Opposition Brief — Texas v. De Freece

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Supreme Court, U.S.

ORIGINAL sb we

SEP 8 1993

OFFICE OF THE Ch na

ee ”

No. 92-1882

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1992

THE STATE OF TEXAS,

Petitioner

HAROLD LINDSAY DEFREECE,

Respondent

ON PETITION FOR A WRIT OF CERTIOR

TO THE TEXAS COURT OF CRIMINAL APP

ALS

EALS

RESPONDENT’S BRIEF IN OPPOSITION

MARK STEVENS

310 S. St. Mary’s Street

Tower Life Building, Suite 1505

San Antonio, TX 78205-3192

(512) 226-1433

State Bar No. 19184200

Counsel for Respondent

QUESTION PRESENTED

Did the Texas Court of Criminal Appeals correctly hold that an

indigent accused, who has a_= substantial history of mental

impairment and whose sole defense is insanity, is entitled under

Ake v. Oklahoma, 470 U.S. 68 (1985), to appointment of a

psychological expert to assist in the evaluation, preparation, and

presentation of his defense, rather than the "disinterested" expert

provided by Texas law?

i ca i,

TABLE OF CONTENTS

Page

QUESTION PRESENTED Se le an ee ee ee ee oie ee ae ee a se i ee ee Bh ee OE

TABLE OF AUTHORITIES ae ee ee ee ee ee ee ee ee ee ee ee ee ae

RESPONDENT’S BRIEF IN OPPOSITION Pee eee Oe ee ee ee ee er ee ee ee ee

OPINIONS BELOW oe Oa es ee Cae a ee i een a oe ae

JURISDICTION ee ee ee ee ee Se ee ae eg ee er ren oe eee Se Ot

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED oe a Ue ee oe ta ee

REASONS WHY THE PETITION SHOULD BE DENIED... eel er ae le ae eee

a AKE CLEARLY MANDATES APPOINTMENT OF AN ASSISTING EXPERT ae

Mx SRG. 5S Cee Ge Se Pee a kb ae Se ak ee ee 4

B. A_ Review Of The Cases Reveals No Problem With

ee ee ng lk kk ck lk kk else ee lo kth a &

Cx Scholarly Commentary Overwhelmingly Supports

The Right To An Assisting Expert ..........8

Kis CONTRARY TO WHAT THE PETITIONER ASSERTS, THE AUTHORITY

CONFLICTING WITH DEFREECE IS INSUBSTANTIAL .... oar eat ee ee

III. THERE ARE NO IMPORTANT POLICY OR COMITY CONSIDERATIONS

MILITATING AGAINST THE DECISION BELOW a ns ae ae. ey ae ee ee ai

A. DeFreece Will Not Open The Floodgates To Multiple

Experts, Or To Claims Of Ineffective Assistance Of

Pe 6 6 aS ee ee Oe ae te ae ee a ee 11

B. Neither The Evidence Nor Common Sense Supports

Petitioner’s Attempt to Raise The Financial

Bee «8 6 ee ae ee ewe ee a eae . - / 13

=; Mr. DeFreece Did Not Forfeit His Right To An

ee a aaa a aaa eee 13

Vs THE PRESENT CASE PROVES THE WISDOM OF AKE . ioe ok ee 16

CONCLUSION oe OO eo OR AS ee Se ek ee a ee en a?

CERTIFICATE OF SERVICE ee Se ee on ee ea ee ee ee A ee” 18

iii

TABLE OF AUTHORITIES

Cases

Ake v. Oklahoma, 470 U.S. 68

(1985) a a ee ee ee

Cowley v. Stricklin, 929 F. 2d 640

(11th Cir. 1991) . 2

Cuyler v. Sullivan, 446 U.S. 335

oo Pr ee .

Djiadi v. State, 528 A. 2d 502

(Md. Ct. Spec. App. 1987)

DeFreece v. State, 848 S.W. 2d 150

(Tex. Crim. App. 1993)

Granviel v. Lynaugh, 881 F. 2d 185

(Sth Cir. 1989), cert. denied, 110 S.Ct.

(1990)

Liles v. Saffle, 945 F. 2d 333

(10th Cir. 1991)

Lindsay v. State, 330 S.E. 2d 563

(Ga. 1985) po eta eee Seek

Marshall v. United States, 423 F. 2d 1315

(10th Cir. 1970) ey er soa

Palmer v. State, 486 N.E. 2d 477

(Ind. 1985) . ss

Smith v. McCormick, 914 F. 2d 1153

(9th Cir. 1990) a?

State v. Gambrell, 347 S.E. 2d 390

(N.C. 1986) BON ak lic ae i

State v. Hoopii, 710 P. 2d 1193

(Ha. 1985) eae pn re

Terry v. Rees, 985 F. 2d 283

(6th Cir. 1993)

United States v. Chavis, 486 F. 2d 1290

(O.C. Cir. 1973) Pee rieeae

United States v. Crews, 781 F. 2d 826

(10th Cir. 1986) rene ae

Page

passim

9,10

4,9,10,11,12,15

2577

United States v. Sloan, 776 F. 2d 926

Fae SEs SOE se oe a ces eae ae ee ee ce en tae ae

Constitutions and Statutes

mvs! Seen 5) GG ne ee ea ak eee a a ee eae ee ee

Tex. Code Crim. Proc. Ann. art. 26.05(a)

(Vernon 1989) ee a he ek Cae he ol A te Se oe la ee ey 13

sen. Coge Crim. Proc., OFt. 46.63 6 3 -«:s a% Vs & «ee eae ee

Tex. Rev. Civ. Stat. Ann. art. 5547

(Vernon 1977) cre, $e RO OS Ley eee we ee ae ce cae ae ee

18 U.S.C. § 3006A(e) Se ee ee Se el Soe ee eee er ee ee 13

26 U.S.C. § 1257 se & oo 6 ee Oe 6 Se we Rk ee Ae ee eee

Treatises

After Ake: Implementing the Tools of an

Adequate Defense, 7 Pace

aes Bee COeeeE 3s we ew ee et ee he et et ee a a ee

Ake v. Oklahoma: A Question of Experts, 12

Okla.City U.i.Rev. 368 (1987) ....5+-+.s2seectvseenvervsaecrild

Comment, Nonpsychiatric Expert Assistance and

the Requisite Shwoing of Need: A Catch-22 in

the Post-Ake Criminal Justice System,

7 Deny Ses Dee -Ceeee) 6 6 6 6 os 6 6 6 eee ew eae we ew ee 8

Dubia, The Defense Right to Psychiatric

Assistance In Light of Ake v. Oklahoma, Army

Law., Oct. 1987, at 15 ... a ee ee a

Due Process and Psychiatric Assistance: Ake

vy. Oklahoma, 21 Tulsa L.J. 121 (1985) ......2.+e.e «ec cee. 9

Expert Services and the Indigent Criminal

Defendant: The Constitutional Mandate of Ake

v. Oklahoma, 84 Mich.L.Rev. 1326 (1986) ..........4..8

Fourteenth Amendment -- Due Process and an

Indigent’s Right to Court-Appointed Psychiatric

Assistance in State Criminal Proceedings, 76

J. Crim.L & Crim. 1065 ti } Pree ee ee se

Psychiatric Assistance for Indigent Defendant’s

Pleading Insanity: The Michigan Experience,

20 U.Mich.J.L.Reform 907 (1987) ....... boa e, tilet Ah a oe

Showlater & Fitch, Objectivity and Advocacy in

Forensic Psychiatry After Ake Vv. Oklahoma,

15 J. Psychiatry & L. 177 (1987) ........ Pie Ter aah eee

The Right to a Partisan Psychiatric Expert:

Might Indigency Preclude Insanity?, 61

Poeewememws Oe (AUG)... kk tt, Te ee

The Supreme Court: Leading Cases, 99

OO i i da ce ng

No. 92-1882

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1992

THE STATE OF TEXAS,

5 Petitioner

Vv.

HAROLD LINDSAY DEFREECE,

Respondent

RESPONDENT’S BRIEF IN OPPOSITION

TO THE HONORABLE JUSTICES OF THE SUPREME COURT:

NOW COMES Harold Lindsay DeFreece, respondent, by and through

his attorney of record, and files Respondent’s Brief in Opposition

to the Petition for Writ of Certiorari filed by the State of Texas.

OPINIONS BELOW

The respondent Harold Lindsay DeFreece respectfully requests

that this Court deny the Petition for writ of Certiorari seeking

review of the Texas Court of Criminal Appeals’ opinion in this

case. That opinion is reported at 848 S.wW. 2d 150 (Tex. Crim. App.

1993), and is attached as Appendix A.

JURISDICTION

Petitioner has invoked this Court’s jurisdiction to review the

judgment of the Texas Court of Criminal Appeals pursuant to 28

U.S.C. § 1257. Respondent’s Brief in Opposition is filed on or

before September 10, 1993, as requested by the Court.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Section One of the Fourteenth Amendment of the United States

Constitution provides, in pertinent part:

All persons born or naturalized in the United

States and subject to the jurisdiction thereof

are citizens of the United States and of the

State wherein they reside. No State shall

make or enforce any law which shall abridge

the privileges or immunities of citizens of

the United States; nor shall any State

deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction the

equal protection of the laws.

Article 46.03 § 3 of the Texas Code of Criminal Procedure

provides, in pertinent part:

(a) If notice of intention to raise the

insanity defense is filed under Section 2 of

this article, the court may, on its own motion

or motion by the defendant, his counsel, or

the prosecuting attorney, appoint

disinterested experts experienced and

qualified in mental health and mental

retardation to examine the defendant with

regard to the insanity defense and to testify

thereto at any trial or hearing on this issue.

* * *

(dq) A written report of the examination

shall be submitted to the court within 20 days

of the order of examination, and the court

shall furnish copies of the report to the

defense counsel and the prosecuting attorney.

The report shall include a description of the

procedures used in the examination and the

examiner’s observations and findings

pertaining to the insanity defense. The

examiner shall also submit a separate report

setting forth his observations and findings

concerning:

(1) whether the defendant is

presently mentally ill and requires court-

ordered mental health services; or

(2) whether the defendant is a

mentally retarded person as defined in the

Mentally Retarded Persons Act of 1977 (Article

5547-300, Vernon’s Texas Civil Statutes). -

* * *

REASONS WHY THE PETITION SHOULD BE DENIED

Petitioner asks that its petition "be granted to Clarify the

holding of Ake v. Oklahoma .. . and resolve a substantial

conflict among the circuits and state courts of last resort."

[Petition, p. 7] In fact, there is no need to Clarify Ake, and

there is no substantial conflict among the courts. Nor are there

any other "special and important reasons" for granting this

petition. See S. Ct. R. 10.1. Accordingly, the petition should be

denied.

AKE CLEARLY MANDATES APPOINTMENT OF AN ASSISTING EXPERT

In this case, the Texas Court of Criminal Appeals relied on

Ake _v. Oklahoma, 470 U.S. 68 (1985), to hold that due process

required the appointment, not of a "disinterested" psychological

expert who would report to the court, the prosecution and the

defense, but rather, an expert who would assist Mr. DeFreece in the

evaluation, preparation and presentation of his defense. DeFreece

v. State, 848 S.W. 2d 150, 160 (Tex. Crim. App. 1993).

Petitioner challenges this holding, asserting that it is

unclear whether Ake requires the appointment of an assisting expert

in cases such as Mr. DeFreece’s. According to the petitioner,

certiorari should be granted to "Clarify" Ake.

Petitioner errs in aeduing that Ake is unclear. That case

plainly requires the appointment of a psychological expert to

assist in the evaluation, preparation and presentation of the

defense. And, the overwhelming number of courts and scholarly

commentators who have considered the matter agree.

Ake Is Clear On Its Face

The simplest and most complete answer to the state’s charge

that Ake does not clearly require an assisting expert is found in

the text of that opinion. Ake begins by noting that the defendant

must have a "fair opportunity to present his defense." Id. at

76(emphasis supplied). The Constitution requires that indigents

have meaningful access to justice; "mere access to the courthouse

doors does not by itself assure a proper functioning of the

adversary process." Thus, "a criminal trial is fundamentally

unfair if the State proceeds against an indigent defendant without

making certain that he has access to the raw materials integral to

the building of an effective defense. Id. at 77(emphasis

supplied). Psychiatric assistance "may well be crucial to the

defendant’s ability to marshal his defense. Id. at 81(emphasis

supplied). Given the inexactitude of the science of psychiatry, it

is often necessary for juries to "resolve differences in opinion

within the psychiatric profession on the basis of evidence offered

by each party. Id. at 81(emphasis supplied). "(P]sychiatrists for

each party enable the jury to make its most accurate determination

of the truth on the issue before them." id(emphasis supplied).

Accordingly, due process requires "access to a competent

psychiatrist who will conduct an appropriate examination and assist

in evaluation, preparation, and presentation of the defense." Id.

at 83(emphasis' supplied). "(Wjithout the assistance of a

psychiatrist to conduct a professional examination on issues

relevant to the defense, to help determine whether the insanity

defense is viable, to present testimony, and to assist in preparing

the cross-examination of a State’s psychiatric witnesses, the risk

of an inaccurate resolution of sanity issues is extremely high.

With such assistance, the defendant is fairly able to present at

least enough information to the jury, ina meaningful manner, as to

permit it to make a sensible determination." Id. at 82(emphasis

Supplied). Psychiatric witnesses "know the probative questions to

ask of the opposing party’s psychiatrists and how to interpret

their answers." Id. at 81(emphasis supplied). Finally, the Court

noted that Mr. Ake "was denied the means of presenting evidence to

rebut the State’s evidence of his future dangerousness." Id. at

83. "Without a psychiatrist’s assistance, the defendant cannot

offer a well-informed expert’s opposing view, and thereby loses a

Significant opportunity to raise in the jurors’ minds questions

about the State’s proof of an aggravating factor." Due process

requires psychiatric assistance where "the relevance of responsive

psychiatric testimony [is] so great. ..." id. at 84(emphasis

supplied).

In light of the emphasized language, no credible argument can

be made that Ake is unclear. When a psycholegical expert is

required, that expert must assist the defendant in evaluating,

preparing and presenting the defense to the jury. A

"disinterested" expert cannot do so. Certiorari is not needed to

Clarify Ake.

A_Review Of The Cases Reveals No Problem With

Understanding Ake

If petitioner is correct that Ake is unclear, the logical

place for this unclarity to manifest itself would be in opinions by

the lower courts. In fact, as DeFreece recognized, the case law is

virtually unanimous in interpreting Ake to require an assisting

expert.

For example, this precise question was decided in Cowley v.

Stricklin, 929 F. 2d 640 (11th Cir. 1991). There, the trial court

appointed a Dr. Habeeb, who reported to the court, the prosecution

and the defense. The court refused petitioner’s repeated requests

for psychiatric assistance in the preparation of a defense. Id. at

641. This was error.

The district court found that Dr. Habeeb was a

"qualified," "independent psychiatrist." This

may have been the case, but Dr. Habeeb did not

provide the constitutionally requisite

assistance to Cowley’s defense. Ake holds

that psychiatric assistance must be made

available for the defense. This assistance

may include conducting "a professional

examination on issues’7~ relevant to- the

defense," presenting testimony, and assisting

"in preparing the cross-examination of a

State’s psychiatric witnesses." Dr. Habeeb

performed none of these essential tasks on

Cowley’s behalf. Dr. Habeeb was called by the

prosecution and testified against Cowley at

both the competency hearing and the trial.

His testimony was that he had examined Cowley

and found him to be competent and that Cowley

showed no signs of schizophrenia or other

evidence of insanity at the time of the crime.

Dr. Habeeb did not assist in Cowley’s trial

preparation and obviously could not have

assisted Cowley in his own cross-examination.

Id. at 644(emphasis in original).

Other cases, decided both before and after Ake, have reached

the same conclusion: An indigent defendant in whose case insanity

is a significant factor is entitled to an expert to assist in the

evaluation, preparation, and presentation of the defense. E.gq.,

Terry v. Rees, 985 F. 2d 283, 284 (6th Cir. 1993); Liles v.

Saffle, 945 F. 2d 333, 340 (10th Cir. 1991); Smith v. McCormick,

914 F.2d 1153, 1157 (9th Cir. 1990); United States v. Crews, 781

F. 2d 826, 834 (10th Cir. 1986); United States v. Sloan, 776 F. 2d

926, 929 (10th Cir. 1985); United States v. Chavis, 486 F. 2d 1290,

1292 (D.C. Cir. 1973); Marshall v. United States, 423 F. 2d 1315,

~1319 (10th Cir. 1970); Lindsay v. State, 330 S.E. 2d 563, 567 (Ga.

1985); Palmer v. State, 486 N.E. 2d 477, 482 (Ind. 1985); State

v. Gambrell, 347 S.E. 2d 390, 395 (N.C. 1986).

Scholarly Commentary Overwhelmingly Supports The Right

To An Assisting Expert

Much scholarly commentary has been generated on this subject,

and the overwhelming bulk of it rejects the notion that a neutral

expert can satisfy Ake and the Constitution. Representative is the

following remark:

If in these cases the defendant’s right to

participate in the adversary process is to

have meaning, the defendant must have the

opportunity not only to ascertain the opinion

of an expert, but also to work with the expert

in the assessment and exposure of shortcomings

in the testimony of experts for the

prosecution.

Showalter & Fitch, Objectivity and Advocacy in Forensic Psychiatry

After Ake v. Oklahoma, 15 J. Psychiatry & L., 177, 183 (1987)

(emphasis supplied); see Comment, Nonpsychiatric Expert Assistance

and the Requisite Showing of Need: A Catch-22 in the Post-Ake

Criminal Justice System, 3 Emory L.J. 995, 1008 (1989); Dubia, The

Defense Right to Psychiatric Assistance in Light of Ake v.

Oklahoma, Army Law., Oct. 1987, at 15, 21-22; Note, Ake v.

Oklahoma: A Question of Experts, 12 Okla.City U.L.Rev. 385, 413

(1987); Note, Psychiatric Assistance for Indigent Defendant’s

eadin nsanity: he Michigan Experience, 20 U.Mich.J.L.Reform

907, 915 (1987); Note, After Ake: Implementing the Tools of an

Adequate Defense, 7 Pace L.Rev. 201, 239-240 (1986); Note, Expert

Services and the Indigent Criminal Defendant: The Constitutional

Mandate of Ake v. Oklahoma, 84 Mich.L.Rev. 1326, 1346-1355 (1986);

Note, The Right to a Partisan Psychiatric Expert: Might Indigency

Preclude Insanity?, 61 N.Y.U.L.Rev. 703, 725 (1986) ; Note, The

Supreme Court: Leading Cases, 99 Harv.L.Rev. 120, 136 (1985);

Note, Fourteenth Amendment -- Due Process and an Indiqent’s Right

to Court-Appointed Psychiatric Assistance in State Criminal

Proceedings, 76 J.Crim.L.& Crim. 1065, 1077 (1985); Note, Due

Process and Psychiatric Assistance: Ake v. Oklahoma, 21 Tulsa L.J.

121, 154 (1985).

II.

CONTRARY.TO WHAT THE PETITIONER ASSERTS, THE AUTHORITY

CONFLICTING WITH DEFREECE IS INSUBSTANTIAL

The Texas Court of Criminal Appeals noted that "Cejvery court

that has found the defendant did make an adequate showing that

insanity would be a significant factor, however, has also held that

Ake entitled him to more than an examination and testimony, if

favorable, from a neutral psychiatric expert -- every court, that

is, except the Fifth Circuit in Granviel v. Lynaugh, supra."

DeFreece v. State;-848 S.W. 2d 150, 157 (Tex. Crim. App. 1993).

Petitioner, on the other hand, asserts that "there in fact

exists a diversity of opinion so great that this Court should grant

review to clarify what Ake requires." (Petition, p. 7] In support

of this bold assertion, petitioner then specifically discusses only

two cases -- State v. Hoopii, 710 P. 2d 1193 (Ha. 1985) and Dijadi

v. State, 528 A. 2d 502 (Md. Ct. Spec. App. 1987). {[Petition, p.

8-9]

The court of criminal appeals distinguished both cases,

finding that there the Ake claims had been denied because the

defendants had not shown that insanity would be a significant

factor at trial. DeFreece v. State, 848 S.W. 2d 156. That is,

Since the defendants in those cases were not entitled to any

experts at all, those courts did not need to decide whether they

were entitled to assisting experts. Hoopii and Dijadi do not

conflict with DeFreece because they are not in point.

As noted, the court below found only a Single case

inconsistent with its holding: Granviel v. Lynaugh, 881 F. 2d 185

(Sth Cir. 1989), cert. denied, 110 S.Ct. 2577 (1990). There, the

federal court of appeals rejected defendant’s challenge to the

Texas statute, finding that the sole purpose of a psychiatric

examination is to enable an expert to form an opinion about the

defendant’s mental capacity. Accordingly, since the ability of the

neutral expert to discover the truth about sanity was not

compromised, there was no error. Id. at 191-92.

Respectfully, the analysis in Granviel misses the point. Even

assuming the sole purpose of an examination is to determine Sanity,

Ake very plainly declares that examination is not the sole function

of the appointed expert. Rather, the expert must also assist in

the evaluation, preparation, and presentation of the defense. The

Granviel court made no effort to address this additional function,

and this omission was the source of its error.

Thus, while Granviel is inconsistent with DeFreece, it is also

inconsistent with the other post-Ake cases which have decided this

issue. Considering the weight of authority, petitioner is wrong to

categorize this as a "substantial" conflict. Far from substantial,

Granviel should be viewed as aberrational. The conflict, such as

it is, is not special or important enough to warrant certiorari.

IilI.

THERE ARE NO IMPORTANT POLICY OR COMIT CONSIDERATIONS

MILITATING AGAINST THE DECISION BELOW

The petitioner argues in favor of a bright-line rule which

would require only that a disinterested expert be provided to

examine the defendant and consult with the defense. (Petition, p.

11) While such a bright-line rule may Or may not be easy to apply,

as we have shown, it is simply not consistent with the plain

language of Ake.

Nor is there any support in the record for the assertion that

the rule mandated by Ake and DeFreece "invites confusion by

spawning numerous subsidiary issues." (Petition, p. 11] In fact,

these so-called subsidiary issues are no more than ruminations by

the state.

DeFreece Will Not Open The Floodgates To Multiple Experts,

Or To Claims Of Ineffective Assistance Of Counsel

First, petitioner wonders whether the defense might be

entitled to another expert if the assisting expert is not "in

complete agreement with the diagnosis of the first expert and is

unable ‘to identify the weaknesses in the State’s case, if any, by

testifying himself and/or preparing counsel to cross-examine

opposing experts.’" (Petition, p. 11] This concern, of course,

was addressed, and negated, in Ake itself, where the Court declined

to hold that an indigent defendant "has a constitutional right to

choose a psychiatrist of his personal liking." Ake v. Oklahoma,

470 U.S. 83. Ake does not countenance multiple experts. Mr.

DeFreece did not request multiple experts, but instead sought only

an expert, expressly disavowing the right to choose anyone in

particular. (R.IIb--4; Tr.--74-75) And, the court below

specifically relied upon the fact that counsel "did not request a

particular psychiatrist, but only a single competent one."

DeFreece v. State, 848 S.W. 2d at 160. Petitioner’s expressed

concern is without foundation.

Second, the petitioner asks whether the assisting expert’s

"failure to undermine the testimony of the state’s expert [will]

result in a finding of ineffective assistance sufficient to

constitute reversible constitutional error?" [Petition, p. 11-12]

The fallacy of this concern is easily exposed. Presently, a non-

indigent defendant is entitled to hire as many experts as he can

afford who will work as members of the defense team. Petitioner,

however, cites not a Single case in which the courts have

attributed the ineffectiveness of retained experts to counsel so as

to cause a Sixth Amendment violation. If such cases do exist at

all, their number is indeed very small. If ineffective experts

have spawned no spate of litigation in the non-indigent arena, why

would such litigation be any more frequent simply because the

expert in question is appointed by the court to assist an indigent

defendant? Cf. cCuyler_v. Sullivan, 446 U.S. 335, 344

(1980) (defendants who retain their lawyers are entitled to the same

Sixth Amendment protection as those whose lawyers are appointed).

Again, petitioner’s concern is a non-issue.

Neither The Evidence Nor Common Sense Supports Petitioner’s

Attempt to Raise The Financial Spectre

Next, petitioner asks the Court to consider "how the state’s

fisc might be affected," asserting that "it cannot be gainsaid

that the state will suffer a substantial, additional economic

burden if the opinion below is allowed to stand uncorrected."

(Petition, p. 12] This argument is no more persuasive now than ef

was when this Court rejected it in Ake. Ake v. Oklahoma, 470 U.S.

at 78. Moreover, there is absolutely no evidence whatsoever in

this record of any "substantial, additional economic burden" to be

suffered by the state if an assisting expert were to be appointed

when insanity is shown to be a Significant factor at trial.

Significantly, after Ake was decided, Texas enacted legislation

authorizing payment to court appointed counsel "for reasonable

expenses incurred with prior court approval for purposes of

investigation and expert testimony ... ." See Tex. Code Crim.

Proc. Ann. art. 26.05(a) (Vernon 1989). See also 18 U.S.C. §

3006A(e). This legislation hardly comports with petitioner’s

expressed fear of dire economic consequences. Finally, there is no

reason to believe that any of the other jurisdictions which have

found Ake to require the appointment of an assisting expert have

experienced any substantial economic burden such as might outweigh

an indigent defendant’s right to due process of law.

Cc.

Mr. DeFreece Did Not Forfeit His Right To An Assisting Expert

The final "policy" point made by the petitioner is that mr.

DeFreece somehow forfeited his right to an assisting expert when

his counsel refused the trial court’s invitation, on the eve of

cross-examination, to interview Dr. Heynen, and when he did not

Subpoena Dr. Martinez. (Petition, p. 12] Neither argument is

persuasive.

The state tends to fault counsel for not subpoenaing Dr.

Martinez, a psychiatrist also on the staff of Vernon State

Hospital. Initially, we note that the assertion that Dr. Martinez

possessed opinions "supportive of his insanity defense" is

considerably overstated. There is no evidence that Dr. Martinez

believed Mr. DeFreece legally insane. At most, the record shows

that he had once found him to suffer from schizophrenia, chronic,

undifferentiated type, and an Organic brain syndrome, and severe

psychosocial stressors. [R.VI--17, 20)

More significantly, even if this Court could properly assume

something completely unsupported by the record -- that if

Subpoenaed Dr. Martinez would have testified that Mr. DeFreece was

legally insane -- this would not cure the constitutional problem in

our case. Ake makes it clear that expert assistance is required

not only for purposes of testifying, but also for assisting in the

evaluation, preparation and presentation of the defense.

Specifically, Ake guarantees assistance "to help determine whether

the insanity defense is viable, to present testimony, and to assist

in preparing the cross-examination of a State’s psychiatric

witnesses." Ake _v. Oklahoma, 470 U.S. at 82. sc. Ss

constitutionally insignificant that counsel might have subpoenaed

Dr. Martinez to testify at trial, because this still would have

left him unassisted in evaluating, preparing and presenting the

defense. This is exactly what the Texas Court of Criminal Appeals

found below. DeFreece v.State, 848 S.W. 2d at 160.

After Dr. Heynen testified for the state, the court offered

counsel the opportunity to interview her, before cross-examination.

Petitioner is incorrect in suggesting that this eliminated any

error under Ake. Mr. DeFreece was guaranteed expert assistance in

the evaluation, preparation, and presentation of his defense.

Permitting counsel a mid-trial interview contributes little if

anything to these goals. Indeed, counsel explained at trial

exactly why the offered interview was of no-use. "Your Honor, my

greatest need is to be able to impeach her testimony and to

discredit it, and of course, she’s not available for that. That’s

what I need for cross examination, so I see no benefit in talking

to her." "My problem is to point out where she’s wrong, Your

Honor. I don’t believe she’s available for that." [R.V--8-9]

No amount of interviewing Dr. Heynen would provide him with

that which Ake and due process guarantee -- expert assistance in

evaluating, preparing, and presenting the defense. Since she

worked for all parties, disinterestedly, she necessarily could not

help Mr. DeFreece "marshal his defense." I1 particular, since she

was the state’s witness, she was singularly unable "to assist in

preparing the cross-examination of a state’s psychiatric witness,"

or to suggest "the probative questions to ask of the opposing

party’s psychiatrists and how to interpret their answers." Ake v.

Oklahoma, 470 U.S. at 81-82. Nor could she "offer a well-informed

expert’s opposing view," or "responsive psychiatric testimony."

Id. at 84. Since Dr. Heynen was incapable in this case of

rendering the kind of assistance contemplated by Ake, it is

illogical to argue that Mr. DeFreece forfeited his right to due

process by declining a mid-trial interview.

IV.

THE PRESENT CASE PROVES THE WISDOM OF AKE

A central purpose of Ake was to minimize the "risk of error."

Ake v.Oklahoma, 470 U.S. at 79. Because psychiatry is not an exact

science, it is often necessary for jurors to resolve evidentiary

disputes where sanity is at issue. Id. at 81. This Court reached

the general "conclusion that, without the assistance of a

psychiatrist to conduct a professional examination on issues

relevant to the defense, to help determine whether the insanity

defense is viable, to present testimony, and to assist in preparing

the cross-examination of a State’s psychiatric witnesses, the risk

of an _ inaccurate resolution of sanity issues is extremely high."

id. at 82(emphasis supplied).

The truth of this general observation is vividly borne out in

our case. The court-appointed expert was the only expert witness

to testify, and she was called by the state. Her area of expertise

was outside that of Mr. DeFreece’s counsel. Her testimony was

based in part on voluminous written psychiatric records. Although

she herself was unequivocal, she did admit that other professionals

at the Vernon State Hospital had diagnosed Mr. DeFreece as more

)

disabled than she. These other experts were, in her unilateral

opinion, less-qualified than she, and apparently, wrong. [R.V--20-

21} Without an assisting expert, counsel had no one to counter the

testimony of Dr. Heynen. More importantly, he had no one to help

him determine the viability of his defense, or to help him present

his defense, or to help him prepare to cross-examine Dr. Heynen.

In such a case, just as foreshadowed by Ake, "the risk of an

inaccurate resolution of sanity issues is extremely high." Id.

The sort of expert delineated in Ake would have constitutionally

minimized this risk of error. The "disinterested" expert appointed

by the court did not. The Texas Court of Criminal Appeals was

correct to find that this violated Mr. DeFreece’s right to due

process of law.

CONCLUSION

For these reasons, the petition for writ of certiorari should

be denied.

Respectfully submitted:

DLL.

MARK STEVENS/

310 S. St. Mary’s Street

Tower Life Building, Suite 1505

- San Antonio, TX 78205-3192

(210) 226-1433

State Bar No. 19184200

Counsel for Respondent

No. 92-1882

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1992

THE STATE OF TEXAS,

Petitioner

Vv.

HAROLD LINDSAY DEFREECE,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE TEXAS COURT OF CRIMINAL APPEALS

RESPONDENT’S BRIEF IN OPPOSITION

CERTIFICATE OF SERVICE

I, Mark Stevens, a member of the bar of this Court, hereby

certify that on this the 9th day of September, 1993, one copy of

the Respondent’s Brief in Opposition was mailed, first class,

postage prepaid to Mr. Charles A. Palmer, Assistant Attorney

General for the State of Texas, P.O. Box 12548, Capitol Station,

Austin, Texas 78711, counsel for petitioner herein. I further

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

150 Tex.

‘discretionary review unless such a finding

is necessary to the disposition of questions

presented to this Court. Tex. Const. Art. 5

§ 6; See Arcila v. State, supra; Gipson v.

State, 844 S.W.2d 738 (Tex.Crim.App.1992)

(Benavides, J., concurring). The determi-

nation of harm, if any, should be left for

the Court of Appeals. Therefore, the judg-

ment of the Court of Appeals is vacated

and the cause remanded to that court for

further consideration consistent with this

opinion.

McCORMICK, P.J., concurs in the result.

Harold Lindsay DE FREECE, Appellant,

The STATE of Texas, Appellee.

No. 502-92.

Court of Criminal Appeals of Texas,

En Banc

Feb. 24, 1993

Defendant was- convicted of murder

with deadly weapon following jury trial by

the 63rd District Court, Terrell] County,

George Thurmond, J. Defendant appealed.

The El Paso Court of Appeals, 829 S.W.2d

251, affirmed. Defendant petitioned for

discretionary review. The Court of Crimi-

nal Appeals, Clinton, J., held that: (1) due

process entitled defendant to appointment

of psychiatrist to provide technical assis-

tance after determination that insanity

would be significant factor at trial; (2) fact

that defense counsel was able to cross-

examine state witness without psychiatric

assistance did not make error harmless;

and (3) subpoenaing treating psychiatrist to

testify at trial did not satisfy defendant's

due process rights.

Reversed and remanded

848 SOu... WESTERN REPORTER, 2d SERIES

McCormick, PJ., concurred in result.

White, J., dissented. -

1. Constitutional Law = 268.2(3)

Due process requires appointment of

psychiatrist to provide technical assistance

to accused, to evaluate Strength of ac.

cused’s defense, to offer expert diagnosis

at trial favorable to defense, and to identify

weaknesses in state’s case where defen.

dant’s sanity is significant factor at trial.

U.S.C.A. Const.Amends. 5, 14; Vernon's

Ann.Texas C.C.P. art. 46.03.

2. Costs €=302.4

That murder defendant's insanity was

Significant factor at trial, entitling defen.

dant to psychiatrist to assist in preparation

and presentation of case, was established

where acts of offense were fairly bizarre,

State questioned defendant's sanity and

competency to stand trial, defendant was in

fact found to be incompetent to stand trial,

treating psychiatrist believed defendant to

be a schizophrenic, and defendant had Sig-

nificant history of commitment in menta|

health — facilities Vernon's Ann Texas

C.C.P. art. 46.03; USCA. Const.Amends

5, 14.

3. Criminal Law 1166(1)

Even if harmless error analysis ap-

plied, failure to appoint psychiatrist to as-

sist murder defendant in preparing defense

was not harmless where assistance of ex

pert to interpret voluminous medica! rec-

ords could have assisted defense counsel in

cross-€xamining state witness, only con-

tested issue at trial was Sanity, and jury

deliberated for five hours before convicting

defendant. Vernon's Ann.Texas C.C_P. art.

46.03; U.S.C.A. Const.Amends 5, 14

4. Constitutional Law 268.23)

Costs 302.4

Right to subpoena treating psychiatrist

who diagnosed defendant as having schizo-

phrenia did not satisfy defendant's due pro-

cess mght to have expert assistance in pre-

paring defense: psychiatrist was not pres-

ent to help counsel! interpret hospital! rec-

ords or examine conclusions of state's ex-

pert for purposes of cross-€xamination

Appendix A

DE FREECE vy. STATE

Tex. 15]

Cite as 848 S.W2d 150 (Tex.Cr.App. 1993)

Vernon's Ann.Texas C.C.P. art. 46.03;

U.S.C.A. Const.Amends. 5, 14.

_Mark Stevens, San Antonio, Martin Un-

derwood, Comstock, for appellant.

« Thomas F. Lee, Dist. Atty., Del Rio, Rob-

ert Huttash, State’s Atty., Austin, for the

State

Before the court en banc.

OPINION ON APPELLANT'S PETITION

FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was convicted by a jury of the

offense of murder and his punishment as-

sessed by the trial court at 60 years con-

finement in the penitentiary. On appeal he

argued that the trial court erred in failing

to appoint an expert to assist him in evalua-

tion, preparation, and presentation of his

insanity defense, in violation of his consti-

tutional rights to due process, equal protec-

tion, effective assistance of counsel and

compulsory process. The Eighth Court of

Appeals disagreed, holding, inter alia, that

appellant received al! the expert assistance

he was constitutionally entitled to under

the provisions of Article 46.03, § 3,

V.A.C.C.P. De Freece v. State, 829 S.W.2d

251 (Tex.App.—El Paso 1992). In his peti-

tion for discretionary review appellant reit-

erates his claim that under Ake v. Okla-

homa, 470 U.S. 68, 105 S.Ct. 1087, 84

L.Ed.2d 53 (1985), he was entitled to more

than just the “disinterested experts” pro-

vided for by Article 46.03, § 3, supra. We

granted the petition to address this claim.

Tex.R.App.Pro., Rule 200(c)2)

Appellant and the deceased, Juanita Rod-

riguez, had a five month old son. On the

morning of February 17, 1989, appellant

went to the home of Juanita’s parents in

Eagle Pass, where she and the baby were

Staying. Appellant was told by Juanita’s

Sister that Juanita and her parents and

brother had left that morning to drive to

Pecos. Based upon statements he claimed

Juanita’s mother had made on pnor occa

sions, appellant decided that the group in-

tended to sell the baby in Pecos, and set

out after them. He caught up with them

on Highway 90 between Dryden and Sand-

erson, and ran them off the road. Accord-

ing to his testimony, at this time appellant

heard voices he “couldn’t overcome” which

commanded him to “kill, kill.” He forced

Juanita into his car, where he stabbed her

numerous times in the chest and abdomen,

and then cut her throat. Texas Rangers

apprehended him the next day a mile from

the scene, and he readily confessed. The

grand jury indicted him on March 20, 1989.

On June 23, 1989, the State filed a mo-

tion requesting that appellant be examined

both for competency to stand trial and sani-

ty at the time of the offense. Pursuant to

Articles 46.02 and 46.03, V.A.C.C.P., the

trial court ordered appellant sent to Vernon

State Hospital “for observation, examina-

tion and treatment.” There, Dr. D.F. Mar-

tinez, a psychiatrist, diagnosed him as suf-

fering from “Schizophrenia, Chronic, Un-

differentiated Type.” Dr. F.E. Heynen, a

clinical psychologist, opined that appellant

was incompetent to stand trial, but that at

the time of the offense he “had substantial

capacity to appreciate the wrongfulness of

his behavior and understood that his behav-

ior was unlawful.” On September 11,

1989, a jury found appellant presently in-

competent, but capable of attaining compe-

tency in the foreseeable future; judgment

to that effect was entered on September

13, 1989. Accordingly, appellant was re-

turned to Vernon State Hospital, where he

was re-evaluated every ninety days. See

Article 46.02, §§ 4(g) & Sc), supra. On

December 7, 1989, and again on March 12,

1990, the hospital reported that appellant

had not yet attained competency, apparent-

ly on recommendations from Dr. Martinez

Finally, on June 1, 1990, the trial court was

notified that appellant was competent to

stand tral, although Dr. Martinez advised

that “he should continue his present medi-

cations consisting of neuroleptics and anti

depressants.”’

On August 20, 1990, counsel for appel-

lant filed a motion requesting the appoint

ment of a psychiatric expert to assist in

152 Tea

preparing and presenting his insanity de

The tnal court took the motion un

On September 18, 1990,

counsel filed another motion urging his in

fense

der advisement

competency to try the case without expert

assistance, and essenually requesting a

A heamng was held dunng

which counsel for appellant argued that the

tna! court had misconstrued his August 20

motion as a request for a specific expert.

Counsel clarified that he sought no particu-

lar expert, but simply any competent psy-

chiatrist who

continuance

“would be a member of the defense

team, would be available for helping

preparation of the case, preparation for

cross examination, deciding which tests

were needed, range and form, that sort

of thing, as well as being present during

trial to help the defendant.”

The tnal court stated, inter alta, that ‘I've

already appointed a psychiatrist to conduct

an evaluation, and I don’t feel I have to

Instead, the court

assured appellant's counse! that he would

be afforded an opportunity to interview Dr

Heynen, who was scheduled to testify for

the State, pmor to cross-examining her

appoint another one[.]’’

Counsel for appellant complained that he

{did} not believe the ability to speak to

this one doctor solves the problem, be

cause number one, she's already on rec-

ord in wnting as supporting the State's

position, and number two, she will give

no assistance in how to cross-xamine

her We think that we still need the

expert on the defense team.”

The trial court denied both appellant's mo

tions

Trial commenced that same day. Other

than his testimony that he had heard voices

commanding him to “kill, kill,” appellant

presented no direct evidence to show he

was insane at the time of the offense. In

rebuttal the State put Dr. Heynen on the

witness stand to testify that any voices

appellant may have heard would not be

“sufficiently compelling to cause him to

forget that this was a wrongful thing to

do.” After reading a number of reports

from other clinics, conducting a battery of

tests, and consulting with other staff mem

S48 SOUTH WESTERN REPORTER, 2d SERIES

bers at Vernon State Hospital, she conclud?

ed that appellant had known the differenge

between mght and wrong when he commit>

ted the offense. See V.T.C.A. Penal Code’

§ 8.01. After this testimony the trial court

adjourned for the day, and Dr. Heyney

assured the tral court that she would be

available to consult with appellant's couns

sel

The next morning counsel took Dr Hey-

nen on cross-examination. She agreed that

appellant's records from his stay at Verno

State Hospital “weigh several pounds”

Out of the presence of the jury appellant

then renewed his motion for expert assis-

tance to help him interpret those volumi-

nous records with a view to cross-examin-

ing Dr. Heynen. Once again the trial court

asked counsel]

Do you want to talk with (Dr. Hey-

nen} some more if you have problems,

because I think the lady would be happy

to go over all this with you

[DEFENSE COUNSEL}

my greatest need is to be able to impeach

her tesumony and to discredit it, and of

not available for that

That's what I need for cross examina-

tion, so I see no benefit in talking to her.

THE COURT: I thought you said you

were incompetent and couldn't under-

stand these records.

[DEFENSE COUNSEL]: I am

THE COURT: I'm offering, if she can

help you with any terms or—she said she

would stay over yesterday

[DEFENSE COUNSEL): My problem is

to point out where she’s wrong, Your

Honor. I don’t believe she's available

for that.”

The tnal court again denied the motion

Your Honor,

course, she's

As cross-examination continued, Dr. Hey-

nen verified that Dr. Martinez had diag-

nosed appellant as suffering from undiffer-

entiated schizophrenia, organic brain syn-

drome, and extreme psychosocial stressors.

Dr. Heynen admitted that she herself had

found that appellant had “diffuse organic

brain damage.’ She believed his earlier

history of commitment to mental hospitals,

however, was “generally because of drug

abuse.’ Disagreeing with Dr. Martinez’

DE FREECE v. STATE

Cite as 848 S.W2d 150 (TexCr App

revaiuauon of appellant as schizophrenic,

Dr. Heynen opined that her own diagnostic

ygkills “far exceed those of Dr. Martinez.’

She acknowledged that another doctor had

earlier found in appellant “the capacity

. decompensate and to be a danger to

nimself and others.”

ever, that this doctor did not “give any

She pointed out, how

reason why he thought he had decompen

sated.”” On redirect examination Dr. Hey-

nen noted several typical characteristics of

schizonvhrenia (e.g., incoherence, impaired

personal hygiene, “flat affect’) that appel

lant did not manifest.

During final argument appellant's coun-

sel conceded that the evidence showed ap-

pellant caused the death of Rodriguez.

Emphasizing appellant's history of mental

health commitments and his apparently de

lusional belief that Rodmguez’ family in

tended to sell his baby, counsel argued that

the jury should find that when appellant

killed Rodriguez, he did not appreciate the

wrongfulness of his conduct. In rebuttal

the State stressed Dr. Heynen’s testimony

that appellant could distinguish mght from

offense

After deliberating for five hours, the jury

wrong when he committed the

returned a guilty verdict

The court of appeals held that failure of

the trial court to grant appellant's persis

nt motions to appoint an independent psy

chiatric expert to assist him was not error

The reasoning of the court of appeals was

First, the

that the trial

court had appointed ‘‘disinterested experts”

Article 46.03,

which statutory scheme has been found by

the United States Fifth Circuit Court of

Appeals to satisfy constitutional require-

ments of Ake v. Oklahoma, supra.' See

Granviel v. Lynaugh, 881 F.2d 185, at

191-92 (CA5 1989), cert. denied, 495 U.S

963, 110 S.Ct. 2577, 109 L.Ed.2d 758 (1990)

Second, the court of appeals believed that

by his “admirable” cross-examination of

threefold, as we understand it

court of appeals observed

with

in accordance supra,

Dr. Heynen, counsel for appellant succeed-

ed in impeaching her without the benefit of

Oklahoma was decided as a

That the statuto

under

adequate response to

l. Of course, Ake +

matter of federal due process

ry scheme

Ake would not seem an

meets constitutional muster

Tex. 153

State, su

Finally, the court of appeals

faulted appellant for not subpoenaing Dr

Martinez, thereby obtaining what would

1993)

expert assistance. De Freece v

pra, at 255

hkely have been favorable testimony with

out putting the tral court to the necessity

Id., at

256. We will address each of these reasons

of appointing an additional expert

in turn

In treating the court of appeals’ first

reason for rejecting appellant’s Ake claim,

we confront the question whether examina

tion by “disinterested experts” at Vernon

State Hospital, pursuant to Article 46.03,

§ 3(a), supra, and testimony from at least

one of those experts at tral about conclu

drew from that examination,

due

Appellant

sions she

meet the

Ake

does not claim he was deprived of the op

were sufficient to process

minimum announced in

portunity to be examined by a competent

expert on the question of

Ake

shown his

Sanity, aS was

He does claim, however, that, having

sanity would be a significant

factor at his tmal, he should have been

provided an expert of the court’s choosing

) help him evaiuate and prepare his sanity

to help him t , t

defense, and meaningfully confront expert

»stimony adduced by the State e

testimony add 1 by the Stat W

agree, and hold that the trial court erred in

denying him that assistance

Our analysis begins with a brief over

view of Article 46.03, § 3(a), supra, and the

Fifth

Lynaugh, supra, that the neutral ‘court's

Circuit's conclusion in Granvel 2

expert’”’ it provides is sufficient to comply

with Ake

Ake itself, followed by an examination of

Next we review the decision in

what other jurisdictions have held regard

ing the scope of psychiatric assistance that

Ake requires. Finally we explain our own

understanding of the scope of psychiatric

assistance under Ake, and apply that un

derstanding to the facts of the instant case

appellant's claims that he was also denied equal

protection, effective assistance of counsel and

compulsory process

154. Tex.

Article 46.03

Before 1967 there was no express au-

thority in Texas for appointing an expert to

examine a criminal accused to determine

either competency to stand trial or sanity

at the time of the offense. For that reason

this Court held that trial courts did not

abuse their discretion in failing to do so.

Elizey v. State, 158 Tex.Cr.R. 604, 259

S.W.2d 211 (1953); Crain v. State, 394

S.W.2d 165 (Tex.Cr.App.1964). Nor did

this Court perceive that the federal consti-

tution required even so much as a state-