Two years ago this week Capital Defense Weekly was launched, and this issue, like too many others before it, brings tales of woe and hope. In King v. Moore (11th Cir), raising apparently sua sponte the issue of procedural default, a panel upholds what it assumed to be an error by the Florida Supreme Court in reweighing this death sentence after aggravating circumstances were stricken; a merits denial of a Batson claim is also upheld where a venireperson (on the record) is stricken for both a permissible and an impermissible reason. The Eleventh Circuit in Chandler v. United States likewise, vacated last week the granting of relief on the first federal drug king pin conviction ordering a rehearing en banc ordered. In McDowell v. Calderon (9th Cir)(en banc) the California Attorney General's office horribly miscalculates in appealing not the underlying order in that case but rather only the denial of rehearing, meaning review of an order preventing access to first trial counsel files at retrial is reviewed only for clear error.

As the assets to fight for the defense of human rights, liberty and life are often the line between a conviction and freedom, "in depth" this week covers the constitutional dimensions of the right to expert assistance. The statutory provisions for expert assistance at the various state levels is addressed in "Ready for the Defense? Legislative Provisions Governing the Appointment of Counsel in Capital Cases" James R. Acker and Charles S. Lanier, 35 Criminal Law Bulletin 429 (1999) (no url available as of yet), a just released and well documented review of existing regulations for assistance in capital cases and is a should read on the topic if funding is at issue.

As always, I hope you enjoy the changes being made here to bring you a quicker more insightful read.

The Supreme Court has granted certiorari in two separate non-capital cases of note. The first case is the Fourth Circuit's opinion in Dickerson vs. U.S., 99-5525. (Failure to give "Miranda warnings does not necessarily bar use of evidence in federal cases. The administration holds the law is unconstitutional, former Reagan DOJ attorney Paul Cassell was defend the constitutionality of the statute.). The Court has also granted certiorari in Duckworth vs. French, 99-224, and U.S. vs. French, 99-582, to examine the issue of the constitutionality of the PLRA.

Los Angeles Police Dept v. United Publishing Corporation The Supreme Court (7-2) reverses the Ninth Circuit's holding that the "a law regulating access to information in the hands of the police department" relating to in custody suspects. The below held the statute was "facially invalid" but "alternative bases for affirmance urged by respondent will remain open on remand if properly presented and preserved in the Ninth Circuit." From the syllabus:

Respondent was not, under this Court’s cases, entitled to prevail on a “facial attack” on §6254(f)(3). The allowance of a First Amendment overbreadth challenge to a statute is an exception to the traditional rule that “a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court.” New York v. Ferber, 458 U.S. 747, 767. The overbreadth doctrine is strong medicine that should be employed only as a last resort. At least for the purposes of facial invalidation, petitioner is correct that §6254(f)(3) is not an abridgment of anyone’s right to engage in speech, but simply a law regulating access to information in the government’s hands. This is not a case in which the government is prohibiting a speaker from conveying information that the speaker already possesses. California law merely requires respondent to qualify under the statute if it wishes to obtain arrestees’ addresses. California could decide not to give out arrestee information at all without violating the First Amendment. Cf. Houchins v. KQED, Inc., 438 U.S. 1, 14. To the extent that respondent’s “facial challenge” seeks to rely on the statute’s effect on parties not before the court–respondent’s potential customers, for example–its claim does not fall within the case law allowing courts to entertain facial challenges. No threat of prosecution, see Gooding v. Wilson, 405 U.S. 518, 520—521, or cut off of funds, see National Endowment for Arts v. Finley, 524 U.S. 569, hangs over their heads. The alternative bases for affirmance urged by respondent will remain open on remand if properly presented and preserved in the Ninth Circuit.

Capital Cases

Chandler v. United States (11th Cir) Opinion granting relief on ineffective assistance of counsel vacated, rehearing en banc ordered.

McDowell v. Calderon (9th Cir)(en banc) The government's arguments fail because although "raising ineffective assistance of counsel claims in a habeas petition [may] waive[ ] the attorney-client privilege . . . [the state's right to access at retrial] is debatable, . . . the district court ['s order] limit[ing] the Attorney General's use of the documents from McDowell's trial counsel's file" is not clear error. Whether the court would reach the same conclusions if this were an appeal of the order itself and not a motion for reconsideration under rule 59(e) is not reached.

The only order that is the subject of this appeal is the district court's order of November 2, 1998, denying the warden's motion for reconsideration under Fed. R. Civ. P. 59(e). See Notice of Appeal, filed Nov. 9, 1998 ("[R]espondent . . . hereby appeals . . . from the November 2, 1998, denial of respondent's motion to alter or amend the judgment .. . ."); Appellant's Opening Brief at 5 (stating the issue as "[w]hether the district court erred in denying respondent's motion to amend the order . . . ."). The warden did not appeal either the protective order of February 25, 1994, or the order of September 15, 1998, which reaffirmed the protective order. Those prior orders are therefore not before us.

[2] A motion for reconsideration under Rule 59(e) "should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law." 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999) (emphasis added) (citing School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)). In moving for reconsideration, the warden alleged neither the discovery of new evidence nor an intervening change in the controlling law. Therefore, the only question before us is whether the district judge committed clear error in entering the protective order.

[3] In answering this question, we do not review de novo the legal basis for the protective order, as we would if this were an appeal from the order itself. See Floyd v. Laws, 929 F.2d 1390, 1400 (9th Cir. 1991) ("An appeal from a denial of a Rule 60(b) motion brings up only the denial of the motion for review, not the merits of the underlying judgment.") (citing Molloy v. Wilson, 878 F.2d 313, 315 (9th Cir. 1989)). Rather, we ask whether the protective order involved a clear error of law. See e.g., Faile v. Upjohn Co., 988 F.2d 985 (9th Cir. 1993) (reversing denial of a Rule 60(b) motion to vacate dismissal, where the district court had failed to apply provision of Fed. R. Civ. P. 5(b) that service is complete upon mailing).

[4] The warden contends that, because raising ineffective assistance of counsel claims in a habeas petition waives the attorney-client privilege, the district court erred in prohibiting the Attorney General from disclosing the documents discovered from McDowell's trial counsel's file to "prosecutorial personnel or agencies" for use in connection with McDowell's penalty phase retrial. It is debatable whether the district court can so limit the Attorney General's use of the documents from McDowell's trial counsel's file. The question being a debatable one, the district court did not commit clear error when it limited access to the file pursuant to the terms of the protective order. District courts have very broad discretion in fashioning discovery orders under Fed. R. Civ. P. 26(c), and the protective order did not fall clearly outside the bounds of that authority. The district court therefore did not abuse its discretion in denying reconsideration. See Pasatiempo, 103 F.3d at 801 (denial of a motion to alter or amend judgment under Fed. R. Civ. P. 59(e) may be reversed only for abuse of discretion).

King v. Moore (11th Cir) "[O]nly two of the claims on appeal - the two to which counsel devoted oral argument time - merit extended discussion. The first is that the Florida Supreme Court did not engage in proper sentencing-factor reweighing or harmless-error analysis after striking aggravating factors, thus contravening the Eighth Amendment principles enunciated (for instance) in Sochor v. Florida, 504 U.S. 527, 540, 112 S. Ct. 2114, 2123 (1992). The second is that the prosecution exercised race-based peremptory strikes, thus entitling King to a new sentencing hearing under Batson v. Kentucky, 476 U.S. 79, 96-97, 106 S. Ct. 1712, 1723 (1986)."

A. Sochor Claim

The State argues, and we agree, that a procedural default bars this claim. Following the unanimous jury recommendation of death, the resentencing court found that the State had proven five aggravating circumstances beyond a reasonable doubt, one of which was that King had knowingly created a great risk of death to many persons by setting fire to Natalie Brady's house. The court rejected all asserted mitigating factors, both statutory and nonstatutory. On appeal, the Florida Supreme Court sua sponte addressed the sufficiency of the evidence to support the factors. The court concluded that the evidence was insufficient to support a finding of the creating-a-great-risk-to-many- persons aggravator. The court declined to vacate King's sentence, however, explaining that "[a]fter striking this factor, however, we are left with four valid aggravating circumstances and no mitigating circumstances. We therefore affirm King's sentence of death." King v. State, 514 So. 2d 354, 360 (Fla. 1987). This is the disposition that King claims violates his Eighth Amendment rights.

Although the asserted error occurred during direct review, King did not mention this treatment of his sentence in his petition for rehearing before the supreme court, and the sufficiency of this review was not a subject of his original petition for habeas corpus filed in the same court. Nor did it form the basis of a claim for relief in his petition under Rule 3.850. Under our precedent, King's failure to present this kind of claim to the Florida state courts bars it. See Davis v. Singletary, 119 F.3d 1471, 1481 (11th Cir. 1997).

There is, however, a small complication here: the State concedes that the failure to challenge the supreme court's harmless-error analysis in the Rule 3.850 petition does not bar the claim, because (according to the State) a trial court could not review a supreme court action for constitutionality. The State's concession notwithstanding, we think that Davis's rule still bars the claim. As the State goes on to point out, Florida law provides King with a viable means of raising this constitutional error before the Florida Supreme Court: an original habeas corpus proceeding before that court. The Florida Supreme Court indeed routinely entertains such petitions in death cases. See, e.g., Teffeteller v. Dugger, 734 So. 2d 1009, 1024-29 (Fla. 1999); Van Poyck v. Singletary, 715 So. 2d 930 (Fla. 1998); Bottoson v. Singletary, 685 So. 2d 1302 (Fla. 1997); Dougan v. Singletary, 644 So. 2d 484 (Fla. 1994); Occhicone v. Singletary, 619 So. 2d 730 (Fla. 1993). So King had an avenue for relief in Florida courts on this claim.

But King would now stumble on a bar to habeas corpus review by the Florida Supreme Court - that the issue could have been, but was not, raised in an earlier proceeding. See Teffeteller, 734 So. 2d at 1024. That bar was, indeed, the only one the supreme court mentioned in refusing to consider on habeas petition a claim identical to the one that King has made here; the petitioner had not made the claim in his earlier habeas petition. See Mills, 606 So. 2d at 622. Thus, King should have presented the claim in his petition for habeas corpus before the Florida Supreme Court. Because King failed to do so, the claim is procedurally barred. See Teague v. Lane, 489 U.S. 288, 297- 99, 109 S. Ct. 1061, 1068-69 (1989).

B. Batson Claim

This claim, on the other hand, is properly presented, having been raised and rejected on direct appeal to the Florida Supreme Court. But it fails on the merits.

The venire for King's resentencing included three blacks. Both sides accepted the first to come up for peremptory strikes, Jermima McBride. The State exercised a peremptory strike, however, against the next black to come up, a minister and school-bus driver named Robert Coleman. King immediately objected to Coleman's exclusion, relying on a Florida case, Neil v. State, that anticipated the holding in Batson by two years. (Neil held that if the defendant shows a "strong likelihood" that the prosecution has struck prospective jurors solely because of their race, the prosecution must demonstrate that the reasons for the strike were race-neutral; if the defendant does not meet its initial burden, no inquiry into the State's motives may be made at all. See Neil, 457 So. 2d at 486- 87.) The trial court denied this objection without asking the State to articulate a reason for excluding Coleman because it found no "systematic exclusion" of black persons from the jury. (Dir. App. R.7 at 1139.)

Shortly thereafter, questioning began for the third black venireperson, a St. Petersburg Police Department typist named Mary Ann Brinson. Brinson was questioned first by the State, and then by the defense. Brinson vacillated as to whether she could follow the court's instructions. . . . .

During the next sidebar, the State excused Brinson, and King objected. This time, the court deemed it "appropriate" to ask the State to articulate reasons for its decision to strike Brinson. (Id. at 1208.) The State offered two reasons, one racial and one not. The court then overruled King's objection. . .

King attacks these two rulings on his Batson objections on three grounds, which we reject in turn.

1. Burden-Shifting as to Coleman.-King first argues that he had established an inference that the prosecutor excluded Coleman because of his race, accordingly requiring the court to demand from the State a race-neutral explanation. See Batson v. Kentucky, 476 U.S. 79, 96, 106 S. Ct. 1712, 1723 (1986). Whether a defendant has thus made a prima facie showing is (perhaps counterintuitively) treated as a question of fact to be decided by the trial judge. Because the state trial court concluded that King had not made a prima facie showing, the first issue here is whether that ruling deserves deference. Under the pre-1996 version of § 2254, state-court findings of fact generally control, but there is an exception if "the merits of the factual dispute were not resolved in the State court hearing." 28 U.S.C. § 2254(d)(1) (1988). That exception applies here. The state trial court simply did not decide whether King made a prima facie showing under Batson. Rather, the trial court decided (since the hearing was pre-Batson) that King had not made a prima facie showing under Neil v. State. Neil's standard for a prima facie case, however, is higher than Batson's: Neil requires the party opposing a strike to point to facts establishing a "strong likelihood" that the strike had racial motives. 457 So. 2d at 486-87. Batson, on the other hand, requires the party merely to "raise an inference" of improper motive. 476 U.S. at 96, 106 S. Ct. at 1723. The trial court did not determine whether the more relaxed standard of Batson required the State to explain its strikes; on direct appeal, the Florida Supreme Court did not discuss Coleman's exclusion at all. We thus have no on-point state-court finding to defer to.

Nor, as it turns out, do we have the benefit of a finding from the district court. The district court concluded as to Coleman only that King had not established a pattern of discriminatory strikes. But a pattern of strikes is only one fact that could imply a discriminatory motive. See United States v. Blackman, 66 F.3d 1572, 1575 (11th Cir. 1995). The district court did not find whether all the circumstances here amount to a prima facie showing.

A remand for a finding could be in order. A remand is unnecessary here, however, because the district court could not find an inference of discrimination on this record without clearly erring. Cf. United States v. Allison, 908 F.2d 1531, 1537 (11th Cir. 1990); United States v. Dennis, 804 F.2d 1208, 1210 n.22 (11th Cir. 1986) (both declining to remand a Batson-related fact-issue because the record permitted only one finding). The points of evidence that King could point out to create an inference of discrimination are two: first, that Coleman testified that he could follow the law, even regarding the imposition of the death penalty; and second, that Coleman is black. An inability to follow the law - such as that engendered by disagreement with the present death penalty - disqualifies a juror to serve in Florida. See Sanchez-Velasco v. State, 570 So. 2d 908, 915-16 (Fla. 1990). In essence, therefore, King would have us conclude that the mere striking of a qualified black juror raises an inference of race discrimination. We have found no case so concluding.

There is no need here, moreover, to decide that King's two points will never be enough, because there is evidence in the record that undermines any discriminatory inference. First, the State rejected Coleman just a few pages of transcript after accepting another black venireperson; not only was there no pattern of discriminatory strikes, there was a sort of "antipattern." Furthermore, while we do not intend to speculate about the State's motives for striking Coleman, Coleman's profession was an important circumstance undermining any inference of discrimination. He was a minister, and in fact he was in the process of establishing a prison ministry. In various pretrial filings, King's counsel had identified prison ministers as witnesses to King's good character. (See, e.g., Dir. App. R.1 at 67, 156.) These circumstances would obviously diminish Coleman's desirability as a juror. Perhaps because of all these facts, King's counsel acknowledged that "I certainly don't infer any ill motive." (Dir. App. R.7 at 1139.) The only proper finding is that no inference of discrimination has arisen, and it follows that Batson did not oblige the state trial court to inquire into the State's reasons for striking Coleman, or to sustain King's objection.

2. Finding as to Motive for Striking Brinson.-Second, King contends that the trial court erred in accepting the State's reasons for striking Brinson. Here, the state-court finding merits deference. The state court's finding as to the State's motives for striking Brinson binds the federal courts unless the finding is not "fairly supported by the record." 28 U.S.C. § 2254(d)(8) (1988). We interpret the state trial court's finding, which was quoted above, to be that the State had mixed motives, but that the nonracial motives - principally Brinson's equivocation on her death-penalty views - independently sufficed to exclude her. This finding has fair record support.

First, the prosecution could reasonably have worried about Brinson's views. Even though the court's questioning elicited the response only that Brinson was "in the middle" on the death penalty, (Dir. App. R.8 at 1205) - an answer that might by itself seem innocuous - Brinson had earlier denied an ability to follow the law, which made any error in her understanding of death penalty standards that much riskier. And there was reason to think her death-penalty notions erred; as the State said, one could infer from her statement a belief that multiple murders were necessary for death to be appropriate. Second, the court could reasonably see race as a weak factor here. After all, even though the State admitted that race figured into its decision to excuse Brinson, it had accepted one of the other two black persons in the venire. Taken together, these two points are enough to command deference to the state court's finding that nonracial motives sufficed to assure a strike, even if motives were mixed.

Once we defer to that state-court finding, we must conclude that King is not entitled to relief. When the motives for striking a prospective juror are both racial and legitimate, Batson error arises only if the legitimate reasons were not in themselves sufficient reason for striking the juror. See Wallace v. Morrison, 87 F.3d 1271, 1274 (11th Cir. 1996).

3. Failure to Revisit Coleman Strike After Striking of Brinson.-According to King, once the State had exercised a peremptory strike against Brinson, the trial court should have reconsidered its earlier ruling on Coleman. King cites no authority in support of his argument, and we decline to conclude that Batson requires a court to follow this course. One principal reason supports this holding.

By failing to timely object, a defendant waives his right to challenge racially motivated strikes. This is true in the Florida courts where the trial occurred, see State v. Castillo, 486 So. 2d 565, 565 (Fla. 1986), and states may have such procedural requirements consistent with the Constitution. See Ford v. Georgia, 498 U.S. 411, 423, 111 S. Ct. 850, 857 (1991) ("Undoubtedly . . . a state court may adopt a general rule that a Batson claim is untimely if it is raised for the first time on appeal, or after the jury is sworn, or before its members are selected."). Indeed, an analogous procedural rule exists in the federal courts. See, e.g., United States v. Ratcliff, 806 F.2d 1253, 1256 (5th Cir. 1986). A necessary corollary to a default rule is the principle that the trial court has no duty to police peremptory strikes sua sponte. See Davis v. Baltimore Gas & Elec. Co., 160 F.3d 1023, 1028 (4th Cir. 1998). To reach King's desired result, we would have to deem the trial court bound by just such a duty: once the court had ruled upon King's earlier objection to Coleman's dismissal, there was no motion pending for the court to consider. We thus reject King's argument as inconsistent with the default rule.

Habeas Cases

Conde v. Henry (9th Cir) The state trial court improperly "precluded Conde's attorney from making closing argument explaining the defendant's theory of the case, it refused to instruct the jury on the defendant's theory, and, over the defendant's objection, it gave jury instructions that did not require that the jury find every element of the offense. Together, these errors deprived the petitioner of effective assistance of counsel, due process and trial by jury on every element of the charged crime. The very framework within which the trial proceeded on the kidnapping charge prevented the defendant from presenting his theory of the defense and prevented the jury from determining whether all of the elements of kidnapping for robbery had been proved beyond a reasonable doubt. We conclude that Conde was deprived of a fair trial on the kidnapping charge."

Binder v. Stegall (6th Cir) "Petitioner [ ] contends that comparing a reasonable doubt to a "fair, honest doubt" lowered the government's burden of proof. As we held in Szenay, the standard instruction does not suggest to the jury a lowering of the government's burden of proof. Taken as a whole the instruction informed the jury that it could convict only if the prosecution established guilt beyond a reasonable doubt and that the decision had to be based on a careful examination of the evidence."

Garrett v. USA (8th Cir) Appeal dismissed as untimely. An untimely Rule 59(e) motion failed to toll the time for filing the notice of appeal.

Chambers v. Johnson (5th Cir) "[T]he magistrate judge held the state's feet to the fire but granted relief to a petitioner who waited over nine years after exhausting his state remedies to file a federal habeas petition. During this time the state's ability to defend was lost. The prosecutor who struck the three members of the venire testified at the evidentiary hearing that race was not a reason for the challenges, but could not recall the specific reasons for the strikes, such as occupation, work history, and so forth. We are persuaded there is no unfair surprise attending the consideration of the effects of Chambers' nine-year delay in filing his federal habeas petition upon the State's ability to defend itself."

Bell v. Jarvis (4th Cir) Ineffective assistance of counsel had "on the ground that his appellate counsel failed to argue that the trial court, despite an objection, improperly closed the courtroom."

Myers v. United States (6th Cir) Appeal on felon with a gun charge turned aside where appellant argued "(1) the district court erred by failing to properly apply the Supreme Court's decision in Old Chief and (2) [appellant] was improperly questioned regarding several matters during the course of his trial."

Johnson v. Karnes (6th Cir) "[T] he state trial court failed to exercise "sound discretion" in declaring a mistrial. While we afford considerable deference to the trial judge's conclusion that the jury would have been prejudiced by defense counsel's question, we believe that clearly established Supreme Court precedent demonstrates that the declaration of a mistrial was not compelled by manifest necessity."

Nieblas v. Smith (2nd Cir) Appellant argues he was "denied his Sixth Amendment right to a public trial when the courtroom was closed for the testimony of one witness, an undercover officer, during his drug trial in state court. On appeal, Nieblas contends that the district court erred in hearing additional evidence on the propriety of the courtroom closure and, largely on the basis of this evidence, denying the petition.. .. we find no fault with the district court's decisions (1) to hear additional evidence on the propriety of courtroom closure and (2) to deny the petition for a writ of habeas corpus."

Section 1983 & Related Filings

Kirby v. Siegelman (11th Cir) Challenge to Alabama's version of Megan law remanded as "the record is inadequate for us to determine whether [appellant] received adequate notice and hearing to satisfy due process requirements."

West v. Macht (7th Cir) "[M]anufactured finality like that found in the present lawsuit are consistent with the fundamental policy disfavoring piecemeal appeals. Hence, West's voluntary dismissal without prejudice is under current law insufficient to create a final judgment."

Roberson v. Davis, et al. (8th Cir) Prisoner's claims of deliberate indifference to medical needs raised genuine issues of material fact with respect to two defendants, and it was error to grant their motions for summary judgment; summary judgment as to other defendants was proper.

Yang v. Chicago (7th Cir) Questioned certified to the Illinois Supreme Court the question of whether "Does section 9-102 of the Illinois Tort Immunity Act provide for attorney's fees against municipalities within its definition of compensatory damages?"

Weyant v. Weber (2nd Cir) The issue on appeal is attorney's fees due a prevailing party in this civil rights action. "[M]atter is remanded for the calculation of reasonable attorney's fees and costs in connection with the successful opposition to [ ] post judgment motions and the filing of the fee applications."

Ellis v. Washington County (6th Cir) No proximate cause found between defendants and allegations of misconduct leading to wrongful death, save for one defendant & since material facts are in dispute as to that defendant's role no qualified immunity can be had.

Prince v. Hicks (6th Cir) Absolute immunity denied on "claims for relief . . . against [Hicks] in her individual capacity arising out of [Hicks's] alleged investigation of, or failure to investigate adequately, criminal charges against [Prince], and [Hicks's] alleged advice to law enforcement officers concerning the existence of probable cause to arrest or to charge a criminal offense in the plaintiff's case."

Hartsfield v. Vidor (6th Cir) No violation had were "[p]laintiff alleges cruel and unusual punishment in that defendants were deliberately indifferent to his health and safety by not allowing him to use the toilet, allowing him to sit in his own urine and in not providing fresh drinking water for two 8-hour periods during May 2 and 3, 1996." Administrative remedies not exhausted as to one defendant.

In Depth

This week's installment of "in depth" once again examines the right to expert assistance at trial. (From "An Introduction to Eighth Amendment Law," http://capdefnet.org/3_intro_to_8th.htm, at the Habeas Assistance Training gang from AOC).

C. Expert Assistance

In Ake v. Oklahoma, 470 U.S. 68 (1985), the United States Supreme Court held that "the Constitution requires that an indigent defendant have access to the psychiatric examination and assistance necessary to prepare an effective defense based on his mental condition." Id. at 70. The Court, after discussing the potential help that might be provided by a psychiatrist, stated:

We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the state must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation and presentation of the defense. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the states the decision on how to implement this right. Id. to 83.

Ake was based upon the due process requirement that the fact-finding process must be reliable in criminal proceedings. Id. at 77-83. Due process requires the state to make available mental health experts for indigent defendants, because "the potential accuracy of the jury's determination is ... dramatically enhanced" by providing indigent defendants with competent psychiatric assistance. Id. at 81-83. Because Ake's constitutional entitlement obviously extended beyond mental health professionals, the decade since Ake was decided witnessed a tremendous expansion of expert funding for indigent defendants. Significantly, both state and federal courts have recognized that Ake requires that indigent defendants be provided with funds to retain psychiatric, psychological, medical, forensic, investigative, mitigation and other types of assistance.

Before moving on, however, another set of issues relating to psychiatric examinations conducted by the State should be briefly discussed. In Estelle v. Smith, 451 U.S. 454 (1981), the Court held that the Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel are applicable to the penalty phase of a capital trial. Smith was evaluated by a state-retained psychiatrist -- Dr. James Grigson -- to determine his competency to stand trial. Grigson failed to provide Smith with Miranda warnings prior to the interview. At the sentencing phase of the proceedings, the prosecution called Dr. Grigson, who testified that Smith was a "severe sociopath" who had demonstrated no remorse and who would continue to commit violent acts in the future. The Court concluded that a "criminal defendant, who neither initiates a psychiatric evaluation not attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding." 451 U.S. at 468. Thus, because Smith did not receive Miranda warnings, Grigson's testimony violated Smith's Fifth Amendment rights. Id. at 469.

The Court also held that Grigson's testimony violated the Sixth Amendment, because defense counsel were only notified that Grigson was evaluating Smith for the purpose of determining his competency to stand trial. Because Smith's Sixth Amendment right to counsel had clearly attached, and because the decision to submit to a psychiatric examination is "literally a life or death matter," 451 U.S. at 471, a defendant should not be forced to resolve such an important issue without the "guiding hand of counsel." Id. The Court has reaffirmed, and in fact expanded upon, the protections afforded by Estelle on several occasions. See Satterwhite v. Texas, 486 U.S. 249 (1988) (Court held first that petitioner's Sixth Amendment right to counsel was violated by the admission of testimony of a psychiatrist on the issue of future dangerousness who examined petitioner without his counsel being given notice as to the scope of the examination; constructive notice to counsel by placement of the state's motions and the court's ex parte orders regarding the examination in the court file did not satisfy the Sixth Amendment); Powell v. Texas, 492 U.S. 680 (1989) (per curiam) (State's use of future dangerousness violated the Sixth Amendment where no notice was given to defense counsel that examination by psychiatrist would be for that purpose; defendant did not waive his Sixth Amendment right to notice of the purpose of the examination by introducing psychiatric testimony in support of insanity defense).

Before moving on, however, another set of issues relating to psychiatric examinations conducted by the State should be briefly discussed. In Estelle v. Smith, 451 U.S. 454 (1981), the Court held that the Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel are applicable to the penalty phase of a capital trial. Smith was evaluated by a state-retained psychiatrist -- Dr. James Grigson -- to determine his competency to stand trial. Grigson failed to provide Smith with Miranda warnings prior to the interview. At the sentencing phase of the proceedings, the prosecution called Dr. Grigson, who testified that Smith was a "severe sociopath" who had demonstrated no remorse and who would continue to commit violent acts in the future. The Court concluded that a "criminal defendant, who neither initiates a psychiatric evaluation not attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding." 451 U.S. at 468. Thus, because Smith did not receive Miranda warnings, Grigson's testimony violated Smith's Fifth Amendment rights. Id. at 469.

The Court also held that Grigson's testimony violated the Sixth Amendment, because defense counsel were only notified that Grigson was evaluating Smith for the purpose of determining his competency to stand trial. Because Smith's Sixth Amendment right to counsel had clearly attached, and because the decision to submit to a psychiatric examination is "literally a life or death matter," 451 U.S. at 471, a defendant should not be forced to resolve such an important issue without the "guiding hand of counsel." Id. The Court has reaffirmed, and in fact expanded upon, the protections afforded by Estelle on several occasions. See Satterwhite v. Texas, 486 U.S. 249 (1988) (Court held first that petitioner's Sixth Amendment right to counsel was violated by the admission of testimony of a psychiatrist on the issue of future dangerousness who examined petitioner without his counsel being given notice as to the scope of the examination; constructive notice to counsel by placement of the state's motions and the court's ex parte orders regarding the examination in the court file did not satisfy the Sixth Amendment); Powell v. Texas, 492 U.S. 680 (1989) ( per curiam) (State's use of future dangerousness violated the Sixth Amendment where no notice was given to defense counsel that examination by psychiatrist would be for that purpose; defendant did not waive his Sixth Amendment right to notice of the purpose of the examination by introducing psychiatric testimony in support of insanity defense).

New Arrivals & Comments

New at capitaldefenseweekly.com this week is the unofficial office holidays card, courtesy of Recollection Books in Seattle. The search engine at capitaldefenseweekly.com has been expanded to cover both back editions of Capital Defense Weekly, as well as the AOC's Habeas Assistance and Training site (briefs, training guides, motions, etc.) at capdefnet.org. (Just a friendly reminder, CDW is in no way affiliated with, endorsed by, or supported by the AOC or capdefnet.org, save for HAT's invaluable training and always friendly advice.)

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