Reply Brief — Ake v. Oklahoma

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— RECEIVED

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oe NOV 30 883

No. 83-5424 OFFICE OF THE CLERK

L__SUPREME COURT, Us, |

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1983

GLEN BURTON AKE,

Petitioner, -

Vv.

STATE OF OKLAHOMA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE OKLAHOMA COURT OF CRIMINAL APPEALS

PETITIONER'S REPLY BRIEP

Arthur B. Spitzer

American Civil Liberties Union Fund

of the National Capital Area

600 Pennsylvania Avenue, S.E.

(202) 544-1076

Charles 8. Sims (Counsel of Record)

American Civil Liberties Union

132 West 43rd Street

New York, N.Y. 10036

(212) 944-9800

Attorneys for Petitioner

November 30, 1983

— K re 2 —

TABLE OF CONTENTS

I. Petitioner's Sanity was Clearly

and Seriously at Issue in the

Trial Court „ %% %%% eee „% „% „% „% „% „% „% „% „% „% „% „% „% „% „% „% „ „ „ „% „ „ „„ „„ „ „ „ „ „ „6 „„ 1

II. Petitioner's Constitutional Claims

were Adequately Preservſegne..

A. The Denial of Psychiatric EZaninat ion

B. The Drugging During TT aa

III. This Case Merits Plenary Revier

a vo fe e

Conclusion % g çRFF‚ , m „ „ „„ „ „ „ „ „ „ „ „ „ „ „ „ „„ „„

TABLE OF AUTHORITIES

Cases page

Ake v. State,

663 P.2d 1 (Okla. Gee App. 1983) „ % „ „ „ „ „ „ „ „4%. 1. 2,

Bush v. Texas,

372 U.S. 586 (1963) e*eeeeneaeeeeeeeee „ „ „ „ „ „ „ „ „„ „ „„ „„ „„

Griffin v. Illinois,

351 9.8. 12 (1956) 6 e K H „ „ „ „„

Irvin v. State,

617 p. 2d 583 (Okla. Cr. App. 1980) „ „ „%%% % „% % % „ „% % „ „ „ „44 46.

Jenkins v. Georgia,

418 9.8. 153 (1974) „ ——— ‚—h— D —h⁰ůꝙm % „„ „ „„ „ „ „„ 4,

Pedrero v. Wainwright,

590 P.2d 1383 (5th Cir. 1979) „ „ „ „„ 1.

Raley v. Ohio,

360 9.8. 423 (1959) „ ‚— Rm — h „„ „ „ „„ „„ 4,

United States ex rel. Smith v. Baldi,

344 9.8. 561 (1953) eeeneeeeneeeeeeee eee eeaeeeeeeee 3, 5,

No. 83-5424

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1983

GLEN BURTON AKE,

Petitioner,

v.

STATE OF OKLAHOMA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE OKLAHOMA COURT OF CRIMINAL APPEALS

PETITIONER'S REPLY BRIEF

Respondent's opposition to the petition for a writ of

certiorari misstates the facts of this case and confuses the

questions presented for review.

I. Petitioner's Sanity was Clearly

and Seriously at Issue in the

Trial Court.

Respondent cites Pedrero vy. Wainwright, 590 F.2d 1383 (5th

Cir. 1979), for the proposition that an indigent defendant's

sanity at the time of the crime must be “seriously in issue"

before the state is obliged to provide him with a psychiatric

examination or the means to obtain one. Opposition at 8.

Petitioner does not take exception to this standard. But this is

nat the standard that was applied to him under Oklahoma law. In

Oklahoma, an indigent defendent is not entitled to a psychiatric

examination even if his sanity at the time of the crime ig

seriously in issue. Ake L State, 663 P.2d 1, 6 (Okla. Cr. App.

1983), Appendix to Petition for Certiorari (hereinafter “Pet.

App.") at 6.

an

Oklahoma attempts to avoid review of its policy by arguing,

in essence, that petitioner Ake was not harmed by the application

of the policy in this case because “there is nothing” in the

record to support his insanity defense. Opposition at 7. The

facts are otherwise.

Petitioner's mental state at arraignment was so obviously

abnormal that the judge gua sponte ordered him committed for

observation. He was at first found incompetent to stand trial,

and seven weeks later rendered “competent” only by being heavily

sedated with large doses of Thorazine three times a day during

the trial. The doctors who examined him concluded that he was

suffering from paranoid schizophrenia at a psychotic level. Tr.

576, 592, Pet. App. 41, 47.

Dr. Allen, a court-appointed psychaitrist who examined Ake

to determine his competency to stand trial, testified that Ake's

mental illness may have dated from childhood, and that the illness

may have been “apparent” on the day of the crime. Tr. 566, Pet.

App. 36. Dr. Garcia, Chief Forensic Psychiatrist at Eastern State

Hospital, examined Ake at length and was asked the hypothetical

question whether a person of Ake's mental condition who consumed

large quantities of alcohol and hallucinogenic drugs together (as

Ake did on the day of the crime) would be able to distinguish

right from wrong. Se testified: “I would consider hia unable to

do so." Tr. 592, Pet. App. 47.

Under Oklahoma law, a defendant has the burden only of raising

a reasonable doubt of his sanity at the time of the crime in order

to put his mental condition in issue. Ake L. State, 663 P. 2d at

10, Pet. App. 10. In light of this standard and the evidence just

reviewed, it is fatuous for the State to contend that Ake's sanity

was not seriously placed in issue. The fact that no testimony was

presented bearing more specifically on his mental state on the day

of the crime is attributable solely to the State's unconstitutional

refusal to provide the means for him to be examined on that subject

by even a single psychiatrist or psychologist.

Respondent now contends that the psychiatric examination

given to Ake to determine his competency to stand trial somehow

provided whatever psychiatric examination may have been necessary

on the question of his sanity at the time of che crime. Opposition

at 6-7. But the State did not sing that tune at trial. Rather,

it emphasized to the jury, during the examination of the medical

witnesses and in closing argument, that the psychiatrists who had

examined Ake could not testify about Ake's mental state on the day

of the crime. Tr. 564, 566, 584, 597, 602, ret. App. 34, 36, 45,

49, 51. This was true at the trial and it remains true: Ake was

never examined with respect to his mental condition at the time

of the crime.

II. Petitioner's Constitutional Claims

were Adequately Preserved,

Respondent suggests that both questions presented in the

petition for certiorari were waived below. Opposition at 8-10.

To the contrary, they were adequately preserved.

A. The Denial of Psychiatric Examination. At a pre-trial

conference, defense counsel notified the court of defendant's

intention to plead not guilty by reason of insanity. Counsel

also moved, in view of defendant's indigency, for the provision

of even "a meagre amount of funds" to retain a psychiatrist or,

alternatively, for the appointment of a psychiatrist to examine

Ake with respect to his sanity at the time of the crime. Tr.

19-25, Pet. App. 26-32. Counsel specifically articulated the

constitutional claim at that time, arguing to the court that

“under the constitution [defendant] is entitled to monies for

a psychiatrist as if he were another Cullen Davis who had the

money to pay for it." Tr. 19, Pet. App. 26. The court denied

the motion, relying on United States ex rel. Smith X. Baldi,

344 U.S. 561 (1953) for the proposition that a State has no

constitutional duty to provide such an examination for indigent

defendants. Tr. 24, Pet. App. 31.

On appeal, Ake contended that “he, as an indigent defendant,

should have been provided the services of a court-appointed

psychiatrist ...as incident to his constitutional rights

Ake X. State, 633 P. zd at 6, Pet. App. 6. The Court of Criminal

Appeals considered and rejected this claim on the merits,

following a consistent line of Oklahoma decisions holding that

"the unique nature of capital cases notwithstanding, the State

does not have the responsibility of providing such services to

indigents charged with capital crimes." Id., and gee Irvin X.

State, 617 P.2d 583 (Okla. Cr. App. 1980) and cases cited therein.

Respondent calls attention to the fact that ches claim was

not listed in defendant's motion for a new trial, filed in the

trial court one day after the jury’s verdict, and argues that the

claim was therefore waived. Opposition at 8-9. That contention

is without merit. "There can be no question as to the proper

presentation of a federal claim when the higheet state court

passes on it.“ Raley L. Ohio, 360 U.S. 423, 436 (1959). Where,

as here, the highest state court “reached and decided" the federal

question, "[t]hat is sufficient." Jenking X. Georgia, 418 U.S.

153, 157 (1974).

B. The Drugging During Trial. The State does not argue,

for it could not, that petitioner's claim with respect to being

drugged at trial was not preserved on appeal. See Motion for

New Trial #4 8, 10 (Appendix 4 to Opposition); Ake X. State, 633

P.2d at 6-7, Pet. App. 6-7. Rather, it argues that the point was

waived in the trial court. Respondent's reasoning seems to be

that because defense counsel waived a pre-trial hearing on “present

sanity," Ake's heavily sedated, zombie-like state during the trial

cound not be considered by the trial court on the motion for anew

trial or by an appellate court. Opposition at 9-10.

The Oklahoma Court of Criminal Appeals found, to the

contrary, that Ake's “refusal [or inability] to communicate with

his attorneys was brought to the attention of the trial judge.”

633 P. zd at 7, Pet. App. 7 (emphasis added). The state appellate

4

court saw no obstacle to its consideration of this issue on

appeal, and dealt with it at some length. 633 P. zd at 6-8,

Pet. App. 6-8. Since the issue was preserved in the motion for a

new trial, and was raised in and addressed on the merits by the

state appellate court, it is properly before this Court. Raley vy

ig, supra; Jenkins X. Georgia, supra.

III. This Case Merits

Respondent does not deny the importance of the issues

presented for review. This Court has previously granted

certiorari on the question whether a state is constitutionally

required to provide expert psychiatric assistance to an indigent

defendant whose sanity at the time of the offense is substantially

in dispute. Bush X. Texas. 372 U.S. 586 (1963). However, the

question was never decided because that case was remanded upon

Texas offer, at oral argument, to provide the defendant with a

new trial at which psychiatric evidence would be presented. Id.

Ps noted above, the trial court in this case relied on

United States ex rel. Smith L. Baldi, 344 U.S. 561 (1953), in

denying petitioner's request for psychiatric assistance. The

State of Oklahoma continues to rely on that decision in this

Court. Opposition at 8. Other states follow the same policy.

See Petition for Certiorari at 14. But in Baldi a court-appointed

psychiatrist did examine the defendant as to his mental state at

the time of the crime, and testified on that subject at trial.

344 U.S. at 568. This fact appears to have been crucial to the

Court's holding that no further psychiatric assistance was due to

the defendant. Id. To the extent, if any, that Baldi stands for

the proposition that there is “no constitutional right to have a

psychiatric examination of a defendant's sanity at the time of the

offense," Opposition at 8, a number of federal and state courts

have recognized that it was severely undercut by the Court's

decision in Griffin vy. Illinois, [351 U.S. 12 (1956)]." Pedrero

X. Wainwright, 590 r. 2d 1383, 1390 n. 6 (Sth Cir. 1979).

5

In the Baldi case both the majority and the dissent quoted

with approval the Pennsylvania Supreme Court's statement that it

is "a principle imbedded in the common law... that no insane

person can be... executed." 344 U.S. at 569, 571. It is

time for this Court to enforce that principle, and to make it

clear to the states that they may not railroad insane indigent

defendants to their deaths by failing to provide them with the

necessary means to prove their insanity to the judge and jury.

In this case, an indigent defendant displaying obvious

signs of severe and long-standing mental illness at arraignment

and at trial was denied any psychiatric examination directed to

his sanity at the time of the crime. He was convicted after a

one-day trial, and was sentenced to death. This case provides

an appropriate occasion for the Court to consider this important

constitutional issue.

Conclusion

For the reasons given above and in the Petition for a Mrit

of Certiorari, the Writ should be granted in this case.

Respectfully submitted,

AQ. « Gh

Arthur B. Spitzer

American Civil Liberties Union Fund

of the National Capital Area

600 Pennsylvania Avenue, S.E.

Washington, D.C. 20003

(202) 544-1076

Chase. 4 e

Charles 8. Sims (Counsel of Record)

American Civil Liberties Union

132 West 43rd Street

New York, N.Y. 10036

(212) 944-9800

Attorneys for Petitioner

November 30, 1983

—— —

Certificate of Service

I hereby certify that one copy of the foregoing Petitioner's

Reply aries was served by United “tates mail, first-class postage

prepaid, upon counsel of record for respondent, David W. Lee,

Assistant Attorney General, 112 State Capitol Building, Oklahoma

City, Oklahoma 73105, this 30th day of November, 1983. I further

certify that all parties required to be served have been served.

IO. 9 LAR

Arthur B. Spitzer