﻿JONES, WYATT & ROBERTS CONFIDENTIAL AND PRIVILEGED MEMORANDUM ATTORNEY WORK PRODUCT AND ATTORNEY/CLIENT COMMUNICATIONS TO: STEPHEN JONES, DICK BURR & ROB NIGH FROM: AMBER MCLAUGHLIN SUBJECT: RESEARCH: EXCLUSION OF MITIGATING EVIDENCE DATE: DECEMBER 4, 1995 ISSUE Suppose we decide to introduce into the punishment phase evidence regarding Tim's state of mind during and after the Gulf War; how the sight at Waco affected him; and/or how he felt when he heard of the killings at Ruby Ridge1. Suppose further that the judge decides this is "expert testimony of defendant's mental condition", remembering the broad definition of "expert" in Federal Rule of Evidence 702, which thereby allows the judge to order Tim to submit to a governmental mental examination under Federal Rule of Criminal Procedure 12.2(c). If we advise Tim to assert his Fifth Amendment right and refuse to submit to the government mental health exam, does the sanction of Federal Rule of Criminal Procedure 12.2(d) apply, that is, is evidence at the mitigation stage regarding his mental condition inadmissible? SHORT ANSWER No. A defendant has an Eighth Amendment right to proffer as mitigating evidence any aspect of his character. By presenting mental health evidence in punishment he does not open the door for the government to obtain a compelled mental exam because it would violate his Fifth Amendment right to remain silent. Further, the sanction stated in Federal Rule of Criminal Procedure 12.2(d) states if there is a failure "to submit to an examination when ordered,...the court may exclude the testimony of any expert witness offered by the defendant on the issue of the defendant's guilt". However, the United States Supreme Court is itching to reevaluate, and possibly abolish, Lockett's constitutional requirement of the consideration of mitigating evidence at punishment. We need to seriously consider whether we want to give them the avenue2. DISCUSSION Any evidence relating to Tim's mental condition will initiate a government request for a compelled mental health examination based upon Federal Rule of Criminal Procedure 12.2(c), which states: In an appropriate case the court may, upon motion of the attorney for the government, order the defendant to submit to an examination pursuant to 18 U.S.C. 4241 or 4242.3 For example, the Fifth Circuit found that the testimony of a drug abuse counselor, an employee in a rehabilitation program and a jail chaplain all opened the door to government psychological testimony. Schneider v. Lynaugh, 835 F.2d 570 (5th Cir. 1988). As will be outlined below, the Fifth and Eighth Amendments require that McVeigh be allowed to introduce mitigating evidence on mental condition and not be ordered to submit to a government mental exam; however, if he is ordered to submit to an exam, his refusal to cooperate will not render inadmissible his mitigating evidence on mental condition. A. BRADFORD V. STATE OF TEXAS The United States Supreme Court in Estelle v. Smith, 451 U.S. 454, 462-469, 68 L.Ed.2d 359 (1981) extended Fifth Amendment protections to the penalty phase of a capital murder trial, See also, United States v. Rogers, 921 F.2d 975, 979 (10th Cir. 1990), and required Miranda warnings to be read to the suspect prior to subjecting him to a government psychiatric examination. In 1993 the Texas Court of Criminal Appeals addressed the issue of the trial court's refusal to allow defense expert psychiatric testimony at punishment unless defendant agreed to be examined by a state psychiatric expert. Bradford v. State, 873 S.W.2d 15 (Tx.Cr.App. 1993) cert denied 130 L.Ed.2d 274 (1994). After being convicted of capital murder, the state sought the death penalty. The trial court record established that at the punishment hearing defendant sought to introduce testimony from a psychiatrist that: 1) future dangerousness in the long term cannot be accurately predicted; 2) appellant was diagnosed as borderline intellectual functioning; and 3) appellant was not diagnosed as having antisocial personality disorder. The state objected to this testimony unless their expert was allowed to examine the defendant. The Dallas district court sustained the objection. Dr. Death4 just happened to be waiting in the hall so the defense agreed to the mental examination under the provision that they were not waiving any of their rights and they were only agreeing to the exam because the "court's ruling obviously cuts very deeply into the defense ... by disallowing pertinent evidence to be submitted to the jury". Id. at 15. It was also agreed that the defense psychiatrist would be present to observe the government psychiatric exam. Id. at 16. In reversing the conviction, the Texas Court of Criminal Appeals stated that making the admissibility of the defense psychiatric expert's testimony contingent upon the defendant submitting to an examination by a state-selected expert was erroneous and violated the Sixth Amendment to the United States Constitution. Further, the admission of Dr. Grigson's (Dr. Death) testimony based upon his examination of defendant violated defendant's Fifth Amendment right against self-incrimination. Id. at 20. The state attempted to convince the Court that when the defense introduced evidence of two psychiatric evaluations this waived defendant's Fifth Amendment rights, citing Estelle v. Smith, 451 U.S. 454, 68 L.Ed.2d 359 (1981); Buchanan v. Kentucky, 483 U.S. 402, 97 L.Ed.2d 336 (1987); and Powell v. Texas, 492 U.S. 680, 106 L.Ed.2d 551 (1989). Estelle v. Smith involved violations of the Fifth and Sixth Amendments by the State's introduction of psychiatric testimony at the punishment hearing. Warnings were not given prior to the compelled mental exam and no notice was given to defense counsel that the competency examination would encompass the future dangerousness issue required for the death penalty in Texas. Bradford, supra at 17. The Court of Criminal Appeals recognized that not only was Smith not dispositive because the instant case did not involve lack of warnings or lack of notice, but the Court in Smith said that if a defendant refused to answer an examiner's questions after being properly warned, the "state would have to make its case on future dangerousness some other way". Id. at 17 (quoting Estelle v. Smith, 451 U.S. at 468). The state in Bradford argued that Buchanan v. Kentucky stood for the proposition that when a defendant requests a psychological evaluation or presents psychiatric evidence, the prosecution may rebut this presentation with the report of the requested examination without implicating the defendant's privilege against self-incrimination. The pivotal factor for the Texas Court of Criminal Appeals was the fact that none of the examinations in their case were for the purpose of determining competency or sanity issues as they were in Buchanan. Bradford, supra at 15. Additionally, the state in Bradford was requesting the suspect to be compelled to a mental exam, instead of requesting a psychological report already prepared at the request of the defendant as in Buchanan. Finally, the state argued the "not fair" rule of Powell v. Texas that it was "unfair to the State to permit a defendant to use psychiatric testimony without allowing the State a means to rebut that testimony". Bradford, supra at 15 (citing Powell v. Texas, 492 U.S. at 685). This is an oft-quoted proposition that adds reason to FRCP 12.2(c). The United States Supreme Court recognized that the defendant's use of psychiatric testimony might constitute a waiver of the Fifth Amendment privilege, "just as the privilege would be waived if the defendant himself took the stand". 492 U.S. at 684-685. In not being deterred by this language, the Texas Court of Criminal Appeals stated: However, the Supreme Court was clearly speaking in the context of a defendant raising a "mental-status defense". As noted previously, it is undisputed that the examinations in the instant cause were not for the purpose of determining competency or sanity issues; thus, there was no "mental-status" defense raised and the Grigson examination was not ordered as rebuttal to such a defense. Specifically, we observe that such issues were not raised at trial, in that appellant did not present any such evidence at guilt/innocence. Neither of appellant's two punishment expert witnesses, a psychologist and a psychiatrist raised such issues. Bradford, supra at 15 (emphasis added)(citations omitted). B. WHOLE DIFFERENT GAME WHEN THE DEFENDANT ASSERTS THE INSANITY DEFENSE AND INTRODUCES SUPPORTING PSYCHIATRIC TESTIMONY5 AS OPPOSED TO PRESENTING MITIGATING EVIDENCE OF MENTAL CONDITION. 1. Competency and sanity exams are frequently requested by the defense and therefore defendant is not compelled to be a witness against himself. See, Buchanan v. Kentucky, 483 U.S. 402 (1987); Schneider v. Lynaugh, 835 F.2d 570 (5th Cir. 1988)(voluntary exam requested by defense attorney); Selby v Shulsen, 600 F.Supp. 432 (D.C.Utah 1984)(testimony of the psychologist during the penalty phase regarding competency and defendant's mental condition is necessary for 8th Amendment considerations, where exam was voluntary and conducted at the request of the defense attorney, did not violate the 5th or 6th Amendments, nor was it improper use of attorney work product.); Williams v. Vasquez, 817 F.Supp. 1443 (Cal.1993)(statements made during voluntary psychological exam held for purpose of diminished capacity or insanity defense are not compelled within meaning of the Fifth Amendment). In Buchanan during the guilt/innocence stage of this death penalty case, the defendant called a social worker to testify from written evaluations of defendant's mental condition. On cross-examination the prosecutor was allowed to ask the social worker to read from another psychological evaluation conducted pre-trial at the request of the defense and the prosecutor. It was undisputed that this evaluation was conducted solely for the purpose of involuntary hospitalization of the defendant and was required by Kentucky state law. The Supreme Court stated that: [I]f a defendant requests such an evaluation or presents psychiatric evidence, then, at the very least, the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested. The defendant would have no Fifth Amendment privilege against the introduction of this psychiatric testimony by the prosecution. Buchanan v. Kentucky, 483 U.S. at 422 & 423 (citations omitted)(emphasis added). It was specifically noted by the Court that the psychiatric report entered by the prosecution set forth the psychiatrist's general observations about the mental state of the defendant but did not describe any statements by defendant dealing with the crimes for which he was charged. Id. at 423. 2. The basis for upholding compelled governmental exams of suspects asserting the insanity defense does not apply to mitigation evidence. Since October 12, 1984 insanity has been an affirmative defense in federal court upon which the defendant bears both the burden of production and the burden of persuasion by clear and convincing evidence. 18 U.S.C. Sec. 17(b). However, Federal Rule of Criminal Procedure 12.2(c) was drafted prior to 1984 when the burden of production was upon the accused and the burden of persuasion was upon the government to prove beyond a reasonable doubt that the defendant was sane at the time of the offense. It was recognized during this period that the best, and sometimes the only evidence on the issue of sanity was the expert psychiatrist. The hollowness of a government psychiatrist's testimony who had never interviewed the suspect was obvious. Some courts held that this was not fair in insanity cases where the government had the burden of proof. It was for these reasons that once a defendant raised the insanity defense and presented expert psychiatric testimony courts held the Fifth Amendment privilege was waived or the Defendant was estopped from asserting it and a psychiatric examination could be compelled. See, United States v. Byers, 740 F.2d 1104, 1113 (D.C. Cir. 1984) and Smith v. Estelle, 445 F.Supp. 647, 663 (N.D. Tex. 1977). The court in Byers cited and analyzed numerous cases that denied a Fifth Amendment claim because of the: unreasonable and debilitating effect it would have upon society's conduct of a fair inquiry into the defendant's culpability. As expressed in Pope: "It would be a strange situation, indeed, if, first, the government is to be compelled to afford the defense ample psychiatric service and evidence at government expense and, second, if the government is to have the burden of proof,...and yet it is to be denied the opportunity to have its own corresponding and verifying examination, a step which perhaps is the most trustworthy means of attempting to meet that burden." Id. at 1113 (citing Pope v. United States, 372 F.2d 710, 720 [8th Cir. 1967][en banc] vacated and remanded on other grounds, 392 U.S. 651 [1968] cert denied 401 U.S. 949 [1971])(emphasis added). In Estelle v. Smith, the Supreme Court made the distinction between a routine competency evaluation restricted to ensuring that the suspect understood the charges against him and was capable of assisting in his defense with a compelled psychiatric exam where the results were used by the state for a much broader objective that was "plainly adverse to respondent"6. Id. Dr. Grigson's competency exam was distinguished from a sanity examination occasioned by a defendant's plea of not guilty by reason of insanity at the time of the offense. The Court reasoned: When a defendant asserts the insanity defense and introduces supporting psychiatric testimony, his silence may deprive the State of the only effective means it has of controverting his proof on an issue that he interjected into the case. Accordingly, several Courts of Appeals have held that, under such circumstances, a defendant can be required to submit to a sanity examination conducted by the prosecution's psychiatrist. Estelle v. Smith, 451 U.S. at 465 (emphasis added). On the other hand, "the burden of establishing the existence of any mitigating factor is on the defendant and is not satisfied unless the existence of such a factor is established by a preponderance of the information". 18 U.S.C. 3593(c). The burdens of production and persuasion begin and remain solely with the defendant, as is the current standard for the federal insanity defense. Why should an accused be required to waive a constitutional right so the government can force him to possibly incriminate himself? One argument is that the defendant's statements that are the basis of the defense psychiatrist's testimony need to be tested for truthfulness. Welsh White, Government Psychiatric Examinations and the Death Penalty, 37 Ariz.L.Rev. 869, 878 (Fall 1995). He theorized: If not subjected to further testing, the defendant's statements may be 'garbled' because they have been evaluated only by a psychiatrist who has reached an opinion favorable to the defense, and whose testimony is therefore likely to be elicited by defense counsel in a way that puts it in the best possible light for the defense.... In order to 'ungarble' the defendant's statements, the government psychiatrist should be permitted to examine the defendant and to testify to her version of the defendant's statements. Id. According to his authorities, Professor White believes that cross-examination of the defense psychiatrist would not be sufficient because "even the most rigorously ethical psychiatrist could not be expected to convey accurately all of the nuances of the defendant's cognitive and emotional responses to the various stimuli of the evaluation". Id. (quoting Christopher Slobogin, Estelle v. Smith: The Constitutional Contours of the Forensic Evaluation, 31 Emory L.J. 71, 102 [1982]). It hardly seems fair that an accused's Fifth or Eighth Amendment rights may be thrown aside so the government can conduct "a more sufficient" cross-examination of a witness upon which the government has no burden of persuasion or burden of proof. Under any other scenario, "mere" cross-examination is one of the cornerstone safeguards afforded to an accused in our adversary system. Why should more rights and protections be afforded the government when in all other situations cross-examination of the witness was deemed sufficient for the defendant? The answer is that this should not happen. The Fifth and Eighth Amendments were written for the purpose of protecting the accused precisely in situations such as this, when the government tried to disregard fundamental rights. C. THE EIGHTH AMENDMENT RIGHT TO PRESENT MITIGATING EVIDENCE. This Constitutional right has evolved over a number of years and has developed into a formula for individualized sentencing. Furman v. Georgia, 408 U.S. 238, 33 L.Ed.2d 346, 92 S.Ct. 2726 (1972); Jurek v. Texas, 428 U.S. 262 (1976); Lockett v. Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma, 455 U.S. 104, 71 L.Ed.2d 1, 102 S.Ct. 869 (1982); Penry v. Lynaugh, 492 U.S. 302, 106 L.Ed.2d 256, 109 S.Ct. 2934 (1989); Graham v. Collins, 506 U.S.--, 122 L.Ed.2d 260, 113 S. Ct. 892 (1993); and Johnson v. Texas, 125 L.Ed.2d 290, 113 S. Ct. 2658 (1993). The principle of "individualized sentencing" under Lockett mandates consideration "as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death". 438 U.S. at 604 (emphasis in original). In fact, the individualized sentencing concept broadened to "whether the proffered evidence concerned the individual, revealing its assumption that the individualization requirement makes constitutionally relevant any and all traits or experiences that distinguish one individual from another". C. Steiker and J. Steiker, supra 102 Yale L.J. 842 (referring to Franklin v. Lynaugh, 487 U.S. 164, 172-75 [1988])(emphasis added). The federal death penalty statute includes as mitigating evidence "other factors in the defendant's background or character [which] mitigate against imposition of the death sentence". 21 U.S.C.A. Sec. 848(m)(10). Eddings and Penry specifically deal with the mitigation issues of mental and emotional development in response to traumatic experiences. The trial court and the Oklahoma Court of Criminal Appeals believed that they were unable under the Oklahoma death penalty statute to consider in mitigation the 16 year old's unhappy and troubled upbringing and emotional disturbance. Eddings, supra 455 U.S. 104. In reversing and remanding the death penalty sentence, the United States Supreme Court said: All of this does not suggest an absence of responsibility for the crime of murder, deliberately committed in this case. Rather, it is to say that just as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and mental and emotional development of a youthful defendant be duly considered in sentencing. Id. at 116 (emphasis added). In Penry the Court said not only is evidence of a disadvantaged background and emotional or mental issues constitutionally admissible at sentencing, but there must be jury instructions which permit the jury to give effect to that evidence. 106 L.Ed.2d at 268. Based upon the teachings of Penry and Eddings, we learned it is relevant and pertinent at the mitigation stage how a person emotionally and mentally got to the point of their development which prompted them to commit the offense7. Taking this one step further, this evidence illustrates a reduced culpability for the offense, not reduced to the point of a legal defense, but a reduction from the necessity of imposition of the death sentence. Evidence of the impact of what Tim learned about the U.S. Government while in the Persian Gulf, how this affected his basic values of how the U.S. Government should treat its citizens, his observations of the massacre at Waco and the subsequent governmental blameshifting, topped off with his intense feelings of governmental wrongdoing at Ruby Ridge, led Tim to a specific, fixed state of mind. As Clarence Darrow said in 1924 in his defense of Leopold and Loeb: The old indictments used to read that man being possessed of a devil did so and so.... Very few half-civilized people believe that doctrine any more. Science has been at work, humanity has been at work, scholarship has been at work and intelligent people now know that every human being is the product of the endless heredity back of him and the infinite environment around him. He is made as he is and he is the sport of all that goes before him and is applied to him.... Scott Howe, supra note 7, at 1008 (citing Maureen McKernan, The Amazing Crime and Trial of Leopold and Loeb, at 254 (1989). Tim has a right to have considered by his sentencer as mitigation against imposition of the death sentence why he is in the place he is today and what environmental and heredity factors made him behave as he did. However, life will not always be so good. On the horizon is Justice Scalia, who rigorously advocates the abolishment of all consideration of relevant mitigating circumstances. Walton v. Arizona, 110 S. Ct. 3047, 3066-68 (1990)(concurring opinion)("I will not, in this case or in the future, vote to uphold an Eighth Amendment claim that the sentencer's discretion has been unlawfully restricted." Also, his statement that the Furman line of cases was "arguably supported" by the text of the Constitution but the Woodson/Lockett line bore "no relation whatever".) and Sochor v. Florida, 112 S. Ct. 2114, 2130 (1992) (Scalia, J., concurring) ("It has been my view that the Eighth Amendment does not require any consideration of mitigating evidence...."). In fact his ideologies have spread. In two recent Supreme Court cases the same five Justice majority8 refused to follow the lead which was established in Penry. See, Graham v. Collins, 122 L.Ed.2d 260 (1993) and Johnson v. Texas, 125 L.Ed.2d 290 (1993). The Court got around following Penry by deciding that the remedy sought in Graham was a "new rule" which was prohibited by their ruling for habeas cases in Teague v. Lane, 489 U.S. 288 (1989). Notwithstanding the fact that Penry was also a habeas case which in effect created a "new rule". The remaining four Justices9 joined together with Justice Souter writing the dissenting opinion that as in Penry, the petitioner's characteristics of youth, unfortunate background and traits of decent character deserved consideration with proper instructions which they did not receive under Texas' special issues. Graham, 122 L.Ed.2d at 294 (Souter, J. dissenting). In Johnson the majority admitted that they were being given the chance to make the "new rule" which was prohibited in Graham. 125 L.Ed.2d at 303. The defendant in Johnson was allowed to present evidence at punishment regarding his youth, age 19 at the time of commission of the offense. However, he argued that under the Texas sentencing system the jury was not allowed to give mitigating effect to this evidence, in that there was no instruction to the jury that they could consider this evidence as mitigating. The rationale used by the Court in distinguishing Penry was that: the jury had a meaningful basis to consider the relevant mitigating qualities of petitioner's youth.... Unlike Penry's mental retardation, which rendered him unable to learn from his mistakes, the ill effects of youth that a defendant may experience are subject to change and, as a result, are readily comprehended as a mitigating factor in consideration of the second special issue [the issue of whether he was likely to be a danger in the future]. 125 L.Ed.2d at 307. In the most recent opportunity by the Court to consider the Furman/Lockett/Penry dilemma, Justice Blackmun wrote a stinging eulogy for his lifelong battle building constitutional safeguards for the death penalty. Callins v. Collins, 127 L.Ed.2d 435 (1994)(Blackmum, J. dissenting from denial of writ of certiorari). Gracefully he relented: From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored - indeed, I have struggled - along with a majority of this Court, to develop procedural ad substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies.... In Herrera, only a bare majority of this Court could bring itself to state forthrightly that the execution of an actually innocent person violates the Eighth Amendment. This concession was made only in the course of erecting nearly insurmountable barriers to a defendant's ability to get a hearing on a claim of actual innocence.... The Court is unmoved by this dilemma, however; it prefers "finality" in death sentences to reliable determinations of a capital defendant's guilt. Because I no longer can state with any confidence that this Court is able to reconcile the Eighth Amendment's competing constitutional commands, or that the federal judiciary will provide meaningful oversight to the state courts as they exercise their authority to inflict the penalty of death, I believe that the death penalty, as currently administered, is unconstitutional.... I am more optimistic, though, that this Court eventually will conclude that the effort to eliminate arbitrariness while preserving fairness "in the infliction of (death) is so plainly doomed to failure that it - and the death penalty - must be abandoned altogether". I may not live to see that day, but I have faith that eventually it will arrive. The path the court has chosen lessens us all. I dissent. 127 L.d.2d at 438, 448 & 449 (citations omitted). D. THE CONFLICT BETWEEN THE FIFTH AMENDMENT RIGHT TO NOT BE A WITNESS AGAINST ONESELF AND THE EIGHTH AMENDMENT RIGHT TO PRESENT MITIGATING EVIDENCE. In 1968 the United States Supreme Court recognized the "undeniable tension" which occurs when an accused finds himself in a spot where he is forced to "choose between the pursuit of one benefit under the Constitution and the consequent waiver of another". See, Simmons v. United States, 390 U.S. 377, 394, 19 L.Ed.2d 1247, 1259 (1968). Their response to this dilemma was simple: "intolerance". The only way the defendant could assert his standing and pursue his Fourth Amendment rights at the pre-trial suppression hearing was to waive his Fifth Amendment right and testify that he was the owner of the suitcase containing bank robbery evidence. At the same time he knew that this would provide the link the prosecution needed to tie him to the robbery. The Court declared: In these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another. We therefore hold that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection. Simmons, 390 U.S. 394. Therefore, any attempt to coerce Tim McVeigh to be a witness against himself during a compelled mental exam so that he will be allowed to present constitutionally guaranteed mitigating evidence that may mean life or death is in contravention of the principles upon which this Country is built and provides a grim view of the future. ALM 6:\a:mcveigh\memos\mitigate