Amicus Curiae Brief — Ford v. Wainwright

ALVIN BERNARD ForD, or CONNIE FOorD,

individually, and as next friend

on behalf of ALVIN BERNARD Forp,

Petitioner,

Vv.

Louie L. WAINWRIGHT, Secretary,

Department of Corrections,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

AND BRIEF OF AMICI CURIAE

AMERICAN PSYCHOLOGICAL ASSOCIATION

AND

FLORIDA PSYCHOLOGICAL ASSOCIATION

IN SUPPOK’ OF PETITIONER

LAUREL PYKE MALSON

DONALD N. BERSOFF

(Counsel of Record)

Bruce J. ENNIS, JR.

ENNIS, FRIEDMAN, BERSOFF

& EWING

1200 17th Street, N.W.,

Suite 400

Washington, D.C. 20036

(202) 775-8100

Attorneys for Amici Curiae

January 30, 1986

WiLeon . Eras Paiwrine Co.. Inc. - 769.0096 . WasnincTron. O.C. 20001

or

ie Te ee i utes st * “> —_ |

In THE

Supreme Court of the United States

OcToBeR TERM, 1985

individually, and as next friend

on behalf of ALVIN BERNARD Forp,

e Petitioner,

Louvre L. WAINWRIGHT, Secretary,

Department of Corrections,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

AMERICAN PSYCHOLOGICAL ASSOCIATION AND

FLORIDA PSYCHOLOGICAL ASSOCIATION

IN SUPPORT OF PETITIONER

Pursuant to Rule 36.3 of the Rules of this Court, the

American Psychological Association (hereafter “APA”)

and the Florida Psychological Association (hereafter

“FPA”) move for leave to file the attached brief amici

cause this case originated in Florida, and because Florida

psychologists are committed to the promotion of public

welfare, FPA, representing psychology in Florida, joins

APA as co-cmicus.

Ine., 462 U.S. 416 (1983) (abortion counseling by non-

physicians) ; and Ake v. Oklahoma, 105 S. Ct. 1087 (1985)

(indigent defendant’s right to assistance from a mental

health professional). So far this Term, the APA has filed

iii

amicus briefs in Thornburgh v. American College of Ob-

stetricians and Gynecologists, No. 84-495; Lockhart v.

McCree, No. 84-1865; and Smith v. Sielaff, No. 85-5487.

APA contributes amicus briefs to this Court only where

the APA has special knowledge to share with the Court.

APA regards this as one of those cases. In this instance,

APA and FPA wish to inform the Court about the

methodologies of psychological evaluations and the need

for and use of expert testimony in post-sentencing com-

petency proceedings. APA and FPA believe this impor-

tant and relevant information will not be provided by the

parties and will be of assistance to the Court in deciding

this case.

Respectfully submitted,

LAUREL PYKE MALSON

DONALD N. BERSOFF

(Counsel of Record)

BRUCE J. ENNIS, JR.

ENNIS, FRIEDMAN, BERSOFF

& EWING

1200 17th Street, N.W.,

Suite 400

Washington, D.C. 20036

(202) 775-8100

Attorneys for Amici Curiae

January 30, 1986

TABLE OF CONTENTS

MOTION FOR LEAVE TO FILE BRIEF AMICI

CURIAE ... ee oe

TABLE OF AUTHORITIES ....00.............002e eee.

INTEREST OF AMICI CURIAE ....0. 2.

INTRODUCTION AND SUMMARY OF ARGU-

ee

EE remenerememengennn

I. CONDEMNED PRISONERS OF QUESTION.

ABLE MENTAL COMPETENCY MAY NOT

BE EXECUTED WITHOUT FIRST HAV-

ING THEIR COMPETENCY DETERMINED

THROUGH AN ACCURATE AND RELIABLE

FACTFINDING PROCEEDING ............. a

A. Accurate And Reliable Factfinding On The

Issue Of Mental Competency Requires An

Adversary Hearing Where The Issue Of Com-

gi ES

B. Accurate And Reliable Factfinding On The

Issue Of Mental Competency Requires The

Assistance Of Mental Health Professionals

In The Evaluation And Preparation Of All

Issues Relevant To Determining Condemned

Prisoners’ Competency ......................00000000000...

C. Accurate And Reliable Factfinding On The

Issue Of Mental Competency Requires De-

cisionmakers To Specify In Writing The

Factors Relied Upon In Making Competency

EL a

Il. THE PROCEDURES FOLLOWED BY THE

STATE OF FLORIDA IN EVALUATING PE-

TITIONER’S COMPETENCY TO BE EXE-

CUTED FAILED TO PROVIDE AN ACCU-

RATE AND RELIABLE DETERMINATION

ST lainintecrscesipussiiacecnienidtbnnnten-entieininese

NS ceensenmcenttiinasnssntatenesstnasmamniesemensemmneamscutants

10

13

17

18

30

vi

TABLE OF AUTHORITIES

CASES: Page

Addington v. Texas, 441 U.S. 418 (1979) -............. 2, 12,13

Ake v. Oklahoma, 105 §.Ct. 1087 (1985) -................ passim

Arnett v. Kennedy, 416 U.S. 134 (1974) ................ 8

Barefoot v. Estelle, 463 U.S. 880 (1983) _............... 2

Blue Shield v. McCready, 457 U.S. 465 (1982)... 2

Board of Regents v. Roth, 408 U.S. 564 (1972)... 10

California v. Ramos, 463 U.S. 992 (1983) ............ 4,6

Caritativo v. California, 357 U.S. 549 (1958) _....... 7

Drope v. Missouri, 420 U.S. 162 (1975) ................... 4

Eddings v. Oklahoma, 455 U.S. 104 (1982) ............. 6

Estelle v. Smith, 451 U.S. 454 (1981) —..................... 2

Ford v. Wainwright, 752 F.2d 526 (11th Cir. 1985),

cert. granted, 54 U.S.L.W. 3420 (Dec. 9, 1985) .. 7

Furman v. Georgia, 408 U.S. 238 (1972).................. 6, 7,17

Gardner v. Florida, 430 U.S. 349 (1977).................. passim

Goode v. Wainwright, 448 So.2d 999 (Fla. 1984)... 22

Goss v. Lopez, 419 U.S. 565 (1975) —........................ 10

Greenwood v. United States, 350 U.S. 366 (1956) .. 12

Gregg v. Georgia, 428 U.S. 153 (1976) —................... passim

Hays v. Murphy, 663 F.2d 1004 (10th Cir. 1981) .... 24

Hidden v. Mutual Life Insurance Co., 217 F.2d

ge > oe ee 1

Jenkins v. United States, 307 F.2d 637 (D.C. Cir.

hE ES. ORES TE aE 1

Lindsey v. State, 254 Ga. 444, 330 S.E. 2d 563

Se 2

Lockett v. Ohio, 488 U.S. 586 (1978) ................. passim

Logan v. Zimmerman Brush Co., 455 U.S. 422

TR Se Se eee 7,8

Mathews v. Eldridge, 424 U.S. 319 (1976) .............. 8, 9, 10

O’Connor v. Donaldson, 422 U.S. 563 (1975) _....... 12

Parham v. J.R., 442 U.S. 584 (1979) ........................ 2

Pate v. Robinson, 383 U.S. 375 (1966) —................... 4

People v. Hawthorne, 293 Mich. 15, 291 N.W. 205

EEE on 1

Robinson v. California, 370 U.S. 660 (1962) 7

Solesbee v. Balkeom, 339 U.S. 9 (1950)... 7,12

Vitek v. Ignes, 445 U.S. 480 (1980) ........................ passim

vii

TABLE OF AUTHORITIES—Continued

Williams v. New York, 337 U.S. 241 (1949) _....... 23

Wolff v. McDonnell, 418 U.S. 539 (1974) ..000.. 8

Woodson v. North Carolina, 428 U.S. 280 (1976) ..passim

Youngberg v. Romeo, 457 U.S. 307 (1982) ............ 2

STATUTES AND CONSTITUTIONAL PROVISIONS:

United States Constitution, Amendment VIII passim

United States Constitution, Amendment XIV .. .... passim

Fla. Stat. § 922.07 (1983) (amended 1985) ........... passim

OTHER AUTHORITIES:

ABA Standards for Criminal Justice (1984) 3

American Bar Association Project on Standards

for Criminal Justice, Sentencing Alternatives

and Procedures, Commentary (App. Draft

Se ee

APA, Specialty Guidelines for the Delivery of

Services by Clinical Psychologists, 36 Am.

EE 25

APA, Standards for Providers of Psychological

Services, 32 AM. PSYCHOL. 495 (1977) _.......... 25

A. ANASTASI, PSYCHOLOGICAL TESTING (5th ed.

Ee ee a ae 28

24

26

L. BELLAK & L. LoeB, THE SCHIZOPHRENIC SyYN-

I

T. BLAU, THE PSYCHOLOGIST AS EXPERT WITNESS

OO 1,

Bluestone & McGahee, Reaction to Extreme Stress:

Impending Death by Execution, 119 Am. J.

Tn 16

Bonnie and Slobogin, The Role of Mental Health

Professionals in the Criminal Process: The Case

For Informed Speculation, 66 Va. L. REv. 427

EE ee 1

Comment, The Psychologist as an Expert Witness,

15 KAN. L. REV. 88 (1966) ..... 2

viii

TABLE OF AUTHORITIES—Continued

Cooke, An Introduction to Basic Issues and Con-

cepts in Forensic Psychology, in THE ROLE OF

THE FORENSIC PSYCHOLOGIST 5 (G. Cooke, ed.

aes tere ee

Cooke, The Role of the Psychologist in Criminal

Court Proceedings, in THE ROLE OF THE FOREN-

Sic PSYCHOLOGIST 91 (G. Cooke, ed. 1980)

L. CRONBACH, ESSENTIALS OF PSYCHOLOGICAL TEST-

RD Ce Oe Be crrrnrrsttindessccnmmnntnnteimnens

H. KAPLAN, A. FREEDMAN, B. Sappock, A COMPRE-

HENSIVE TEXTBOOK OF PsycHIATRY/III (3d ed.

1980)

Lassen, The Psychologist as an Expert Witness in

Assessing Mental Disease or Defect, 50 A.B.A. J.

EEE eS nT

Levitt, The Psychologist: A Neglected Legal Re-

source, 45 IND. L. J. 82 (1969) ................__._......

Louisell, The Psychologist in Today's Legal World,

39 Minn. L. REv. 235 (1955) _.............................

Nash, Parameters and Distinctiveness of Psycho-

logical Testimony, 5 Pror. PSYCHOL. 239 (1974) ..

Note, Psychologist’s Diagnosis Regarding Mental

Disease or Defect Admissible on Issue of In-

sanity, 8 VILL. L. REv. 119 (1962)

Pacht, Kuehn, Bassett & Nash, The Current Status

of the Psychologist as an Expert Witness, 4

Pror. PsYcHoL. 409 (1973) _....... ei

Perlin, The Legal Status of the Psychologist in the

Courtroom, in THE ROLE OF THE FORENSIC Psy-

CHOLOGIST 26 (G. Cooke, ed. 1980) —.........

Sadoff, Working with the Forensic Psychologist,

in THe ROLE oF THE FORENSIC PSYCHOLOGIST

DL

D. SHAPIRO, PSYCHOLOGICAL EVALUATION AND Ex-

PERT TESTIMONY (1984) . 7“

Wilson, Prison As An Environment | in 1 THE ROLE

or THE FORENSIC PSYCHOLOGIST 279 (G. Cooke,

a ill itachi eccnnieicinieiaaatioiasientecianilinionsins

Page

TABLE OF AUTHORITIES—Continued

Page

J. ZISKIN, 2 COPING WITH PSYCHIATRIC AND Psy-

CHOLOGICAL TESTIMONY, (3d ed. 1981)... 24

Ziskin, Giving Expert Testimony: Pitfalls and

Hazards for the Psychologist in Court, in THE

RoLe OF THE FORENSIC PSYCHOLOGIST 98 (G.

ES a 24, 29

BRIEF OF AMICI CURIAE

AMERICAN PSYCHOLOGICAL ASSOCIATION

AND

FLORIDA PSYCHOLOGICAL ASSOCIATION

IN SUPPORT OF PETITIONER

INTEREST OF AMICI CURIAE

The interest of amici curiae is set out in the attached

Motion for Leave to File Brief Amici Curiae, at pp. i-iii,

supra.

INTRODUCTION AND SUMMARY OF ARGUMENT

This case raises two related issues regarding the extent

. United States, 307 F.2d 687 (D.C. Cir. 1962) (en banc); Hidden

. Mutual Life Insurance Co., 217 F.2d 818 (4th Cir. 1954); and

People v. Hawthorne, 293 Mich. 15, 291 N.W. 205 (1940); see

generally T. BLAU, THe PsYCHoLocist as Exrert WitNess (1984) ;

D. SHAPIRO, PSYCHOLOGICAL EVALUATION AND Expert TesTIMONY

(1984), and has met with almost unanimous endorsement by com-

mentators. See Bonnie and Slobogin, The Role of Mental Health

Professionals in the Criminal Process: The Case For Informed Spec-

ulation, 66 Va. L. Rev. 427 (1980) ; Lassen, The Paychologist as an

Expert Witness in Assessing Mental Disease or Defect, 50 A.B.A. J.

239 (1964); Levitt, The Psychologist: A Neglected Legal Resource,

45 Inn. L. J. 82 (1969) ; Lowisell, The Peychologist in Today's Legal

of amici’s strong interest and expertise in the various

methodologies for cognitive assessment that are integral

components of all competency evaluations, including those

World, 39 MINN. L. REV. 235 (1955) ; Nash, Parameters and Distinc-

tiveness of Psychological Testimony, 5 Pror. PsYCHOL. 239 (1974) ;

Pacht, Kuehn, Bassett & Nash, The Current Status of the Psycholo-

gist as an Expert Witness, 4 Pror. Psvcno.. 409 (1973); Perlin,

The Legal Status of the Psychologist in the Courtroom, in Tue

ROLE OF THE FORENSIC PSYCHOLOGIST 26-36 (G. Cooke, ed. 1980) ;

Note, Psychologist’s Diagnosis Regarding Mental Disease or De-

fect Admissible on Issue of Insanity, 8 Vu. L. Rev. 119 (1962);

Comment, The Psychologist as an Expert Witness, 15 KAN. L. REV.

sionals, see, ¢.g., Ake v. Oklahoma, 106 8.Ct. 1087 (1985) ; Barefoot

v. Eetelle, 463 U.S. 880 (1983); Estelle v. Smith, 451 U.S. 454

(1981); and Parham v. J.R., 442 U.S. 584 (1979), other decisions

properly have recognized that psychologists stand on an equal foot-

la@ with peychiatrists. See, ¢.g., Youngberg v. Romeo, 457 US.

307, 8323 n.30 (1982) (“professional decisionmaker” includes persons

with “appropriate training” in “psychology”); Blue Shield v.

McCready, 457 U.S. 465 (1982) (health plan subscriber denied

reimbursement for psychologist’s fees has standing to sue for con-

spiracy vo exclude psychologists from psychotherapy market) ; Vitek

v. Jones, 4456 U.S. 480, 491 (1980) (“the state)’s reliance on the

opinion of a designated physician or psychologist... .”); and

However, these ambiguities have led lower to read Ake

and analogous cases too narrowly. See, ¢.g., Lindsey v. State, 254

Ga. 444, 380 S.E. 2d 568 (1985) (Ake not satisfied by providing

provided under Florida law,” amici believe that their views

be useful to the Court’s

F

:

:

:

substantive constitutional right or as an interest entitled

to federal due process protections, Florida constitutionally

may not execute mentally incompetent individuals.’

Under either the enhanced reliability standard for

imposing capital punishment under the Eighth Amend-

ment or the procedural due process standards of the Four-

teenth Amendment, the procedures followed by the State

of Florida in evaluating Petitioner’s competency to be

by the American Bar Association, on the recommendation of an

interdisciplinary task force composea of lawyers, psychologists, psy-

chiatrists and other mental! health professionals, including formal

representatives of the American Psychological Association and the

American Psychiatric Association, in its recently adopted Criminal

Justice Mental Health Standards. See ABA Standards for Criminal

Justice (1984), Standard 7-1.1 et seq.

* Fla. Stat. § 922.07(2) provides that a condemned prisoner is in-

competent to be executed upon a determination by the Governor,

after professional examination of the prisoner, that the prisoner

lacks “the mental capacity to understand the nature of the death

penalty and the reasons why it was imposed upon him.” This test

requires the assessment of primarily cognitive abilities.

* Amici's decision not to address the question whether Petitioner

a constitutional right not to be executed while mentally incom-

petent reflects only their judgment that, in light of their special

|

i

:

i

;

of

tative difference” between the penalty of death

California v. Ramos, 463 US.

(1983); Lockett v. Ohio, 438 U.S. 586, 604

(1978) (opinion of Burger, C.J.); Woodson v.

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

be

tencing phases of capital proceedings should be extended

to proceedings in the post-sentencing phase in which com-

petency for execution is evaluated.‘

Because of the critical role that adversarial debate

plays in the “truth-seeking” process, Gardner v. Florida,

430 U.S. 349, 360 (1977) (plurality opinion), amici urge

this Court, whenever there is reasonable cause to believe

that a condemned prisoner lacks the mental competency

to be executed, and there is a factual dispute as to that

issue, to require a full and fair adversarial hearing on the

issue of his or her competency." Amici further urge the

Court’s recognition, as a requirement of due process, of

the effective assistance of mental health professionals,

and the appointment of such professionals in the case of

indigents, to conduct appropriate examinations of con-

demned prisoners and to assict them and their attorneys

opinion) (and cases cited therein). See generally Ake v. Oklahoma,

As a result of these procedural inadequacies and pro-

fessional deficiencies, the determination that Petitioner

is competent to be executed fails the enhanced reliability

and heightened procedural fairness standards of the

nian ie tie He sit it it vil

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oe

$s in ; TH ei

ue pall if; det iF:

7

of the information used by decisionmakers and the reli-

ability of the determination that “death is the appropri-

ate punishment in a specific case.” Woodson v. North

Carolina, 428 U.S. at 304, 305.

Although the Court has not had occasion to address the

specific applicability of these procedural requirements to

post-sentencing competency proceedings in light of con-

temporary Eighth and Fourteenth Amendment stand-

ards,’ the constitutional values of consistent, reasoned

determinations and enhanced reliability in imposing cap-

ital punishment are no less compelling in the context of

post-sentencing competency determinations.* Chief Jus-

7 The court of appeals’ reliance on Solesbee v. Balkcom, 339 U.S.

9 (1950), and Caritativo v. California, 357 U.S. 549 (1958), is

misplaced. See Ford v. Wainwright, 752 F.2d 526, 528 (11th Cir.

1985). Because these decisions predate significant developments in

Eighth and Fourteenth Amendment jurisprudence, their applica-

bility in the context of this case is severely limited. First,

Solesbee and Caritative did not purport to consider whether the

Constitution imposed any substantive prohibitions on the execu-

tion by States of mentally incompetent prisoners because the Eighth

Amendment’s prohibition against cruel and unusual punishment

was not applicable to the State until 1962. See Robinson v. Cali-

fornia, 370 U.S. 660 (1962). Second, although Solesbee and

Caritativo did address the procedural issue of what process was due

in these circumstances, the requirements of enhanced reliability and

consistent, reasoned decisionmaking in capital sentencing imposed

by this Court in Furman in 1972 and its progeny has rendered im-

permiss‘ble under the Eighth and Fourteenth Amendments many

sentencing practices that were approved previously under the Due

Process Clause. See Lockett v. Ohio, 438 U.S. at 599; Gregg v.

Georgia, 428 U.S. at 195-96 n.47. Third, Solesbee and Caritativo

were decided before this Court accorded state-created “objective

expectation[s]” the procedural protections of the Due Process

Clause. Vitek v. Jones, 445 U.S. 480, 489 (1980). See Logan v.

Zimmerman Brush Co., 455 U.S. 422 (1982) (and cases cited

therein).

®In addition to the constitutional values underlying the right

not to be executed while mentally incompetent, there are several

bases, recognized historically at common law, for prohibiting the

execution of mentally incompetent prisoners. See generally Ford v.

Wainwright, 752 F.2d at 531 (Clark, dissenting) .

}

tice Burger’s observation in Lockett v. Ohio regarding

capital sentencing is even more apt with respect to post-

sentencing capital determinations: “The nonavailability

of corrective or modifying mechanisms with respect to an

executed capital sentence underscores the need for indi-

vidualized consideration [and accurate factfinding] as a

constitutional requirement [in these proceedings].” 438

U.S. at 605 (emphasis added).

Assuming the Court recognizes in this case a constitu-

tional right not to be executed while incompetent, “ ‘the

determination of [prisoners’ competency to be executed]

is critical, and the minimum requirements of procedural

due process appropriate for the circumstances must be

observed.’” Vitek v. Jones, 445 U.S. 480, 491 (1980),

quoting Wolff v. McDonnell, 418 U.S. 539, 558 (1974).’

This Court consistently has recognized that “ ‘the ade-

quacy of statutory procedures for deprivatior. of a statu-

torily created (life, liberty or] property interest must

be analyzed in [federal] constitutional terms.’” 445

U.S. at 490-91, n.6, quoting Arnett v. Kennedy, 416 U.S.

134, 167 (1974) (Powell, J., concurring in part) (and

cases cited therein). See also Logan v. Zimmerman Brush

Co., 455 U.S. 422, 482 (1982). Balancing the factors set

forth in Mathews v. Eldridge, 424 U.S. 319, 335 (1976),

as critical to the determination of what process is due, it

is clear that federal due process demands as heightened

® Even where the entitlement is based on a state-created right

rather than a substantive federal constitutional! right, the minimum

due process requirements are “a matter of federal law {and) are

not diminished by the fact that the State may have specified its

own procedures that it may deem adequate for determining the

preconditions to adverse official action.” 445 US..t 491. Nor

does the fact that certain determinations are primarily medica! or

psychological in nature, and that States rely “on the opinion!s) of

. . » designated physician[s) or psychologist{s| for determining

whether the conditions warranting [deprivation of a protected in-

terest] exist{[,} . . . remove[] the prisoner's interest from due

process protection[| or answer[) the question of what process is

due under the Constitution.” /d.

procedural protections in determining present eligibility

for the death penalty as are required in the initial guilt

and sentencing phases of capital proceedings."

Those protections include the opportunity to review and

challenge the accuracy of information upon which the

sentencing authority relies in imposing capital punish-

ment, see Gardner v. Florida, 430 U.S. 349 (1977); the

assistance of a competent mental health professional, and

appointment of such a professional for indigents, “in

[the] evaluation, preparation, and presentation of” all

issues relevant to the defense, Ake v. Oklahoma, 105

U.S. at 1097; and a written statement by the sentencing

authority of the evidence relied on and the reasons for

the imposition of capital punishment, to ensure adherence

to proper substantive and procedural standards. See

Gregg v. Georgia, 428 U.S. at 195. These measures,

which seek to ensure consistency and reliability in the

imposition of capital punishment, are “a constitutionally

indispensabie part of the process of inflicting the penalty

of death,” Woodson v. North Carolina, 428 U.S. at 304,

including the actual execution of the death sentence. The

absence of these safeguards in the State’s determination

of competency to be executed creates a constitutionally

intolerable risk of erroneous deprivation of life.

” The three factors identified by the Court as relevant to the

determination of what process is due before an individual may be

deprived by governmental action of a protected life, liberty or

property interest are: 1) the private interest that will be affected

by the governmental action; 2) the governmental interest that will

be affected if the proposed safeguard is provided; and 3) “the

probable value of the additional . . . procedural safeguards that are

sought, and the risk of an erroneous deprivation of the affected

interest if those safeguards are not provided.” Ake v. Oklahoma,

105 S.Ct. at 1094. See Mathews v. Eldridge, 424 U.S. at 335.

10

A. Accurate And Reliable Factfinding On The Issue

Of Mental Competency Requires An Adversary

Hearing Where The Issue Of Competency Is Dis-

puted.

The Due Process Clause requires that before individ-

uals are finally deprived of a constitutionally protected

interest, they must be provided “some form of hearing”

in which to present their case and have its merits fairly

judged. Board of Regents v. Roth, 408 U.S. at 570-71,

n.8. The nature of the required hearing, however, “will

depend on appropriate accommodation of the competing

interests involved.” Goss v. Lopez, 419 U.S. 565, 579

(1975). Weighing, under Mathews, the private and gov-

ernmental interests at stake in light of the probable con-

tribution that adversary hearings will make to the con-

sistency and reliability of competency determinations,

the balance tips overwhelmingly in favor of providing

condemned prisoners a meaningful opportunity to review

and challenge the factual bases of the State’s determina-

tions regarding their mental status.

It cannot reasonably be disputed that “|t)he private

interest in the accuracy of a. . . proceeding that places

an individual's life . . . at risk is almost uniquely com-

pelling.” Ake v. Oklahoma, 105 §. Ct. at 1094. Although

condemned prisoners may have forfeited some constitu-

tional protections by virtue of having been duly convicted

and sentenced to death, assuming the execution of incom-

petent prisoners is forbidden under federal or state law,

such prisoners must be considered to possess a “residuum”

of “life” interest so long as they are incompetent. Thus,

condemned prisoners of questionable competency retain a

powerful interest in the reasoned determination, based on

reliable factfinding, of their competency to be executed.

Likewise, the State has a compelling interest in en-

suring the accuracy and reliability of competency pro-

ceedings. Indeed, the State’s interest in assuring that

its “ultimate sanction” is not erroneously carted out is

“profound.” Jd. at 1097. The State has additional in-

11

terests in the deterrent and retributive values of enforc-

ing sanctions that have been lawfully imposed by its

criminal process, unimpeded by delays and additional ad-

ministrative or financial burdens. However, unlike a pri-

vate adversary, the State must temper its interest in effi-

cient enforcement of the death penalty with its larger

interest in preserving the constitutional integrity of its

criminal justice system. Jd. at 1095.

The safeguard of an adversary hearing, in which pris-

oners are permitted to review and challenge evidence of

their competency that is adduced by the State, enhances

substantially the likelihood of accurate determinations of

competency. See, e.g., Vitek v. Jones, 445 U.S. 480

(1980); Gardner v. Florida, 430 U.S. 349 (1977). Al-

though providing condemned prisoners with such an op-

portunity may cause delays in the administration of their

ultimate punishment, those costs are clearly outweighed

by the benefits of allowing the adversary process to

sharpen and refine the evidentiary bases on which de-

terminations are made to carry out “this most irrevocable

of sanctions.” Gregg v. Georgia, 428 U.S. at 182.

In Gardner v. Florida, the Court held that the Due

Process Clause required, an opportunity for adversarial

debate on “confidential” presentence reports on which

the State intended to rely in a capital sentencing pro-

ceeding. Regarding the State’s interest in avoiding de-

lay, the Court stated that delay could be avoided if the

decisionmaker disregarded any material in the report

which was contested by the defendant. If, however, the

contested material was “of critical importance [and

therefore would be used by the decisionmaker in sentenc-

ing the defendant], the time invested in ascertaining the

truth would surely be well spent if it makes the differ-

ence between life and death.” Jd. at 359-60.

Similarly, the Court cautioned that “consideration

must be given to the quality, as well as the quantity, of

the information on which the [decisionmaker] may rely”

in imposing the death penalty. Jd. at 359. Information

ifiptte

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i

life, the Court has rejected deprivation by the State of

absence of an adversary hearing. In Vited v. Jones, 445

U.S. 480 (1980), the Court held that « prisoner’s liberty

interest was violated by his classification as mentally il!

and involuntary transfer to a mental hospital for psy-

chiatric treatment without adequate procedural protec-

tions. Although recognizing the State’s “strong” interest

™ See generally, Addington v. Teras, 441 U.S. 418, 429-90 (1979) -

O'Connor v. Donaldson, 422 U.S. 563 (1975); Greenwood v. United

States, 350 U.S. 366, 375-76 (1956); Solesbee v. Balkcom, 389 U.S.

9 (1950).

495, quoting Addington v. Texas, 441 U.S. 418, 429

(1979). Rather, “[i]t is precisely [because of] ‘[t)he

™ The procedural safeguards included, inter alia, a hearing at

which: the State is required to disclose the evidence on which

intends to rely; prisoners are given an opportunity to be heard

person and to present contrary documentary evidence; and prisoners

are provided an opportunity to present testimony by

the State.

14

1087 (1985). Both the State and condemned prisoners

have a very substantial interest in the fair and accurate

adjudication of condemned prisoners’ competency to be

executed. The State has additional interests, however, in

avoiding the financial and administrative burdens that

providing condemned prisoners with the assistance of

mental health professionals would impose on its crimi-

nal justice system. However, in light of the compelling

interests of both the State and the individual in accurate

dispositions, it is clear that those governmental interests

are “not substantial.” Ake v. Oklahoma, 105 S.Ct. at

1095.

Balancing these private and governmental interests in

light of “the probable value of [the assistance of a men-

tal health professional], and the risk of erroneous depri-

vation of the [prisoner’s life] if [such a safeguard] is

not provided,” the weight favors providing the assistance

of independent mental health professionals to prisoners of

questionable competency. Ake v. Oklahoma, 105 S.Ct. at

1094. Providing such prisoners with independent mental

health professionals who will conduct appropriate exami-

nations, challenge the findings of State experts, and pro-

vide other relevant assistance will contribute to the ad-

versarial debate and thereby enhance the decisionmaker’s

ability to make a reliable and informed determination.

In Ake, the Court, recognizing the “pivotal role” that

mental health professionals have come to play in criminal

proceedings, acknowledged that when “the defendant’s

mental condition [is] relevant to . . . the punishment he

might suffer, the assistance of a [mental health profes-

sional] may well be crucial to the defendant’s ability to

marshal his defense.” 105 S.Ct. at 1095. In such cases,

because “the risk of inaccurate resolution of sanity issues

[would be) extremely high” without such assistance, fair

adjudication at the guilt and sentencing phases of capi-

tal cases requires, “at a minimum, [that the State] as-

sure the defendant access to a competent [mental health

professional] who will conduct an appropriate examina-

15

tion and assist in the evaluation, preparation, and pre-

sentation of the defense.” Jd. at 1097.

As in the guilt and sentencing phases of criminal pro-

ceedings, when a condemned prisoner’s mental condition

is relevant to the determination whether to proceed with

a death sentence, the assistance of a mental health pro-

fessional becomes critical to the fair and accurate deter-

mination of the prisoner’s competency to be executed. A

mental health professional retained or appointed to assist

the prisoner will be able to examine the prisoner and

conduct relevant tests over the period of time necessary

to produce an accurate mental assessment, will provide

the trusting relationship necessary to evoke the candid

and spontaneous disclosures upon which accurate assess-

ment depends, and will provide meaningful assistance to

the prisoner and counsel in reviewing and responding to

the reports of the State’s mental examiners."

The client-clinician relationship is particularly impor-

tant in this context because the symptoms of psychological

distress caused by the imminence of one’s execution may

not always manifest themselves in obviously aberrational

behavior. In addition, because the psychological stress

that accompanies living under a sentence of death can

cause condemned prisoners to develop defensive mecha-

nisms to cope with the stress, the mental health profes-

sional must be sensitive to the degrading nature of the

forces—and their physical, psychological, and emotional

impact—that uniquely press upon prisoners awaiting ex-

% Although Petitioner was evaluated Ly two mental health

professionals, the reports of those evaluations were neither sub-

mitted to the Governor, nor referred to in the state-appointed

psychiatrists’ reports to the Governor, for his consideration in de-

termining Petitioner’s competency to be executed. Moreover, the

absence of an adversarial proceeding precluded any meaningful

assistance to Petitioner by these professionals, e.g., helping to pre-

pare the cross-examination of the State psychiatrists, giving testi-

mony on behalf of Petitioner.

16

ecution.* To assess fully the effects that these defensive

mechanisms have on a condemned prisoner’s rational and

factual understanding of his or her fate, i.e., competency

to be executed, the mental health professional must pos-

sess the time and the skill essential to developing a re-

lationship with the prisoner that will provide the neces-

sary access to the prisoner’s psychological composition.

The provision of such assistance to prisoners of ques-

tionable competency will enhance significantly the likeli-

hood of an accurate determination of the prisoner’s com-

petency to be executed: “By organizing [the prisoner’s]

mental history, examination results and behavior, and

other information, interpreting it in light of their ex-

pertise, and then laying out their investigative and

analytic process to the [decisionmaker], [mental health

professionals] for each party enable the [decisionmaker]

to make its most accurate determination of the truth of

the issue before [it].” Ake v. Oklahoma, 105 S.Ct. at

1096." :

Thus, a proper balancing of interests, “where the con-

sequence of error is so great, the relevance of responsive

psychiatric testimony so evident, and the burden on the

State so slim, . . . requires access to a [mental] examina-

tion on relevant issues, to the testimony of the [mental

health professional], and to assistance in preparation at

the [post-sentencing competency evaluation] phase.” Id.

at 1097.

14 For example, a common reaction to the extreme anxiety and

stark terror that many prisoners experience when confronted with

the imminence of their death is the suppression of that reality by a

variety of psychological defense mechanisms, including denial by

delusion formation, denial by minimizing their predicament, projec-

tion, and obsessive preoccupation with religious, intellectual or philo-

sophical matters. See generally Bluestone & McGahee, Reaction to

Extreme Stress: Impending Death by Execution, 119 Am. J.

PSYCHIAT. 393 (1962).

15 This is especially true given the frequency and breadth of

disagreement that may obtain in mental evaluations of the same

individual. See p. 12, supra.

a. oo

17

C. Accurate And Reliable Factfinding On The Issue Of

Mental Competency Requires Decisionmakers To

Specify In Writing The Factors Relied Upon In

Making Competency Determinations.

The requirement that decisionmakers in capital cases

specify in writing the factors relied upon in reaching

their decision to impose capital punishment has been

recognized by the Court as necessary “to ensure that

death sentences are not imposed capriciously or in a

freakish manner.” Gregg v. Georgia, 428 U.S. at 195."

The requirement of written findings forces decision-

makers to focus more closely on the reasons underlying

their decisions, and thereby enhances the likelihood of

compliance with the required standards for imposing or

proceeding with capital punishment.'’ Written findings

also provide an adequate basis for a collateral chal-

lenge to the constitutionality of competency proceedings,

as well as for meaningful appellate review in those juris-

dictions where such review is provided. In this way, the

requirement of a written record satisfies the require-

ments of reasoned, consistent decisionmaking and en-

hanced reliability which have been articulated by this

Court as the touchstones of constitutionally adequate de-

cisionmaking in capital cases. .

These protections are no less critical when the interests

of condemned prisoners are balanced against those of the

1 Even in the noncapital context, the Court has recognized in

certain circumstances that the proper balancing of individual inter-

ests and governmental interests demands a “written statement by

the factfinder as to the evidence relied on and the reasons for [the

deprivation of the individual’s protected interests].” Vitek v. Jones,

445 U.S. at 495.

17 See also Gardner v. Florida, 430 U.S. at 361 (“[I]}t is important

that the record . . . disclose . . . the considerations which motivated

the death sentence in every case in which it is imposed. Without

full disclosure of the basis for the death sentence, the Florida capital

sentencing procedure would be subject to the defects which resulted

in the holding of unconstitutionality in Furman v. Georgia.”)

(footnote omitted).

18

State. Both the State and the questionably competent

prisoners whose lives are at stake have a “compelling

interest” in the accurate and reliable assessment of the

prisoners’ mental competency. Ake v. Oklahoma, 105

S.Ct. at 1095. The State’s additional interests in finan-

cial and administrative economy are taxed only incre-

mentally by requiring the decisionmaker to provide a

written statement of the evidence relied on in deter-

mining the prisoner’s competency. Indeed, the absence

of such a statement, should the prisoner challenge the

constitutionality of the State’s determination in col-

lateral or appellate proceedings, could require the State

to bear the expense of an additional fact-finding hear-

ing. Thus, on balance, due process requires that decision-

makers support their determinations that condemned

prisoners of questionable competency are fully competent

to be executed with written statements of their findings

of fact.

II. THE PROCEDURES FOLLOWED BY THE STATE

OF FLORIDA IN EVALUATING PETITIONER’S

COMPETENCY TO BE EXECUTED FAILED TO

PROVIDE AN ACCURATE AND RELIABLE DE-

TERMINATION ON THE ISSUE.

Pursuant to Fila. Stat. § 922.07, “[w]hen the Governor

is informed that a person under sentence of death may

be insane, he shall stay execution of the sentence and

appoint a commission of three psychiatrists to examine

the convicted person.” § 922.07(1). The Governor is re-

quired under the statute to instruct the examiners in

writing “to determine whether [the condemned person]

understands the nature and effect of the death penalty

and why it is to be imposed upon him.” Jd. If, after re-

ceiving the reports from the commission, the Governor

determines that the convicted person “has the mental

capacity to understand the nature of the death penalty

and the reasons why it was imposed upon him, he shall

issue a warrant to the warden directing him to execute

the sentence at a time designated in the warrant.”

§ 922.07(2).

19

Following these procedures, on October 20, 1983, Peti-

tioner’s counsel advised the Governor that Petitioner’s

mental condition had deteriorated to the point where his

sanity was questionable, and sought the appointment of

a commission of psychiatrists."* Three psychiatrists were

appointed and, on December 19, 1983, as provided by

statute, they examined Petitioner “with all three psychi-

atrists present at the same time [along with Petitioner’s]

(c}ounsel . . . and the state attorney ....” § 922.07(1).

The “examination” consisted of a one-half hour inter-

view with Petitioner in the prison courtroom,” conversa-

tions with the prison’s medical and correctional staff, in-

spection of Petitioner’s cell, and, in some cases, review

of materials provided by Petitioner’s counsel *° which con-

18 Petitioner had been examined by a psychiatrist in July, 1981

in connection with unsuccessful clemency proceedings. Because of

the deterioration of Petitioner’s mental state, Petitioner’s counsel

arranged for Petitioner to continue seeing that psychiatrist on a

therapeutic basis. Appendix to Petition for Certiorari (hereafter

“App.”) at 94a. In August, 1982, Petitioner discontinued therapy

because he believed the psychiatrist was conspiring against him in

concert with the Ku Klux Klan. /d. In January, 1983, because

Petitioner wanted to dismiss his appeals and submit to execution,

Petitioner’s counsel sought evaluation of Petitioner’s mental condi-

tion by a second psychiatrist in order to assess Petitioner’s com-

petency to make such a decision. Jd. at 97a. Petitioner refused to

see this psychiatrist—and anyone else, including family and coun-

sel—until November, 1983. /d.

1% Also present during the interview were “one or two correctional

officers” and two paralegals. Petition for Writ of Certiorari at 37.

* Although Petitioner’s counsel provided these materials to the

commission psychiatrists as background information prior to their

interview, whether, and to what extent, these materials were

actually reviewed by the psychiatrists is unclear. Two of the three

commission members stated in their reports that they had reviewed

the materials, but their reports did not even address, much less

account for, the pervasivé evidence in those materials of Petitioner’s

delusional processes. See App. 160a-166a. The third psychiatrist

refused to accept the materials until after the interview, and one day

before he submitted his report to the Governor. He made no refer-

ence in his report to having reviewed the materials. See id. at

160-62a.

20

tained portions of the trial transcript, copies of Petition-

er’s correspondence, reports of two earlier psychiatric

exams, and Petitioner’s medical history. Included in the

reports of the two prior examiners, both of whom ex-

amined him over a significantly longer period than the

commission psychiatrists and one of whom had been

Petitioner’s treating therapist, were the following ob-

servations: “[{Petitioner’s] mental disorder is severe

enough to substantially affect [his] present ability to

assist in the defense of his life[;]” “[Petitioner’s] psy-

chotie disorder [is] so severe that it suicidally compels

him to embrace his own death[;]” and “{ Petitioner] lacks

the mental capacity to understand the reasons why [the

death penalty] is being imposed on him.” App. at 155a,

158a.”*

#1 See n.18, supra. The first psychiatrist, Petitioner’s treating

therapist, concluded, based on: 1) four in-person evaluations be-

tween July, 1981 and August, 1982; 2) taped conversations and

letters between Petitioner and his family, friends and attorneys;

3) interviews with other individuals having had direct observa-

tions of Petitioner’s behavior during that period; 4) psychological

and psychiatric evaluations by the prison mental health staff; and

5) prison medical records, that Petitioner suffers from:

a severe, uncontrollable, mental disease which closely re-

sembles “Paranoid Schizophrenia With Suicidal Potential’.

This major mental disorder is severe enough to substantially

affect Mr. Ford’s present ability to assist in the defense of his

life.

It should be noted that Mr. Ford’s ambivalence around whether

to continue his legal fight is in and of itself an indication of a

psychotic disorder so severe that it suicidally compels him to

embrace his own death.

App. at 155a.

The second psychiatrist concluded after a three-hour interview

that Petitioner suffers from “schizophrenia, undifferentiated type,

acute and chronic,” as a result of which,

while he does understand 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. dis-

organized and confused when thinking about his possible execu-

tion. He can make no connection betwecn the homicide he com-

21

After their examination, notwithstanding the prior

evaluations of Petitioner, all three psychiatrists reported

to the Governor that although Petitioner suffered from

a “severe adaptational disorder,” ~ “psychosis with para-

noia,” * or “serious emotional problems . . . [so] pro-

found[] . . . it forces [one] to put a ‘psychotic’ label

on [Petitioner],” * he “ha[d] enough cognitive function-

ing” to satisfy Florida’s competency standard. On April

30, 1984, without any further proceedings, the Governor

signed Petitioner’s death warrant.

Measured against the constitutionally-mandated stand-

ard in capital cases of enhanced reliability and consist-

ent, reasoned determinations, the procedures by which

Petitioner’s competency was evaluated were grossly inade-

quate. First, although § 922.07(1) authorizes the ap-

pointment of counsel to “represent” condemned prisoners

during competency evaluations, there is no provision in

the statute for adversary participation by prisoners’

mitted and the death penalty. Even when I pointed this con-

nection 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 con-

trol him, President Reagan’s interference in the execution

process, etc.

App. at 158a (emphases added).

22 App. at 16la. The “disorder,” however, “seem[ed] contrived

and recently learned” and, therefore, not a “natural insanity.” /d.

at 162a. But see earlier report of non-commission psychiatrist:

[Petitioner] is suffering from schizophrenia, undifferentiated

type, acute and chronic. The delusional material, the free-

floating and disorganized ideational and verbal productivity,

and his flatness of affect are the highlights of the signs leading

to this diagnosis of psychosis. The possibility that he could

be lying or malingering is indeed remote in my professional

opinion.

Id. at 100a (emphasis added).

23 Id. at 164a.

24 Jd. at 166a.

25 Id. at 164a.

22

counsel or by independent mental health experts. The

absence of any adversarial debate on the issue of Peti-

tioner’s competency deprived the Governor of the oppor-

tunity to test the accuracy of the conclusions reached by

the three state-appointed psychiatrists.

The opportunity to challenge the commission’s findings

was especially critical to a proper determination by the

Governor of Petitioner’s competency because, although all

of the examiners agreed that Petitioner suffers from

some form of serious mental disorder, they disagreed as

to the severity of his mental disorder. Moreover, the -

commission’s conclusions differed radically from the con-

clusions of two other psychiatrists who earlier had per-

formed more extensive and comprehensive examinations

of Petitioner, with no indication that these earlier con-

clusions had been considered by the three State psychia-

trists or reconciled with the conclusions they reported to

the Governor. Because Petitioner was not given an oppor-

tunity to respond to the findings of the commission ex-

aminers, the quality of those findings was untested by the

“truth-seeking function” of the adversary process, and

were inherently unreliable. See Gardner v. Florida, 430

U.S. at 359. This conclusion is especially warranted be-

cause the decisionmaker—the Governor—was 3 lay per-

son who lacked the specialized knowledge and training

necessary to evaluate the conflicting evidence, at least

without the benefit of an adversarial hearing. In view

of these procedural deficiencies, the risk of error to which

the determination of Petitioner's competency was sub-

jected is constitutionally intolerable.

Like the absence of a hearing, the failure to provide

Petitioner with the meaningful assistance of a competent

mental health professional during these proceedings pre-

26 Indeed, in construing this statute, the Florida Supreme Court

approved the Governor’s “publicly announced policy of excluding all

advocacy on the part of the condemned from the process of deter-

mining whether a person under a sentence of death is insane.”

Goode v. Wainwright, 448 So.2d 999, 1001 (Fla. 1984).

eet te

23

cluded the Governor’s individualized consideration of all

relevant factors and substantially undermined the possi-

bility of accurate factfinding. Although Petitioner’s men-

tal condition was evaluated by two psychiatrists prior to

the § 922.07 proceeding, the failure to provide for mean-

ingful participation in the proceedings by these profes-

sicnals resulted in the exclusion of highly probative evi-

dence on the issue of Petitioner’s competency. Not only

were the comprehensive reports of these professionals not

considered by the Governor,”” but he was not even made

aware of the existence of these reports by the commis-

sion psychiatrists. Nor were the commission psychia-

trists required to explain, deny, or otherwise account for

the extensive documentation by these professionals of

Petitioner’s psychotic delusional processes, and their con-

clusions that Petitioner’s severe psychosis “suicidally

compels him to embrace his own death” and that he

“lacks the mental capacity to understand the reasons

why [the death penalty] is being imposed on him.” App.

at 155a, 158a. Thus, the Governor’s decision was based

upon partial and unchallenged information of highly

questionable accuracy. This exclusion of highly relevant

information is inconsistent with the constitutional re-

quirement that the decisionmaker in capital proceedings

“possess[] the fullest information possible concerning the

defendant’s life and characteristics,” including any miti-

gating evidence. Lockett v. Ohio, 438 U.S. at 603, quoting

Williams v. New York, 337 U.S. 241, 247 (1949).

The failure to provide Petitioner with an adversary

proceeding in which he could be assisted meaningfully by

competent mental health professionals is especially egre-

gious in view of the nature of the “examination” con-

ducted by the state-appointed psychiatrists. As noted

above, their “examination” consisted of a one-half hour

interview with Petitioner in the prison courtroom, con-

27 There is no provision in the statutory scheme of § 922.07 for

submitting materials other than those prepared by the commission

psychiatrists to the Governor.

24

versations with the prison staff, inspection of Petition-

er’s cell and cursory review, at best, of background ma-

terials containing Petitioner’s medical history and re-

ports of other psychiatric evaluations. These procedures

fall significantly below the generally accepted standard of

care necessary to produce reliable forensic mental health

evaluations.”

First, “[{b]ecause psychological states are complex and

fluctuate, a single and relatively brief examination is

. .. Inadequate.” J. ZISKIN, 2 CoPING WITH PSYCHIATRIC

AND PSYCHOLOGICAL TESTIMONY 13 (3d ed. 1981). See

also Ziskin, Giving Expert Testimony: Pitfalls and Haz-

ards for the Psychologist in Court, in THE ROLE OF THE

FORENSIC PSYCHOLOGIST 101 (G. Cooke, ed. 1980) (“[A]

single examination even of two to three hours duration,

is insufficient . . . . [MJaterial elicited in a single ses-

sion might be quite different a week later in the same

individual .... [I]t is advisable to spread the examina-

tion over at least two and preferably three sessions.”).

Manifestations of schizophrenia “are present one day and

not the next. They are revealed to one examiner and not

to another .... A complete account of a patient’s symp-

tomotology, therefore, demands that he be observed over

an extended period of time.” L. BELLAK & L. LOEB, THE

SCHIZOPHRENIC SYNDROME, 337-38 (1969), cited in Hays

v. Murphy, 663 F.2d 1004, 1012 n.13 (10th Cir. 1981)

(discussion of competency to bring habeas proceeding on

one’s own behalf). A one-half hour examination fails to

provide a sufficient basis for an accurate and reliable

professional opinion as to a condemned prisoner’s compe-

tency to be executed.

Proper clinical evaluation also requires the establishment

of a trusting relationship with the examiner, in a physical

setting that is conducive to evoking the spontaneous and

8 See also the critical reviews of these procedures by two

nationally-known forensic psychiatrists. App. at 169a, 187a. See

generally nn.30, 32, infra.

25

candid exchange with the subject that forms the prin-

cipal basis for the evaluation. Standard 4.1 of the Stand-

ards for Providers of Psychological Services, requires

psychologists to “promote the development in the service

setting of a physical, organizational, and social environ-

ment that facilitates optimal human functioning.” * See

also APA, Specialty Guidelines for the Delivery of Serv-

ices by Clinical Psychologists at Guideline 4, 36 Am.

PSYCHOL. 640 (1981). The likelihood that, given Peti-

tioner’s paranoid condition, the courtroom was inherently

“oppressive” to Petitioner and thereby increased the dif-

ficulty of establishing trust with his examiners, is sub-

stantial. See generally Wilson, Prison As An Environ-

ment in THE ROLE OF THE FORENSIC PSYCHOLOGIST,

supra at 279. This impression might have been rein-

forced further by the presence of correctional officers,

and numerous other “strange” individuals—including the

three psychiatrists—all observing him during the same

brief time period. Finally, the very short time period

made it extremely unlikely that any of the commission

psychiatrists would be able to establish sufficient rap-

port with Petitioner to evoke reliable data on which to

base a valid assessment of his mental condition.”

2° The Interpretation of this Standard provides in pertinent part:

As providers of services, psychologists have the responsibility

to be concerned with the environment of their service unit,

especially as it affects the quality of service, but also as it im-

pinges on human functioning ... . Physical arrangements and

organizationa! policies and procedures should be conducive to

the human dignity, self-respect, and optimal functioning of

users, and to the effective delivery of service.

APA, Standards for Providers of Psychological Services, 32 Am.

PsYcHOL. 495 (1977).

3° These criticisms were made also by the forensic psychiatrists

who reviewed the commission psychiatrists’ procedures:

The conditions under which the interview was conducted, in-

cluding the amount of time spent interviewing [Petitioner],

were unlikely to produce sufficient data for reliabie forensic

26

In addition to the clinical interview, forensically-

oriented mental health professionals generally require

appropriate physical examinations and certain standard

psychological test batteries before rendering an opinion

on an individual’s mental competency. See generally T.

BLAU, THE PSYCHOLOGIST AS EXPERT WITNESS (1984) ;

H. KAPLAN, A. FREEMAN & B. Sappock, A COMPREHEN-

SIVE TEXTBOOK OF PSYCHIATRY/III (3d ed. 1980). Fur-

ther psychological assessment was especially important

in this case because of the difficulties of establishing ver-

bal communication with Petitioner.*’ Had psychological

tests been administered to Petitione?, the commission psy-

chiatrists would not have had to rely “largely on infer-

ential deduction from physical behavioral observation,”

App. at 160a, and other nonverbal indicia, which “greatly

enhance the opportunity for error and misinterpretation

evaluation. The interview was conducted in a courtroom, and

a “room full” of people, including one or more correctional

officers, was present. The environment was thus not conducive

to the informal, intimate setting which is generally necessary

to establish sufficient rapport for a psychiatric interview. In

the setting described it would have been extremely difficult for

[Petitioner] to fully reveal his problems or the nature of his

illness. The thirty minute effort to establish communication

under the conditions already noted was also inadequate. On

rare occasions some patients can be accurately diagnosed in

such a brief period. [Petitioner]’s diagnosis, however, was

not easily made due to the unusual nature of his behavior and

his unusual method of communicating.

App. at 17la. See also id. at 192a.

%1 One of the commission psychiatrists reported that “(t}he in-

terview was conducted with great difficulty from a verbal point of

view, since the inmate respond[ed] to questions in a stylized, man-

neristic doggerel. Thus, an answer to a question might be ‘beckon

one, come one, Alvin one, Q one, kind one.’” App. at 160a.

Another reported that “[Petitioner] did not initially respond but

did so after his lawyers encouraged him. Most of his responses to

the questions were bizarre. He continued to respond by jibberish

talk such as ‘break one’, ‘God one’, ‘heaven one.’” Id. at 168a.

27

on the part of the examining [clinician],” in assessing

Petitioner’s competency.”

Psychological tests, which rmeasure a variety of factors

including intelligence, personality and psychopathology,**

* See Critique of Forensic Psychiatrist at App. 190a:

{One of the commission psychiatrists] indicated that by his

ability to “read between the lines” of verbal responses which

[Petitioner] did give that [the psychiatrist] was of the

opinion that [Petitioner] knew exactly what was going on([,]

but if one relies on the transcript of the interchange between

the psychiatrist and [Petitioner] then there is great doubt, at

least to this observer, that there was a rational interchange be-

tween [Petitioner] and the psychiatrist, because [Petitioner]

gave irrelevant responses to questions put to him although

the words he used had some association with the questions

asked. [Petitioner]’s responses do not indicate he had a ra-

tional understanding of the process and in fact some of [Peti-

tioner]’s responses were interpreted by [the psychiatrist] to

mean [Petitioner] maintained the belief that he would be spared

by the angel of death and this delusional belief is in keeping

with other delusional beliefs that [Petitioner] manifested to

others in his correspondence.

$3 See, e.g., the Wechsler Adult Intelligence Scale (“WAIS”),

the Minnesota Multiphesic Personality Inventory (“MMPI”), the

Rorschach Test and the Thematic Apperception Test (“TAT”).

The WAIS is the most widely accepted intelligence test for adults.

It is administered individually by the examiner, and consists of

11 sub-tests, six comprising the Verbal Scale and five comprising

the Performance Scale. The Verbal Scale measures general infor-

mation, memory, vocabulary, mathematical skills and practical judg-

ment. The Performance Scale measures visual-motor skills as well

as more verbally-oriented cognitive skills.

The MMPI is the most commonly used and accepted non-projective

test of personality. It consists of 550 affirmative statements to

which the testee responds “true”, “false”, or “cannot say”. The

MMPI items range widely in content and include such areas as

health, psychosomatic symptoms, neurological! disorders, and motor

disturbances; sexual, religious, political, and social attitudes; edu-

cational, occupational, family, and marital questions; and many

well-known neurotic or psychotic behavior manifestations, such as

obsessive and compulsive states, delusions, hallucinations, ideas

of reference, phobias, and sadistic and masochistic trends. The test

28

permit an accurate assessment of the examinee’s func-

tional abilities that are critical to a proper competency

determination. In addition, psychological testing may

be helpful in demonstrating pathology that is not evident

clinically. See Cooke, The Role of the Psychologist in

Criminal Court Proceedings, in THE ROLE OF THE Fo-

RENSIC PSYCHOLOGIST, supra at 96.“ Psychological tests

may also be useful in assessing the issue of malingering,

a concern stated by one of the commission psychiatrists.*°

See D. SHAPIRO, PSYCHOLOGICAL EVALUATION AND EX-

PERT TESTIMONY 188 (1984). The use of psychological

tests of intelligence and cognitive capacity is particularly

important in jurisdictions such as Florida where the test

for mental capacity focuses exclusively on the individ-

ual’s ability to understand the nature and effect of the

death penalty and why it is to be imposed on him. In

yields a profile analysis based on the interrelationships of the

scores on ten clinical scales.

The Rorschach Test and the TAT, which consist of unstructured

tasks designed to encourage the free play of the examinee’s fanta-

sies, are among the most common projective tests. The test stimuli,

Rorschach ink blots or ambiguous depictions in the TAT, are in-

tentionally vague, requiring the examinee to produce responses that

reveal psychological facts about himself or herself that otherwise

may be hidden, e.g., needs, anxieties, fears, personality structure.

These tests are also helpfui in assessing the intellectual skills

and judgment of the examinee. See generally L. CRONBACH, ESSEN-

TIALS OF PSYCHOLOGICAL TESTING (4th ed. 1984); A. ANASTASI,

PSYCHOLOGICAL TESTING (5th ed. 1982).

% Most psychological tests are designed to be essentially objective

and standardized measures of samples of behavior. A. ANASTASI,

PSYCHOLOGICAL TESTING (5th ed. 1982). One influential forensic

psychiatrist has commented that psychological tests may be a “more

objective method” of evaluation than the clinical interview. Sadoff,

Working with the Forensic Psychologist, in THE ROLE or THE

FORENSIC PSYCHOLOGIST 106, 109 (G. Cooke, ed. 1980).

35 See also Cooke, An Introduction to Basic Issues and Concepts in

Forensic Psychology, in THE ROLE OF THE FORENSIC PSYCHOLOGIST,

supra at 7 (“The use of tests provides the psychologist with a tool

that may give him data not available to the psychiatrist ... .”’).

% See App. at 162a. See also n.22.

29

such jurisdictions, requiring assessment by psychologists,

who are specially trained to assess intellectual ability and

cognitive capacity, is critical to a reliable and accurate

determination of mental competency. Notwithstanding

the standard use of these procedures in clinical evalua-

tions, and their particular appropriateness to the evalua-

tion of Petitioner, the state-appointed psychiatrists failed

to refer Petitioner to a competent psychologist for a

comprehensive psychological assessment.

The final major respect in which the commission’s re-

ports fell below professionally acceptable standards for

reliable forensic evaluations is their failure to account

for the substantial data, including the opinions of two

other psychiatrists who had performed more extensive

and comprehensive examinations of Petitioner, that were

contrary to the commission’s findings. In their reports

to the Governor, the commission psychiatrists made no

reference at all to the grandiose delusions from which

Petitioner suffers, which bear directly on his ability to

understand why he is to be executed—the delusions

that he has the power to free his family and others

held hostage in the State Prison by the Ku Klux

Klan, to fire and prosecute the officers responsible for the

crisis, to replace the Justices of the Florida Supreme

Court, and to stop his own execution. Nor did they ac-

count for the professional assessments of the prior ex-

aminers. This deliberate ignoring of the conclusions of

other practitioners without further explanation severely

undermines the credibility of the commission’s reports.

See generally Ziskin, Giving Expert Testimony: Pitfalls

and Hazards for the Psychologist in Court, in THE ROLE

OF THE FORENSIC PSYCHOLOGIST, supra at 101.

These professional shortcomings of the state-appointed

psychiatrists’ evaluations of Petitioner’s mental condition,

together with the absence of adversarial debate on their

findings, the failure to permit Petitioner to submit expert

evaluations by his own witnesses, and the failure to

require the Governor to make a written record of the

30

evidence that he relied on in determining that Petitioner

is competent to be executed, created a constitutionally

intolerable risk that Petitioner will be deprived erro-

neously of his constitutional right not to be executed

while insane. As a result, the procedures followed by

the State of Florida in determining Petitioner’s compe-

tency to be executed failed to meet the heightened stand-

ards of procedural fairness required in capital cases by

the Eighth and Fourteenth Amendments.

CONCLUSION

For the reasons stated above, the judgment of the

court of appeals should be reversed.

Respectfully submitted,

LAUREL PYKE MALSON

DONALD N. BERSOFF

(Counsel of Record)

BRUCE J. ENNIS, JR.

ENNIS, FRIEDMAN, BERSOFF

& EWING

1200 17th Street, N.W..,

Suite 400

Washington, D.C. 20036

(202) 775-8100

Attorneys for Amici Curiae

January 30, 1986