Amicus Curiae Brief — Penry v. Johnson

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No. 00-6677

Supreme Court of the United Statewm 11 2001

JOHNNY PAUL PENRY, | OFFICE OF THE CLERK

Petitioner,

GARY L. JOHNSON, Director,

Texas Department of Criminal Justice,

Institutional Division,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF OF

THE AMERICAN ASSOCIATION ON MENTAL RE-

TARDATION, THE AMERICAN PSYCHIATRIC AS-

SOCIATION, THE AMERICAN ACADEMY OF PSY-

CHIATRY AND THE LAW, THE AMERICAN OR-

THOPSYCHIATRIC ASSOCIATION, THE ARC, and

THE JUDGE DAVID L. BAZELON CENTER FOR

MENTAL HEALTH LAW AS AMICI CURIAE

IN SUPPORT OF PETITIONER

Of Counsel: JAMES W. ELLIS

STANLEY S. HERR Counsel of Record

515 W. Lombard Street MICHAEL B. BROWDE

Baltimore, MD 21201 1117 Stanford, NE

(710) 706-7214 Albuquerque, NM 87131

(505) 277-2146

JEFFREY J. POKORAK

St. Mary’s Univ. School of Law

2507 NW 36th Street

San Antonio, TX 78228

(210) 431-5729

Counsel for Amici Curiae

WiLSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D.C. 20001 .

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TABLE OF CONTENTS

THE TRIAL COURT’S AD HOC INSTRUC-

TION OFFERED PENRY’S JURY NO

REASONABLE WAY TO EVALUATE AND

GIVE APPROPRIATE WEIGHT TO THE

MITIGATING SIGNIFICANCE OF HIS

MENTAL RETARDATION.................ccccssseessees

A. Following Remand from this Court, the

Trial Court Gave a Bewildering Mitigation

Instruction in Violation of This Court’s

i en

B. Mental Retardation is a Unique Mitigating

Factor in Capital Sentencing, Focusing on

the Culpability Rather than the Prospective

Dangerousness of the Defendant..................

C. Requiring Untruthful Answers from Jurors,

Who May Have Found the Mitigating

Effect of Penry’s Mental Retardation to be

Substantial, Violates This Court’s Decision

Cictttnincenentenceememnnen

THE INTRODUCTION AND ADVERSE

USE OF THE PEEBLES REPORT ON

COMPETENCE TO STAND TRIAL AT THE

PENALTY PHASE VIOLATED DEFEND-

ANT’S FIFTH AMENDMENT RIGHTS ..........

(i)

TABLE OF CONTENTS—Continued

A. The Requirement of a Defendant's

Competence to Stand Trial Performs an

Indispensable Function in the Criminal

Justice SySteM ..........eeereeesreeersessrsssresseess

B. Adverse Use of Information Disclosed in

Competence Evaluations Impairs Their

Clinical Accuracy and, as a Result, Their

Legal Utility ........sccesereeseeeeeseestesenennenees

C. The Crucial Nature of Competence to

Stand Trial Requires Vigilant Protection of

Defense Counsel's Right to Seek a

Competence Evaluation ..........sseseeeseeseeeees

D. Careful Balancing of the Diverse Interests

in the Criminal Justice System is Reflected

in the ABA Criminal Justice Mental Health

Stamdasds ........ccccccssrecceccscovosesevsssssesnoosscssssses

E. The Right to Seek a Competence

Evaluation Cannot Be Burdened By

Concern About Its Subsequent Adverse

Page

iil

TABLE OF AUTHORITIES

FEDERAL CASES: Page

Ake v. Oklahoma, 470 U.S. 68 (1985) .......cccccccccees 21

Barefoot v. Estelle, 463 U.S. 880 (1983) ..........0... 27

Beck v. Alabama, 447 U.S. 625 (1980) ........ccccc000 10

Buchanan v. Kentucky, 483 U.S. 402 (1987).....12, 25, 29

Cooper v. Oklahoma, 517 U.S. 348 (1996) ....... 14, 15, 22

Dickerson v. United States, 120 S. Ct. 2326

EEA Ee 26

Drope v. Missouri, 420 U.S. 162 (1975)............ 13, 15, 16

Dusky v. United States, 362 U.S. 402 (1960)......... 18

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

Ford v. Wainwright, 477 U.S. 399 (1986)............. 15

Foucha v. Louisiana, 504 U.S. 71 (1992).......0.000. 15

Godinez v. Moran, 509 U.S. 389 (1993) .......ccccce 18

Graham v. Collins, 506 U.S. 461 (1993) .......000000. 8

Graham vy. Collins, 896 F.2d 893 (Sth Cir. 1990)

rev'd on other grounds, 950 F.2d 1009 (Sth

Cir. 1992) (en banc), affd, 506 U.S. 461

EES Se 1]

Jaffee v. Redmond, 518 U.S. 1 (1996) 0.0... 19

Johnson v. Texas, 509 U.S. 350 (1993) ......ccccccccee 7,8

Lefkowitz v. Cunningham, 431 U.S. 801 (1977).... 23

Leland v. Oregon, 343 U.S. 790 (1952).....cccccccceees 15

Maine v. Moulton, 474 U.S. 159 (1985) 0.0.0.0... 28

McIntyre v. Ohio Elections Commission, 514

Ee 23

Medina v. California, 50S U.S. 437 (1992)........... 13

Miranda y. Arizona, 384 U.S. 436 (1966) ............. 12, 26

Morisette v. United States, 342 U.S. 246 (1952)... 15

Pate v. Robinson, 383 U.S. 375 (1966).......ccccc0000 13

Penry v. Lynaugh, 492 U.S. 302 (1989)

leet ieenmteserenncesnecenseqeeses passim

Riggins v. Nevada, 504 U.S. 127 (1992)......ccccccce 14

Roberts v. Louisiana, 428 U.S. 325 (1976)............ 10

TABLE OF AUTHORITIES—Continued

Page

Robison v. Johnson, 151 F.3d 256 (Sth Cir. ; e

1998) cert. denied, 526 U.S. 1100 (1999)......... 8 | —— Crim. Proc., art. 46.03 (Vernon Supp. -

Simmons v. United States, 390 U.S. 377 (1968) .... 23 | Ceeeercececccsceseeseesereescoceseseesosssosossooossoosossoecsceee

Skipper v. South Carolina, 476 U.S. 1 (1986) essence 30 j MISCEI I ANEOUS AUTHORITIES:

United States v. Balint, 258 U.S. 250 (1922)......... 15 ' ABA Criminal Justice Mansel Ueatty Seandands

United States v. Sparf, 156 U.S. 51 (1895)........... 10 aaa base —

United States v. X-Citement Video, Inc., 513 U.S. ‘i | Pres gr 7 seeeeeee : . Shudane aban tae,

OC nccccectentcnttcnninaceanentameanitinananitinsionais ‘ | atieta ~~ p ape d > ’,

Williams v. Taylor, 120 S. Ct. 1495 (2000) ..... — 9 rs peor 0g ; scone i” = pt adage

Woodson v. North Carolina, 428 U.S. 2 i Psychological rather pony dig

CII ccinicnncnnssinitusianinnenmisiiaciicasiissinsaimmemasiiaaadigtitian Handbook for Mental Health Professionals

STATE CASES: and Lawyers (2d ed. 1997) ......cccccccccccsceseeeeeeevseee 20

DeFreece v. State, 848 S.W.2d 150 (Tex. Crim. | American Association on Mental Retardation,

App.), cert. denied, 510 U.S. 905 (1993)... 22 Mental Retardation: Definition, Classification,

State v. McPherson, 851 S.W.2d 846 (Tex. Crim. | and Systems of Supports (9th ed. 1992) cesnseenen 6

App. 1993), cert. denied, 508 U.S. 939 i art > agape gy ag .

| SS O identiali , n m. J.

State v. Wagner, 786 P.2d 93 (Or.), cert. denied, Psychiatry 1522 (1987) paineensaseeies sesssnseeennseesnneeen 20

PS en 12 American Psychiatric Association, The

Principles of Medical Ethics, with Annotations

FEDERAL STAT =: Especially Applicable to Psychiatry (1995)....... 20

28 U.S.C. § 2254(d)(1) (1994)... ccccccccerereeeeeneeneee ) American Psychological Association, Ethical

STATUTES . Principles of Psychologists and Code of

— ; Vv | Conduct, reprinted at 47 American Psychol-

Tex. Code Crim. Proc. Ann., art. 37.071( Vernon , ' onist 1997 (1992)

Supp. 2001 ) CORRE RRR RRR eRe ee eee eee ee EE EEE TEESE TESTES EEEEE TEES Se eee ee ee - seescesecesoooses a eoccece

American Psychology-Law Society, Specialty

., art. 37.071 (V

“— so tore senbemabetteatide met 5.6 Guidelines for Forensic Psychologists,

Tex. Code Crim. Proc. Ann., art. 35.22 (Vernon a at 15 Law & Human Behavior 655

1966) Prrrrrrrrrrrrrrrrrrrrrrrittrtt ttt tttt tt ttttt ttt 9 a wae © . at alien deel scccccooes

Tex. Code Crim. Proc. Ann., art. 46.02 (Vernon ee nee sak leone dean

Bae. TIDE) cccccceccsesceccssccssssscencsscsssoscssssensssnsess 21,27, 28 1 stn Oh = ;

Tex. Code Crim. Proc. Ann., art. 46.02 (Vernon t © DIVE TT cecccccccvececcccccccesesceeseecscoecoscecoscosoesoscees

1966) (FOME)...........cercecsrsecerserersersnsererensssensseees 21

TABLE OF AUTHORITIES—C ontinued

Appelbaum, Kenneth, “Assessment of Criminal

Justice-Related Competencies in Defendants

with Mental Retardation,” 22 J. Psychiatry &

Late FOE (OBB GD ccccecnsssncenseccensenccssssssssscssnsenssssenees

Appelbaum, Kenneth & Appelbaum, Paul,

“Criminal-Justice-Related Competencies in

Defendants with Mental Retardation,” 22 J.

Psychiatry & Law 483 (1994) .....cccccccccceeeeeeeneees

Appelbaum, Paul S., “Confidentiality in the

Forensic Evaluation,” 7 ZIJnt'l J. Law &

Psychiatry ZBS (1DB4S) .....0cc.cccceccsesescsecsccccscssccnes

Bonnie, Richard J., “The Competence of

Criminal Defendants: Beyond Dusky and

Drope,” 47 U. Miami L. Rev. 539 (1993) ..........

Bonnie, Richard J., “The Competence of

Criminal Defendants with Mental Retardation

to Participate in Their Own Defense,” 81 J.

Crim. L. & Criminology 419 (1990) ........0.cc000

Conley, Ronald W., ef al., eds., The Criminal

Justice System and Mental Retardation:

Defendants and Victims (1992).....cccccseeeeeeeeees

Cooper, Deborah K. & Grisso, Thomas, “Five

Year Research Update 1991-95: Evaluations

for Competence to Stand Trial,” 15 Behavioral -

Sciences & Law 347 (1997) ....cccccccceseeseeeeeeeeeeeees

Everington, Caroline, “The Competence Assess-

ment for Standing Trial for Defendants with

Mental Retardation (CAST-MR): A Validation

Study,” 17 Crim. Justice & Behavior 147

George, Jr., B. J., “The American Bar

Association’s Mental Health Standards: An

Overview,” 53 Geo.” Wash. L. Rev. 338

Page

———_—

Vii

TABLE OF AUTHORITIES—Continued

Grisso, Thomas, Evaluating Competencies:

Forensic Assessments and _ Instruments

(Geel ccnencrccnienesnnnntnennmnnineninimncaniastiiaiaanensatiiis

Gutheil, Thomas G. & Appelbaum, Paul S.,

Clinical Handbook of Psychiatry and the Law

LaFave, Wayne R., Criminal Law (3d ed. 2000)...

Melton, Gary B., et al., Psychological Eval-

uations for the Courts: A Handbook for

Mental Health Professionals and Lawyers (2d

Ry Ce crcerrenstevateninnsenetnninnnteiiniinitaitaiessraseatiesetes

Note, “Incompetency to Stand Trial,” 81 Harv. L.

Se ee cricititinesiieniienerinieniititiareanteeniciidieniinies

Parry, John & Drogin, Eric Y., Criminal Law

Handbook on Psychiatric and Psychological

Evidence and Tesiimony (2000) ...........cccccceee0ees

Roesch, Ronald & Golding, Stephen L.,

Competency to Stand Trial (1980) ...........00-00000

Westen, Peter, “Incredible Dilemmas: Condition-

ing One Constitutional Right on the Forfeiture

of Another,” 66 Jowa L. Rev. 741 (1981)...........

gs oa

INTEREST OF AMICI CURIAE '

THE AMERICAN ASSOCIATION ON MENTAL

RETARDATION (AAMR), founded in 1867, is the Nation’s

oldest and _ largest interdisciplinary organization of

professionals in the field of mental retardation. AAMR has

appeared as amicus curiae before this Court in numerous

cases, most recently in University of Alabama at Birmingham

v. Garrett, No. 99-1240.

THE AMERICAN PSYCHIATRIC ASSOCIATION, with

more than 40,000 members, is the Nation’s largest

organization of physicians specializing in psychiatry. It has

participated in numerous cases in the Court. See, e.g.,

Olmstead v. L.C. by Zimring, 527 U.S. 581 (1999); Riggins v.

Nevada, 504 U.S. 127 (1992); Smith v. Murray, 477 U.S. 527

(1986); Estelle v. Smith, 451 U.S. 454 (1981). Its members

have a strong interest in preventing the impairment of proper

competency examinations that is threatened by the Fifth

Circuit decision in this case.

THE AMERICAN ACADEMY OF PSYCHIATRY AND

THE LAW (AAPL) is an organization of psychiatrists

dedicated to excellence in practice, teaching, and research in

forensic psychiatry. Founded in 1969, AAPL currently has

approximately 2,500 members in North America and around

the world.

THE AMERICAN ORTHOPSYCHIATRIC ASSOC-

IATION is an interdisciplinary professional organization of

mental health professionals, including psychiatrists,

psychologists, social workers, educators, and allied

' This brief was written entirely by counsel for amici, as listed on the

cover, and not by counsel for any party. No outside contributions were

made to the preparation or submission of this brief. Both parties have

given written consent to the filing of this brief.

professionals concerned with the problems, causes, and

treatment of mental disabilities.

THE ARC OF THE UNITED STATES (formerly the

Association for Retarded Citizens of the United States),

through its nearly 1,000 state and local chapters, is the largest

national voluntary organization in the United States devoted

solely to the welfare of the more than seven million children

and adults with mental retardation and their families.

THE JUDGE DAVID L. BAZELON CENTER FOR

MENTAL HEALTH LAW was formed in 1972 and is the

leading national legal advocate for people with mental illness

and mental retardation. The Center’s work is currently

focused on the reform of public systems to serve individuals

with mental disabilities in their communities, the provision of

housing, health care and support services for the mentally ill,

and protections against discrimination against the mentally ill.

SUMMARY OF THE ARGUMENT

Johnny Paul Penry is a criminal defendant with mental

retardation whose death sentence was reversed by this Court

in 1989. He was then retried and resentenced to death. The

penalty phase of his retrial replicated the constitutional error

in Penry I, by giving the jury a contradictory and

incomprehensible instruction on mitigating evidence. But the

trial court compounded its error by permitting the prosecution

to base its argument for aggravation on a competence

evaluation report that was protected by the Fifth Amendment.

This Court made abundantly clear in Penry / that a

defendant’s mental retardation is a mitigating factor that

jurors must have an unencumbered opportunity to evaluate.

Nonetheless, the trial court :nsisted that the penalty phase

verdict be limited to the same “special questions” structure

that this Court had already condemned as a vehicle for

considering mental retardation. The trial court’s only

concession to this Court’s unambiguous ruling was to instruct

the jurors that if they found the mitigating evidence of mental

retardation to be persuasive, they could answer “no” to one of

the special questions even if they believed “yes” to be the

truthful response. This is hardly the unobstructed opportunity

to consider mental retardation’s impact on_ individual

culpability that the Constitution and Penry / require.

The prosecution’s argument for the penalty of death

focused on its assertion of the defendant’s prospective

dangerousness. The centerpiece of its penalty phase case was

Dr. Felix Peebles’ report from an evaluation of competence to

stand trial in an unrelated case thirteen years earlier. That

report was introduced in evidence, referred to by other

prosecution witnesses, and served as the gravamen of its

closing argument. This striking misuse of a clinical

evaluation of competence unconstitutionally burdens the right

to be free from a criminal trial while incompetent.

Defendants cannot be tried while incompetent, and

therefore counsel must be free to seek an evaluation of their

present ability at the time of trial. Clinicians conducting such

evaluations will, of necessity, ask questions that are quite

likely to produce incriminatory statements. While it is

appropriate for the prosecution to use such material in

relevant rebuttal to defense arguments, it is unacceptable to

use that same information against a defendant who has made

no such arguments. If defendants must calculate the potential

adverse use of their statements, it will surely be more difficult

for clinicians to provide the courts with accurate assessments

of defendants’ competence. Protecting this privilege will 1ot

unfairly disadvantage the State in any way, but will assure

both defendants and the courts that incompetent individuals

will not face trials they do not understand and in which they

cannot meaningfully participate.

ARGUMENT

I. THE TRIAL COURT’S AD HOC INSTRUC-

TION OFFERED PENRY’S JURY NO

REASONABLE WAY TO EVALUATE AND

GIVE APPROPRIATE WEIGHT TO THE

MITIGATING SIGNIFICANCE OF _ HIS

MENTAL RETARDATION.

In Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry 1), this

Court identified and condemned the constitutional defect

inherent in the former Texas sentencing statute when a

defendant presented mitigating evidence having a “double-

edged” quality—such as mental retardation and the effects of

serious child abuse. This Court recognized that such

evidence could “diminish [the defendant’s] blameworthiness

for his crime even as it indicates . . . a probability that he will

be dangerous in the future.” /d. at 324. Primarily because of

the fact that such evidence offered in mitigation might be

considered by the jury only in aggravation, the Texas capital

sentencing statute was held to be unconstitutional as applied.

The statute’s focus on three special issues did not “inform the

jury that it [might] consider and give effect to mitigating

evidence . . . by declining to impose the death penalty.” /d. at

328. The former Texas special issues, therefore, could

unconstitutionally preclude the jury from “expressing the

view that [a particular defendant does] not deserve to be

sentenced to death based upon his mitigating evidence.” /d.

at 326.

A. Following Remand from this Court, the Trial

Court Gave a_ Bewildering Mitigation

Instruction in Violation of This Court's

Holding in Penry I.

Penry’s retrial following this Court’s decision in Penry /,

492 U.S. 302 (1989), took place prior to the enactment of the

new Texas statute on the consideration of mitigating evidence

in the penalty phase of capital trials. See Tex. Code Crim.

Proc. Ann., art. 37.071 (Vernon 1981 and Supp. 2001). Thus,

the trial court was still operating under the statutory scheme

condemned in Penry J. Rather than accept defendant’s

proffered instructions or fashion a jury charge that faithfully

conformed to this Court’s opinion in Penry J, the trial court

merely grafted confusing and contradictory language about

mitigation onto the instruction that had already been found to

be unconstitutional by this Court. 492 U.S. at 322-28. The

resulting instruction was a _ bewildering maze of

contradictions.

Accompanying the constitutionally defective statutory

special issues instructions, the jury was given the following

instruction on the subject of mitigation:

If you find that there are any mitigating circumstances in

this case, you must decide how much weight they

deserve, if any, and therefore, give effect and

consideration to them in assessing the defendant’s

personal culpability at the time you answer the special

issue. If you determine, when giving effect to the

mitigating evidence, if any, that a life sentence, as

reflected by a negative finding to the issue under

consideration, rather than a death sentence, is an

appropriate response to the personal culpability of the

defendant, a negative finding should be given to one of

the special questions.

JA at 49. (emphasis supplied.)

The only concession the instruction made to Penry J was to

inform the jury it could consider mitigating evidence that

might lead to a conclusion that life imprisonment was a more

appropriate penalty than death. However, the only means the

jury was offered to give expression to that conclusion

remained cabined within the answers to the special questions.

Thus, in order to express its view that the defendant’s mental

retardation should lead to a sentence other than the death

penalty, the jury would have to attest to one of the following:

(1) asa result of mental retardation, defendant did not

act deliberately; or

(2) as aresult of mental retardation, defendant acted in

response to provocation; or

(3) as a result of mental retardation, there was no

probability that defencant would commit criminal

acts of violence in the future.

Tex. Code Crim. Proc. Ann., art. 37.071 (Vernon 1981)

(former); see also JA at 17A. This Court held in Penry / that

mental retardation can have substantial mitigating effect that

is completely unrelated to any of these questions.

B. Mental Retardation is a Unique Mitigating

Factor in Capital Sentencing, Focusing on the

Culpability Rather than the Prospective

Dangerousness of the Defendant.

As this Court made clear, a defendant’s mental retardation”

is a factor in mitigation of punishment that must be available

for untrammeled consideration by a jury in the penalty phase

of a death penalty trial. “Because Penry was mentally

retarded, however, and thus less able than a normal adult to

control his impulses or to evaluate the consequences of his

conduct, and because of his history of childhood abuse, that

same juror could also conclude that Penry was less morally

* The clinical definition of mental retardation at the time of Penry’s

retrial remained the same as the definition noted in this Court’s opinion in

Penry I, 492 U.S. at 308 n.1. In the years since the retrial, some disability

organizations have modified the definition. See, e.g., American

Association on Mental Retardation, Mental Retardation: Definition,

Classification, and Systems of Supports | (9th ed. 1992). These

modifications, while significant on issues involving the delivery of

appropriate services to individuals with mental retardation, have no

relevance to this case.

culpable than defendants who have no such excuse.” Penry I,

492 U.S. 302, 322-23 (1989) (internal quotation omitted).

This Court’s conclusion about moral culpability is abundantly

supported by the clinical literature regarding mental

retardation and by the experience of mental disability

professionals. See, e.g., Brief of Amici Curiae American

Association on Mental Retardation et al., in Penry I, No. 87-

6177, and sources cited therein. See generally The Criminal

Justice System and Mental Retardation: Defendants and

Victims (Ronald W. Conley, Ruth Luckasson & George N.

Bouthilet eds. 1992).’

This Court has also explicitly recognized that mental

retardation is a unique type of mitigating evidence as it relates

to the former Texas statutory scheme. The singular quality of

mental retardation is that its permanence could lead

prosecutors to argue, and jurors to conclude, that it made the

individual more likely to be dangerous while also reducing

his moral culpability at the time of the offense. As this Court

noted in Johnson v. Texas, 509 U.S. 350 (1993) with specific

reference to Penry I:

* The relationship between mental retardation and culpability is further

evidenced by the fact that since this Court's decision in Penry /, eleven

additional states have enacted statutes precluding the imposition of the

death penalty on defendants with mental retardation. State chapters of

amici AAMR and The Arc have been actively involved in those

legislative processes. In the debates leading to the enactment of these

laws (as well as the re-enactment of the Federal ban in 1994), the

discussion focused exclusively on issues of culpability and the potential

for miscarriage of justice. None of those legislative bodies premised their

actions on a lack of future dangerousness or any other issue cognizable

under the special questions in the jury instructions in Penry /].

* This Court held in Johnson that evidence of youth is distinguishable

from evidence of mental retardation because “youth” is a temporary

characteristic whose effects can be ameliorated with time, whereas mental

retardation is a permanent condition which might always render a

particular defendant more likely to be dangerous in the future. See also

Although the evidence of the mental illness fell short of

providing Penry a defense to the prosecution for his

crimes, the Court held that the second special issue did

not allow the jury to give mitigating effect to this

evidence. Penry’s condition left him unable to learn

from his mistakes, and the Court reasoned that the only

logical manner in which the evidence of his mental

retardation could be considered within the future

dangerousness inquiry was as an aggravating factor.

Id. at 369 (citation omitted); accord Graham v. Collins, 506

U.S. 461, 473 (1993) (“The Texas special issues permitted the

jury to consider this evidence, but not necessarily in a way

that would benefit the defendant. Although Penry’s evidence

of mental impairment and childhood abuse indeed had

relevance to the ‘future dangerousness’ inquiry, its relevance

was aggravating only.”).

The holding of Penry / is that an individual facing the

penalty of death must be provided an independent and

adequate vehicle which allows the jury to fully and fairly

evaluate the mitigating value of significant “double-edged”

evidence, such as mental retardation. Any sentence of death

that does not provide such an opportunity is constitutionally

infirm and cannot stand.

The Court has emphasized, “Penry remains the law and

must be given a fair reading.” Johnson v. Texas, 509 U.S.

350, 369 (1993) (per Kennedy, J.). The opinions of the state

and federal courts below allowing Penry’s sentence of death

to stand are not in any way “a fair reading” of Penry / and

indeed are “contrary to . . . clearly established Federal Law”

and “involved an unreasonable application of ” this Court’s

rulings in Penry I, Johnson, and Graham. — Williams v.

Robison v. Johnson, 151 F.3d 256, 265 (Sth Cir. 1998) cert. denied, 526

U.S. 1100 (1999) (evidence of mental illness does not require a Penry

instruction because mental illness, unlike mental retardation, is treatable

and can go into remission).

—

a ee

Taylor, 120 S.Ct. 1495, 1519 (2000) (citing 28 U

, S. .

§ 2254(d)(1) (1994)). .

C. Requiring Untruthful Answers from Jurors,

Who May Have Found the Mitigating Effect of

Penry’s Mental Retardation to be Substantial,

Violates This Court's Decision in Penry I.

The trial court's purported cure of the constitutional

deficiency in the jury instruction identified by this Court was

wholly inadequate. Jurors first were instructed to consider

and answer the three special issues held inadequate in Penry

/. In direct conflict with that instruction, the jurors were then

told that if they found evidence of mental retardation and

child abuse to be sufficiently mitigating to warrant a penalty

other than death, they were to change their first

ya. “true verdict” to at least one of the three

special questions. Tex. Code Crim.

> amas omy Crim. Proc. Ann., art. 35.22

The extraordinary inconsistency of these instructions is

evident. How were individual jurors, unschooled in the

sometimes-convoluted language and procedures of the law

and laboring under the emotional pressures of a capital trial,

to make sense of them? The cognitive dissonance that such

inconsistencies can produce in individual jurors is only

magnified when the entire jury deliberates collaboratively.

Must an individual juror suggest an untruthful answer to one

of the questions? How is the question to be selected?

The trial court’s instruction failed to satisfy the

requirements of Penry I. First, this instruction merely told the

jury to consider mitigating evidence when it answered the

special issues. But the instruction did not communicate that

5 ,

This statute requires Texas jurors to swear this oath: “Y

: “You and each

of you do solemnly swear that in the case of the State of Texas against the

defendant you will a true verdict render according to the law and the

evidence, so help you God.” (emphasis supplied).

evidence which has no bearing on the special issues, or which

militate in favor of affirmative answers, may nevertheless

also be given effect as mitigating evidence. Second, it did not

tell the jurors that they could use the defendant's mitigating

evidence as a reason to answer one or more of the special

issues in the negative.

The instruction simply repeated the error of Penry I,

forcing the jury to decide the life or death issue only within

the constraints of the narrow special issue inquiry. This

instruction did not afford the protection Penry I and Johnson

required, because it did not inform the jurors that they could

impose upon Penry a sentence of life imprisonment based on

his mental retardation and childhood abuse, regardless of how

they believed the special issues of deliberateness and future

dangerousness should be answered.

Even if the jurors fully understood the contrivance of

falsely changing their answer to one or more of the three

questions in order to give mitigating effect to defendant's

mental retardation, it is surely unacceptable to require them to

violate their oath. This Court has disapproved other

sentencing schemes whose constitutionality was defended

because of the supposed opportunity for jurors to “fix” a

constitutional defect by violating their oaths. Roberts v.

Louisiana, 428 U.S. 325, 334-35 (1976); Woodson v. North

Carolina, 428 U.S. 280, 293, 302-04 (1976). See also Beck v.

Alabama, 447 U.S. 625, 644 (1980) (allowing jurors to

convict a defendant of a lesser included noncapital crime to

avoid the death penalty when he was actually guilty of a

capital offense “would require the jurors to violate their

oaths” and “juries should not be expected to make such

lawless choices”).

Further, the contradictory instructions given also preclude

effective judicial review to safeguard against capricious

sentencing. See Roberts v. Louisiana, 428 U.S. at 335,

United States v. Sparf, 156 U.S. 51 (1895) (condemning jury

_—— cr "agai ayaa ail a

“

nullification instructions at the guilt stage of a criminal trial

because they produce arbitrary, unreviewable verdicts).

Neither the constitutional rights of defendants nor respect for

the rule of law is protected by approval of a scheme that

depends upon jurors’ willingness to give contradictory and

untruthful verdicts.° 4

To, contend, as amici do, that the instructions to Penry’s

jury about the consideration of mitigating evidence are fatally

flawed is not to leave the trial judge without constitutionally

acceptable options. Responding to the clear holding of this

Court, the trial judge could easily have added a fourth special

issue question on mitigation, or instructed the jury that it

could return a verdict for life imprisonment notwithstanding

truthful answers to tite statutory questions. This is effectively

what the Texas Legislature has required in modifying the

statute, and the same constitutional options were open to the

trial court in response to this Court’s clear directive.’ The

° Indeed, if a false answer to one of the special questions is the only

retardation, then it is a stolen vehicle. The Fifth Circuit had earlier

suggested that the type of instruction presented to Penry's jury does not

satisfy the requirements of Penry / because

the jury would certainly be confused by instructions that seem to be

allowing a “no” answer even when the question itself called for a

“yes” answer. And if the latter should be given, modifying the plain

meaning of the question, and if the jury answers “yes,” how are we

to know that the jury actually considered and rejected all evidence

mitigating against the death penalty rather than gave its honest

answer to the question asked.

Graham vy. Collins, 896 F.2d 893, 896-897 n.3 (Sth Cir. 1990) rev'd on

other grounds, 950 F.2d 1009 (Sth Cir. 1992)(en banc), aff d, 506 U.S.

461 (1993). Amici believe this initial lower court interpretation is

consistent with this Court's holding whereas their current decision is not.

. ” At least one Texas trial court gave such a constitutionally acceptable

instruction during the period between Penry / and the legislative

amendment. See, e.g., State v. McPherson, 851 S.W.2d 846, 847 (Tex.

Crim. App. 1993), cert. denied, 508 U.S. 939 (1993). See also State v.

judge’s failure to do so manifestly violated defendant's right

to an unrestricted and obstacle-free consideration of the

mitigating significance of his mental retardation.

Il. THE INTRODUCTION AND ADVERSE USE OF

THE PEEBLES REPORT ON COMPETENCE

TO STAND TRIAL AT THE PENALTY PHASE

VIOLATED DEFENDANT’S FIFTH AMEND-

MENT RIGHTS.

As this Court held in Estelle v. Smith, 451 U.S. 454 (1981),

pretrial mental evaluations implicate the defendant's Fifth

Amendment rights. The precise ruling in Estelle barred use of

a psychiatrist’s testimony derived from a pretrial competence

evaluation against a capital defendant in the absence of

warnings equivalent to those required by Miranda v. Arizona,

384 U.S. 436 (1966). However, the constitutional principle

underlying Estelle and Buchanan v. Kentucky, 483 U.S. 402

(1987), is that the prosecution may not make affirmative use”

of disclosures made by the defendant during a pretrial

evaluation of the defendant’s competence, or opinions based

on such disclosures, whether the evaluation was initiated by

the prosecution, the defense, or the court. Such evidence may

be used only on the issue of competence or to rebut claims

put in issue by the defense. This principle appropriately

balances the need for a complete and accurate clinical

assessment of mental health issues, the constitutional rights of

the defendant being evaluated, and the needs of prosecutors

and courts. In the instant case, Penry’s sentence of death was

Wagner, 786 P.2d 93, 99 (Or.), cert. denied, 498 U.S. 879 (1990)

(involving “substantially identical” statute).

* By “affirmative use,” amici are referring to the prosecution's use of

the evidence to prove the defendant's guilt or the aggravating

circumstances at a capital sentencing proceeding, rather than to prove the

defendant's competence or to rebut a defense or claim in mitigation raised

by the defense.

largely based on a future dangerousness evaluation, made and

used in violation of Estelle and the Constitution.

A. The Requirement of a Defendant’s

Competence to Stand Trial Performs an

Indispensable Function in the Criminal Justice

System.

Competence to stand trial is a unique issue at the

intersection of law and mental disability.’ Preventing the trial

of incompetent individuals provides important protections for

the defendant while also independently serving the interests

of the courts. As a result, identifying the possible

incompetence of a defendant is different in kind from other

inquiries that might require the expertise of mental disability

professionals.

This Court has long recognized that trial of any defendant

who was factually incompetent is inconsistent with the central

tenets of the Constitution, and as a result, any such trial is

impermissible. Drope v. Missouri, 420 U.S. 162 (1975); Pate

v. Robinson, 383 U.S. 375 (1966). This is true for historical,

functional, and systemic reasons. “The rule that a criminal

defendant who is incompetent should not be required to stand

trial has deep roots in our common-law heritage.” Medina v.

California, 50S U.S. 437, 446 (1992). Aside from its

historical antecedents, the status of competence to stand trial

is also “fundamental to an adversary system of justice,”

Drope, 420 U.S. at 172, because of its functional role in

assuring a fair trial. Recently, this Court unanimously

observed:

” Evaluation of competence to stand trial is the most common type of

clinical assessment in the criminal justice system. See Thomas G. Gutheil

& Paul S. Appelbaum, Clinical Handbook of Psychiatry and the Law 291

(3d ed. 2000); Ronald Roesch & Stephen L. Golding, Competency to

Stand Trial (1980).

Competence to stand trial is rudimentary, for upon it

depends the main part of those rights deemed essential to

a fair trial, including the right to effective assistance of

counsel, the rights to summon, to confront, and to cross-

examine witnesses, and the right to testify on one's

behalf or to remain silent without penalty for doing so.

Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (quoting

Riggins v. Nevada, 504 U.S. 127, 139-140 (1992) (Kennedy,

J., concurring in the judgment)).

Over and above this fundamental concern for fairness to

defendants, there is also the courts’ own interest in both the

appearance and reality of fairness. Trial of an incompetent

defendant not only runs the risk of an unjust result; it also

calls into question the very legitimacy of the courts

themselves as reliable administrators of the community's

criminal sanction. ABA Criminal Justice Mental Health

Standards, Standard 7-4.1, Comment at 170 ( 988) (the rule

serves “a broader societal interest in maintaining a certain

dignity in the administration of criminal justice”), Note,

“Incompetency to Stand Trial,” 81 Harv. L. Rev. 454, 458

(1967) (the trial of an incompetent defendant loses its

character as a reasoned interaction between an individual and

his community and becomes an invective against an

insensible object”).'° It has also been suggested that a

One commentator discussed why the competence doctrine serve:

societal interests in addition to protecting the defendant's interests:

First, the doctrine serves to preserve the crit al process's moral

dignity by prohibiting prosecution and conviction of defendants

who lack a meaningful moral understanding of wrongdoing and

punishment or the nature of criminal prosecution. Second, society

also has an independent interest in the reliability of the outcomes in

criminal cases, including an interest in avoiding erroneous

convictions.

Richard J. Bonnie, “The Competence of Criminal Defendants: Beyond

Dusky and Drope,” 47 U. Miami L. Rev. 539, 543 (1993).

— <__—-— <><

defendant’s competence is indispensable to effectuate the

criminal justice system’s retributive rationale. Wayne R.

LaFave, Criminal Law 355 (3d ed. 2000) (“{UJnder our

theory of the criminal law it is important that the defendant

know why he is being punished, a comprehension which is

greatly dependent upon his understanding what occurs at

trial.”). Cf. Ford v. Wainwright, 477 U.S. 399, 421 (1986)

(Powell, J., concurring in part and concurring in the

judgment) (retributive force of the death penalty “depends on

the defendant's awareness of the penalty’s existence and

purpose”),

These unique characteristics of competence to stand trial

are reflected in the singular manner in which it is

administered under our Constitution. Although this Court has

not definitively ruled on the constitutional necessity of the

defense of insanity, and, in some circumstances, perhaps even

the requirement of mens rea,'' it has made clear that

dispensing with the requirement that a defendant be

competent to stand trial is not discretionary with the

legislature. Drope, 420 U.S. at 171. Similarly, States have

constitutionally acceptable options regarding the burden of

persuasion in cases involving the insanity defense that they

lack regarding the issue of competence. C ompare Leland vy.

Oregon, 343 U.S. 790 (1952), with Cooper v. Oklahoma, 517

_U.S. 348 (1996). And, while it is common for courts to

permit mentally disabled defendants to refrain from offering a

defense of insanity, it is constitutionally unacceptable to

permit defense counsel to waive the requirement that

defendant be competent to stand trial. Compare ABA

Criminal Justice Mental Health Standards, Standard 7-6.3

"See generally Foucha v. Louisiana, 504 U.S. 71, 88-89 (1992 )

(O'Connor, J., concurring in part and concurring in the judgment); United

States v. Balint, 258 U.S. 250 (1922); Morisette v. United States, 342 U.S.

246 (1952); but see United States v. X-Citement Video, Inc., 513 U.S. 64,

78 (1994),

(assigning the decision about asserting a defense of insanity

to defendants who are competent), with Standard 7-4.2(c)

(requiring defense counsel to raise the competency issue

whenever counsel has a good faith doubt about defendant's

compete ace).

All of these factors demonsirate that the constitutional

status oi the requirement that defendant be competent to stand

trial is sui generis in our criminal justice system. As a result,

the evaluations by mental disabilities professionals of

possible incompetence to stand trial are different in kind from

evaluations for other purposes, and should receive the most

rigorous protection.

B. Adverse Use of Information Disclosed in

Competence Evaluations Impairs Their

Clinical Accuracy and, as a Result, Their

Legal Utility.

Clinical evaluations of a defendant's competence to stand

‘trial, as with other professional evaluations of an individual s

mental condition, depend upon the clinician's ability to

acquire pertinent facts. Mental” disability professionals

conducting such evaluations need all available relevant data,

including vital information from the individual being

evaluated, in order to ensure a meaningful assessment of the

defendant’s understanding of the charges and ability to assist

counsel. See Thomas Grisso, Evaluating Competencies:

'? Similarly, it is highly unusual, absent evidence of defendant's

incompetence, to allow the prosecution to insist upon an insanity defense

or to permit trial courts to assert the issue sua sponte, see ABA Cc riminal

Justice Mental Health Standards, Standard 7-6.3(b) and accompanying

commentary. By contrast, this Court has held that courts have h,

constitutional obligation to act upon their doubts about a defendant $

competence to stand trial, Drope, 420 U.S. at 177, and the American Bar

Association has recommended that prosecutors be placed under a similar

requirement. See ABA Standard 7-4.2(b) and accompanying

commentary.

Forensic Assessments and Instruments 11 (1986). This is true

whether the defendant is thought to have mental illness,

mental retardation, or both.'? Assuring the- accuracy of the

factual basis for an assessment of competence requires a

considerable level of openness and willingness to participate

on the part of the defendant.

A review of the kinds of inquiries that a qualified mental

disability professional should make during such an evaluation

reveals that inculpatory information is likely to be disclosed

in a properly conducted interview. For example, when

initially assessing the general level of defendant's

functioning, the evaluator may simply ask, “Can you tell me

how you happened to come here?”'* Even so basic a question

may elicit a self-incriminatory response. Similarly, “Can you

tell me what it is that they are accusing you of having done?”;

“What do you think is most likely to happen to you when you

go to court?”; and “How do you intend to plead?” may

'* Assessment of competence to stand trial in defendants with mental

retardation is a particularly sensitive clinical endeavor that is only recently

being addressed in the scholarly literature. Deborah K. Cooper & Thomas

Grisso, “Five Year Research Update 1991-95: Evaluations for

Competence to Stand Trial,” 15 Behavioral Sciences & Law 347, 356

(1997). Recent research confirms the particular importance of

establishing rapport with defendants who have mental retardation in order

to increase the likelihood of accurate clinical evaluation. Kenneth

Appelbaum, “Assessment of Criminal Justice-Related Competencies in

Defendants with Mental Retardation,” 22 J. Psychiatry & Law 311, 317

(1994); Kenneth Appelbaum & Paul Appelbaum, “Criminal-Justice-

Related Competencies in Defendants with Mental Retardation,” 22 J.

Psychiatry & Law 483, 486-91 (1994); Richard J. Bonnie, “The

Competence of Criminal Defendants with Mental Retardation to

Participate in Their Own Defense,” 81 J. Crim. L. & Criminology 419

(1990).

'* This and the following quoted questions are suggested inquiries for

evaluators in commonly accepted assessment instruments, which are all

found at Thomas G. Gutheil & Paul S. Appelbaum, Clinical Handbook of

Psychiatry and the Law 291-294 (3d ed. 2000).

produce similar answers, particularly from unsophisticated or

mentally impaired defendants.

Even more clearly, explorations of potential plea-

bargaining, and the ability to comprehend its implications, are

likely to elicit incriminating statements:

I don’t know what is really going to happen, but let's

just say that your lawyer told you that he [or she] didn’t

think you stood a chance of being found innocent, but

that if you pled guilty he [or she] could make a deal with

the district attorney to get you off with only a suspended

sentence. Could you go along with that? Why [or why

not]? What do you have to gain? What do you have to

lose? '°

These and similar questions are not only commonly

employed, but they also represent sound clinical practice.

Such a probing inquiry is what provides the clinical evaluator

with the data necessary to provide the court with a full and

reliable assessment of the defendant's ability to understand

the charges and the trial and to assist counsel.

'S {d. at 292. Both the relevance and the likelihood of such questions

are magnified by this Court's ruling that the test in Dusky v. United States,

362 U.S. 402 (1960), is applicable to the issue of competence to enter into

a plea agreement. Godinez v. Moran, 509 U.S. 389, 398 (1993).

‘Such potentially incriminatory questions are not limited to

defendants who have mental illness, but are comparable to evaluative

techniques employed in evaluating defendants with mental retardation or

dual diagnoses. See, e.g., Caroline Everington, “The Competence

Assessment for Standing Trial for Defendants with Mental Retardation

(CAST-MR): A Validation Study,” 17 Crim. Justice & Bekavior 147

(1990).

'7 More than four decades ago, this Court made clear that an

i ily involves important

assessment of competence to stand trial necessarily invo

cognitive and functional issues and not merely whether “the defendant [is]

oriented to time and place and [has] some recollection of events.” Dusky,

362 U.S. at 402.

aap ——es . —s

If the defendant is not willing to speak freely and candidly

with the mental disability professional conducting the

assessment, the evaluator will frequently be unable to

produce a reliable assessment of the defendant’s mental

condition. A significant degree of trust between the client

and the mental disability professional is essential to establish

the kind of working relationship that permits the accurate

evaluations that the criminal courts require.

In the context of mental health treatment, similar

considerations have led courts,'® legislatures,'? and

professional organizations in the field of mental disabilities 7°

“This Court has recently drawn the distinction between mental health

treatment and that for physical illness:

Effective psychotherapy, by contrast, depends upon an atmosphere

of confidence and trust in which the patient is willing to make a

frank and complete disclosure of facts, emotions, memories, and

fears. Because of the sensitive nature of the problems for which

individuals consult psychotherapists, disclosure of confidential

communications made during counseling sessions may cause

embarrassment or disgrace. For this reason, the mere possibility of

disclosure may impede development of the confidential relationship

necessary for successful treatment.

Jaffee v. Redmond, 518 U.S. 1, 10 (1996).

It is this concern for candid communication that has led every state

to recognize a privilege protecting the confidentiality of communications

between mental disability professionals and their clients. /d., 518 U.S. at

12 n.11 (1996). See generally John Parry & Eric Y. Drogin, Criminal

Law Handbook on Psychiatric and Psychological Evidence and

Testimony 35-44 (2000).

” For example, amicus American Psychiatric Association provides:

Psychiatric records, including even the identification of a person as

a patient, must be protected with extreme care. Confidentiality is

essential to psychiatric treatment. This is based in part on the

special nature of psychiatric therapy as well as the traditional ethical

relationship between physician and patient. Because of the

sensitive and private nature of the information with which the

psychiatrist deals, he/she must be circumspect in the information

to insist on strict ethical rules governing di '!osure and

confidentiality of information about patients.

Although the expectation of confidentiality is more limited

in the context of an evaluation of competence to stand trial

than is true for patients seeking treatment, in the sense that

defendants know that a report will be issued, parallel

considerations apply. See Paul S. Appelbaum, “Con-

fidentiality in the Forensic Evaluation,” 7 Int'l J. Law &

Psychiatry 285 (1984). As in all evaluations, the subject’s

candor will be directly dependent on his or her expectations

about the use that will be made of the information. Doubts

about how the revelations might subsequently be used by

prosecutors, on issues other than competence to stand trial,

will surely inhibit candid and open participation in the

evaluation.

If the defendant sits mute, or guardedly responds as if

testifying at the penalty phase of a capital trial, or is

instructed by counsel not to be forthcoming, the mental

disability professional is unlikely to be able to acquire the raw

materials essential to a reliable assessment. Gary B. Melton

that he/she chooses to disclose to others about a patient. The

welfare of the patient must be a continuing consideration.

American Psychiatric Association, The Principles of Medical Ethics, with

Annotations Especially Applicable to Psychiatry 5-6 (1995). See also

American Psychiatric Association, Guidelines on Confidentiality,

reprinted at 144 Am. J. Psychiatry 1522 (1987), American Psychological

Association, Ethical Principles of Psychologists and Code of Conduct,

Principle 5.02 (“Maintaining Confidentiality”), reprinted at 47 American

Psychologist 1597, 1606 (1992); American Academy of Psychiatry and

the Law, Ethical Guidelines for the Practice of Forensic Psychiatry

Section II, quoted in Gary B. Melton, et al. Psychological Evaluations for

the Courts: A Handbook for Mental Health Professionals and Lawyers 87

(2d ed. 1997); American Psychology-Law Society, Specialty Guidelines

for Forensic Psychologists, reprinted at 15 Law & Human Behavior 655,

660 (1991) (also endorsed by the American Academy of Forensic

Psychology).

Oe ce

et al., Psychological Evaluations for the Courts: A Handbook

for Mental Health Professionals and Lawyers 88 (2d ed.

1997). And if the professional refrains from asking probing

questions for fear of uncovering facts directly relevant to

other legal issues, the evaluation will be similarly impaired.

As a result, the ability of courts to obtain a fair and reliable

assessment of defendant’s competence is greatly diminished.

C. The Crucial Nature of Competence to Stand

Trial Requires Vigilant Protection of Defense

Counsel’s Right to Seek a Competence

Evaluation.

If a defendant is indigent, the only means defense counsel

may have to obtain a clinical evaluation of his competence to

stand trial is to request the trial court to appoint such an

expert. A central issue in this case is what conditions can be

placed on defense counsel’s decision to seek the appointment

of such an evaluator.

Penry’s counsel requested the appointment of a mental

disability professional to evaluate his competence to stand

trial in 1977, and Dr. Felix Peebles was appointed to conduct

the examination and prepare a report on the issue of

competence.*' Defendant cooperated with this evaluation,

*! Dr. Peebles in 1977 was appointed by the trial court pursuant to

former Tex. Code Crim. Proc. Ann., art. 46.02 (Vernon 1966), which

allowed only for the appointment of a neutral court expert who was

required to report to all parties and the court. But see Ake v. Oklahoma,

470 U.S. 68 (1985). Regarding that statute and its successors, Tex. Code

Crim. Proc. Ann., arts. 46.02, Sec. 3(a) and 46.03, Sec. 3(a) (Vernon

Supp. 2001), and in the wake of this Court's holding in Ake, the Texas

Court of Criminal Appeals found that these statutes were inadequate to

protect a defendant's right to confidential expert mental health assistance:

We reject the notion that a “court's expert" necessarily fulfills the

role of psychiatric assistant to the indigent accused envisioned by

Ake. Such a “court's expert" may well serve an important function

in identifying whether sanity will be a significant factor at trial. But

in an adversarial trial itself, judge and jury necessarily play a

which found him to have mental retardation, but which

concluded that he was competent to stand trial. Defendant

did not make use of the Peebles report in his own defense, nor

did he place his mental status in issue; he pleaded guilty and

the case ended.

A defense counsel’s right to seek an evaluation of

defendant’s competence cannot be burdened with evaluating

the risk of the prosecution using disclosed information and

clinical impressions on the subjects of guilt or punishment.

Since the trial of an incompetent defendant is constitutionally

unacceptable, defense counsel who has a good faith reason to

doubt defendant’s competence to stand trial must be

unfettered in choosing to seek a clinical evaluation. In

particular, counsel should not be required to calculate the

likelihood that defendant might disclose self-incriminating

information. Counsel concerned about what defendant might

reveal to the mental disability professional would sometimes

be chilled from exercising the right to seek such an

evaluation. Such a chilling effect could produce substantial

numbers of trials of factually incompetent defendants. Cf.

Cooper v. Oklahoma, 517 U.S. 348, 363 (1996).

Granting the prosecution complete access to all

information acquired in a competence evaluation, for use at

any stage of any future criminal proceeding, renders the

decision to seek an evaluation a costly one. The price exacted

from defendant for exercising the right to be free from trial

while incompetent is so exorbitant that it risks depriving him

of the right altogether.

passive role. In that context, “court's expert” is an oxymoron. It is

the parties, not the judge, who supply the evidence from which the

jury is to distill the truth.

DeFreece v. State, 848 S.W.2d 150, 159 (Tex. Crim. App.), cert. denied,

510 U.S. 905 (1993).

This Court has long recognized that the state may be

precluded from burdening the exercise of one constitutional

right by requiring the relinquishment of another. Permitting

the prosecution’s use of material gathered during a pretrial

evaluation of competence to stand trial compels defense

counsel to choose between the client's right not to be tried

while incompetent and the right against self-incrimination.

Absent a particularly powerful governmental interest, it is

generally suspect when, as Justice Harlan wrote for the Court,

“one constitutional right should not have to be surrendered in

order to assert another.” Simmons v. United States, 390 U.S.

377, 394 (1968).” In this case, as in Simmons,”* there are no

state interests that even approach that magnitude. Here, the

state’s only interest in using the information obtained in the

competence evaluation is that it believed—correctly—that the

report would have emotional force with the jury. This is

hardly a sufficient justification.

D. Careful Balancing of the Diverse Interests in

the Criminal Justice System is Reflected in the

ABA Criminal Justice Mental Health

Standards.

Amici believe that constitutional principles and sound

professional practice are fully consistent regarding

*? Amici do not, of course, contend that reasonable conditions can never

be p. ced on the exercise of constitutional rights. See generally Peter

Westen, “Incredible Dilemmas: Conditioning One Constitutional Right on

the Forfeiture of Another,” 66 /owa L. Rev. 741 (1981). But to be

“tolerable,” such conditions must be supported by particularly weighty

State interests, the type of interests that are wholly absent here. See, e.¢..

Lefkowitz v. Cunningham, 431 U.S. 801, 807-08 (1977); Mcintyre v. Ohio

Elections Commission, 514 U.S. 334, 348 (1995).

** In Simmons, defendant's testimony at a suppression hearing that he

owned a particular suitcase (in order to establish his standing to raise

Fourth Amendment righis) was held inadmissible when used by the

prosecution at trial on the issue of guilt. 390 U.S. at 394.

competence evaluations. Indeed, only a clinically sensitive

inteypretation of the constitutional questions involved can

produce the kind of reliable evaluative information that

criminal trial courts require for fair adjudications. A

particularly thoughtful effort at reconciling the two

perspectives is to be found in the American Bar Association's

Criminal Justice Menta! Health Standards. These Standards

were the product of an_ intensive interdisciplinary

collaboration over the course of three years. Amici

commend them to the Court's attention as a balanced

approach to this issue, which lies at the nexus of the mental

disabilities professions and the law.

The goals of the Standards that govern evaluations by

mental disability professionals are (1) assuring the accuracy

and reliability of the information they contain so that the

interests of the trier of fact are promoted, and (2) balancing

the rights of the defendant with the legitimate interests of the

prosecution. Therefore, the Standards are based not only on

legal principles, including those announced by this Court, but

also on sound professional practices of the various disciplines

of mental disability professionals. A salutary and practical

feature of the Standards is that they encompass both the needs

of the criminal justice system and the sound clinical judgment

of experienced psychiatrists, psychologists, and other mental

disability professionals.

* See B.J. George, Jr., “The American Bar Association's Mental

Health Standards: An Overview,” 53 Geo. Wash. L. Rev. 338 (1985).

Professionals from clinical and mental disability organizations were part

of the deliberative process in developing the Standards. The “Related

Standards” annotation after each Standard cross-references not only other

ABA Standards and the Association's Rules for Professional Conduct, but

also the comparable standards and guidelines of mental disability

associations, including amici. See, e.g., ABA Standard 7-3.2

at 73-74 (“Related Standards”).

Analyzing the question posed by this case under the ABA

Standards, the starting point is Standard 7-4.6(a), which

provides, in relevant part,

Any information or testimony elicited from

defendant at any hearing or pone, Mon on com 7

- + + » and any information derived therefrom and any

testimony of experts or others based on information

elicited from the defendant, should be considered

privileged information and should be used only in a

proceeding to determine the defendant’s competence to

stand trial and related treatment or habilitation issues.

Id. at 198, The Standard then creates an exception that

anticipated this Court’s ruling in Buchanan v. Kent

U.S. 402 (1987): ai

The defendant may waive use of information contained

in a report evaluating competence to stand trial by using

the report or parts thereof for any other purpose. The

defendant’s use of the evaluation report for a purpose

other than a determination of competence to stand trial

should be considered a waiver of any privilege of

oe and the prosecutor should be permitted to

use report or any part of the report, subj

the applicable rules of evidence. —

Id. In codifying Estelle and anticipating Buchanan

Standard “harmonizes the conflict see he the pale

system's need to compel defendant cooperation in court-

ordered competency evaluations and defendant's privilege

against self-incrimination.” /d., Comment at 199. The

drafters of the Standard reached the conclusion regarding

privilege not only because of this Court’s holding in Estelle,

but also because given “the nature of the techniques

commonly used by qualified evaluators, a more serious

infringement of self-incrimination protections may ensue than

in the stationhouse interrogation severely restricted” by this

Court’s holding in Miranda v. Arizona, 384 U.S. 436 (1966).

Id.. Comment at 199-200. See generally Dickerson v. United

States, 120 S.Ct. 2326 (2000). Therefore, the Standard

“provides the guid pro quo for compelled cooperation on the

part of defendants in the form of a strict prohibition against”

prosecutorial use of the evaluation for any purpose other than

a determination of competency. ABA Standard 7-4.6(a),

Comment at 201.

But while the Standards’ recognition of an evidentiary

privilege for defendant is constitutionally based, its sanction

for prosecutorial use in rebuttal is grounded in principles of

fairness. “Only if a defendant determines to submit an

evaluating professional’s expert testimony or report on some

issue other than present mental competence will the privilege

be waived, thereby opening up the contents and evidence

derived from them” to use by the State. Jd. Comment at 201.

In this way, the Standard protects the defendant from

becoming the “deluded instrument” of his own conviction or

execution, while protecting the State’s interest in avoiding an

unfair advantage to a defendant who might wish to use the

report for his own purposes while denying the prosecution a

similar opportunity.

The Standards throughout emphasize the singular qualities

of competency evaluations and the need to prevent the

affirmative use by the prosecution of information gained

during such evaluations. While Part IV of the Standards

solely discusses competence to stand trial, Part III addresses

all pretrial evaluations and expert testimony, including those

evaluations performed for other purposes in the criminal

justice system. For example, Standard 7-3.2(a) provides that

no statement from a mental health or mental retardation

professional or information derived from such a statement or

opinion of a clinical evaluator may be admitted into evidence

except in response to the issue of current competence, in

rebuttal, or if “otherwise relevant to an issue raised by

a Em |

defendant concerning defendant’s mental iti

defendant intends to introduce the amen ata ee

health or mental retardation professional to support the

defense claim on this issue.” Id. at 73 (emphasis supplied). In

the case at bar, neither Dr. Peebles’ opinion about prospective

dangerousness nor any of the testimony based on it was

petted to any mental condition issue or evidence that

monn a in the 1990 trial at either the guilt or the

The procedures for initiating evaluative examinations of a

pos t - addressed in Standard 7-3.5. Partic ularly

inent to this case is the provision regarding the topi

be addressed by a single report: . : ——

An evaluation of defendant’s

present mental competenc

Should not be combined with an evaluation i

defendant's mental condition at the time of the alleged

—_ = with an evaluation for any other purpose

unless defendant so requests or, for good

the court so orders. - veer Cnioeis

Standard 7-3.5(c) (emphasis supplied).2> In fact, the

necessity of this separation is codified in the Texas Statutes

which empower trial courts to order competency evaluations

See Tex. Code Crim. Proc., art. 46.02, sec. 3(d) (requiring “a

separate report setting forth the examiner’s observations and

findings concerning . . . whether the defendant is a person

25 :

A principal reason for this provision is the likelihood

oo) , 34 2 ' |

evaluator’s limited experience in conducting Aver te te tg

cause the evaluator to expand the limited focus of a mental evaluation >

ea ee treatment/habilitation, and dangerousness issues.”

omment at (emphasis supplied). Similarly, the ABA Standards

— the distinctions between testimony about competency matters and

omnes dangerousness. See, e.g., Standard 7-3.9(b). This is, of course, an

issue that this Court has addressed in the past, and the ABA had the

benefit of the opinion in Barefoot v. Estell i

oudbiedaeee efoot v. Estelle, 463 U.S. 880 (1983) when it

with mental illness . . . [or] mental retardation... .

(emphasis supplied); Sec. (h)(i) (requiring a separate report

for information or evaluation retarding insanity) (emphasis

supplied).

”?

But the shortcomings of joining distinct clinical issues in

one report initially used to determine Penry’s competence to

stand trial for rape in 1977 would not have created a

constitutional issue had the report not been used affirmatively

by the prosecution at Penry’s murder trial thirteen years later.

E. The Right to Seek a Competence Evaluation

Cannot Be Burdened By Concern About Its

Subsequent Adverse Use.

This Court has already visited the issue of the inappropriate

use of clinical evaluations in capital cases. In Estelle, 451

U.S. 454 (1981), the prosecution in the penalty phase of a

capital case produced testimony from a psychiatrist who had

conducted an evaluation of defendant’s competence to stand

trial. The Court made clear that defendant could not be made

“the deluded instrument of his own execution,” id. at 462,

through testimony from an evaluator who had given no

warning of the use to which the information would be put.

The Fifth Amendment was held to protect statements and

conclusions derived from such an interview.” Noting that

“the Fifth Amendment privilege is as broad as the mischief

against which it seeks to guard,” 451 U.S. at 467 (internal

quotations omitted), the Court held that Smith could

not be compelled to respond to a psychiatrist if his

statements c{ould] be used against him at a capital

* Estelle also relied independently upon a basis in the Sixth

Amendment. 451 U.S. at 469. But since the instant case involves an

evaluation from a previous criminal prosecution for another crime, claims

based on the right to counsel would be precluded by this Court's ruling in

Maine v. Moulton, 474 U.S. 159, 179-80 n.16 (1985) (Sixth Amendment

right to counsel is case-specific).

sentencing proceeding. Because respondent did not

voluntarily consent to the pretrial psychiatric

examination after being informed of his right to remain

silent and the possible use of his statements, the State

could not rely on what he said to Dr. Grigson to establish

his future dangerousness.

451 U.S. at 468.

The central teaching of Estelle is that a clinical interview,

conducted for the sole purpose of evaluating defendant’s

competence to stand trial and portrayed to defendant as such,

could not be transformed into an interrogation of that

unwitting defendant for subsequent use to buttress the State’s

argument for aggravation in a capital trial.

Obviously, different considerations come into play when

the defendant has raised a mental disability-based defense,

entitling the prosecution to explore possible bases for

rebuttal. Thus, in Buchanan v. Kentucky, 483 U.S. 402

(1987), the reach of Estelle did not extend to the evaluation of

a defendant, initiated jointly with the defense for the purpose

of involuntary hospitalization as a part of the “defense

Strategy ... to establish the ‘mental status’ defense of extreme

emotional disturbance.” 483 U.S. at 423. The Buchanan

Court accepted the prosecution’s use of the report in question

“for this limited rebuttal purpose.” /d. at 424. Thus the

teaching of Buchanan, which is really only an elaboration of

the principle announced in Estelle, is that while the State

generally cannot make use in the penalty phase of an

evaluation performed without giving adequate warning to the

defendant, it is not precluded from using such a report in

rebuttal to an argument made by the defense. This is nothing

more than the obvious principle of basic fairness, that a

defendant may not place his mental condition in question in a

criminal trial and then deprive the prosecution of a

meaningful opportunity to respond. See Estelle, 451 U.S. at

465. Accord ABA Standard 7-6.4, Comment at 362. A

defendant does not become the “deluded instrument” of his

own conviction when he and his lawyer have decided to use

mental condition as a defense.

By contrast, Penry asserted no defense based on mental

disability in the case for which the Peebles report was

prepared. Indeed, that case never resulted in a trial—rather,

the competency finding cleared the way for resolution of the

case through a plea of guilt accepted by the trial court.

Therefore, the prosecution cannot contend that the defendant

somehow initially “opened the door” to use of this report by

the State.

Furthermore, the defense never used the fact of mental

retardation to counter the State’s claim of prospective

dangerousness, as embodied in the special question. The

price of making a mitigation claim based on mental

retardation cannot be that the prosecution is thereby entitled

to use otherwise-barred Estelle material to support a

dangerousness claim. By introducing evidence of mitigating

circumstances, the defense does not open the door to

unrelated evidence in aggravation. Were the rule otherwise,

defendants would be forced to choose between their Fifth

Amendment right to remain silent, on the one hand, and their

virtually unqualified right to present evidence in support of

mitigation, on the other. See Skipper v. South Carolina, 476

U.S. 1 (1986); Penry 1, 492 U.S. at 327-28.

CONCLUSION

For these reasons, amici urge reversal of the judgment of

the Court of Appeals.

Of Counsel:

STANLEY S. HERR

515 W. Lombard Street

Baltimore, MD 21201

(710) 706-7214

January 11, 2001

Respectfully submitted,

JAMES W. ELLIS

Counsel of Record

MICHAEL B. BROWDE

1117 Stanford, NE

Albuquerque, NM 87131

(505) 277-2146

JEFFREY J. POKORAK

St. Mary’s Univ. School of Law

2507 NW 36th Street

San Antonio, TX 78228

(210) 431-5729

Counsel for Amici Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.