Amicus Curiae Brief — Ake v. Oklahoma

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‘MOTION FILED

JUN 1- 984 No. 83-5424

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

GLEN BURTON AKE, PETITIONER

THE STATE OF OKLAHOMA,

Respondent.

ON WRIT OF CERTIORARI TO THE

OKLAHOMA COURT OF CRIMINAL APPEALS

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE;

BRIEF OF THE PUBLIC DEFENDER OF OKLAHOMA

COUNTY, OKLAHOMA, THE PUBLIC DEFENDER OF

TULSA COUNTY, OKLAHOMA, AND THE OKLAHOMA

CRIMINAL DEFENSE LAWER’S ASSOCIATION, AS

AMICI CURIAE SUPPORTING PETITIONER.

*Counsel of Record

ROBERT A. RAVITZ, Esq.*

First Assistant Public Defender

Office of the Public Defender

of Oklahoma County

409 County Office Bidg.

Oklahoma City, OK 73102

(405) 236-2727 ext. 582

FRANK McCARTHY, Esq.

Tulsa, Oklahoma 74103

(918) 584-5623

THOMAS J. RAY, JR., Esq.,

Amicus we deny = Coordinator,

anny tte oe ode Defense

o17 be Maroy, Sa Harvey, Sune 100

Oklahoma City, Oklahoma 73102

(405) 232-4601

ATTORNEY FOR AMICI CURIAE

No. 83-5424

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

GLEN BURTON AKE,

Petitioner,

THE STATE OF OKLAHOMA,

Respondent.

ON WRIT OF CERTIORARI TO THE

OKLAHOMA COURT OF CRIMINAL APPEALS

MOTION OF THE OFFICE OF THE PUBLIC

DEFENDER OF OKLAHOMA COUNTY,

OKLAHOMA, THE OFFICE OF THE PUBLIC

DEFENDER OF TULSA COUNTY,

OKLAHOMA, AND THE OKLAHOMA CRIMINAL

DEFENSE LAWYERS ASSOCIATION FOR

LEAVE TO FILE BRIEF AMICI CURIAE

IN SUPPORT OF PETITIONER.

To the Honorable, The Chief Justice and

Associate Justices of the United States

Supreme Court:

The Office of the Public Defender of

Oklahoma County, Oklahoma, the Office of

the Public Defender of Tulsa County,

Oklahoma, and the Oklahoma Criminal Defense

Lawyer's Association (OCDLA) respectfully

moves for leave to file the attached brief

amici curiae.

The consent of the attorney for the

petitioner has been obtained and filed with

the Clerk. Respondent has declined to

consent, based on its Office policy of

remaining silent with regard to amici

curiae briefs.

The Office of the Public Defender of

Oklahoma and of Tulsa Counties are

statutorily created offices created for the

primary purpose of representing indigent

persons accused of crimes, including

capital offenses. 19 Okl. Stat. §§138.1

et. seq. On several occasions, these

Offices have attempted, without success, to

obtain funds for investigating and

presenting expert witnesses, and to secure

mitigating evidence in capital cases. See,

Davis _v. State, 665 P.2d 1186 (Okl.Cr.

1983); Cox v. State, 644 P.2d 1077 (Ok1.Cr.

1982); Irvin v. _ State, 617 P.2d 588

(Okl.Cr. 1980). This Office is vitally

interested in the resolution of this case

affirming a constitutional right to these

funds.

The OCDLA is a statewide, non-profit

Organization of over 200 criminal defense

attorneys dedicated to goals of

professional excellence, protection of the

rights of individuals, and the promotion of

justice through law. Various members of

the Association are appointed by the courts

to represent indigent defendants outside

the Tulsa and Oklahoma Counties. Like

these public defenders, they receive no

funding for expert witnesses, or mitigation

evidence in capital cases. See Maghe v.

State, 620 P.2d 433 (Okl.Cr. 1980). The

membership of this Association shares the

interest of the Public Defenders of Tulsa

and Oklahoma Counties in affirming a

constitutional right to these funds.

Amici Curiae concurs with all of the

arguments advanced in the Petition for Writ

of Certiorari, and Brief of Petitioner

filed in this case. However, Amici notes

that each of the attorneys for Amici are

Oklahoma lawyers practicing criminal law on

an exclusive basis. Because counsel for

Mr. Ake is not an Oklahoma lawyer, and is

not intimately familiar with Oklahoma

procedure, petitioner has not addressed how

the nuances of Oklahoma law and procedure

effect this issue. Because the primary

purpose of the attached brief amici curiae

is to demonstrate to the Court’ the

relationship of current Oklahoma law and

procedure to this issue, this brief can

make a contribution to the Court's

decisional process in this case.

Accordingly, the Offices of the Public

Defender of Oklahoma and Tulsa Counties,

Oklahoma and the OCDLA move for leave to

file the attached brief amici curiae.

Respectfully submitted,

ROBERT A. RAVITZ, Esq.*

First Assistant Public Defender

Office of the Public Defender

of Oklahoma County

409 County Office Bldg.

Oklahoma City, Oklahoma 73102

(405) 236-2727, ext. 582

FRANK MCCARTHY, Esq.

Deputy Public Defender

Office of the Public Defender

of Tulsa County

Tulsa County Courthouse

Tulsa, Oklahoma 74103

(918) 584-5623

THOMAS J. RAY, JR., Esq.

Amicus Curiae Coordinator

Oklahoma Criminal Defense

Lawyers Association

217 N. Harvey, Suite 100

Oklahoma City, Okla, 73102

(405) 232-4601

ATTORNEYS FOR AMICI CURIAE

*Counsel of Record

QUESTIONS PRESENTED

Amici will address the following issues:

1. When an indigent defendant's legal

Sanity at the time of the offense is

seriously in issue, can a state

constitutionally refuse to provide § any

opportunity whatsoever for him to obtain

expert psychiatric examination necessary to

prepare and establish his insanity defense?

2. Is an indigent defendant facing the

death penalty entitled to financial

assistance to prepare and present evidence

in his favor at the sentencing hearing?

TABLE OF CONTENTS

Questions Presented. . .- + +++*+* «+ # # » i

Table of Authorities ...++«#-+#+*#+s+#e# ses ii

Interest of Amici. > * od * >. . 7. > _ * > > 1

Summary of Agreement ..+ ++ + ++ *# * * 2

II.

WHEN AN INDIGENT DEFENDANT 'S

SANITY AT THE TIME OF THE OFFENSE

IS SERIOUSLY AT ISSUE, THE STATE

MAY NOT CONSTITUTIONALLY DENY HIM

THE MEANS TO ESTABLISH THE DEFENSE . . 4

A. THE OKLAHOMA STATUTORY SCHEME

PROVIDING DEFENSE COUNSEL FOR AN

INDIGENT CRIMINAL DEFENDANT ALLOWS

NO FUNDS FOR OPTAINING OR

PRESENTING EXPERT WITNESSES’ IN

SUPPORT OF THE INSANITY DEFENSE. . .« - 4

B. OKLAHOMA RULES OF LAW AND

PROCEDURE REGARDING THE INSANITY

DEFENSE MAKE IT NEARLY IMPOSSIBLE

TO PREVAIL WITHOUT THE AID OF

EXPERT TESTIMONY. . . - +++ +++ + 10

C. THE CONSTITUTION REQUIRES THAT

IF AN INDIGENT CRIMINAL

DEFENDANT'S SANITY AT THE TIME OF

THE OFFENSE IS SERIOUSLY IN DOUBT,

HE MUST BE PROVIDED WITH THE

NECESSARY MEANS TO OBTAIN AND

PRESENT EXPERT TESTIMONY TO

SUPPORT THAT DEFENSE . ...+++ ++ 18

AN INDIGENT DEFENDANT FACING THE DEATH

PENALTY Is ENTITLED TO NECESSARY

FINANCIAL ASSISTANCE TO PREPARE AND

PRESENT RELEVANT MITIGATING EVIDENCE . 22

al > al > > >. > 29

TABLE OF AUTHORITIES

SURGES « 6: 6 of6 & as. %

Adair v. State, 6 Okl.Cr. 284, 118

E o 416 (1911). _ — 7 — — . > > > >

Ake v. State, 663 P.2d l, 6

. r. 1983) . . . . . . . . . . . . 20

Bias v. State, 568 P.2d 1269 (Okl. 1977) . 7

Bills v. State, 585 P.2a 1366

> rt. 978) — > > _ > > _ _ _ > > — 16

Bounds v. Smith, 430 U.S. 817 (1977) . . 27,28

Cox v. State, 644 P.2d 1077, 1079

> cr. 1982) * >. > al * > al al >. -23,25n10

Davis v. State, 665 P.2d 1186, 1190

«CI. 983) _ 7+: ©+ £ © © © -8,9,21,26,29

Earl v. Tulsa County District Courts,

> > > >. 7 >. 9

Eddings v. Oklahoma, 455 U.S. 104 (1982) 23,26

Estelle v. Smith, 451 U.S. 454 (1981)... 26

Garrett v. State, 586 P.2d 754

> r. 8) > _ al > >. bl bl . > > > > 14

Gresham v. State, 489 P.2d 1335, 1357

> Be 1) — — bl > — > > > > > _ > 12

Hardt v. State, Okl.Cr. 490 P.2da 752

( ) —_ —— - & 2s & & 6 6 ie 2.4 6 6 «a 8

High v. State, 401 P.2d 189

(Okl.Cr. 1965) ..... 12

iii

Irvin v. State, 617 P.2d 588

. rt. 980) . . . . . . . . . 8,9,20,26

Johnson v. State, Motion Hearing Transcript

‘January 26 , 1982 >. >. > al >. >. . >. > >. > 29

Jones v. State, 648 P.2d 1251, 1254

-Cr. 1982), cert. den. U.S.

, 103 S.Ct. 739 bl — el > el Ll > > > > ll

Lockett v. Ohio, 438 U.S. 586 (1978)4,23,28,29

Maghe v. State, 620 P.2d 433, 435

— re. 980) > > >. > > bl > al > el > > 7

Munn v. State, 658 P.2d 482, 484

> cr. 1983) > > > bl > > > > > > > . 13

McFarthing v. State, 630 P.2d 324

> [. > hl > > > > J > hl >. >. >. 1€é

Public Defender of Oklahoma Count T.

Hurley Jordan, and Assistant tic

Aes of Oklahoma Count Robert

A. Ravitz v. Court Fund of Okiahor a

Count the Honorable Jack R. Parr

Dan Gr Court Clerk, and the

Soaor et Charlie Y. Wier. (Case no.

, 1980) .. 5, n2

n Pp r

Reed v. State, 23 Okl.Cr. 56, 212

P. 923). >. >. al > * >. al * > * >. 7 13

Richardson v. State, 569 P.2d 1018,

>. Ee 977) >. > hl > bl >. > hl > > 12

Smith v. State, 594 P.2d 784

. cr. 1979) . . . . . . . . . . -26,nl1

pontad v. State, 629 P.2d 1269

hl [T. 81) > >. i > > - > al > > > _ 4

State v. Palmer, CRF-82-984, District

ourt o lahoma County. ....«. s«

fF rate v. Paris Johnson, CRF-80-1081 and

Strickland v. west U.S. ,

s P Op. p.- ). . . . . . .

Tittle v. State, 44 Okl.Cr. 287, 280

. 9). wy BtPATwrehkete =

United States ex rel Smith v. Baldi,

. 5

-18, n7

- 12

Deo SOL (ANSE) ec c 0 co 0 0 080e8Re27

Wardeus v. Oregon, 412 U.S. 470 (1973)

Westbrook v. Zant, 704 F.2d 1481, 1496

{ t [r. 83) >. > > > > > > > >

Whisenhunt v. State, 279 P.2d 366

al r. > > * > >. * * >. o >.

Wilson v. State, 568 P.2d 1279

( * Te. 77) hl > > > 7 > > — J >

CONSTITUTION, STATUTES, ETC.

Title 22 Okl. Stat. §464, 1271 ....

Title 19 Okl.Stat. §138.1. ....45.-.

Title 19 Okl. Stat. §137.1; 158.4...

Title 20 Okl. Stat. §1304(a)(b)(3) ..

18 U.S.C.A. §3006 A(E) ... +. « we es

Title 19 Ok1.Stat. §138.6. * . . . . .

. 6

- 26

13,14

12,14

- 4,6

: 4

5,7,9

. 5

. 8

. 9

Maas Vv. Tere tory: 10 Okl. 714, 717,

. , 1 (1901) . . . . . . . . . 10

No. 83-5424

wSeuneet Rule, 8 Eng. Rptr. 718

843). >. > > >. = > : * > >. >. > J > 10

Revised Laws 1910 §2094 now Title 21

—_ iy iT | wr Pwerer Trem | IN THE SUPREME COURT OF THE UNITED STATES

Ad uate OCTOBER TERM, 1983

Note, The Indigent's Right to an

Defense: Expert |

Assistance F Cr:

Title 22 Okl. Stat. §1175.1. . . .* * *-_ * * 21 GLEN BURTON AKE,

Title 22 Okl. Stat. §1125.3. . « « « « « 21,n8

Petitioner,

Title 22 Okl. Stat. §1175.4, 1175.5. . .« 21,n8 7

Report of the Attorney General's Commission

on Poverty in the Administration of THE STATE OF OKLAHOMA,

Federal Criminal Justice, at 11 (1963) 22 Respondent

Title 21 Okl.Stat. §701.13(C)(3) . « « « « 23

Title 22 Okl. Stat. §982. . . «+ « « « « 26,nl11

Eighth and Fourteenth Amendments ..... 28

ON WRIT OF CERTIORARI TO THE

OKLAHOMA COURT OF CRIMINAL APPEALS

BRIEF OF THE PUBLIC DEFENDER

OF OKLAHOMA COUNTY, OKLAHOMA,

AND THE PUBLIC DEFENDER

OF TULSA COUNTY, OKLAHOMA,

AND THE OKLAHOMA CRIMINAL DEFENSE

c. LAWYER'S ASSOCIATION,

AS AMICI CURIAE SUPPORTING PETITIONER.

INTEREST OF AMICI

The Offices of the Public Defender of

Oklahoma County and of Tulsa County are

statutorily created offices whose primary

function is the representation of indigent

criminal defendants in these two metropolitan

areas. These offices represent thousands of

indigent defendants each year, some of whom

are charged with, and tried for, capital

murder. In some of these cases, insanity is

raised as a defense. Neither office receives

funds for expert witnesses necessary for the

preparation and defense of these cases.

(Infra, p. 6-10).

The Oklahoma Criminal Defense Lawyer's

Association (OCDLA) is a state wide,

non-profit organization of over 200

practicing attorneys founded in 1976,

dedicated to goals of professional

excellence, protection of the rights of

individuals, and promotion of justice through

-l-

law. Many members of the OCDLA are appointed

to represent indigent accused persons for

various criminal offenses, including capital

murder. In some of these cases, the insanity

defense is raised. These attorneys receive a

token fee and no expense money for

investigation of the case. (Infra at 6-ll )}.

Amici are vitally interested in the

principles laid down in this case regarding

the right to funds to investigate and present

an insanity defense, and to explore and

investigate mitigating evidence in capital

cases. Our vital interest in affirming the

constitutional right to access to necessary

funds in these areas led to our involvement

in this case.

SUMMARY OF ARGUMENT

I. Oklahoma provides a small fee for

attorneys appointed to represent indigent

criminal defendants. It provides no funds

-2-

for these attorneys or public defenders in

order that a serious insanity defense can be

developed and presented. (point I.A.,

infra.) The manner in which Oklahoma has

chosen to apply the insanity defense makes it

extremely difficult, if not impossible, to

prevail without the assistance of an expert

witness. (point I.B., infra.) Denial of

funds to obtain and present such an expert is

violative of numerous constitutional

guarantees. (point I.C. infra.)

il. Oklahoma: trial judges have recognized

the need to provide funding to indigent

capital defendants in order to explore and

present mitigating evidence. The Oklahoma

Court of Criminal Appeals, though recognizing

the usefulness of this evidence, has

consistently denied these funds. This is a

violation of the Eighth Amendment, as applied

to the states through the Fourteenth

Amendment, and contrary to Lockett v. Ohio,

-3-<-

438 U.S. 586 (1978).

ARGUMENT

I. WHEN AN INDIGENT DEFENDANT'S SANITY

AT THE TIME OF THE OFFENSE IS SERIOUSLY

AT ISSUE, THE STATE MAY NOT

CONSTITUTIONALLY DENY HIM THE MEANS TO

ESTABLISH THE DEFENSE.

A. THE OKLAHOMA STATUTORY SCHEME PROVIDING

DEFENSE COUNSEL FOR AN INDIGENT CRIMINAL

DEFENDANT ALLOWS NO FUNDS FOR OBTAINING OR

PRESENTING EXPERT WITNESSES IN SUPPORT OF

THE INSANITY DEFENSE.

In Oklahoma, indigent criminal

defendants are provided counsel for trial

in one of three ways: (1) through the

appointment of private counsel 1/, Title 22

Okl. Stat. §464, 1271; (2) appointment of

the Office of the Public Defender in

counties with a population exceeding

200,000, Title 19 Okl. Stat. §138.1

et.seg; or (3) through appointment in some

counties of a part-time Public Defender.

17 Such counsel may not refuse

appointment. Refusal makes one subject to

a contempt of court citation. Sontag v.

State, 629 P.2d 1269 (Okl.Cr. 1981).

-4-

Title 19 Okl. Stat. §137.1; 138.4.

Although the State provides counsel to an

indigent defendant, it provides NO funds

for employment of experts for an insanity

defense, or any other technical defense for

that matter.

By statute, Oklahoma prosecuting

attorneys are authorized to spend state

funds for expert witnesses. Title 20 Okl.

Stat. §1304(a)(b) (3). No reciprocal right

to these funds is available under any

circumstances for indigent defendants.

This is true even where the court deems the

evidence material and necessary, and orders

these funds. 2/

In State v. Paris Johnson, CRF-680-1081

and CRF-80-1082, the District Court, upon

application of the defendant, ordered the

Court Fund Board to pay $500 to hire a

chemist the court deemed necessary and

material to the defendant's care. The

Court Fund Board refused, the defendant

filed a writ of mandamus in the Oklahoma

Supreme Court. That court refused to

assume original jurisdiction and denied

petitioner's writ of mandamus. Public

o§=

Amici believes a refusal to grant

expert funds despite a finding by a court

that the expert testimony is necessary and

material to the defense clearly offends due

process when the State is entitled to hire

these additional experts. Cf. Wardeus v.

Oregon, 412 U.S. 470 (1973).

Mr. Ake was represented by a private

attorney appointed by the court, 8 and

assisted by Canadian County's part-time

Public Defender. By terms of Title 22

Okl.Stat. §§464, 1271, all court appointed

attorneys in Oklahoma, in non-capital

cases, are limited to a maximum fee of $500

to $600. See Bias v. State, 568 P.2d 1269

ov cont. Defender of Oklahoma County, T.

urle Jordan and Assistant Pcblic

f =< of Ok1 Cc be

(Okl. 1977).3/ In capital cases, an

attorney is entitled to a maximum fee of

$2,500, the specific amount left to the

discretion of the trial judge. Title 21

Okl.Stat. §701.13. The part-time Public

Defender is limited to a salary of

$7,200.00 per annum to be paid monthly.

Title 19 Okl. Stat. §138.4(b).

Although counsel received token

compensation for his own fee and out of

pocket expenses, NO funds for establishment

of this serious insanity defense were

provided to counsel for Mr. Ake. The Court

of Criminal Appeals has foreclosed that

possibility in all cases involving indigent

defendants. The court summarized its view

in Maghe v. _ State, 620 P.2d 433, 435

(Ok1.Cr. 1980):

Ounsel may petition for “extraordinary

out of pocket expenses" and “extraordinary

professional services" if certain

requirements are met. Bias, supra, at

1272. Amicus OCDLA is unaware of any

attorney receiving a greater fee than that

provided by statute. :

"Admittedly, and as pointed

out by the appellant, the

assistance now sought at the

state level is available to a

federal indigent criminal

defendant pursuant to sub

section (e) of the Criminal

Justice Act of 1964, as

amended. 18 U.S.C.A. §3006

A(E)).

However, as noted in Hardt v.

State, Okl.Cr. 490 P.

(1971), state legislators

could appropriately provide

impecunious defendants with

this aid if deemed practical

and in the public interest.

In the absence of enabling

legislation, we know of no

judicial precedent,

constitutional mandate, or

statutory authority in

Oklahoma obligating this

State, at its expense, to

make available to the

appellant, in addition to

counsel, the full

paraphenalia of defense.

Capital cases are not even excluded from

this rule. Davis v. State, 665 P.24d 1186,

1190 (Okl.Cr. 1983); Irvin v. State, 617

P.2d 588 (Okl.Cr. 1980).

Indigents represented by the Office of

the Public Defender of Tulsa and Oklahoma

=8-

Counties fare no better. Although

allowance is made by statute for office

space and supplies, Title 19 0.S. §138.1,

and salary for attorneys, Title 19 Okl.

Stat. §138.4(a), 4/ secretaries, and

investigators, Title 19 Okl. Stat. §138.6,

the Oklahoma Court of Criminal Appeals has

refused to provide funds to pursue the

insanity defense or any defense requiring

employment of an expert. See Davis, supra;

Irvin, supra.

Thus, the denial in Mr. Ake‘s case was

not an unusual one, but one which occurs

with frequency in the state courts of

Oklahoma.

77 By terms of this statute, these salaries

are equal to the salaries of the county's

District Attorney and his assistants. Earl

v. Tulsa County District Courts, 606 P.24d

4 (Ok Cr. .

=9-

B. OKLAHOMA RULES OF LAW AND PROCEDURE

REGARDING THE INSANITY DEFENSE MAKE IT

NEARLY IMPOSSIBLE TO PREVAIL WITHOUT THE

AID OF EXPERT TESTIMONY.

Because of the manner in which Oklahoma

law is administered, it is clear that an

accused person cannot reasonably expect to

prevail with an insanity defense -- no

matter how strong-- without the aid of

expert testimony. Without supporting

expert testimony, this defense is

practically doomed from the start.

Two reasons exist for this. First,

Oklahoma uses a version of the M'Naghten

Rule, 8 Eng. Rptr. 718 (HL 1843). The

M'Naghten Rule (right/wrong test) is the

most strict of all insanity tests.

Oklahoma has consistently used M'Naghten

since before statehood. In Maas Vv.

Territory, 10 Okl. 714, 717, 63 P. 960, 961

(1901), the court said:

“The test of

responsibility is fixed

at the point where one

has the mental capacity

to know that the act is

wrong, and if one has

sufficient mental

capacity to distinquish

between cight and wrong,

as applied to the

particular act, and to

understand the nature

and consequences of such

act, he is responsible

for the same."

This rule was codified by the first

legislature in Revised Laws 1910 §2094, now

Title 21 Okl. Stat. §152(4). Adair v.

State, 6 Okl.Cr. 284, 118 P.416 (1911).

Recently, in Jones v. State, 648 P.2d 1251,

1254 (Okl.Cr. 1982), cert. den. U.S. ,

103 S.Ct. 799, the Court of Criminal

Appeals reiterated:

*The defendant must

demonstrate at trial

that during the

commission of the crime

he was sufferina from

mental disease or defect

rendering him unable to

differentiate between

right and wrong, or

unable to understand the

nature and consequences

of his acts.”

-ll-

This is the “exclusive” test for insanity

in Oklahoma. See, Richardson v. State, 569

P.24 1018, 1020 (Okl.Cr. 1977). Attempts

to modify the rule have been rejected. See

Tittle v. State, 44 Okl.Cr. 287, 280 P. 865

(1929) (irresistible impulse defense

rejected); Gresham v. State, 489 P.2d 1355,

1357 (Okl.Cr. 1971) (diminished capacity

defense implicitly rejected).

Second, Oklahoma procedures for

establishing the insanity defense make it

difficult to prevail to any degree without

expert testimony. Although Oklahoma allows

the opinion testimony of lay persons on

this issue, 5/ Wilson v. State,

568 P.2d 1279 (Okl.Cr. 1977); High v.

State, 401 P.2d 189 (Okl.Cr. 1965), this

57 K predicate must be laid that the lay

person had sufficient opportunity for

observation of the accused. Supra.

@12-

Sanity.

(1923).

484 (Ok1.Cr.

Without

presumption is

impossible, to overcome. In Garrett v,.

evidentiary benefit is worthless

practical matter. This is true because

Oklahoma has long employed a presumption of

Reed v. State, 23 Oki.Cr. 56, 212

1983),

Criminal Appeals explained:

efe ant

establishes a reasonable

doubt of his sanity, the

presumption of sanity

vanishes and it is

incumbent upon the state

to prove beyond a

reasonable doubt that

the defendant could

distinguish between

right and wrong and

therefore was sane at

the time of the

offense." (Emphasis

Added). See also

whisenpgnt o “tate 279

. os a 55).

expert

difficult,

-13-

testimony,

In Munn _v. State, 658 P.2d

the Court of

this

not

Id. at 756.

State, 586 P.2d 754 (Okl.Cr. 1978), the

defendant, an eighty year old woman, was

convicted of manslaughter in the first

degree. She testified that she remembered

walking to the victim's home, arquing with

the victim, and that the victim struck

her. Id. at 755. She did not remember

shooting witnesses

anyone. Id. Other

testified that the defendant “looked like

"she had gone berserk'" Id. and "' looked

wild.’" Id. at 754. The Court of Criminal

Appeals noted that this evidence "is not

evidence that brings the defendant within

the above rule to show that she did not

know right from wrong.

Whisenhunt,

established there was not

As we stated in

‘until legal insanity was

sufficient

evidence to create that reasonable doubt

required by the law shift the burden of

proving defendant's sanity to the state.'*

In Wilson v. State, 568 P.2d

1279 (Okl.Cr. 1977), the defendant was

charged with pointing a weapon at another

after an altercation with airport guards

when the defendant attempted to drive his

car up an exit ramp. A lay witness

testified that the defendant “was not 4

normal person", and stated the basis for

that opinion. Id. at 1280. The defendant

also testified, but was largely

unresponsive, and confused. Id. However,

the Court of Criminal Appeals said no

reasonable doubt was raised as to the

defendant's sanity. Id. at 1281. It also

noted that the state produced expert

psychiatric testimony. Id. 6/

y efendant in

is case was represented by a public

defender, who, as shown at » P- 6-11

had not the funds to employ or call an

expert of his own. sit.

Furthermore, reliance by the defendant on

lay witnesses may prevent the jury from

even considering the defense, as the court

is not obligated to instruct on insanity

unless a reasonable doubt as to sanity is

raised. Bills v. State, 585 P.2d 1366

(Okl.Cr. 1978). Experience teaches that it

is often harder for a lay witness to

specifically testify whether one knew right

from wrong at the time of his acts.

The problem of success in presenting an

insanity defense without experts who can

testify to the defendant's insanity at the

time of the offense is illustrated by

McFarthing v. State, 630 P.2d 324 (Okl.Cr.

1981). In MeParthing, the defendant was

charged with robbery. He was represented

by private counsel with no funds to hire an

expert. At the tine of the offense, he had

been in and out of mental institutions, and

two physicians cestified his psychosis was

-16-

a recurring one, coming and going. Id.

Other witnesses testified regarding his

bizzare behavior. Id. at 324-325. Only

the arresting officers testified that he

seemed lucid to them. Id. McFarthing was

convicted and sentenced to 15 years

imprisonment. 7/

Thus, Oklahoma has chosen to apply the

most strict of all insanity tests. At the

same time it refuses to provide an indigent

the financial means to meet this heavy

burden. Such an incongruous policy should

not be allowed to stand.

77 The fundamental unfairness of this

policy is best illustrated by the case of

State v. Parmer: CRF-82-984, District Court

° a ounty, a case tried by

Office of the Public Defender of Ok

County. Defendant was charged with Murder

in the First Degree after he allegedly

walked into a nursing home and stabbed an

elderly lady to death . The defendant was

a twenty year old indigent with no prior

record. The defendant's family was able to

obtain $400 for the hiring of an expert

psychiatrist. Upon testifying at trial

regarding the drug of PCP which might have

been involuntarily taken by the defendant

-l1?-

C. THE CONSTITUTION REQUIRES THAT IF AN

INDIGENT CRIMINAL DEFENDANT'S SANITY AT THE

TIME OF THE OFFENSE IS SERIOUSLY IN DOUBT,

HE MUST BE PROVIDED WITH THE NECESSARY

MEANS TO OBTAIN AND PRESENT #£EXPERT

TESTIMONY TO SUPPORT THAT DEFENSE.

Amici has shown above that in Oklahoma,

Mr. Ake (and any indigent criminal

defendant raising the insanity defense)

faced nearly insurmountable odds in

establishing a serious insanity defense

without the aid of experts who could

testify regarding his mental condition at

the time of the offense. The barriers

imposed by the State of Oklahoma are

incompatible with our constitutional

guarantees.

Amici agrees in full with the arguments

77 cont. the night of the killing, and the

effects of alcohol on an individual coupled

with the doctor's opinion on the mental

framework of the defendant, an Oklahoma

jury convicted the defendant of the lesser

included crime of manslaughter. Four

hundred dollars to hire an expert prevented

the breakdown in the adversarial process

that our system counts on to produce just

results. See Sitti siane v. Washington, _

U.S.__, Slip op. p. { ).

-18-

advanced in Petitioner's Petition for Writ

of Certiorari and Brief-in-Chief. With

Petitioner, Amici argues that virtually

every constitutional right available to an

accused is violated when funds for expert

witnesses are denied. Provisions related

to equal protection, due process, effective

assistance of counsel, and important Sixth

Amendment rights to compulsory process for

obtaining witnesses and confrontation of

adverse witnesses require that indigent

criminal defendants be provided with expert

assistance where appropriate. Note, the -

Indigent's Right to an Adequate Defense:

Expert In Investigational Assistance In

Criminal Proceedings, 55 Cornell L.Rev.

632, 641-43 (1970).

Amici further notes that in denying

funds of this nature on 4 constitutional

basis, the Oklahoma Court of Criminal

Appeals has relied on this Court's

-19-

pronouncement in United States ex rel Smith

v. Baldi, 344 U.S. 561 (1953). Ake _ v.

State, 663 P.24 1, 6 (Okl.Cr. 1983); See

also Irvin v. State, 617 P.2d 588, 594

(Ok1.Cr. 1980). However, United States ex

rel Smith v. Baldi is distinguishable.

This Court held in Smith v. Baldi that

where a Pennsylvania court had already

appointed one psychiatrist to examine the

accused as to his insanity at the time of

the offense and where that psychiatrist

gave testimony, there was no constitutional

mandate for Pennsylvania to appoint a

second psychiatrist after petitioner plead

guilty, to provide information as _ to

appropriate sentence. Id. at 568. In

Oklahoma, the state is required to submit a

defendant for pre-trial testing to

determine his present competency only, 8/

is is not meant to imply that

commitment is automatic. The procedure

involves the filing of a formal

-20-

not his legal sanity at the time of the

offense. Title 22 Okl.Stat. §1175.1 et.

seq. 9/ This clearly distinguishes

Oklahoma's procedures from those in Baldi

as Oklahoma defendants are given no

opportunity whatsoever for psychiatric

examination regarding mental state at the

time of the offense. See n. 10, infra.

Denied state funded assistance, Mr. Ake

was placed in the position of all Oklahoma

indigents who raise the insanity defense.

Although on trial for his life, he still

See application, and the evidentiary

earing before one can be committed for

observation. Title 22 Okl.Stat. §1125.3.

Another hearing is required before one may

be declared presently incompetent. Title

22 Okl.Stat. §1175.4, 1175.5.

On at’ least one occasion, a judge

ordered the state mental hospital to do

psychological testing on a capital

defendant. Legal counsel for the hospital

told the parties that no statutory

authority would allow them to comply with

such an order. Davis Vv. Stan supra.

Motion Transcript eb. , p. 10

(Appendix A). The hospital would not

perform the tests. 21

could not surmount the obstacle of his

indigency and offer expert evidence in

support of his defense. This situation,

all too common in Oklahoma, “in which

persons are required to contest a serious

accusation but are denied access to the

tools of contest is offensive to fairness

and equity." Report of the Attorney

General's Commission on Poverty inthe

Administration of Federal Criminal Justice,

at ll (1963).

II. AN INDIGENT DEFENDANT FACING THE

DEATH PENALTY Is ENTITLED TO

NECESSARY FINANCIAL ASSISTANCE TO

PREPARE AND PRESENT RELEVANT

MITIGATING EVIDENCE.

Petitioner's brief-in-chief insists

that an indigent criminal defendant should

be allowed means to present evidence in

mitigation of punishment and in rebuttal of

the State's evidence of aggravating

circumstances. (Brief of Petitioner,

Pp. ). Amici wholeheartedly agree.

-22-

Amici point out to this court in addition

that a capital defendant in Oklahoma is

provided NO financial means to explore such

mitigating evidence, much less to rebut the

state's evidence in aggravation.

This court in Eddings v. Oklahoma, 455

U.S. 104 (1982) has most recently

recognized that evidence of a defendant's

character can be relevant mitigating

evidence and must be presented to the trier

of fact if it is available. See also,

Lockett v. Ohio, 403 U.S. 586 (1978).

Oklahoma's capital punishment statute

directs the Court of Criminal Appeals in

all cases to consider “whether the sentence

of death is excessive or disproportionate

to the penalty imposed in similar cases,

considering both the crime and the

Gefendant." Title 21 0O.S. §701.13(C)(3).

The Oklahoma Court of Criminal Appeals in

Cox v. State, 644 P.2d 1077, 1079 (Okl.Cr.

1982), noted: -23-

"A mitigating

circumstance for the

jury to consider is

whether ‘the murder was

committed while the

Gefendant was under the

influence of mental or

emotional disturbance.’

Additionally, the trial

judge is required,

independent of the

jury's determination, to

consider whether the

defendant's physical or

mental condition calls

for special

consideration.

Even if the defendant is

determined to be legally

sane, he should be

afforded the opportunity

to introduce evidence of

his mental condition at

the punishment stage.

Psychiatric testimony of

the defendant's mental

Or emotional state at

the time of the killing

may very likely

influence the jury's

decision as to whether

to recommend a life

sentence or a sentence

of death.” 10/

Ox been convicted of two counts of

murder in the first degree and sentenced to

death. On appeal, the Court of Criminal

Appeals reversed the conviction for failure

-24-

Incredibly, the Court of Criminal

Appeals, despite this statement, affirmed

the denial of funds to Cox for establishing

I07 cont. to commit the defendant for

observation to determine present

competency. On retrial, Amicus Office of

the Public Defender of Oklahoma County

represented Cox. Cox was convicted of

murder in the first degree and received a

life sentence on one count and sentenced to

twenty-five years on a conviction of

manslaughter on the other count.

The Cox decision clearly demonstrates

the dilemma an Oklahoma criminal defense

lawyer faces. By statute and the Cox

decision, defense counsel must reasonably

believe his client is presently incompetent

to stand trial before he can ethically

recommend commitment. Cox v. State, supra

at 1078-79. Absent this reasonable belief,

the attorney can not’ ethically seek

commitment, no matter how strong- the

evidence of mental or emotional deficiency,

or retardation short of present

incompetency. M lawyer cannot compel

commitment and establish mitigating

evidence which could amount to a sentence

of less than death. The jury is never

presented relevant mitigation evidence

which could effect its decision and thus

insure reliability in ~ cara a

-25-

this mitigating evidence. Id. at 1077. 11/

Irvin _v. State, supra; Davis v. State,

supra.

"Permitting an indigent capital

defendant to introduce mitigating evidence

has little meaning if funds available for

compelling the evidence are unavailable."

Westbrook v. Zant, 704 F.2d 1481, 1496

(llth Cir. 1983). In Oklahoma, indigent

defendants are precluded financially from

developing psychiatric evidence for use in

mitigation of punishment at the second

stage of trial. It is undisputed that

evidence of mental disturbance less than

insanity is a valid mitigating

circumstance. Eddings v. Oklahoma, supra.