Before LAY, Chief Judge, and
HEANEY, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG,
BOWMAN, WOLLMAN, MAGILL, and BEAM, Circuit
Judges, en banc.
ARNOLD, Circuit Judge.
This is a habeas corpus case
initially brought by Gerald Smith, a Missouri
state prisoner under sentence of death. On
September 29, 1988, a panel of this Court denied
a certificate of probable cause, thus
effectively dismissing the appeal from the
judgment of the District Court, which had
dismissed the habeas petition on its merits.
Smith v. Armontrout, 692 F.Supp. 1079 (W.D.Mo.1988)
(Wright, C.J.). Our panel took this action
because Smith himself had asked for it, and the
panel was convinced of his legal capacity to
make that decision. Smith v. Armontrout, 857
F.2d 1228 (8th Cir.1988) (per curiam).
The Missouri Public Defender
Commission and Terry Brummer, Director of the
Office of the State Public Defender, who had
been acting as next friends to try to prevent
Smith's execution, then filed a petition for
rehearing by the panel, with suggestions for
rehearing en banc. This petition was filed on
September 30, 1988. Smith's execution had been
set by the Supreme Court of Missouri for October
4, 1988, and no stay of execution was in effect.
While the petition for rehearing was pending,
and before we had ruled on it, three Members of
this Court, acting as individual circuit judges,
granted an emergency temporary stay of the
execution. They did so to afford themselves time
to study the record in order to determine how to
cast their votes on the petition for rehearing
en banc. Smith v. Armontrout, No. 88-2359 (order
of Lay, C.J., Heaney and McMillian, JJ., filed
October 3, 1988).
A motion of the respondent to
vacate this stay was denied by the Court en banc,
two judges (Fagg and Magill, JJ.) dissenting,
and the Supreme Court also declined to set aside
the three-judge stay. Armontrout v. Smith, ---
U.S. ----, 109 S.Ct. 200, 102 L.Ed.2d 170
(1988). Thus, the execution did not take place
on October 4, and the stay remained in effect
pending our decision on the petition for
rehearing. A supplement to the petition has also
been filed and considered by the Court.
We now deny the petition for
rehearing en banc. A brief summary of the
history of this case will suffice to explain our
reasons.
The murder of Karen Roberts
took place in 1980. Smith was convicted of this
crime and sentenced to death in 1981. The
conviction was upheld on direct appeal and on
collateral review in the state courts. From time
to time, Smith changed his mind about pursuing
efforts to have his conviction set aside. By the
time the habeas corpus petition now before us
was filed in the District Court, Smith had
decided he did not want to pursue his remedies.
A series of next friends
attempted to press them on his behalf, however,
claiming that Smith was not competent, and that
his decision to accept the death sentence was
not voluntary. Accordingly, the District Court
held an extensive and searching evidentiary
hearing, including testimony from psychiatric
experts on both sides of the issues.
After this
hearing, at which the burden of proof was placed
on the State to show that Smith's decision was
both competent and voluntary, the District Court
found as a fact that Smith had the capacity to
make his own decision, and that he had made it
voluntarily. Smith v. Armontrout, 632 F.Supp.
503 (W.D.Mo.1986).
On appeal by the next friends,
we affirmed. 812 F.2d 1050 (8th Cir.1987). After
carefully studying
the entire record, we held that the District
Court's findings were not clearly erroneous.
The next friends filed a petition for rehearing,
with suggestions for rehearing en banc. The
petition was denied. Not a single judge voted to
grant it. In fact, no Member of the Court even
requested a poll on the petition.
The Supreme Court denied certiorari. --- U.S.
----, 107 S.Ct. 3277, 97 L.Ed.2d 781 (1987). No
Member of that Court indicated a desire to
review the case.
In the meantime, Smith had
changed his mind, apparently, in part at least,
because he had gotten married. He decided to
prosecute his habeas petition, and the District
Court proceeded to hear and determine the merits
of the petition. As we have noted, the District
Court dismissed the petition on the merits.
Smith then reverted to a determination to
acquiesce in his sentence, and asked that the
case be dropped.
His court-appointed counsel,
acting out of a commendable abundance of caution,
filed a notice of appeal anyway, which we
treated, in accordance with Fed.R.App.P. 22(b),
as an application for a certificate of probable
cause. Smith then wrote the Clerk of this Court
to ask that the appeal be dismissed.
Since we
had previously affirmed his competence to make
such a decision, we knew of no reason why his
wish should not be granted, but, because life
was at stake, we did not simply deny the
application out of hand, but instead entered a
show-cause order indicating our intention to do
so if no good reason to the contrary could be
shown. Smith v. Armontrout, 858 F.2d 1303 (8th
Cir.1988) (per curiam).
As a result of this order,
the current set of next friends entered their
appearance, alleging certain facts that, they
contended, required a new evidentiary hearing on
Smith's competence. The following facts were
alleged:
The Commission and Brummer
are aware of several events in Smith's life
which need to be examined at a new competency
hearing to determine their effect on Smith's
present "waiver" decision. The events are:
A. Gerald Smith's marriage to
Lyn [sic] Smith.
B. Gerald Smith's decision to
change his mind about waiving his appeals
reflected in his filing of a federal habeas
corpus petition in the federal District Court
which is the subject of this appeal.
C. The litigation concerning
Smith's federal habeas corpus petition in the
District Court.
D. After the District Court's
decision to deny Smith's federal habeas corpus
petition, Smith's apparent decision, reflected
in his September 23, 1988 letter, to change his
mind again, abandon his appeals, and acquiesce
in his execution.
5. Lyn [sic] Smith's recent
decision to encourage her husband to abandon his
appeals and acquiesce in his execution.
In the panel opinion which
gave rise to the present en banc proceedings, we
held these allegations legally insufficient. The
Court en banc now adopts the panel opinion. We
repeat, for the reasons given in that opinion,
that the facts alleged by the next friends, even
if fully established by evidence, do not amount,
in law, to a sufficient reason to reexamine the
previous finding, which is now the law of this
case. Conspicuously absent are any allegations
of new psychiatric examinations or new conduct
by Smith, other than the facts of his marriage
and his changes of mind. As we said in the panel
opinion:
We think these allegations,
assuming their truth for present purposes, are
legally insufficient to create a genuine issue
of material fact as to Smith's present mental
capacity. Subparagraph C is simply a factual
recitation that habeas litigation has occurred
in the District Court. Subparagraphs B and D
accurately state that Smith has changed his mind
in the past ..., but competent people do change
their minds, even about very important matters,
and past changes of mind were among the
arguments that we considered and rejected when
we considered the question of Smith's capacity
last year.
Subparagraphs A and E merely
recount Smith's marriage and his wife's decision
to encourage him to abandon his appeals. We have
not heard from Mrs. Smith,
but we assume that the motion is accurate in
this respect. Even so, no genuine issue of her
husband's capacity is raised. It is not at all
unnatural for someone to consult with his or her
spouse about important matters and to be
influenced by the spouse's advice. Nor do we
have any reason to suppose that Mrs. Smith is
exercising any undue influence, or that she is
acting for any reason other than her own sincere
belief as to her husband's best interests.
857 F.2d at 1229-30.
In their petition for
rehearing, the next friends make the same
arguments that were before the panel. In
addition, they have submitted the affidavits of
three psychiatrists, none of whom has ever
examined Smith, but all of whom think we should
order a new evidentiary hearing.
The affidavits are substantially similar.
They opine that the new facts
alleged by the next friends, allegations we have
set out above, show that "a medical presumption
exists that Smith has experienced a chronicity
of stress factors which could provide marked
psychic disorganization in Mr. Smith." Affidavit
of Moisy Shopper, M.D., p 7(A). In addition,
Smith's marriage is said to be "a very
significant psychological event" and "not an
ordinary marriage" (Smith being on death row).
Id. p 7(B).
These opinions are
insufficient to require a new mental examination.
In the first place, they are carefully hedged
and tentative. It is not said, for example, that
Smith is exhibiting "marked psychic
disorganization," but only that "a medical
presumption exists ... which could" create such
a condition.
In the second place, the
issue is more one of common sense and good moral
judgment (fields in which the competence of
judges should equal that of psychiatrists) than
of medical expertise. In expressing these views
we mean no disrespect or deprecation of the
three physicians who have come forward to
express their views. They have done so in all
good faith to be of assistance to us and to the
public interest in fair adjudication. We simply
do not believe that their opinions come up to
the required legal threshold.
It is important to remember
that the issue of legal decisionmaking capacity
that the next friends now urge is not before us
now for the first time. We are not writing, as
the phrase goes, on a clean slate. Rather, we
must take the prior determination of competence
as a given, a sort of benchmark, the correctness
of which we are entitled to presume unless some
substantial reason to the contrary appears.
Any other approach would make
meaningless prior determinations of mental
condition, because it is always possible for a
next friend, acting at the last minute, to
request a new evidentiary hearing on a
prisoner's competence to waive his remedies,
just as it is possible for a prisoner himself,
at the last minute, to request a new evidentiary
hearing with respect to his own sanity for
purposes of Ford v. Wainwright, 477 U.S. 399,
106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), which
holds that the Eighth Amendment does not permit
the execution of a prisoner who is "insane."In
this regard, we take our cue from the concurring
opinion of Justice Powell in Ford. Once a
finding as to mental condition has been fairly
and properly made, "[t]he State ... may properly
presume that petitioner remains sane at the time
sentence is to be carried out, and may require a
substantial threshold showing of insanity merely
to trigger the hearing process." Ford v.
Wainwright, supra, 477 U.S. at 426, 106 S.Ct. at
2611 (opinion of Powell, J., concurring in part
and concurring in the judgment) (footnote
omitted).
This remark, made in the
context of the Ford insanity-at-the-time-of-execution
issue, is just as valid in the present context,
in which the issue is a prisoner's present
capacity to waive his remedies. See also Johnson
v. Cabana, 818 F.2d 333, 339-40 (5th Cir.) (per
curiam), cert. denied, 481 U.S. 1061 , 107
S.Ct. 2207, 95 L.Ed.2d 861 (1987); Evans
v. McCotter, 805 F.2d 1210, 1213-14 (5th
Cir.1986).
Language in Johnson is
particularly apposite in the present situation.
There, a psychologist concluded that the
prisoner's present condition "may" impair his
relations with his counsel, and the Court
remarked that such a showing did "not come close
to establishing that Johnson lacks a sufficient
understanding to know what facts might help his
case or the requisite intelligence to discuss
them with his counsel." Johnson, 818 F.2d at
340.
It may well be that Smith
suffers from one or more mental disorders. Such
a showing, without more, is wholly insufficient
to meet the legal standard that the Supreme
Court has laid down for this kind of case. The
rule of that Court is that defendants may waive
their remedies if they have the capacity to
appreciate their position and make a rational
decision, and if they do not suffer from a
mental disease, disorder, or defect that may
substantially affect this capacity. See Rees v.
Peyton, 384 U.S. 312, 314, 86 S.Ct. 1505, 1506,
16 L.Ed.2d 583 (1966) (per curiam).
The statement in one of the
dissenting opinions, post, p. 1513, that "[i]t
is ... fundamental that a person ... who
manifests a state of mental disorder or disease
demonstrating mental instability should not be
allowed to waive their legal rights" is not
consistent with this standard. More than mental
disorder must be shown. The disorder must be one
that substantially affects the prisoner's
capacity.
Both of the dissenting
opinions emphasize Smith's history of mental
disorder and family instability. In addition,
large and selective excerpts from the testimony
at the evidentiary hearing on Smith's competence
are quoted. The controlling point for legal
purposes, though, is this: all of this testimony
was considered by the trier of fact more than
two years ago, and a finding in favor of
competence was made.
When the three-judge stay was
entered on October 3, the stay order was careful
to emphasize that "[w]e do not suggest a
collateral attack may be made on" the prior
findings affirmed by this Court. Order of Lay,
C.J., Heaney and McMillian, JJ., p. 2. It seems
to us that the dissenting opinions fail to live
up to this statement.
* * *
* * *
In sum, for the reasons
stated, we hold that the new allegations of fact
made by the next friends, even when supplemented
by the three new psychiatric affidavits, are not
sufficient to raise a genuine issue of material
fact requiring a new evidentiary hearing. The
prior finding of competence therefore remains in
effect.
The whole presupposition of
the criminal law is that most people, most of
the time, have free will within broad limits.
They are capable of conforming their actions to
the requirements of the law, and of appreciating
the consequences of failing to do so. Without
this fundamental moral and legal assumption,
punishment, one of the principal purposes of the
criminal law, would be an irrational exercise.
The watchword of the law is individual
responsibility.
By the same token, individuals
who are responsible for their acts continue to
be responsible for their decisions and continue
to be in charge of their own fate, to the extent
permitted by law. If someone decides that he or
she prefers to acquiesce in a presumptively
lawful judgment of a court, this decision should
be respected, unless that person's mental
condition is so abnormal that it does not meet
accepted legal requirements. Mr. Smith decided
to commit murder in the first place. He has now
decided to suffer the consequences of this
action. We believe the law allows him to make
this decision.
Accordingly, the petition for
rehearing en banc is denied, and the petition
for rehearing by the panel is also denied. The
stay of execution previously entered by three
individual circuit judges is hereby dissolved.
We direct that our mandate issue forthwith.
It is so ordered.
*****
LAY, Chief Judge, with whom
HEANEY and McMILLIAN, Circuit Judges, join,
dissenting.
The sole issue involved in
this petition is whether or not the district
court should be required to hold an evidentiary
hearing to determine whether Gerald Smith is
legally competent at the present time to make a
decision to abandon his appeal from the denial
of his petition for a writ of habeas corpus
entered by the district court on August 11,
1988. Smith is under sentence of death for
capital murder. His sentence was scheduled to be
carried out according to the order of the
Supreme Court of Missouri on October 4, 1988.
A panel of this court, on
September 29, 1988, refused to stay the
execution of Smith on the basis that Smith
himself has written to this court stating that
he does not wish to pursue an appeal of the
denial of his petition for a writ of habeas
corpus; that he wants the appeal dismissed; and
that he wants the sentence carried out without
further review. The Missouri Public Defenders
Commission and the Director of the State Public
Defender filed a petition for a rehearing by the
panel with the suggestion for rehearing en banc.
On October 3, 1988, three judges of this court,
myself, Judge Heaney and Judge McMillian,
entered an order staying the execution pending
our study of the record and the petition for
rehearing en banc.
There can be little question
that the petition for habeas corpus filed by
Smith's appointed counsel in the federal
district court states substantial issues
concerning the validity of Smith's death
sentence. There is little question that this
court would grant a certificate of probable
cause to allow the appeal to proceed on the
grounds that the petition for writ of habeas
corpus contains several arguable issues that
would, if decided favorably to Smith, invalidate
his death sentence rendered by the state court.
Included in this challenge are substantial
issues relating to alleged ineffective
assistance of counsel Smith received during the
trial, the constitutionality of the Missouri
death penalty statute and death penalty
proceedings, the constitutionality of the petit
jury that rendered the death penalty, and the
denial of due process in the trial itself. It is
clear that this court would grant a certificate
of probable cause for Smith to proceed to
challenge the denial of the writ of habeas
corpus and that the only issue now before us is
whether Smith is competent to waive these rights
and whether undue influence has been exercised
on Smith in his weakened mental condition to
cause Smith to waive these rights. We note this
is the first and only appeal that has ever been
filed on behalf of Smith in this habeas corpus
proceeding.
The panel's opinion relies
upon the federal district court's determination
that Smith was competent and capable of making a
rational decision. This decision was entered by
the district court on April 5, 1986, and that
determination was affirmed by the court in Smith
v. Armontrout, 812 F.2d 1050 (8th Cir.), cert.
denied, --- U.S. ----, 107 S.Ct. 3277, 97 L.Ed.2d
781 (1987). The panel found that the district
court's finding continued to be controlling and
that there was no evidence or reason suggesting
that Smith's mental condition has materially
changed for the worse in the intervening time.
I would respectfully disagree
with that finding. The determination by the
district court was made some two and one-half
years ago. Examination of that record reveals
that there was substantial disparity between the
psychiatric expert witnesses testifying for the
state and the psychiatric expert witnesses
produced by Smith.
Furthermore, the Missouri
Public Defender Commission's petition for
rehearing en banc contains affidavits of three
psychiatrists who have given their opinion,
within a reasonable degree of medical and
psychiatric certainty, that based upon
intervening events the evaluation of Smith that
took place during the hearing in February, 1986,
should not be used as the dispositive
determination of Smith's present mental
condition to determine whether Smith is free
from mental disease and defect and therefore
capable of being executed under laws of Missouri
and the Constitution of the United States.
At the time that the state
court first held a competency hearing to
determine whether Smith was capable to waive the
appeal of his death sentence and was legally
competent to be executed in 1983, it is revealed
in the petition for habeas corpus that pursuant
to the statute in the State of Missouri, the
warden of the Missouri Penitentiary in 1983
sought psychiatric opinions of three different
psychiatrists.
At the hearing before the St.
Louis Circuit Court in 1983, the state produced
only one of those psychiatric examinations, that
being the expert opinion of Dr. Pettipiece. Not
produced at the state court hearing and not
disclosed to Smith's trial counsel at that time
were two other psychiatric reports, one being
Dr. Daniel's report dated June 13, 1983, who at
that time was a staff psychiatrist at the Mid-Missouri
Mental Health Center at the University of
Missouri School of Medicine, and the other being
Dr. Bruce Harry's report dated June 10, 1983,
who was Assistant Professor of Psychiatry at the
University of Missouri at Columbia. Both of
these doctors would have testified that Smith
was not competent to be executed in 1983. Yet
these reports were not disclosed to the state
court.
These reports were later
discovered by Smith's trial counsel and were
produced for expert witness to review at the
competency hearing in 1986. The relevancy of the
non-disclosure of these reports casts continued
doubt regarding the full disclosure by the state
as to Smith's competency at the present time. It
is clear that Smith has not ever had a valid
competency hearing in the state court. But of
equal significance is the revealing testimony of
the state's psychiatric and psychological
experts who, while finding Smith to be competent
at the 1986 hearing, were willing to concede
that Smith did suffer from a mental disorder and
that depending on the time, place, and
circumstances under which Smith was examined,
Smith's mental stability fluctuated from various
degrees of competency to severe degrees of
depression and instability.
For example, Dr.
Clayton Pettipiece, psychiatrist at the United
States Medical Center for Federal Prisoners in
Springfield, Missouri, who had observed Smith in
states of great depression, commented on what he
considered Smith's improved condition in early
1986:
Q. Now, in December of 1984,
did Mr. Smith indicate to you that he was
depressed?
A. No sir.
Q. Not at all?
A. He never talked about
being depressed, no.
Q. But in your report you
state--in the report you recently prepared dated
February 13, you state: "Affect and Mood:
Patient's affect was appropriate at all times.
His mood was no longer despondent nor did he
indicate any depression as he has previously."
Now, that seems to indicate that at one time he
did tell you he was depressed.
A. He didn't tell me he was
depressed. He was in a better mood than he was
previously so obviously he's in a better mood at
this time than he was previously.
Q. But you say in there that
he did not indicate any depression as he had
previously.
A. He did not indicate
any--he never did tell me that he was depressed.
Q. Why did you use that
particular phraseology that he did not indicate
this time any depression where he had previously?
A. I guess I just don't know
how to use good English all the time. It's just
a poor sentence structure maybe.
Q. Well, how would you
compose that sentence if you could recompose it?
A. I'd have to look at it and
see.
Q. What would you want to say
in that sentence?
A. I simply would like to say
that he's not as depressed--he feels better than
he did on the time when we saw him previously.
Q. And you said that one of
the results of a personality disorder like Mr.
Smith has is that he's unable to delay
gratification.
A. That's--
Q. He's impatient.
A. That's true.
Q. He's impulsive.
A. I believe Mr. Smith has
been impulsive in the past.
Q. And is that because he
can't tolerate the anxiety of delayed
gratification?
A. I don't know why, it's
just that that's the way he does.
Q. Is Mr. Smith able to deal
with his anxieties?
A. To some extent.
Q. Does he have a history of
dealing with his anxieties in anything other
than violent outbursts, suicide attempts?
A. Sure.
Q. And what is that history?
A. I'm sure he's anxious
right now and he's not violent, he's not
outbursting, he's not attempting suicide.
Competency Hrg. Transcript at
2-69 to -71.
Dr. David V. Foster, a
psychologist at the facility in Springfield,
while diagnosing Smith as competent, admitted
that this issue was "hazy" and he was not
certain of his position:
Now, a problem there for me
is on the rational side. In the past some courts
have interpreted that as an affective component
that's a lot more subjective. It could vary. If
you had five different professionals sitting up
here that could give you five different answers
because it would be a professional opinion but
it would be a very subjective professional
opinion. On that level again in my determination,
Mr. Smith is competent. Okay. But it's a hazey
[sic] area, it's a fuzzy area. I'm not sure that
person who is facing death, who is condemned to
die, who experiences hopelessness anyway, who
does have some lack in social skills, in terms
of coping skills, I'm not sure that that allows
a person to be "fully rational." I don't know
what the standard is or what the ideal is there.
That's a gray area for me.
Id. at 2-118. Dr. Foster also
noted a long history of severe depression as
well as "self-damaging impulsity" and a "pattern
of intense and unstable inter-personal
relationships." Id. at 2-114:
I'm not completely convinced
given say for instance the borderline
characteristics that Mr. Smith has, I'm not
completely convinced how robust his capacity is
as far as to make a rational decision in a
number of areas. His impulsivity and potential
for self destruction are clearly documented.
* * *
* * *
[H]e's also aware of the ups
and downs and the potential length of time that
the whole appellate procedure can be stretched
out, even here in the federal courts. He's
cognitively aware. I don't know how emotionally
aware he really is.
Id. at 2-120 to -121. As for
the possibility of Smith's susceptibility to
undue influence, Dr. Foster stated:
A. In my opinion emotional
pains are more severe than physical pains and in
my opinion, yes, he does fear--with the people
he's already close with he doesn't want to cause
any more pain to himself or to them and to me it
would make sense that one way he would do that
is just to avoid the whole arena, tell them just
leave me alone. That would be easier for him
than the ongoing and periodic pain that he has
no outlet for.
Q. Now in this ongoing and
periodic pain I also assume that there may be
some concern on Mr. Smith's behalf that they
might change his mind.
A. That's feasible.
Q. And you know that that's
happened in the past.
A. He has changed his mind.
I'm not going to--in my opinion Mr. Smith is
responsible for that change. [H]e's changed his
mind. They might have greatly influenced it.
* * *
* * *
Q. And if you wanted to be
destructive, would Mr. Smith be amenable to that
kind of influence?
A. There's that potential
based on the quality of the relationship. I
think he is influenceable as I think most people
are, perhaps more influenceable than the average
person, by a select few.
* * *
* * *
A. I only said it could be
consistent with some of my perception and
interpretation of Mr. Smith's behavior. I think
that one of the things that Mr. Smith fears, as
I said, is pain and the deepest kind of pain
isn't physical pain that he fears as much as
emotional pain. I think it pains him to argue,
to change his mind, to have them begging him
perhaps to continue seeking to live, to continue
seeking a quality of life and a length of life
in so long as that's in his power. I think for
him that is painful. It's painful to say no to
them. It's painful to be consistently reminded
of those issues when he keeps swaying back and
forth. I think he is attempting to escape the
conditions there, not just the death row
physical conditions, I'm talking [abo]ut the
psychological and emotional climate as well.
Death appears an option out for him.
Q. Is it your opinion or from
your conversations with Mr. Smith that someone
is attempting to influence Mr. Smith not to
pursue his appeals.
A. That's my conjecture.
Id. at 2-142, 2-144, 2-168.
Dr. Sadashiv Parwatikar,
whose deposition was taken February 10, 1986, is
a psychiatrist and an associate clinical
professor at the University of Missouri, in
Columbia. Dr. Parwatikar initially examined
Smith in the early 1980's:
A. My diagnosis at that time
was he continued to have the borderline
personality, but he was also suffering from mild
depression.
Q. And could you give us the
basis for that finding?
A. Mr. Smith, at this time,
had changed his story and had stated to me that
he indeed had killed this woman, and that he was--there's--there's
no sense in living any further because he had a
small child, and he did not want--want the small
child to grow up knowing that he was a murderer,
and that he wanted to get the death penalty
because he did not want to live, and basically
he had sort of lost hope with--with this case,
and I felt that this was again a function of his
borderline personality because borderline
persons, can become depressed, and can become
rather impulsive to the point that they
sometimes don't know what they're trying to do *
* *.
Parwatikar's Dep. at 10. "[P]eople
can change from--from month to month, year to
year, but since I have seen him for four years,
I believe that this man is borderline at--and at
any given time, he could become impulsive, and
become dangerous to himself, or others." Id. at
21. Finally, Dr. Parwatikar summed up the
typical conduct of an individual such as Smith:Q.
Okay. Now, you said that--that one of the
primary motivators, in terms of Mr. Smith's
character disorder, is that he has to have his
own way?
A. That's right.
Q. Okay. That would be
somewhat similar to how a child sometimes reacts,
when they don't get their own way?
A. That's correct.
Q. And that the impulsive
behavior is often, if he doesn't get his own way,
he's going to show you by doing something
impulsive?
A. That's correct.
Q. That may be dropping his
appeals because he feels his family hasn't paid
enough attention to him, it may be hitting
someone over the head because he's mad [at]
someone else?
A. That's right.
Q. Okay. So that that kind of
impulsive behavior, is very consistent with the
characterological disorder that you found in Mr.
Smith?
A. That's correct.
* * *
* * *
Q. * * * because he was a
borderline personality disorder, he may or may
not be acting on some--based on some psychosis?
A. That's correct.
Q. And that a--it was
appropriate to do another examination, or
evaluation, to determine what was the basis for
his decision, if any?
A. That's correct.
Q. Okay. And in that
particular document, you also indicated on Page
2, that psychological testing during the
examination indicated that Mr. Smith's ability
to exercise rational judgement [sic] in
practical situations, was in the mentally
handicapped range, which would serious[ly]
affect his decision making under stressful
situations?
A. That's correct.
Q. Okay. And I assume that
living on death row itself, from what you--at
least you understand it, obviously is a--is a
stressful situation?
A. Yes, sir.
Id. at 33, 41-42.
Finally, Dr. Z.A. Ajans is a
psychiatrist who is on the University of
Missouri faculty and consultant to the state's
department of corrections. In his first visit,
Dr. Ajans observed Smith in a severe state of
depression. His next visit showed Smith much
improved but Dr. Ajans nonetheless acknowledged
his long history of unstable and
self-destructive tendencies. Regarding Smith's
many attempts at suicide, Dr. Ajans stated:
A. * * * He'd had a total of
five, three before his incarceration and two
since his incarceration. I could not make any
judgments about the nature of the suicide
attempts before his incarceration but he gave me
the impression that the ones since his
incarceration were not genuine suicide attempts
and I believed him.
Q. Okay. Now when you
interviewed Mr. Smith you indicated that he
oftentimes tries to tell you what he thinks you
want to hear, the audience wants to hear.
A. Yes.
Q. And that would be true?
A. Especially, as I said, I
think there was a definite change in attitude
and his willingness and degree of cooperation. I
felt that that was true more so during the 1984
examination than the 1986 examination.
Q. Okay. And at that time you
said he appeared insecure and inadequate?
A. Yes, he has.
Q. Do you feel that he is no
longer insecure?
A. I'm sure he was--part of
the personality disorder we're talking about
there are--even though they act tough and
they're very hostile and aggressive, there are
always feelings of insecurities in these people,
so to that extent, yes, it's correct even now.
Q. Would a borderline
personality disorder necessarily improve or his
condition improve with time?
A. Borderline personality
disorders manifest--their symptomatology becomes
worse during stressful situations. But the basic
personality makeup, the tendencies are
unchanged.
Q. Okay. And they wouldn't
change with treatment or otherwise?
A. No, the basic tendencies.
Q. So that the borderline
personality disorder that you found which was
found by almost every psychiatrist who has dealt
with him, would still exist.
A. That's correct.
Q. And you don't think that
it's gone?
A. I'm sorry.
Q. You don't think that it's
dissipated or lessened in any way.
A. No sir.
Q. So then--
A. Other psychiatrists may
disagree with me though, I mean, it's just a
matter of opinion regarding this examination but
it's my opinion that he did demonstrate the
findings that were compatible with those
personality disorders.
Q. Is his background one of
inconsistency?
A. Inconsistency?
Q. Inconsistency.
A. Yes.
Q. Is his background one of
erratic judgments?
A. Yes sir.
Q. Would you say that his
ability to make judgments is influenced
considerably by his personality disorders?
A. Yes sir.
Q. All right. And so that
those mental disorders that you're referring to
would influence his ability to make judgments.
A. Yes sir.
Competency Hrg. Transcript at
2-195 to -197. Smith's mental condition,
according to Dr. Ajans, could have a substantial
influence over his decision making powers:
Q. Now in the response to Ms.
Mescher's question you said that a personality
disorder would interfere with someone's judgment
making capabilities, is that correct?
A. Judgment?
Q. Yes.
A. Yes sir.
Q. And when you say
"interfere" I assume you also mean it would
affect it.
A. Yes sir.
Q. And could affect it
substantially.
A. Yes sir.
Id. at 2-211 to -212.
Smith has now filed an
affidavit with this court asserting that he is
competent to make his choice and that he now
chooses to die. Smith is resentful of the
Missouri Public Defender Commission and the
judges of this court who seek another competency
hearing.
This affidavit is compatible
with Smith's declaration made over the past
several years at the times when he wished to
dismiss his appeal. It is inconsistent with the
various occasions where he has changed his mind
and has sought to make further challenge and
attack upon the validity of his sentence. Over
the course of time since Smith was sentenced to
be executed, Smith has changed his mind on at
least ten occasions as to whether or not he
would challenge the state death sentence.
The clerk's office has
received reports from Smith's wife stating that
she has not exercised undue influence. The
clerk's office has also received a report
allegedly made by a Deputy Attorney General of
the State of Missouri that Smith's wife has a
contract to publish a story about Smith's life
when he is executed. These factors are not in
the record but simply illustrate the need for
further evidentiary exploration as to what
influences have been injected in Smith's alleged
exercise of free will in dismissing his appeal.
Smith has been convicted in
the state court of first degree murder. A
competency hearing was thereafter held which was
incomplete and which did not disclose all of the
exculpatory information concerning Smith's
competency in the state proceedings.
Three years later, in 1986,
the federal court determined Smith was competent
to waive his rights to appeal. This was two and
one-half years ago, and now Smith has once again
decided to abandon his appeal.
A person of
mental instability may be subject to all kinds
of psychological stress and undue influence such
that this person can be easily influenced to
make decisions which are not done of one's own
free will. It is fundamental that no person
should be executed at the hands of the state
unless they have been afforded due process of
law and effective representation by counsel.
Furthermore, a person who is
not legally competent must not be executed. It
is equally fundamental that a person who is not
legally competent to exercise their free will in
making a rational decision or who manifests a
state of mental disorder or disease
demonstrating mental instability should not be
allowed to waive their legal rights; such a
person cannot be allowed to waive the right to
live or exercise the right to die.
Under these circumstances, in my judgment, it
is and would be a denial of due process of law
to dismiss Smith's appeal without a further
determination of Smith's mental competency to
exercise his own free will.
HEANEY, Circuit Judge, with
whom LAY, Chief Judge, and McMILLIAN, Circuit
Judge, join, dissenting.
I write separately to outline
Gerald Smith's personal history, because I
believe that his personal history supports the
view that Smith's mental health is a progressive
and changing condition requiring that a current
evidentiary hearing be held to determine his
present competency to dismiss his appeal.
The experts who examined
Gerald Smith are in general agreement that Smith
suffers from a borderline personality disorder,
from an anti-social personality disorder, and
from a history of depression. (The term "borderline"
means that Smith sits on the border between
psychotic and intensely anxious behavior, out of
control anger and the opposite.) The experts are
also in general agreement that each of the above
are "mental disorders" within the meaning of
Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16
L.Ed.2d 583 (1966).
The record moreover makes it
clear that Smith has suffered from these
disorders during most of his thirty years. As a
young child, Smith sustained several serious
head injuries. When he was less than two years
old, he was admitted to the St. Louis City
Hospital with lead poisoning. The lead level in
his body was dangerously high. He was thrown out
of school in the first grade for fighting. At
age 10, he became a petty thief. At age 15,
Smith was sent to the Missouri Hills Home for
Boys, a juvenile detention facility. Throughout
Smith's childhood his father drank excessively
and beat Smith frequently.
Smith dropped out of school
after completing the eighth grade and has had no
significant period of employment since dropping
out. He has abused alcohol and marijuana since
age 13 and has abused amphetamines, demoril,
placedil and valium on a regular basis for a
number of years. Smith has a history of being
unable to maintain enduring relationships,
although he has had many sexual partners.
Smith has a long history of
being unable to control his anger, causing him
to act impulsively. Smith has a history of
physically hurting himself, implicating suicidal
tendencies. He has cut his forearm 83 times, he
has slashed his wrist three times, and he has
overdosed on several occasions. He has attempted
suicide five times: three times before
incarceration, and twice thereafter.
Smith was arrested on eight
occasions between September, 1979, and August,
1980. He was admitted to the Alexian Brothers
Hospital in St. Louis in 1980 after he
threatened to commit suicide by jumping off a
three-story building. Smith was then diagnosed
as suffering from depression and personality
disorder. One examiner noted that Smith's "chronic
obsessive thinking of hostile threats and
activity is a problem of mammoth proportions."
Another stated that Smith was a total
catastrophe. He was nonetheless released from
the hospital shortly before he killed Karen
Roberts.
All of the psychiatrists who
have examined Smith indicate that he has
frequent mood changes and conclude that persons
who have a personality disorder such as Smith
are prone to act impulsively, to be self-destructive,
to act out of extreme anger without a sense of
what is going to happen in the long run, to be
in need of immediate gratification, and to have
difficulty in dealing with other people.
Under the circumstances
outlined above and in Chief Judge Lay's dissent,
I believe that an evidentiary hearing relating
to Smith's current competency should be held
before his appeal is dismissed.
*****
