why the death sentence would be carried out against
him. Dr. Afield limited his opinion to the determination that
Mr. Ford understood the nature of the death penalty and that he
may be electrocuted. He did not determine whether Mr. Pord
understood why he may be electrocuted.39 Accordingly, Dr.
Afield's report not only failed, as did Dr. Mhatre's report, to
evaluate the delusional material which is centrally relevant to
the competency determination and which he apparently relied upon
in concluding that Mr. Ford was psychotic, but also failed
altogether to address the question upon which the competency
determination concerning Mr. Ford must rest: whether he under-
stands why the death penalty is to be imposed upon him.
(15) In preparation for an evidentiary hearing on this
matter, counsel for Mr. Ford asked two experts in the field of
forensic psychiatry to review the manner in which Mr. Ford was
evaluated by the three psychiatrists appointed by Governor
Graham. Dr. Seymour Halleck, 4 nationally-recognized scholar and
practitioner, concluded that the process by which the three
30 Clearly there is a difference between understanding that you
may electrocuted and why you may be electrocuted. Mr. Ford
understands that he may 5. electrocuted (“maybe because I am
a smart ass, Appendix 157a), but he does not understand
accurately why he may be electrocuted ("I won't be executed
because of no crime.... I can't be executed because of the
landmark case. I won.” Appendix 157a-158a).
appointed psychiatrists evaluated Mr. Ford, “fell below the
generally accepted standard of care necessary to produce a
reliable forensic psychiatric evaluation." App. 17142. Dr.
Halleck gave three reasons for this conclusion. Pirst, the
crowded and impersonal conditions under which the interview was
conducted, as well as the inordinately short amount of time spent
interviewing Mr. Ford, were unlikely to produce sufficient data
for reliable forensic evaluation. App. 1712. 1 Second, Dr.
Ivory may not have considered the reports of Dr. Amin and Dr.
Kaufman, or other available information, in making his evaluation
of Mr. Ford, and this lack of data could have seriously compro-
mised the quality of his examination. App. 172a.32 Third, all
three of the psychiatrists
failed to account for the facts contained in
[ur Pord's] history which were central to the
forensic task at hand: whether Mr. Ford's
delusional processes which, among other things,
had led him to believe that he had won his case
and could no longer be executed, were relevant
to the issue of his incompetence, in that he
failed to understand why he was to be executed,
Or as Dr. Kaufman put it, failed to understand
"the purpose of his execution. Dr. Kaufman
had previously concluded that Mr. Ford was
incompetent precisely because of his delusion-
al processes. Yet neither Dr. Ivory, Dr.
Mhatre or Dr. Afield dealt with this most
crucial data in their reports.
App. 172a. 33
31 See also S. Halleck, Law in the Practice of Psychiatry 201
T1980); S. Pollack, Psychiatric Consultation for the Courts,
1 Bull. Am. Acad. Psych. & F. 267, 275-76 (1973) [hereafter
cited "Pollack"].
52 See n.28 supra.
33. "The purpose of the psychiatric-legal report is to furnish
data for legal disposition which will be effected by attor-
ney, judge, or jury. The most significant data are the
psychiatrist's conclusions about this legal disposition. In
his explanation of the reasoning which led to hi. conclu-
sions, the psychiatrist must adopt the logical reasoning
approach followed by the legal 2 In these psychiatric
reports, the organization of material should be determined by
this logical reasoning rather than by the empirical approach
used in medicine. For example, description of psychopatho-
logical phenomena and elaboration of psychodynamics have no
significance and are unnecessary unless they can logically be
related to the legal issue. iatrist's reasoning in
establishing and demonstrating this relationship is crucial.
Upon psychiatric reasoning, not psychiatric conclusion or
opinion, will depend the weight and value which the court or
jury accords the report. Pollack at 277-78 (footnote
omitted) (emphasis in original). Accord American Psychiatric
Association, “Report of the Task Porce on the Role of
Psychiatry in the Sentencing Process," Issues in Forensic
- 41 -
(16) The other expert in forensic psychiatry with whom Mr.
Ford's counsel consulted was Dr. George Barnard, a professor in
the Department of Psychiatry at the University of Florida. Dr.
Barnard agreed with the three observations made by Dr. Halleck
with respect to the inadequacy of the evaluations conducted by
Dr. Ivory, Dr. Mhatre, and Dr. Afield. Moreover, Dr. Barnard
took specific issue with Dr. Ivory's great reliance on the state
of Mr. Ford's cell:
Dr. Ivory expressed his belief that because
Ford had a clean and organized cell that this
indicated to him that Ford could not have a
disorganized mind or thought system in that
insanity was not selective but pervasive. To
this reviewer, it appears that Dr. Ivory is of
the opinion that there is a significant
correlation between disorganization of internal
thoughts and the way that one keeps a room.
From my understanding of the literature it is
apparent that one can be highly disorganized
internally and yet keep a clean room as well as
one can be highly disorganized in the way he
keeps his room and yet be very organized and
productive in his thought processes.
App. 190a.34 In concluding, Dr. Barnard gave particular
emphasis to the failure of all three appointed psychiatrists to
confront and explain in any rational way why the obvious and
marked delusions suffered by Mr. Ford gid not, in their opinions,
make Mr. Pord incompetent:
The materials whicn I reviewed give evidence of
documenting symptoms in Ford which are consis-
tent of the diagnosis cf schizophrenia,
pe’ noid type. “These symptoms include delu-
si s of persecution, delusions of grandeur,
thought blocking, thought insertion, thought
broadcasting, flat affect, loosening of
associations and cisturbance of speech with
word gibberish. Im the psychiatric interview
conducted by the three examiners appointed by
the Governor, Ford was uncoc»verative and he
gave them few meaningful verbal responses so
that they relied heavily upon his nonverbal
productions and their ability to read between
the lines for what he might be meaning with his
nonsensical replies to their questions. In my
opinion, the three examiners give conclusionary
opinions about ford's competency to be executed
without documenting in a satisfactory manner
their evidence or facts upon which their
inferences are based. As a result, in my
Opinion, the factfinder and, in this case,
Governor Graham and/or the Court is left with
the dilemma of depending on conclusionary
belief statements by the psychiatrists that
Psychiatry 206 (1984).
34 See n.29, supra.
Ford is competent to be executed without
adequate documentation by the psychiatrists so
that the factfinder must rely on the creden-
tials of the psychiatrists rather than data. In
my opinion, this leaves the factfinder in a
very unsatisfactory position....
App. 192a-193a.
Accordingly, there was sharply divergent opinion concerning
Mr. Ford's competency, notwithstanding the nearly unanimous
opinion concerning his suffering from schizophrenia. The
psychiatrist who found Mr. Ford both psychotic and incompetent
fully documented the facts, as well as the reasoning, that led
him to that conclusion. The psychiatrists who found Mr. Ford
psychotic but competent documented, to some extent, the basis for
their conclusions that Mr. Ford was psychotic, but failed to
explain at all why, suffering from this condition, Mr. Ford was
nevertheless competent. And finally, the psychiatrist who found
Mc. Ford to be free of psychosis and competent appeared not to
have considered at all the data crucial to such a determination
and, in the opinion of forensic experts, could not therefore be
credited as having reached a reliable conclusion.
On the basis of these facts, Mr. Ford could not be found
competent without a hearing. The “paper record” would not
support such a finding. Only in a hearing -- where the fact-
finder could hear all the psychiatrists respond to questions
regarding their investigative and analytic processes -- could a
reliable determination be made that Mr. Ford is competent. In
the absence of such a hearing, the governor's determination that
Mr. Pord is competent affords no assurance that he is.
- 42-
For these reasons,
writ of certiorari.
Of Counsel:
LAURIN A. WOLLAN, JR.
1515 Hickory Avenue
Tallahassee, Florida
CONCLUSION
32303
the Court should grant the petition for
Respectfully submitted,
RICHARD L. JORANDBY
Public Defender
15th Judicial Circuit of Florida
224 Datura Street/l13th Floor
West Palm Beach, Florida 33401
(305) 837-2150
CRAIG S. BARNARD
Chief Assistant Public Defender
RICHARD H. BURR III
Assistant Public Defender
„ D. E.
Counsel for Petitioner
- 44 -
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.