Opinion
Nos. M1999-00019-SC-DPE-PD, M1987-00067-SC-DPE-DD.
Filed: November 30, 2005. Filed: December 2, 2005.
PAUL G. SUMMERS, Attorney General Reporter.
MICHAEL E. MOORE, Solicitor General.
JOSEPH F. WHALEN, Associate Solicitor General, Counsel of Record, 425 Fifth Avenue North, Nashville, Tennessee 37243, (615) 741-3499.
JENNIFER L. SMITH, Associate Deputy Attorney General, 500 Charlotte Avenue, P.O. Box 20207, Nashville, Tennessee 37202-0207, (615) 741-3487, B.P.R. No. 16514.
MOTION TO RESET DATE OF EXECUTION
On January 16, 2004, all state court proceedings in this matter having concluded, this Court ordered that Sedley Alley's 1987 death sentence be executed on June 3, 2004. On May 19, 2004, the United States District Court for the Western District of Tennessee issued an order staying the execution of the defendant Alley's sentence. The stay was issued "pending the Sixth Circuit's decision in Abdur'Rahman [ v. Bell] and [the district court's] subsequent ruling on [Alley's] Rule 60(b) motion." Sedley Alley v. Ricky Bell, No. 97-3159-D/V (W.D.Tenn. May 19, 2004) (order granting stay of execution) (copy attached). On November 28, 2005, the district court ruled on, and denied, the defendant's Rule 60(b) motion, thus dissolving the previously issued stay. Sedley Alley v. Ricky Bell, No. 97-3159-D/V (W.D.Tenn. Nov. 28, 2005) (order denying motion for relief from judgment) (copy attached).
As the district court noted in its order, the Sixth Circuit decided Abdur'Rahman on December 13, 2004; its decision was subsequently vacated by the United States Supreme Court in light of the decision in Gonzalez v. Crosby, 125 S.Ct. 2641 (2005), in which "the Court addressed the interplay of [the habeas statute's] restrictions on successive habeas applications and motions for relief from judgment pursuant to Rule 60(b)." Id., p. 3. See Bell v. Abdur'Rahman, 125 S.Ct. 2991 (2005).
Accordingly, and pursuant to Tenn.Sup.Ct.R. 12.4(E), the State moves that a new date of execution be set forthwith. Though such a date can be no less than seven (7) days from this Court's order, see id., the State respectfully submits that the Court should set the execution on a date that is no more than twenty-one (21) days after the Court's order. Experience shows that setting the date any farther into the future will serve only to invite additional frivolous litigation, and the litigation in this case has already spanned some eighteen years since the defendant's conviction and sentence. The defendant will no doubt argue that the Court should refrain from setting a new date until he has been afforded an opportunity to appeal the district court's denial of his Rule 60(b) motion. But the district court's order makes plain that any such appeal would lack merit. Moreover, at this juncture, with the standard three-tier review process having long since concluded, the State is not required to stand idly by while the condemned prisoner exhausts, at his leisure, all appellate review of the denial of postjudgment relief. Indeed, the United States Supreme Court has recognized that upon the denial of federal habeas relief, "the State's interests in finality are all but paramount." Calderon v. Thompson, 523 U.S. 538, 557 (1998). But if the state criminal justice process does not act to protect its "all but paramount" interest in the finality of its own judgments, then it can hardly expect the federal courts to do so. With the dissolution of the federal court's stay of execution, which was issued more than eighteen months ago, it is incumbent upon the State to assert its interest in "execut[ing] its moral judgment in [this] case" and allow "the victims of crime [to] move forward knowing the moral judgment will be carried out." Id., 523 U.S. at 556.
RESPONSE OF THE STATE OF TENNESSEE TO THOMPSON'S MOTION FOR PROTECTIVE ORDER AND ORDER REQUIRING RECIPROCAL DISCOVERY
After more than 20 years of active litigation concerning his mental health, Thompson now asserts a "right to privacy" in his medical and mental health records and requests a protective order from this Court seeking to prevent the State Attorney General — who has defended against Thompson's claims of incompetency in the commission of the offense, to stand trial, to pursue federal habeas proceedings, and now to be executed — from gaining access to records maintained by Thompson's custodian, the Tennessee Department of Correction (TDOC) and/or Riverbend Maximum Security Institution (RMSI). Thompson's allegations concerning the State's access to his medical records are ill-conceived, however, because they are based on a flawed legal premise — that Gregory Thompson, a death-sentenced inmate in state custody, has an absolute "right to privacy" in his medical records as against the State. He does not. While Thompson has some interest in preventing unwarranted public disclosure of his medical condition absent a waiver of confidentiality or (as in this case) through initiation of legal proceedings placing his mental condition at issue, he may not prevent access to medical information by his custodian or, where there is a legitimate need for the information, his custodian's counsel. See, e.g., Crawford v. Manion, 1997 WL 148066 (S.D.N.Y. 1997) (release of inmate medical records to Assistant Attorney General of New York did not violate any right to privacy where inmate waived privacy right by bringing lawsuit in which medical history was a pertinent issue). As Thompson's own motion and attachments show, the State Attorney General obtained his institutional files in this case, including medical records, solely for use in connection with competency proceedings initiated by Thompson himself, not for general public disclosure.
Even in a non-prison setting, a "right to privacy" in one's medical information is neither fundamental nor absolute. Whalen v. Roe, 429 U.S. 589, 603-04, 97 S.Ct. 869 (1977) (upholding system of registering users of certain prescription drugs with state). See also Doe v. Wigginton, 21 F.3d 733 (6th Cir. 1994) (inmate's alleged constitutional right to privacy was not violated due to disclosure to corrections officer of inmate's Human Immuno-deficiency Virus (HIV) infection; Constitution did not encompass general right to nondisclosure of private information); J.P. v. DeSant, 653 F.2d 1080, 1090 (6th Cir. 1981) ("[T]he Constitution does not encompass a general right to nondisclosure of private information.").
See also Price v. Johnson, 334 U.S. 226, 285, 68 S.Ct. 1049, 1060 (1948) ("Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system."); Smith v. Fairman, 678 F.2d 52, 54 (7th Cir. 1982) (diminution of one's personal privacy necessary follows as a result of incarceration).
Thompson's reliance on the protective order entered by the Davidson County Chancery Court is misplaced. That order, which created a "Chinese Wall" between attorneys representing the Tennessee Department of Correction as to Thompson's medical care and attorneys in the Criminal Justice Division of the Attorney General's Office (who were then representing the Warden and the State in connection with Thompson's federal habeas and error coram nobis proceedings), was valid only in connection with Thompson's conservatorship, which was being contested by Thompson's federal habeas counsel. Thompson's conservatorship was terminated in 2003 at the request of his own counsel, thus dissolving any related injunctive orders entered by the Chancery Court. Thompson, 134 S.W.3d at 179. Moreover, Thompson's contention that counsel for the State acted improperly in obtaining a subpoena for his institutional records is incorrect. The subpoena in question was issued on March 1, 2004, to obtain certified copies of Thompson's institutional records for use in connection with proceedings in the Coffee County Circuit Court, State v. Gregory Thompson, No. 20,014, following remand by this Court on February 25, 2004. (Copy attached).
Moreover, substantial information about Thompson's medical and mental health condition is already a matter of public record through his own pleadings in state and federal courts, including this one. Thus, any privacy interest in medical information that an inmate may possess as a general matter is greatly reduced in Thompson's case. See, e.g., McNally v. Pulitzer Pub. Co., 532 F.2d 69, 77-78 (8th Cir. 1976) (where substantial information regarding federal prisoner's mental competency was a matter of public record by virtue of competency proceedings, publication of portions of record not read in open court did not support invasion-of-privacy claim). Thompson can hardly be heard to complain at this juncture about the State's efforts to investigate his mental health history, given his long-standing allegations of incompetence.
Thompson has made his mental condition an issue since he was arrested for the murder of Brenda Lane in 1985. Prior to trial, at defense counsel's request, Thompson was committed for a thirty-day mental evaluation at Middle Tennessee Mental Health Institute, after which he was found to be competent to stand trial, sane at the time of the offense, and not committable. State v. Thompson, 768 S.W.2d 239, 248 (Tenn. 1989). He presented the testimony of a clinical psychologist at the sentencing phase of his murder trial. Id. at 244. In post-conviction proceedings, Thompson challenged the performance of trial counsel for failing to investigate fully certain head injuries and "mental problems" that he alleged could have formed a basis for an insanity defense or mitigation of his sentence. Thompson v. State, 958 S.W.2d 156, 164 (Tenn. 1997). Thompson's entire institutional medical history and records up to that point — spanning nearly ten years — was introduced by Thompson himself as an exhibit to the post-conviction hearing. Thompson v. State, No. 01C01-9506-CC-00180, Evid. Hearing Vol. I, Exh. 1. Those same records were filed in the federal habeas corpus proceeding, supplemented by additional records and allegations of current and past mental illness. Gregory Thompson v. Ricky Bell, No. 4:98-cv-6 (U.S.D.Ct. E.D.) (Edgar). In 2001, Thompson initiated error coram nobis proceedings, asserting that a January 2001 affidavit of a mental health professional at the Special Needs Facility of TDOC should be considered as newly discovered evidence "relating to [his] mental capacity at the time of the offense, trial and/or post-conviction proceedings." Thompson attached and relied upon more "confidential" medical records in support of that pleading. In March 2004, Thompson filed nearly a hundred pages of medical records as an exhibit to his "Petition Providing Notice of Incompetency to be Executed, Requesting a Hearing on Competency to Be Executed, and Requesting an Order Finding Gregory Thompson Incompetent to Be Executed and Isuance of a Reprieve." Those same records were filed in this Court one month earlier as attachments to Thompson's "Notice of Incompetency to Be Executed." In the current proceeding, Thompson has made even more of his records public by filing them as attachments to his motions in September 2005 and November 2005.
To make his case of incompetence for execution, Gregory Thompson's counsel has had full access to Thompson's medical records, his institutional records, and to Thompson himself. Thompson's counsel also has the benefit of multiple mental health experts, who have never been denied reasonable access to Thompson for evaluation purposes by any prison or other state official, as well as the assistance of attorneys and investigators employed by the federal government, though not specifically appointed in these state proceedings. Thompson has requested and received numerous documents from TDOC and/or RMSI and (though not required by any of the Court's previous orders or decisions) from the State Attorney General's Office. Mental health evaluations by Thompson's experts either have been performed on July 28, 2005, November 7, 2005, and November 16, 2005, or scheduled for December 12, 2005.
In fact, the only materials referenced in Thompson's current motion that he does not already have are recordings of his telephone conversations, which the State maintains are confidential "investigative records" and/or "reports of the internal affairs division" under Tenn. Code Ann. § 10-7-504(a)(8) and, thus, not open to inspection by members of the public. Such information may be disclosed to the public "only in compliance with a subpoena or an order of a court of record." Tenn. Code Ann. § 10-7-504(a)(8) (emphasis added). The State Attorney General, acting in his official capacity as legal counsel for the State, TDOC and/or the Warden of RMSI, is not deemed a "member of the public" for purposes of the Tennessee Public Records Act. State v. Fears, 659 S.W.2d 370, 376 (Tenn.Crim.App. 1983).
Although the State has declined to release the actual recordings of the calls, Thompson has been provided copies of his telephone logs showing numbers dialed from his account. Presumably, counsel has access to both the caller (Thompson himself) and the recipient(s) of any of the telephone calls noted in those logs. And both participants in the calls are fully aware — through a recorded message — that their conversations are subject to monitoring and recording. See, e.g., Smith v. Bradley, 53 F.3d 332 (6th Cir. 1995) (no reasonable expectation of privacy in inmate telephone conversations, particularly where participants are told they are being monitored).
Moreover, formal discovery at this stage of the proceedings is not warranted under any order or decision of this Court. Thompson's reliance on Van Tran is misplaced because the portion to which he refers deals with proceedings in the trial court following remand by this Court for evidentiary proceedings. Van Tran v. State, 6 S.W.3d 257, 271 n. 15 (Tenn. 1999). Furthermore, discovery disputes are more appropriately resolved by the trial court only if and when this Court determines that Thompson has made a threshold showing sufficient to undermine the previous competency determination of this Court. Because Thompson's submissions fail to make that showing ( See Response of the State of Tennessee to Thompson's Supplemental Filing in Support of Ford/Van Tran Claims, filed contemporaneously herewith), his request for discovery is premature and should be denied.
For these reasons, the Court should deny Thompson's motion for protective order and reciprocal discovery.
RESPONSE OF THE STATE OF TENNESSEE TO THOMPSON'S SUPPLEMENTAL FILING IN SUPPORT OF FORD/VAN TRAN CLAIMS
In Thompson's supplemental filing in support of his claim of a "substantial change" in his mental health since this Court's previous determination of competency, Van Tran v. State, 6 S.W.3d 257, 272 (Tenn. 1999), Thompson presents affidavits from two mental health professionals, a letter to Thompson's counsel from a third mental health professional, and excerpts from Thompson's institutional records. None of Thompson's latest submissions raises any question, much less a "substantial question," about this Court's determination that "[Thompson] presently is aware both of the fact that he has been sentenced to death for the murder of Brenda Lane and of the fact of his impending execution." Thompson v. State, 134 S.W.3d 168, 171 (Tenn. 2004).
First, only one of Thompson's mental health professionals has even seen him since this Court found him to be competent for execution. The sole expert who has interviewed Thompson, Faye Sultan, Ph.D., recites little more in her current affidavit than the same symptoms of mental illness that this Court has already found to be insufficient to warrant a finding of incompetence. Indeed, a comparison of Dr. Sultan's September 2005 and November 2005 affidavits reveals nearly identical content, although the latter is conspicuously less detailed. For example, in contrast to the September 2005 affidavit, Dr. Sultan's latest submission omits any explicit reference to Thompson's impending execution in its recitation of his alleged delusional beliefs. This Court has already rejected Thompson's alleged delusions concerning the likelihood of his being executed as a basis for a finding of incompetence. Thompson, 134 S.W.3d at 183. The latest affidavit of Dr. Sultan adds nothing new. And since neither of the other two mental health professionals referenced in Thompson's supplemental filing has examined him since this Court found him to be competent, their reports/affidavits add even less to the present inquiry.
Compare Affidavit of Faye Sultan, Ph.D., dated September 29, 2005 ("Mr. Thompson now believes that all of the events in his life, including his involvement in the murder of Brenda Lane, were `predestined.' He reported that these `predetermined facts' are inscribed on a note that has been `stored' and which is `buried at the church.' It is Mr. Thompson's current belief that sometime prior to his execution date this note will be revealed by his attorney's [sic] in a `paper.' `If I go to the paper with that note, I think it will save my life. It shows that your life is already prepared for you. You can't change it.' The existence of this `paper' signified to Mr. Thompson that no execution would take place.") with Affidavit of Faye Sultan, Ph.D., dated November 15, 2005 ("Mr. Thompson continues to experience and express delusional beliefs about the `predetermined facts' that are inscribed on a note that `has been stored' and which is `buried at the church.' This `note,' if it is revealed, will, according to Mr. Thompson, completely explain all the circumstances of his life and `the inevitability of all events.'").
Thompson apparently refused to meet with Dr. Woods (for reasons unknown), and Dr. Rabun's affidavit indicates that a scheduling conflict prevented him from examining Thompson.
The excerpts from Thompson's prison records also do little to advance his cause. In fact, far from aiding his argument, the additional materials show that, as of July 2005, Thompson was aware that he was facing execution — "I feel like I'm depressed. My execution date is coming up and my sister died 2 years ago." (Supp. Filing, Attachment D) Nothing in the materials dated since that time undermines the prior finding of competence. In sum, Thompson has failed to show, as he must, any "substantial change" in his mental health, let alone a change of such significance as to raise a "substantial question" about his competency to be executed. Van Tran, 6 S.W.3d at 272. The prohibition against the execution of incompetent prisoners under Van Tran is designed to protect a narrow class of inmates — those who are unaware that they are to be executed and why. Thompson does not fall within that class, and the State is entitled to carry out its lawful punishment in this case.
Thompson attempts to downplay the significance of this statement by arguing that his execution was still stayed when he made the statement on July 18, 2005. But just three weeks earlier, the United States Supreme Court had reversed an attempt by the Sixth Circuit to interfere in the Tennessee's lawful execution process. Bell v. Thompson, 125 S.Ct. 2825 (2005). Thus, Thompson's concern about his upcoming execution was eminently justified.
The institutional records submitted show that, since July 2005, Thompson has remained on a regimen of medications (Supp. Filing, Attachment D), and his physicians observed "no active psychosis or behavior" and recommended the "same management" of his symptoms. (Supp. Filing, Attachment E) Counsel's implication that Thompson's compliance with medication is anything other than voluntary is completely baseless. There is no indication that Thompson himself has ever complained of being medicated against his will. To the contrary, Attachment D to the Supplemental Filing states that Thompson expressly requested additional medication for depression in July of this year. And if, in fact, Thompson suffers from the "severe psychotic mental illness" asserted in the current filings, an increase in medical monitoring by prison staff would appear to be entirely appropriate. Moreover, Thompson's argument seems to concede that, while medicated, Thompson is competent for execution.
For these reasons, the Court should deny Thompson's motion for stay of execution.