# Amicus Curiae Brief — Penry v. Johnson

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0480%3A15

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 916

## Text

TaN jt Deo}

No. 00-6677

Supreme Court of the United Statewm 11 2001

JOHNNY PAUL PENRY, | OFFICE OF THE CLERK
Petitioner,

V.

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

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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)

il
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

13

16

23

28
30

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

1V

TABLE OF AUTHORITIES—Continued

Vv

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

vi
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

17

17

20

14

17

17

24

———_—

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
ea

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.

2

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

3

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.

4
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.

5

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

6

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.

7

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

8

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

9

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).

10

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

“
:
t

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.

12

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.

13

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).

14

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).

— <__—-— <><

15

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),

16

(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.

17

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).

18

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

19

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

20

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

21

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

22

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).

23

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.

24

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”).

25

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

26

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 |

27

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

28

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).

29

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

30

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0480%3A15. Public record. Not legal advice.