Paul Kordenbrock v. Gene Scroggy, Warden, Kentucky State Penitentiary

NORRIS, Circuit Judges.

MERRITT, Judge, Chief announced judgment of the part Court in VIII granting the Writ Corpus of Habeas as to both sentence, criminal liability and judgment in which seven thirteen members of the en banc concur (Circuit Judges MERRITT, KEITH, MARTIN, Jr., BOYCE F. R. NATHANIEL JONES, MILBURN, NELSON, A. DAVID RYAN), and in which one member (Circuit concurs to the Judge as sentence NORRIS). ALAN E. many

As in penalty, death corpus habeas cases, problem presented here is prisoner whether the of a innocent homi- killing cide—the is conceded—but rather died, Allen later men. Mr. tioner shot both of fair the full benefit received whether When Kruse Thompson survived. Mr. and a fair but procedure of constitutional rules left the guns the two had assembled jury mitigating offer opportunity store. might dissuade them circumstances death. a sentence imposing places at two different They stopped the men guns. One of sell some duty to determine Court’s is not the It recognized Kor- guns they sold whom or does not deserves

whether Kordenbrock appeared on the picture which denbrock’s crime. sentence death deserve the police cooperated with news and local upon the duty is to insist ob- The Court’s Upon his arrival bringing his arrest. proce- about norms constitutional servance police be- a police group station Court, at the panel the District The dure. him giving Mi- him to after gan now been has which our Court decision of began interrogation warnings. The banc review randa grant of en by the vacated 1057; App. see at p.m. Joint 14), petitioner was around 11:30 held that (see 6th Cir.R. a Because id. at 71-110. relief. also to habeas not entitled finds that the en banc majority of Warnings Violation A. Miranda use of Kordenbrock’s the introduction of Miranda in violation was confession interrogation, beginning From the 16 Arizona, U.S. to talk reluctant with Kordenbrock not harmless (1966), and was L.Ed.2d “I know phrase, don’t police, repeating error, reverse. we now The offi- 80. say.” Id. at to what that Korden- cers, already suspected who I. Facts men, encouraged shot the two brock had and co-defendant Kordenbrock details of to relate repeatedly Petitioner him guns to steal agreed got a crime, “you’ve Kruse conscience saying, Michael Florence, Kentucky. 73, 82, parts store After further an auto Paul.” Id. at 83. they robbery, visit- aspects before days two admitted some coaxing For petitioner layout. The to observe store he type ed the of car such as what of the crime stayed robbery they night shooting before he and where day drove they where drank Cincinnati friend in gun. disposed of the and snorted co- alcohol, marijuana, smoked to persuade Kordenbrock to In an effort morning at 8:00 Korden- next caine. actual shoot details more give them Quaa- took two two beers and drank brock him, saying ing, the officers threatened ludes. they cooperate if not were he [1]_for apartment, two leaving the After accesso girl going “book Quaaludes. From buy more stopped jail.” Id. put her ... and ry to murder parts auto they proceeded there “Anybody continued: The officers at 86. a.m. around 9:30 Kor- store arrived yesterday since you have been with holding gun, ordered denbrock, who arrest.” morning, go can out and Id. we store, Thompson, and Mr. the owner of questioning, and indi he resisted 87. Still Allen, lie face down on Mr. employee, an stop: “I questioning he cated wanted of the store. Just back floor in talk, 91, “[cjan’t nothing,” say id. at can’t his son. came in with a customer then Id. at 92. Instead I can’t talk.” right now employee and he was an pretended Kruse officers contin questioning, the ceasing did the store the customer told going “Their ass is threats: ued with their he what wanted. Ohio, keep they can them jail.... [I]n days without even three jail for about gun glass case. broke the then Kruse put going to be they’re charging them.... Mr. Allen ei- following that Immediately forget for they may not through ordeal up. get Peti- attempted to moved ther arrested. when he was Smith, Kordenbrock Kordenbrock had Abigail with whom 1. shooting, was with night stayed before long you stop right time Paul and can it. aiming and firing at their heads they so now_” Id. at 93. get wouldn’t up.” Id. threats, After these Kordenbrock stated: B. The it_ State’s Refusal to Provide a “I did all I you can tell [t]hat’s Psychiatric Expert for the Defense that I did it.” Id. at 94. He then asked to girls call the to see if they right were all Kordenbrock pled guilty to degree first and wanted “to know that girls those robbery and was then tried for capital mur- going aren’t to be arrested” before gave he der attempted murder. His defense any more However, details. Id. when was diminished capacity due drugs pressed further Kordenbrock made another alcohol and emotional disturbance.2 His attempt to cut off questioning: “I you told lawyers, employed by the Office for Public all I can tonight.... Sir, stand I can’t talk Advocacy of the State of Kentucky, sought about it no tonight.” more Id. at 98. to enlist the aid of a psychiatrist to help When the officers petitioner told they prove were these and other mitigating factors. going to write out his confession as he At request of the trial judge, one of it, dictated again “Sir, responded: lawyers Kordenbrock’s wrote to the Secre- can’t you tell no more tonight.” Id. at 100. tary of the Department of Human Re- officers, The growing impatient, gave him sources to ascertain a psychi- whether state chance,” “one id., more finally he gave and atrist perform could this service. Joint in: “I’ll tell you you know, what need to I App. at 161. The Secretary responded by don’t want you to go bother them letter Department psychiatrists could girls_” Id. at 101. only evaluate criminal defendants for their competency to stand trial and for the exist- Only then did Kordenbrock make the ence of mental disease or defect at the time damning statements that undermined his the place. took crime The letter stated: defense of capacity. diminished The offi- “These provided evaluations are pursuant cer who transcribing the statement to court order supplied and are as a service said, “Paul, what I’m going to write here court, to the and not to prosecu- either the I, Paul pulled Kordenbrock trigger the is— aiming tion or the defense.” Id. at 162. The firing and the weapon into the two Secretary these characterized evaluations men’s heads—is that correct?” Id. at 105. “objective” as and “determined that this That statement was signed included the Department will not be you able to assist confession. The confession did not include your request.” Id. the statements made during the interroga- tion that “eyes closed,” his were half and This letter made it clear that a state that he didn’t aim at any particular spot. psychiatrist could not used be as a defense Apparently, get in order to expert. ordeal over judge The trial then entered an with, he told “[p]ut the officers to fact order stating [the that defense counsel could that he aimed at their in there.” employ Id. expense heads] state a psychiatrist, psy- The confession edited out might facts that chologist a and psycho-pharmacologist. Id. support a premeditation defense of lack of at 59. When the chief executive officer of

and capacity diminished simply read, “I county which the trial was to be held then, Paul Kordenbrock, pulled the trigger, order, received the he refused to authorize Kentucky’s 2. statutory Two of mitigating cir- of his conduct requirements to the of law was cumstances are as follows: impaired as a result of mental illness or retar- capital The offense was committed while the dation though impair- or intoxication even defendant was under the influence of extreme capacity ment of the ap- of defendant to mental or emotional though even disturbance preciate the criminality of his conduct or to of influence extreme mental emotional requirements conform the conduct of is not disturbance sufficient constitute a law is insufficient to a constitute defense to defense to the crime.... the crime.... Ky.Rev.Stat.Ann. 532.025(2)(b)(2) (Baldwin § Ky.Rev.Stat.Ann. 532.025(2)(b)(7) (Baldwin § Supp.1989). Supp.1989). offense, capital At the time appreciate criminality defendant 1096 the case. counsel, doctor withdrew County Fiscal Court Boone “The payment: counsel, a now without Apparently defense means the appropriate by all resist will for a judge trial expert, asked the KOR- suitable relative to any bill of

payment DENBROCK_ expert, or another to locate Id. at continuance murder trial[].” of on the issue posi- alternatively another order county took Apparently refused Nizny. judge The a defense Dr. pay payment for for should state tion refused, enter an refused to already the continuance the state expert, but Nizny filed his refuse, psy- Dr. pay payment for until order for continued to a de- without trial report. proceeded the defendant. expert for chiatric expert. fense responsibility fact Despite counsel murder guilty defense dispute, found was in payment Kordenbrock expert. Dr. recom Nizny attempted as defense murder. Dr. hired He and made death. Kordenbrock sentenced to be Nizny examined mended Supreme Court Kentucky assessment diagnosis appealed report on errors, who was of which However, Nizny, Dr. none asserting possible 29 petitioner. psychiatrists had merit. Korden other problems found to the court aware Commonwealth, paid, file 700 S.W.2d getting refused brock encountered denied, some sort U.S. he received (Ky.1985), until cert. report (1986). forth- would be payment L.Ed.2d 704 assurance or- judge again the trial coming. Once sought relief before habeas He next Nizny’s Dr. fees. pay county to dered District Kentucky. The Court District pay- to refuse county continued When on hearing both evidentiary held an court, defense coun- over ment, the trial confes Kordenbrock’s of the voluntariness petitioner be ordered that objection, sel’s to a entitlement of his on the issue sion and In re- psychiatrist. by a state examined District Court Although the psychiatrist. Psychiatry of Forensic Director the sponse, taken the confession was that found able to will not be that “we wrote Services rights, the Court of his Miranda violation case. will this only the defense assist confession of the held that introduction to services both of our Judge Neace inform Court The District error. was harmless at Id. prosecution.” defense grounds al the 23 on all of relief denied letter, judge trial Despite this 680 Scroggy, v. leged. Kordenbrock ex- psychiatrist a state ordered again A of this (E.D.Ky.1988). panel F.Supp. 867 petitioner. amine find District Court’s affirmed the Court met with 889 F.2d Bland, psychiatrist, Scroggy, v. ings. a state Kordenbrock Dr. Cir.1989). an for re Kordenbrock, suggestion not form accu- (6th could but 69 granted. law- Korden Kordenbrock’s because en banc was opinion hearing rate with Dr. Cir. cooperate to F.2d 1457 Scroggy, not told him brock yers had lawyers stat- 1990). of Kordenbrock’s One Bland. instructing petitioner for reason ed that Sentencing at II. met with Dr. Use that he manner in that of Confession he “indicated doctor Bland interrogation Korden During the our defense Paul as examine not could you “I tell can’t repeatedly stated: brock Secretary’s di- because psychiatrist attempt to Despite tonight.” no more App. at 166. Joint rective.” interrogation contin questioning, the stop Court by the District asked had lo- ued. When counsel defense meantime state interpreted that Judge whether will- who was psychiatrist forensic cated a wanted the accused mean an ment to without Kordenbrock ing to examine cease, Stamper re Detective questioning to De- payment. to guarantee unqualified “No, I drew never disingenuously, sponded a continu- for a motion counsel filed fense whatsoever of conclusion that kind time to doctor the new ance having....” were we the conversation However, to a mis- due report. prepare Court the District Both App. at 1068. Joint doctor and understanding between panel and a of this Court found that the tutional error prove beyond [the state] confession was taken in violation of Mi- reasonable doubt the error com- Kordenbrock, randa. 889 F.2d at 78. The plained of did not contribute to verdict appears state point to concede this based 24, obtained.” Id: at (em- 87 S.Ct. at 828 on Michigan v. Mosley, U.S. phasis added). (1975), 46 L.Ed.2d 313 in which Supreme recently affirmed Supreme Court stated “right Chapman harmless error stan- to cut off questioning” “scrupu- must be applies dard during errors the sentenc- lously honored,” and that after an accused ing phase capital of a case: “The right has invoked his police silence the ... is not whether the illegally admitted may “persist[] repeated efforts to evidence was sufficient support wear down his resistance and make him sentence, death which we was, assume it change 104-06, his mind.” Id. 96 S.Ct. rather, but whether the proved State had at 326-28. Both the Court below and the ‘beyond a reasonable doubt that the error Court, panel however, of this found admis- complained of did not contribute to the sion of the confession to be harmless error. ” verdict obtained.’ Texas, Satterwhite v. Kordenbrock, 889 F.2d at 80. 249, 258-59, 486 U.S. 1798- Although it is true that basic ad- “[t]he 99, 100 (1988) L.Ed.2d 284 (quoting Chap- guilt mission of the killing] was ... not [of man, 828). 87 S.Ct. at obtained in Miranda,” violation id. at The harmless inquiry error specif- is fact made, Kordenbrock and the confession ic requires analysis particular recites, extremely prejudicial and incrimina- facts at hand. In this portion case the ting statements made after the interroga- Kordenbrock’s confession taken after the tion should have ceased. There argu- is no Miranda violation—other than ment that the infer- interrogation entire is inad- to be ences made from the missible. He fact of the concedes that he committed robbery and shooting the homicide. It is the statements con- concern- —was crete, ing the shooting piece itself sought which he noncircumstantial evidence suppress. state His had to prove premeditation defense to murder was to to jury admit the from element of the outset the of the crime. It tended under- to that trial he had killed the store mine at the employee, sentencing hearing the claimed that he but had done so while mitigating under the circumstances of diminished ca- influence of drugs and alcohol. The pacity state- due to the drugs use of and alcohol. ments recited in the confession as made The Court must entertain with open an during the interrogation were cold and cal- mind the possibility that at least one mem- culating, made no drug reference to his jury ber of the took the language of the use, and tended to show in Kordenbrock seriously confession and relied on the possible worst light. the harshness of its description tip to the bal- in ance favor of the penalty. death It

Thus the is whether the admis- would be unreasonable to assume that not of the during sion statements guilt the member of jury, one the in sentencing phase, and Kor- during their readmission the denbrock, gave weight to sentencing phase, the were confession harmless error. considering when deal the sentencing phase We with the death sentence. first. Chapman as an California, Both element of the offense a U.S. and as (1967), reason for imposing penalty, L.Ed.2d 705 the death the Su- the preme attempted Court state formulated the to prove harmless that error Kordenbrock in consciously rule cases where constitutional violations formed intent to kill inde- Although pendently occurred. the Court and de- uninfluenced effect adopt clined to a drugs rule which require may and alcohol have had on his reversal all cases where of errors consti- mental and Logically emotional state. a magnitude occurred, tutional adopted juror it easily a could reason that the inadmissi- stringent error harmless standard. The ble statement that Kordenbrock fired “at required “beneficiary a consti- of their they heads so get up” that wouldn’t The court said of ble short death. of deliberation sentence process

implies a mental its deci- struggling with jury exclude was to no. forethought sufficient and sion, or sentence apparently an immediate direct uncertain which as drugs alcohol The defense of If member of impose. homicide. one of the to cause part on the con- portion turns illegal believed diminished impelled reasoning what about that Kor- (which included the words fession factfinder’s intent, kill: his aiming and trigger, defendant “pulled denbrock on his behav- drugs or alcohol they wouldn’t influence heads so that firing at their intent and causa- about Determination arguments ior. dispel get up”) tended complex depending are case such a tion in was error mitigation, the constitutional from the facts. drawn be inferences on beyond a say impossible It is harmful. confes- statements The inadmissible juror such no held reasonable doubt that and are premeditation tend to establish sion view. impulsive, reac- inconsistent hence associated with behavior reckless tive To Establish III. Use Confession drugs influence by the caused events Liability Criminal alcohol. the admis turn whether We now out, points dissent Kennedy’s Judge As confession illegally obtained sion of the surrounding evidence circumstantial liability the criminal harmless error in finding intent supports shootings First, the phase of the trial. guilt or the with the circumstantial coupled If to kill. question of criminal argues on the state men shot both that Kordenbrock evidence may not now Kordenbrock liability that behind, Kordenbrock’s execution-style to the any objection raise admission trigger, aim- “pulled statements right by he waived because confession so heads firing at two ing men’s] [the killing in his confessing personally get up” lead could they wouldn’t (Kentucky jury. opening statement con- Kordenbrock determine juror to case, allow, as in this judges sometimes kill an intent to unaffected sciously formed statement.) opening to make an defendant did not If or alcohol. by drugs unper argument to be find the waiver We however, statements, the other these hear defense trial overruled suasive. The court Prior suggestive. nearly so is not evidence of his the admission objections to counsel’s confession, told Kordenbrock to the coerced Thus, trial. before confession before eyes were half-closed police that began Kordenbrock knew trial even he did two men he shot when as to be going admitted confession spot. These any particular aim attorney told the state’s evidence. support Kordenbrock’s to tend statements Korden opening in his statement that jury defense, jury capacity diminished stra confessed. Kordenbrock’s brock had the instead of information hearing this the but to homicide tegic decision confess certainly the view would confession coerced to the of premeditation not the element differently. One evidence circumstantial a re opening in jury statement that doubt beyond a reasonable say cannot ruling. pre-trial trial sponse to court’s the not did influence confession the coerced asserted diminished Kordenbrock the circum- juror viewed one at least how statement, incon a defense opening in his Korden- whether to evidence as stantial confes the state’s use the sistent to commit a intent requisite brock Given to murder. prove intent sion to crime. capital conclu reach to these facts we decline reason- beyond a say are unable We right to waived his sion Kordenbrock confes- portion doubt able illegal por object to the admission contribute did not in sion confession. tion Indeed, some after deliberation sentence. argument the state’s Likewise, reject we Kor- they sentence if could jury asked in Ore- Supreme Court’s decision indicating that parole life without denbrock 298, 105 Elstad, possi- gon the harshest imposing an interest in (1985), applicable 84 L.Ed.2d 222 is law, here. Kentucky Under the state must prove young Elstad involved a man in who was intent order for the to return questioned being given guilty. Ky.Rev.Stat.Ann. without verdict of Miranda 507.020(1) (Baldwin 1984).3 warnings by police living Although in his § room and Kordenbrock concedes based on confessed to a crime. over- After he was taken whelming physical and testimonial evidence given to the stationhouse and proper warn- that he was at the scene of the crime and ings again he argued confessed. Elstad pulled trigger, piece most harmful trial that his second confession should not of evidence the state had on the issue of his be admitted because it was the fruit of the premeditated intent to kill was the unlaw- first tainted Supreme confession. The fully obtained confession. The store owner adopt Court refused to defendant’s “cat testified that Kordenbrock shot him and his bag” out of theory and held that the employee after he glass heard some break. warnings given Miranda defendant before However, it does not necessarily follow the second confession removed the taint of intent, Kordenbrock held clear unaf- the confession in obtained violation of Mi- by drugs alcohol, fected to kill the two Id., randa. 470 U.S. at 105 S.Ct. at men. At trial Kordenbrock claimed that he was under the influence drugs and alco- inapposite Elstad is here. The state ar- hol at the shooting time of the and that the gues that the initial Miranda violation was shooting Likewise, was a reflex action. cleansed Kordenbrock’s second volun- fact that Kordenbrock and his co-defendant tary open confession court. In Elstad “cased” days prior the store for two police defendant furnished the robbery prove with vir- does not that Kordenbrock tually the same information about his intended to kill proves crime the two men—it planning in both confessions. Here to rob the store. Kordenbrock did See Alabama, Owen v. give 849 F.2d highly not the same 540-41 incriminating con- (11th Cir.1988) (where confession was fession at trial that he during police did piece of direct prove evidence to defen- interrogation. He did not admit the same kill, dant’s intent to admission of confes- regarding premeditation. facts Korden- sion obtained in violation of not Miranda claiming brock as did the defendant error, harmless even where evidence of de- Elstad the second confession was guilt fendant’s for victim’s death was over- the fruit of the first tainted confession and whelming). suppressed. should have been On the con- trary, sought persuade Kordenbrock Relying Perini, on Burks v. 810 F.2d 199 opening statement of his Cir.1986) version (unpublished opinion), the of how the crime occurred which tended to District found that Kordenbrock negate premeditation. adopted strategy the same trial whether or not the confession had been

Having determined that Korden admitted, thereby making the constitution- right did object brock not waive his Kordenbrock, al error harmless. admissibility of his confession which F.Supp. misplaced. at 880. This reliance is Miranda, was taken violation of Burks, admission of defendant’s confes- again Court must decide whether that ad sion taken in violation of Miranda was mission was harmless error. The Chap found to be harmless error because of the “requires] beneficiary man standard strong independent existence of evidence prove of a constitutional beyond error to a pointing guilt. to defendant’s Defendant complained reasonable doubt that the error testified that he had acted in self defense of did not contribute to the verdict ob and that the admission of his confession 24, Chapman, However, tained.” 386 position. U.S. 87 had undermined his eyewitness S.Ct. at 828. there was an who testified that provides: (a) 3. Section 507.020 intent cause the of With death anoth- person, per- er he causes the death of such (1) person guilty A is of murder when: son. ... 1100 procedural to consider both fairness acting not in self defense.

defendant by par compulsion level created independent evi- and the there case In this police practice. Gallegos v. committed the ticular See that Kordenbrock dence 50-52, 1209, Colorado, 49, explicit 370 82 S.Ct. crime, was no evidence but there U.S. 1210-1212, (1962); plainly 8 L.Ed.2d 325 see also the confession tend- than other 454, Dutton, F.2d 459 Kordenbrock’s contention v. 863 McCall ed to contradict Cir.1988) prove that drugs (“[Petitioner influence of must his he was under of the coercive did not intend to cause will was overborne because and and alcohol denied, inapplica- activity question.”), in cert. police Burks is this reason death. For L.Ed.2d 109 S.Ct. 104 490 U.S. ble. (1989). 181 pushed get hard to state Here the however, case, unnecessary confession into evi- In this it is illegal portion assumption analysis that the confes- to constitutional dence on to submit jury. likely majority influence We of this Court would identical facts that sion assumption. II and III to be violative agree has held Parts against privilege of the Fifth Amendment Thus, Chapman employing harmless under Miranda. The self-incrimination Su rule, that the state did not we find error interpreting the preme precedents Court doubt, that a reasonable beyond prove, forth the scope privilege legal of that set which was tak- confession admission consequences Kordenbrock’s custodial “did not contrib- of Miranda en in violation Arizona, interrogation. v. Edwards See Chapman, obtained.” verdict ute to the 477, 101 378 68 L.Ed.2d 451 U.S. S.Ct. at 828. The evi- (1981) (questioning cease once must sus intent, physical from the inferable dence right to counsel unless pect invokes sus homicide, strong but not so facts of communication); pect Michigan v. initiates jury’s overwhelming as to make verdict 96, 104-06, 96 S.Ct. Mosley, 423 U.S. beyond a conclusion foregone on intent 326-28, (1975)(invocation of 313 L.Ed.2d In death cases such as doubt. reasonable protects “right to cut off sus questioning” Chapman rules this, if the Miranda “repeated efforts to wear pect from down vitality be over- retain are to Arizona, resistance”); Miranda silentio, police not allow we must ruled sub 1602, 1627-28, 436, 473-74, U.S. trial evi- prosecutors to use at officers (1966) (once warnings have L.Ed.2d 694 in clear violation of the Fifth dence taken given, individual indicates been “[i]f Amendments, evidence which and Sixth any manner ... he wishes remain the outcome of the affected could have cease.”) silent, interrogation must case. already police violated Having found privilege Amendment Kordenbrock’s Fifth IY. Coerced Confession precedents, enunciated Miranda as support facts that on the same Relying those need not reconsider whether same we in Parts II discussed claim his Miranda so as to facts can be constructed establish above, claims alterna- Kordenbrock and III another similar constitutional violation. was “involun- his confession tively that analysis yield Harmless error inadmissible under the therefore tary” and instances. same result See ante both well as the Fifth clause as process due Accordingly, the Parts II and III. threatening him that By Amendment. relief grounds finds no for additional based result in the cooperate could de- failure to process due on the clause. girlfriend interrogation of his tention others, that po- contends Kordenbrock V. Claims Miscellaneous extracting in his will confes- lice overbore a set of five other of a Kordenbrock product “not ‘the ration- raises was sion that ” believes do not claims which the war- Petitioner’s and a free will.’ al intellect prosecu- relief. He analysis in a rant claims process at 63. Due Brief comments Caldwell Missis- reviewing tor’s violated requires a court confessions case HQ1 320, sippi, 2633, 472 U.S. 105 S.Ct. prosecutor 86 technically Kentucky stated law (1985); 231 mitigating correctly. L.Ed.2d testi- Similar state sentencing mony excluded; dividing was schemes improperly responsibility that he between judge jury upheld. See, change entitled to a been e.g., of venue because — Arizona, U.S.-, Walton v. 110 publicity; of adverse S.Ct. judge trial 3047, 111 (1990) L.Ed.2d 511 (judge makes himself; should have recused and that his findings on aggravation mitigation process due rights were by violated imposes sentence); Florida, Hildwin v. taped erasure confession and the loss 638, 490 2055, U.S. 109 S.Ct. 104 L.Ed.2d photo display of a pills. and a vial of We (1989) 728 (jury makes recommendation consider each arguments of these in turn. findings without on aggravation and then judge imposes sentence). A. Caldwell Violation In order to make out a Caldwell viola v. Mississippi, Caldwell tion, Kordenbroek pros must show that the 320, (1985), 86 L.Ed.2d 231 improperly ecutor jury’s described the role placed state law the responsibility for im under state law order to water down posing the death penalty with jury. their responsibility. Adams, Dugger v. 489 prosecutor jury Caldwell told the 1211, 1215, 109 U.S. S.Ct. 103 L.Ed.2d that their decision was not final and that (1989). The Eleventh Circuit has held their decision automatically reviewable that make out a constitutional violation by supreme the state court. The Supreme under Caldwell there must be “some af Court held that “it is constitutionally im firmative misstatement or misconduct that permissible to rest a death sentence on a jury misleads the as its role in the sen determination made a sentencer who tencing process.... [Ejmphasizing the had been led to responsibil believe that the ‘advisory’ role jury, or the fact that ity for determining appropriateness jury making a ‘recommendation’ to the defendant’s death rests elsewhere.” judge, support does not a Caldwell 328-29, Id. at 105 S.Ct. at 2639-40. claim.” Harich v. Dugger, F.2d (11th Cir.1988), 1473-74 denied, cert. During voir prosecu- dire this case the U.S. 103 L.Ed.2d 822 jurors tor told that their “recommendation (1989). We find no misstatement of state death, you gave if juror, one aas trigger sufficient to law a Caldwell viola your jurors, fellow would not be binding tion in the instant case. court, upon [cjourt but that the Kordenbroek also turns state law for give it great weight.” Brief at Petitioner’s relief. After the appeals sentence and prosecutor 73. The characterized case, Supreme the Kentucky Court in jury’s recommendation, sentence as “a Commonwealth, Tamme v. 759 S.W.2d 51 Further, is all.” Id. at 74. the instructions (Ky.1988), held juries in the future judge gave that the trial used should be instructed “fix” not “recom- the word “recommend” in reference to the death mend” sentences. But the court de- App. sentence. Joint at 152. apply clined to retroactively rule new The prosecutor’s conduct in this case prosecutor which means that the and the does not violate Caldwell because Ken- judge did not jury concerning misadvise the tucky provides law itself that: sentencing authority. the division of judge give jury appropriate shall Thus, although Kordenbroek raises an instructions, and the shall retire to point arguable worthy of serious considera- determine whether mitigating ag- tion, we do not prosecu- believe that the gravating circumstances ... exist and to tor’s statements rise to the level of a Cald- recommend a sentence for the defen- well violation. Upon findings

dant. jury, judge shall within sentence B. Trial Denial of Court’s fix prescribed by limits Mitigation law. Witness Ky.Rev.Stat.Ann. 532.025(l)(b) (Baldwin § The trial court defense coun denied Supp.1989) added). (emphasis Thus, request Stassen, sel’s to call Dr. an Associ-

1102 the standard for preme at Court delineated Ethics of Christian ate Professor there determining juror impartiality where Seminary in Theological Baptist Southern coverage. media widespread, is extensive sentencing phase. Louisville, during the petitioner any for with about existence of met hold that the mere Dr. Stassen To guilt have testified that preconceived and would as to or minutes notion 45 remorseful, accused, more, long- no is that he an without innocence of petitioner was of a possibly presumption drugs, and that he could sufficient to rebut used er juror’s impartiality would be prospective The District Court found be rehabilitated. It impossible standard. testimony irrele- to establish an both exclusion of this lay can aside his juror if beyond a sufficient reasonable vant and harmless a ver- impression opinion and render or Kordenbrock, F.Supp. 680 at 888- doubt. in presented evidence based on the dict court. 586, Ohio, 438 98 U.S. Both Lockett v. 723, Dowd, 717, 81 S.Ct. v. 366 U.S. Irvin (1978), 2954, and Ed 973 57 L.Ed.2d S.Ct. (1961), 1639, 1643, quoted 6 751 in L.Ed.2d 104, Oklahoma, 102 U.S. S.Ct. 455 dings v. 800, at 2036. 421 95 S.Ct. Murphy, U.S. juries 869, (1982),require that 1 71 L.Ed.2d mitigat despite all relevant allowed to consider held that be The District Court the limitation that ing poll single juror evidence “not a or alternate seated limits the tradi “[njothing opinion opinion this had formed in the case at hand exclude, as authority a court to petitioner.” guilt tional of of on the innocence irrelevant, bearing on the de not Kordenbrock, F.Supp. evidence at 887. We find 680 record, character, or the prior findings fendant’s error in the District Court’s no Lockett, his offense.” circumstances of render a verdict based jurors could 12, n. at 2965 12. n. 98 S.Ct. presented 438 U.S. at 604 in court and that on the evidence ethics, biblical stud Although expert an not impartiality for was com- their Dr. theology, Stassen ies and promised. Christian which he subjects for expert on the Judge Trial D. of Recusal of testify, and the exclusion was called testimony not constitute did Dr. Stassen’s judge the trial refused to After the trial part of on the constitutional error change motion for a grant Kordenbrock’s the District propriety of judge. The venue, against filed Kordenbrock of by the fact decision is bolstered Court’s prohibi of application for a writ judge an Feamster, Kordenbrock’s that Reverend hearing judge from prevent tion to testify about his minister, was allowed case prosecutor this handled case. character. representing the interests proceeding judge. App. and the trial Joint of the state Change Venue

C. counsel then made at 63-66. Defense himself judge to recuse motion for that as result claims Kordenbrock at 67. was denied. Id. entitled to a which he was publicity of adverse psychologist con change A venue. Harrelson, v. 754 F.2d In States United people poll opinions ducted a on Cir.), denied, 474 U.S. cert. eligible for who were surrounding counties 277, 599, 88 L.Ed.2d counties of five In four out service. (1985), held that the Fifth Circuit recu- polled had heard people over 80% necessary where there was no sal was not out of in three five about the case and by the specific conduct trial evidence of polled people counties almost 50% prejudiced defendant. Harrel- judge which guilty of mur thought Kordenbrock son, There is no basis in 754 F.2d at 1165. 111-112; see also der. Petitioner’s Brief judge finding that the record to base a (charts on effect of App. Joint at 171-182 Certain against Kordenbrock. was biased publicity). prosecutor handled ly the fact is not a basis proceeding Florida, prohibition Murphy finding. (1975), such Su- 44 L.Ed.2d

H03 E. Destruction of Evidence prior (4) witness’ description; the witness’ (5) certainty; the amount of time between Lastly Kordenbrock claims that his due the crime and the identification. process rights po- were violated when the confession, taped lice erased his lost a bot- five of the Neil factors are met All pills present tle of which were while he was Thompson, this case. Mr. the store own being interrogated, photo and lost the dis- er, had seen Kordenbrock enter his store play they which Thompson, showed to Mr. twice before robbery place. took His owner, purposes the store of identifica- description of accurate, Kordenbrock was tion. he was certain at the time of the identifica tion, and the amount of time between the In Youngblood, Arizona v. 488 U.S. crime and the relatively identification was 51, 333, (1988), 109 S.Ct. 102 L.Ed.2d 281 short—less than a month after the crime. Supreme Court held that “unless a Moreover, Kordenbrock has never denied criminal defendant can show bad faith on Thompson’s correct, identification is part police, of the preserve failure to any error in photo display, if one potentially useful evidence does not consti occurred, had would be beyond harmless process tute a denial of due of law.” Id. reasonable doubt. There was no issue at Apparently 109 S.Ct. at 337. Detective trial about identification. Stamper’s secretary, who transcribed the confession, tapes erased the after consult The fact photo display was lost ing with App. the detective. Joint at 1065- help does not Kordenbrock’s case. The 66. From the facts it appear does not that misplacement or destruction of display police respect. acted in bad faith in this does not entitle presump- Kordenbrock to a tion that a constitutional violation has oc- Stamper Detective admitted that test, curred. Under the Trombetta the dis- drugs there was a bottle of on the table play would have not had exculpatory front of during interroga Kordenbrock value. tion, but did pills not order that be tested, nor preserve did he the bottle. VI. Psychiatric to Provide Refusal App. at Joint 1069-71. In California Expert for Defense Trombetta, 479, 2528, 467 U.S. 104 S.Ct. 81 (1984), Supreme L.Ed.2d 413 Court held Applicability A. of Ake v. Oklahoma in order to show that an error of Oklahoma, Court holds that Ake v. magnitude constitutional occurred in de 470 U.S. 84 L.Ed.2d 53 evidence, stroying the evidence must have (1985), should not be read to include a exculpatory value and there must have defendant who contests the mental element way get comparable no other been evi appropriateness of the crime and the of the 488-89, dence. Id. at S.Ct. 2533-34. penalty death due to capacity. diminished In this prevent case Kordenbrock was not I respectfully Supreme dissent. Ake the presenting ed from his defense of diminish indigent Court held that an defendant is police ed because the failed to entitled process under the due clause to preserve pills. and test the expert psychiatric assistance where a de- argues Kordenbrock further sanity significant fendant’s is a issue. The the store Supreme owner’s identification of him was Court further held that a defen- overly suggestive influenced right nature dant did not have “a constitutional photo display police psychiatrist which the failed choose a personal of his lik- preserve. Supreme ing_” set Court out Id. at S.Ct. 1096. The in determining Supreme expressed five factors to consider concern that the proper an indigent whether identification was defendant have access to a “com- Biggers, petent psychiatrist Neil v. ap- who will conduct (1972): (1) opportunity propriate 34 L.Ed.2d 401 examination and assist in evalu- accused; (2) ation, for the witness to view the preparation, presentation attention; (3) accuracy added). (emphasis witness’ Id. defense.” defendant, Court did not address the identification of the which oc- Supreme The indigent hypno- whether an defen- curred after the victim precise issue psychiatric entitled to a ex- tized. The defendant Little was denied would be dant expert capacity hypnotist mental rath- funds to hire his own pert when diminished trial, insanity largely is the issue at or was convicted due to the victim’s er than Arnold, Judge writing capacity mental is the is- identification. when diminished banc, sentencing hearing. Eighth In the Circuit read Ake to capital at the en sue 320, nonpsychiatric testimony: Mississippi, 472 U.S. 105 include Caldwell v. 2633, (1985), L.Ed.2d 231 the Su- 86 S.Ct. question The in each case must be an preme declined to reach issue expert field of knowl- what science petitioner that the state failed to raised involved, edge impor- is but rather how experts investigators to aid appoint case, tant the scientific issue is in the The Court did not him in his defense. expert help how much a defense could expert reject argument that an Caldwell’s given. constitutionally required on issues may be Little, In 835 F.2d at 1243. Little sanity. petitioner other than It stated required expert assistance court such even strong enough presented a case. had not penalty possible. the death is not where 1, Caldwell, n. 105 472 U.S. at 323 S.Ct. Nor do we draw a decisive line for due- requesting a 2637 n. 1. Caldwell’s motion process purposes capital and between explain expert adequately did not ballistics sure, noncapital cases. To be the defen- necessary. why expert an Id. such staying greater dant’s interest in alive is argue that Ake covers cases Two reasons and different in kind from his interest in seriously term, in issue avoiding prison mental but the latter where interest, question opinion, outweighs of the existence of the still both on the our ques avoiding crime and the the state’s interest in the rela- intent element of the tively expenditure sentence of death small that would be mitigation tion of a capacity: first, required. diminished because of second, circuits and law from other Id. at 1243-44. the Court Ake.4 reasoning of Other courts have also addressed the apply have read circuits Ake Other question requires of what Ake and when its experts. Little v. Ar nonpsychiatric See applicable, strictures would but no cir- be (8th Cir.1987)(en 1240 montrout, F.2d disagreed Eighth 835 cuit has Circuit’s denied, 1210, 108 banc), 487 U.S. S.Ct. principle cert. should turn on (1988); 2857, Moore v. important 101 L.Ed.2d 894 “how the scientific issue is in the 702, (11th Cir.) (en F.2d 711-12 case.” Id. at Kemp, 809 1243. See United States v. denied, 1054, Crews, 826, (10th Cir.1986) banc), 107 781 F.2d 833 481 U.S. S.Ct. cert. (1987) (Eleventh (indigent raising an 2192, insanity L.Ed.2d 847 Cir defendant de- 95 “assume[d], argument, psychiatrist); for sake of fense entitled to aid of cuit Unit- Sloan, require v. F.2d process clause could ed States 929 the due federal, Cir.1985) (“when pro indigent state and an accused government, both expert showing assistance to an makes a clear ... that his mental nonpsychiatric vide upon significant show condition will indigent sufficient be factor defendant need.”). trial,” judge expert). furnish must ing of Supreme position Little, Eighth held that the Court’s in Ake Circuit in that case was entitled arises from its earlier admonition that “the indigent defendant must, expert protection, nonpsychiatric equal of a State as a matter of to the assistance provide indigent prisoners a factor and with the state was not basic where mental adequate appeal, possible. was not tools of defense or penalty the death price from the when those tools are available for a arose victim’s dispute in Little (1989). 109 S.Ct. 103 L.Ed.2d 334 no claim of the nonretroactivi- 4. The state raises case, rule, any argument applied has waived based on ty as to the instant The state Ake Lane, Teague. Teague U.S. under the doctrine

H05 prisoners.” other Britt v. North Car- expert without that the result of the trial olina, 226, 227, 431, 433, 404 U.S. would be unfair. See Little v. Armontr (1971); 30 L.Ed.2d 400 Douglas see also v. out, 835 F.2d at 1244. California, Applying the Ake three-prong analysis to (1963) (state L.Ed.2d 811 must insure that case, the first parts and last of which defendant has meaningful chance to go importance of the scientific issue present defense); Illinois, v. Griffin case, in the I believe that Kordenbrock was 12, 585, 351 U.S. 76 S.Ct. 100 L.Ed. 891 psychiatric entitled to a expert. His inter- (1956) (state indigent must furnish defen- est in the accuracy of the proceed- criminal dant with trial transcript). ing having the jury in position be to — Supreme The Court in Ake furthered the understand the psychiatric mental and as- definition of “basic tools” to psy- include a pects of the outweighs the cost to case— indigent chiatrist for an defendant where the state in furnishing experts. all, After sanity significant is a at factor trial. The it is the state seeking which is put to

Ake court found that “a criminal trial is defendant Compared death. to that fundamentally proceeds unfair if the State cost, the psychiatric cost of a expert pales. against indigent an defendant without mak- The defendant’s interest is the more “com- ing certain that he has access to the raw pelling” of the two. In this case the psy- integral building materials of an chiatric assistance on subject of dimin- Ake, 77, effective defense.” 470 U.S. at capacity ished would have been valuable to 105 at S.Ct. 1093. The employed so that it better could understand 319, 325, Mathews v. Eldridge, 424 U.S. 96 family Kordenbrock’s character cir- 893, 898, (1976), S.Ct. 47 L.Ed.2d 18 three- in cumstances weighing aggravating and prong test to determine whether “the State mitigating factors and better understand provide indigent an defendant with [must] exactly what drugs effect the and alcohol competent psychiatric access assistance on him. For the given same reasons in preparing Ake, the defense.” requiring psychiatric Ake for expert, at 105 S.Ct. at 1093. The three factors ignorance risk of respecting error (1) private Court considered were: “the defendant’s processes mental in the trial interest in the accuracy pro- aof criminal psychiatric without assistance in this case ceeding” which the Court found to be high. needed assistance “uniquely compelling,” id. at of an expert help fully it understand 1093; (2) at the state’s interest that would nature of Kordenbrock’s case. by be providing expert affected assistance My important of “how view the scientific which the Court found to “not be substan- is in issue the case”—to Judge use Ar- tial,” 1094; (3) id. 105 S.Ct. at phrase in nold’s by Little —is reinforced probable “the value psychiatric as- trial judge’s provide own effort to a de- sought, sistance and the of error in risk expert. judge fense proceeding if trial believed it such is assistance not of- important. He it fered.” Id. ordered twice. His efforts were thwarted refusal of the different, It a somewhat though close- governments and local pay, state ly related, question whether the “basic judge thought because the trial expert tools” of the defense should include the assistance would unimportant. have been need for the state to expert furnish an where mental sanity rather than Deliberately Whether B. Counsel Failed per is an issue. The Supreme se Court left Payment to Secure Expert for the question open Caldwell Missis- sippi, Having 105 concluded that U.S. Kordenbrock was (1985). that, right denied L.Ed.2d as a his constitutional to have an conclude process, of due pro- expert matter the state must aid because of his defense psychiatric expert indigence, vide a I turn the defen- to the state’s alternative where dant expert demonstrates that an is neces- arguments that defense counsel did not defense, sary proper to aid in a pursue payment expert and that deliberately issue, Nizny Dr. appealable that the state Defense counsel wanted to testi- to create fy mind at right Kordenbrock’s as to Kordenbrock’s state of psychiatrist satisfied assistance, possi- shooting time of the as well as other and that the testimo- expert mitigating Nizny Dr. found ble factors. pharmacologist satisfied Korden- ny of a continually that Kordenbrock “was almost expert right to assistance. brock’s under the influence of alcohol and/or a Court found that defense The District variety drugs age and medications Nizny Dr. counsel failed to ensure that January, 14 to his incarceration 1980.... payment because the doctor’s re- received was, my year span This 10 to 11 knowl- Kordenbrock, 680 port was unfavorable. interrupted by than a edge, never more A close examination of the F.Supp. at 872. App. days.” of hours or Joint number report the doctor’s reveals that facts and report 269. The doctor’s took into account finding was erroneous. drugs intake the Kordenbrock’s and alcohol pay After the Fiscal refused to morning shooting determining in of the doctor, alerted the trial defense counsel Nizny Dr. that state of mind. found when again trial court judge of its refusal. The it, men entered the store to rob two pay the bill. ordered the Fiscal Court actions Kordenbrock “was aware of his ignored. parties again This was order though ignored risks and demonstrated point. impasse at this The trial were at judgment_” bad at 270. As for the Id. request judge, after defense counsel’s third itself, shooting report states the doctor’s order, refused to enter the order for an events, that almost simultaneous “[t]wo report. Nizny Dr. Nizny until Dr. filed his view, my precipitated shooting the two payment report file his until refused to glass gun men. He heard the case crash guaranteed. apparently and one man started to rise from the floor.” Id. The doctor refers to Court found that defense The District petitioner’s actions as “reflex-like” and more Dr. could have done to ensure counsel “impulsive.” According Nizny, Id. to Dr. testimony, such as ask the trial Nizny’s drug Kordenbrock’s use contempt “decreased] [his] judge hold the Fiscal Court gave him a “sense of self control” and However, Nizny. Dr. subpoena or Id. indestructability at 270-71. Id. Ohio, [sic].” beyond Nizny resided sub- Dr. Kentucky of a Court.5 De- poena power factors, possible mitigating As to other contempt counsel did not initiate fense report the doctor’s indicates that Korden- attempt pay- in an to secure proceeding totally brock was not “a man self centered Nizny, dispute Dr. but the about ment for totally feeling devoid of for another brought not caused or about payment was person.” Id. at 271. The doctor would by It was caused counsel. defense testify also have been able to about the and the state. of the Fiscal Court conduct family life had on effect Kordenbrock’s punished should not be because Petitioner him. Id. at 270. could not decide who should be the state very significant There were some unfa- providing funds for an ex- responsible for aspects report vorable doctor’s pert. during evidentiary which came out for its contention that de- support As hearing that the District Court held on the deliberately attempting Nizny fense counsel matter. told Dr. Kordenbrock issue, the District appealable to create an another man in the course of he had killed Dr. robbing gas night the unfavorable nature of before the Court cites station Kordenbrock, F.Supp. shooting parts in the store.6 Id. at Nizny’s report. auto report evidentiary hearing by At held reading A of the doctor’s 1266. 872. Court, prosecutor contend- entirely unfavorable. the District shows that it was not charged 7.02(5) Ky.R.Crim.P. provides pertinent Petitioner had been with the murder 6. part: yet gas been of a station attendant but had not subpoena requiring indicted. A attendance of a witness hearing may be served at at a or trial place within the Commonwealth.

H07 knowledge ed that the doctor’s prior C. Whether Psychiatrist State prove crime was relevant to Kordenbrock’s Satisfied Ake operandi modus eliminating witnesses. The state also claims that if Kordenbrock at 1273. point. Id. This is a debatable was entitled to a psychiatrist, the state argued Defense counsel any possible psychiatrist right. satisfied that I find this relevance of this information would argument be out- unpersuasive. requires Ake weighed psychiatrist its overwhelming prejudice. who serves as a defense ex- pert appropriate “conduct an Id. at 1277. Without examination authority, citation of evaluation, and assist in preparation, and the District Court found “any judge presentation of Ake, the defense.” prosecutor question would have let Dr. [the U.S. at 105 S.Ct. at 1096. A “neutral” Nizny on this Id. at 1275. The issue].” expert would not be able to serve this judge “by stated that putting the Doctor on purpose. From the appears facts it you’d have made the history whole rele- psychiatrists the state at the Grauman Fo- vant.” Id. at 1277. The fact is that the Psychiatry rensic Services would not be judge opportunity trial never had an to rule able to serve as experts. defense on this in limine or otherwise be- Defense counsel wrote Secretary cause of the state’s conduct. We Department of Human Resources know that judge the state believed that a psychiatrists and asked if at the Grauman psychiatric expert defense important. perform service, Unit could and the prosecution’s purpose in this line of response Stumbo, was a clear “no.” Dr. questioning in the District Court was to the Secretary, responded that Grauman show that defense counsel never intended psychiatrists only permitted were per- to put to Nizny Dr. on the stand because of “objective form and that evaluation[s]” knowledge his about the crime which took their “supplied services were as a service place night pure before. But this is court, prosecu- not to either the speculation based on no facts. Even if the tion or App. defense.” Joint at 162. In judge Bland, trial had allowed the addition Dr. psychiatrist doctor’s testi- the state issue, petitioner, who examined mony on that in the “indicated opinion doctor’s de- [to fense that he could not examine counsel] crimes occurred under “identical kinds Paul as defense psychiatrist because of [a] of circumstances.” Id. at 1278. His Secretary’s directive.” Id. at 166. knowledge prior of the incident did not Farm, general Paul counsel Depart- for the change opinion of Kordenbroek’s ac- Resources, ment of Human also testified day shooting. tions on the Id. at psychiatrist that a Grauman to be “[was] 1288. neutral in the process,” evaluation and that fact, Nizny’s report Dr. and his testi- permitted he would testify not be as to mony significant would have been on the possible all mitigating factors. Id. at 1169. mitigating issue of intoxication as a circum- background With this factual it is not sur- stance. could then have decided prising that defense counsel ordered Kor- accept testimony. whether to The doc- cooperate Bland, denbrock not to with Dr. report tor’s stated that Kordenbrock’s “in- psychiatrist a state duty who was under no toxication interfered with the psychiatric to treat the examination in con- specific form a intent commit fidence. Nizny crimes.” Id. at 273. Dr. also testi- At evidentiary hearing by held fied the District “I before Court that don’t Court, District Dr. Bland testified that he forming him see an intent to end someone’s able, despite would have been the Secre- life,” 1225, obviously impor- id. at a fact of directive, tary’s testify mitigating as to jury might

tance. The have found this factors. Id. at 1114. These factors would important question evidence on the family background include and environmen- death, subject on which the had However, during tal factors. Id. 1118. doubts. the time Dr. Bland would have served Ohio, Kordenbrock, only- he was testified. Lockett v. See expert

as an (1978). “in planning of a case 57 L.Ed.2d 973 for defense available 1122. Bland way.” Id. at Dr. qualified testify limited Dr. Nelson was psychiatrist would a Crauman testified that possible mitigating other factors. about issues, all ... investigated “[b]ut especially light true in This is potentially would not include not and might prosecution. called To witnesses might pursued be depth of areas testimony, the pharmacologist’s rebut in terms of defense-only psychiatrist by a doctor who testified state called a medical everything possible in favor looking for quali- that as a medical doctor he was more Id. at 1123-24. defendant.” [of] state of mind fied to discern Kordenbrock’s of whether was also There pharmacologist. than a The doctor dis- psychiatrist kept by a Grauman records puted pharmacologist’s opinion about Id. at 1125. remain confidential. Kordenbrock, drugs claim- the effect of on Indeed, that he counsel testified defense developed a tol- ing that Kordenbrock specific “two instances ... was aware of Nizny drugs and alcohol. Dr. erance to ... where confi- involving public defenders evidentiary testified at the District Court Id. at dentiality ... breached.” [was] trial, hearing, testified at and could have that “there was some evidence that [Kor- Thus, not unreasonable for de- it was developing tolerance denbrock] that he needed a to conclude fense counsel [Q]uaaludes.” App. at 1237. How- Joint Dr. Bland. In order to expert, not defense ever, he also testified that Kordenbrock Ake, required under perform the services probably developed had not a tolerance to he needed Dr. counsel believed defense alcohol, id., petitioner en- and that when testimony assistance. Nizny’s tered the store he was under the influence Quaaludes. alcohol and Id. at of both Pharmacologist D. Whether 1221-22. Ake Satisfied claims that Korden- Finally the state Jury VII. Failure to Instruct on Ake were satisfied rights under brock’s Mitigating Factors testimony. I find this pharmacologist’s argues that trial Kordenbrock also equally unpersuasive. Be- to be argument failing jury court erred in to instruct the not able to lo- counsel was cause defense properly mitigating on circumstances. He trial, coun- psychiatrist before cate another jurors exactly to be told claims that need Nelson, pharmacologist, a to Dr. sel called penalty phase capital of a trial how testified as to Korden- Dr. Nelson testify. juries if are argues works. He not and to his mental drug addiction brock’s procedure specifically told about the for shootings: “He ... day state on determining mitigating they circumstances judg- ability to exercise had a diminished operate great a unit. There is a tend to as decisions, ment, and formulate com- ethical danger mitigating factor will not be Kordenbrock, 889 F.2d at thoughts.” plex juror only considered when one believes it in this case found original panel 77. The general assumption exists because testimony satis- pharmacologist’s that the jury that the drawn from other instructions expert need for be- Kordenbrock’s fied unanimously. must act explicitly on the issue of cause he testified Id. his defense. penalty phase judge the trial After the jury aggravating that an instructed expert psychiatric purpose of unanimously but factor had to be found testify to Kordenbrock’s as not proffered give defense counsel’s refused to jury the crime. The intent to commit jury need not unani- instruction that the be mitigating all cir- to consider also entitled regard mitigating factors.7 Nizny mous with Dr. would have to which cumstances recommending aggravating a sentence for the defen- cir- In on 7. The trial court instruction for the murder of dant Paul Kordenbrock part: cumstances reads In Maryland, 367, Mills v. 108 instruction was not mandated. Id. 1860, (1988), S.Ct. 100 L.Ed.2d 384 the Su- jurors Davis were “[t]he instructed that preme Court held that a state sentencing mitigating factors should be accounted for form which reasonably could interpreted be in reaching decision, their and that such require jury agree unanimously should against be balanced any ag- factors particular that a mitigating circumstance gravating circumstances found to exist be- existed was unconstitutional pre- because it yond a reasonable doubt. in deciding be- cluded the sentencer from considering rele- tween life and death. That is all the Con- mitigating vant circumstances. The Court requires.” stitution Id. in Mills jurors found that some could have The Seventh Circuit contrary took a view reasonably believed that in order find a Thieret, Kubat v. Cir.), 867 F.2d 351 mitigating they agree circumstance had to — denied, U.S.-, cert. on it unanimously. Id. at 108 S.Ct. at (1989). 107 L.Ed.2d considering After 1870. In Mills it was clear from sen- Kubat’s claim that his perform counsel’s tencing form that in order to find the exist- ance was deficient because he failed aggravating ence of an circumstance the object to the instructions, trial court’s jury However, had to be unanimous. it court addressed Kubat’s claim that was not clear from sentencing form standing instructions required alone rever finding whether a mitigating of a circum- sal as Eighth violative of the Amendment. stance required unanimity. The Court The Seventh Circuit construed toMills sentences, found that reviewing death “[i]n place certain limitations on how a trial greater Court has demanded even cer- court must instruct a during the sen tainty that jury’s conclusions rested on tencing phase of capital case. The court proper grounds.” Mills, 486 U.S. at Supreme relied on the language Court’s 108 S.Ct. at 1866. The Court used “ suggests] ‘common sense ... following in determining standard whether juries do not leave blanks and do report the verdict should stand: “Unless we can themselves as mitigating deadlocked over rule out possibility substantial circumstances after reasonable delibera jury may have rested its verdict on the tion, they expressly ... are unless instruct ‘improper’ ground, we must remand ” Kubat, ed to do so.’ 867 F.2d at 373 resentencing.” Id. at Mills, (quoting 486 U.S. at 108 S.Ct. at 1870). juries Because likely are to act as a Two circuits have ques considered the in sentencing, unit the court found type tion of what mitigat instruction on danger of a tainted sentence high was ing required by circumstances the Con jurors where expressly are “never in stitution. Maynard, In Davis v. F.2d 869 plain simple formed in language and (10th Cir.1989), granted cert. and juror even if one believed that the death — judgment on grounds, vacated other penalty imposed, [petitioner] should not be U.S.-, 110 S.Ct. 108 L.Ed.2d 756 would not be sentenced death.” Id. (1990), the Tenth Circuit held that an in case, Mills, In defining struction as in mitigating the role of instruction “[n]o Davis, given indicating was necessary. jury circumstances was not what the should 869 F.2d at 1411. The do if jurors court found that some but not all of the were require willing recognize something while does Constitution about peti- jury tioner, understand the mitigating background, function of or the circum- sentencing scheme, in specific crime, factors stances of mitigating as a Allen, Stanley you recommending shall consider the follow- a sentence for the defen- circumstance, ing aggravating you you dant Paul shall if believe Kordenbrock consider mitigating extenuating such or facts cir- beyond from the evidence doubt reasonable presented you cumstances have been in as that it exists.... true, you including evidence and believe to be App. Joint at 154. following you but not limited to such of the as mitigating The instruction on circumstances believe from the evidence to be true.... part: reads in App. Joint at 155. 379, 108 KENNEDY, Mills, Judge, dissenting, Circuit S.Ct. at U.S. factor.” Judges pos is a “substantial with whom Circuit there 1868. I believe Jr., KRUPANSKY, GUY, the instruc RALPH B. jury construed sibility” that mitigating parts, as well as in all Circuit mean BOGGS concur tions to parts could be found in III & Judge circumstances MILBURN concurs aggravating trial IV, Judges unanimous. The A. only jury if the Circuit DAVID NELSON IV, part instruct the on this in judge refused to and RYAN concur Circuit I, point spite parts of defense very important Judge WELLFORD concurs proffered IV, E. objections Judge instruc ALAN counsel’s II & Circuit I, likely jury’s parts from the III & IV. tion. It is NORRIS concurs they could sentence Korden- about whether majority opin- in Part I concur V they parole that were to life without brock appellant’s accept I also written ion. struggling mitigating factors. One in violation of his confession was obtained may there were jurors more believed so rights. The District Court Miranda ju Because the mitigating circumstances. appealed. finding and that was not found aggravating were told that rors in this case However, I that the admis- because believe unanimous, but were not had to be factors appellant’s confession was harmless sion of mitigating factors exactly role told what beyond any reasonable doubt with error for reasonable play, it would have been liability sentencing respect to both mitigating factors them to assume that trial, respectfully I must dissent. phases of unanimously as well. to be found hold, my opinion I also as I did punishment. We ultimate Death is the panel, that there was no Ake v. Okla- carry their juries out must be certain that homa, penalty cases. in death properly roles (1985), L.Ed.2d 53 violation and that on the una- was confused believe appellant’s jury instructions did not violate concerning mitigation and nimity question rights. constitutional may not have been of death that the verdict juror they understood that one imposed had I. if he or she the death sentence could block mitigating there were sufficient believed to Establish Use Of Confession circumstances. Liability Criminal First, beyond any reasonable I believe VIII. that the admission of con- doubt regard harmless with the District fession was Accordingly judgment majority says liability phase of trial.1 remanded to and the case Court is reversed prejudicial it error because the confes- to issue instructions the District Court with concrete, uncircumstan- sion was the corpus giving the state the writ of habeas commit appellant’s tial of intent to to conduct a evidence appropriate period of time However, shootings. as the Court liability and sen- the retrial as to both criminal admits, strong also cir- readily there was tence. taking age, appellant’s the accused’s in- into consideration Although honor 1. state did not physical telligence, state, condition and emotional interrogation, right I do not believe to end the of the inter- and the inherent coerciveness involuntary appellant's was confession rogation setting. Id. at 205. and the District coerced. state courts Both the appellant's will was not over- Court found that although Review of the record shows product was the his confession borne and that interrogators that several of at times threatened choice. See United free and rational of will appellant's arrested if he did friends would be Cir.1985). (6th statement, Murphy, F.2d 202 give v. States a fuller continue to not ques- is a mixed confession Voluntariness of a indicates that the trial court's record as a whole reviewing court "will finding and was not "clear error.” tion of law and fact of voluntariness findings cogent, Appellant ... unless there was no force or trial court's was not disturb the ¡d. by police, and he was not emo- the record.” threat of force appears on clear error Brown, totality tionally- United States of distressed. Voluntariness is determined Cf. Cir.1977). confession, surrounding F.2d 541 the circumstances

HU cumstantial evidence from appel- tery which Quaaludes. and took some That after- lant’s intent could be inferred. Properly noon, appellant Larry met a Hensley who framed, is whether the out- purchased $300, guns six payable for come of the trial or conduct of the defense day. meantime, next In the Ramell saw a would have been different had the confes- newscast about robbery and murder suppressed. sion been which included composite drawings resem- bling appellant and Kruse. beyond Hensley

It is also reasonable doubt that the saw the verdict of news and guilty capital guns of noticed that the against murder appellant bought appellant would have from been the same re- came in a Western gardless of the admission of containing the confession. Auto box glass. Ramell, broken The evidence establishing appellant’s Fehler, guilt and Hensley decided to cooperate in the murder shooting was over- police. with the Hensley arranged to meet whelming. The surviving victim of the appellant p.m., day 10:00 following shooting positively appellant identified robbery, pay guns for the he re- testified how the attempted murder and ceived appellant. Appellant was ar- Appellant, murder occurred. in the course p.m. rested at 10:10 night. store, of robbing the ordered the two store Any claim of shooting accidental was im- employees room, to the back forced them to possible in view of the manner in which prone, lie and then shot them execution- employees both store were shot. only style. Even if the confession had not been possible explanations shooting men, admitted, ap- defense available to one in the back of the head and the other in pellant would be killing to admit the neck, the back of the they were that were shooting, deny but intent because of attempting get up appellant or that drug and alcohol use. attempting to they execute them so could identity of was conclusive- identify robbers. absence ly established. Thompson, William the sur- capacity, diminished intent kill was the viving victim, ample opportunity to ob- only possible juror inference a reasonable appellant. days serve Two before the rob- could infer from the circumstances of the bery appellant and Michael Kruse were at crime. The confession that he shot them the Western Auto store from 1:00 to 1:30 “they get so up” wouldn’t could not affect p.m. examining woodcutting Thomp- tools. the outcome. son was alone Stanley at the store and Allen was at lunch. The day, appel- next illegal portion Had the con- lant again and Kruse went to the store at fession suppressed, appellant been p.m., appellant purchased 1:00 a hatch- required adopt have been the same trial Appellant et. guns also saw several in a strategy out necessity because he was glass display case and asked to look at a position not in a to claim he did not commit pistol. Python Thompson Colt showed him the murders.2 Before Kordenbrock asked gun and Kruse left the stop interrogation, he had admitted store without incident. committing the murder. This admission

Further, was made after he waived his less than an hour after Miranda the rob- rights. bery, appellant guilt The basic Gary and Kruse went to a admission thus not they Ramell’s home where sold him obtained violation of three Miranda guns of the stolen He They shooting for then would have admitted the $200. went home of Richard he would have Fehler where claimed diminished they at 10:30 a.m. guns, payment through drug sold two and alcohol use. Given the for which January strength was due 1980. Ac- of the circumstantial evidence es- Fehler, cording appellant intent, appeared jit- tablishing his statement that he shot Perini, Regardless self-defense, of whether Burks v. crime but claimed would (6th 1986) distinguishable F.2d shooting Cir. is have admitted the but claimed dimin present appeal, capacity. I see no alternative but that ished He would have done so because strength would have been pointing forced to admit that of the evidence to his killing. guilt. he did the Just as Burks admitted the hand, merely “they get up” gave pellant, on the other stated wouldn’t the men so explained then additional for estab- that he shot the men and relatively little basis persuasive, “dripping” why. The most damn- Owen’s statement was lishing intent. lay kill, his intent not ing appellant’s indication of with intent to while state “they he shot them so equivocal statement ment was at most. in the facts get up,” but rather wouldn’t Appellant’s oral statement to the surrounding the crime. and circumstances essentially as also related the same facts equivo- in the confession is The statement statement —that he shot written proves of whether it cal on stealing guns from the two men after explanation why be an intent—it could store, language “damning” but without men, an additional or it could be he shot the they get up. that he did it so wouldn’t added at the time of his gratuitously fact course, Appellant’s only had the confession or without admission confession. With admitted, would be to make the been confession, appellant would have to at jury, directly either same statement to the he the two the fact that shot least admit case, implicitly in his defense. In either he said in his written The fact that men. he would have to admit the deed. they he shot them so confession finding from the clearest of intent stems no indicative of get up is more wouldn’t admit, facts that he would be forced to phrase “I kill than would be the intent to For that with or without confession. escape” could or “I shot shot them so we reason, language I am convinced that the identify us.” they would not Once

them so prejudice him in of the confession did not shooting es- were the circumstances guilt phase of trial and that its admis- except tablished, explanation no there was beyond sion was harmless reasonable capacity under which the diminished doubt. kill. infer intent to would not readily distinguishable from is This case II. Alabama, 849 F.2d 536 Cir. v. Owen Sentencing Use of Confession at proposi 1988), by majority for the cited majority’s holding admission illegal is the confession tion that where the confession was constitutional error on kill, intent to its evidence of only direct sentencing phase of the trial is founded harmless even where evi is not admission premise con- on the written guilt establishing the defendant’s is dence “extremely prejudicial fession contained Owen, overwhelming. the defendant “ statements,” incriminating Majority shooting and said that confessed to a ‘[i]f Opinion under- which “tended to gun] I had a thousand [shells sentencing hearing mine at the the claimed Maybe thousand. this will have shot a ” mitigating ca- circumstances diminished (quoting a lesson.’ Id. at 537 teach them pacity drugs due to the use of and alcohol.” (Ala. State, 418 So.2d Owen According majority, the Id. at 1097. The court determined its Crim.App.1982)). “extremely prejudicial” confession was prejudicial error because it admission to be sentencing phase because it omitted support” for provided “significant drug reference to use3 and because its because it undermined his state’s case and course, con tenor was “cold.”4 Neither of -these rea- Of Owen’s insanity defense. Ap persuades kill. me of his clearly evidenced intent to sons that admission fession any imply not used majority that the officers lant told the officer that 3. The seems interrogation drugs (although and recorded who appellant's fact conducted or alcohol was not intentionally deleted confession). confession It included in the final written drug appellant's prior to the use reference to drug surprising that and alcohol therefore not shootings by “edit[ing] out facts” that would in the written confession. use was not contained capacity. Ma- support of diminished his claim jority Opinion Nowhere in the tran- at 1095. introduced at 4. The written confession that was interrogation script is such an assertion of the Kordenbrock, then, part Paul trial said in "I Stamper appel- supported. recorded Officer aiming firing pulled trigger, at their and appellant lant's as related it to him. confession get up.” they that wouldn’t heads so fact, transcript appel- point at one reveals prejudiced appellant, confession and I can Ramell stated that he “spaced was out” nothing appellant’s find in written confes- “pretty up” messed party. at the The sion which would tend to undermine his morning murders, approximately capacity defense of diminished and cause seven hours after party, he awoke and any reject member of the jury it as a drank two beers Quaaludes, and took two mitigating Indeed, sentencing. factor in then Quaalude took another thirty min- careful review of the record and the evi- Eljorn Nelson, utes later. Dr. Don TE presented dence at trial leads me to con- Jeffrey 4294-95. Piper testified that he appellant’s clude that confession could not appellant sold Quaaludes ten more about any way have in undermined his claim of thirty minutes before shootings. TE capacity diminished or prejudiced jury 4113. jury He told the appellant “was sentencing him to death. will consider very Quaaludes,” high on speech his majority’s each of the reasons in turn. slurred, eyes was and that his were messed TE up. Gary 4136. again Ramell 1. Omission Drug of Reference thirty testified that about minutes after the and Alcohol Use shootings appellant he saw and that he argues The Court first appeared mellow, “kind of he didn’t seem claim of diminished capacity prejudiced was world,” like he had a care in the TE by the admission of his written confession he was glassy-eyed. TE 3806. In drug because it did not mention or alcohol opening his statement jury, appellant However, drug use. whether and alcohol “shotgunned” stated that he two beers the was supported by use mentioned his morning shootings Quaa- and took a confession written is irrelevant. The rele- lude. stopping get After gas buy inquiry vant is whether logi- the confession drugs, more he took Appellant two more. cally precluded him from effectively assert- jury also told the when shot the ing his defense of capacity diminished men, two he was “standing there all Obviously, prevent trial. it did not him up night messed from the before and what making from his defense. The majority I had already morning.” consumed that ignore independent, seems substan- told jury He that he “never intended to tive evidence introduced at trial anybody shoot just happened.” ... [i]t prove diminished capacity. Considera- jury fully was thus aware of the de- tion of such evidence is essential in deter- gree appellant’s drug and alcohol con- mining admitting whether the error sumption at the time of the shootings. beyond confession harmless a reason- determining doubt. “In able whether understand, I fail to majority as the con- particular error can be ... classified [as tends, the mere how of a absence reference harmless], this Court must review the facts drug and alcohol use written con- and the evidence to determine the effect of any way fession could have in undermined unlawfully upon admitted evidence appellant’s diminished capacity defense. upon other evidence adduced at trial and pre- Admission of the did not confession Owen, conduct the defense.” 849 F.2d him putting vent before all (citing Fahy Connecticut, at 540 375 available evidence of his intoxication due to 85, 87, 229, 230, U.S. L.Ed.2d drugs and support- alcohol. The evidence (1963)). ing capacity diminished was neither con- to, trary with, nor even presented inconsistent with the testimo- made in of several statements his written ny ap- witnesses who observed confession. pellant Appellant put either was as able to immediately before or on evidence after shootings. explaining his mental Terry when he Hall testified that state shot two party arrived at a at his men as he would sister’s have been had the night shootings suppressed. residence confession been before It seems to eyes, bad condition” logically impossible “in with red slurred me the confession speech, appearing “kind prejudiced of woozie.” to have ability to make his (TE) 4158, 4164, Exhibits Gary Trial diminished defense. ca- establishing his defense of diminished appellant where not a situation

This is containing Again, determining pacity. a confession whether suppress sought to contrary to what he would requires at- us to consider error was harmless statements example, if at trial. For prove not tempt illegal to confession the effect of drugs using or alco- denied itself, of appellant conjunction with all but rather confession, the erroneous admis- in his hol Fahy, trial. the evidence adduced at See his defense of undermine sion of it would 230; Owen, at 84 S.Ct. at preju- capacity and constitute diminished F.2d at 538. urged by the in the manner error dicial us majority’s reasoning would have if also be the case would majority. Such all the juror, in the face of assume that a written confession that in his had stated he testimony indicating appel- evidence and drugs. high or on intoxicated not he was and diminished lant’s intoxication us, appellant’s However, the case before consumption drugs his recent from on the matter was innocuous confession alcohol, reject that testi- would uncontested it made no ref- capacity because diminished simply state- mony because of his written Fail- alcohol use at all. drug or to erence “they them so ment that he shot wouldn’t did not it in the confession mention ing to may have get up.” His statement written trial, prove it at to nor him unable render cold, any virtually state- been as be would written confession would its absence may it confessing ment a murder. While jury would find likely that make it less cold, however, I believe have been cannot Ap- intoxicated. acted while to have him calculating complaining be- that its tone so callous and really be was pellant seems to juror to any which contained refer- reasonable confession that it would cause cause be better drugs actively affirmatively ignore alcohol the sub- ence to Ap- capacity defense. diminished presented for his which stantive evidence trial independent was pellant’s confession I it in- intoxicated. find indicated he was ability to defend to his based unrelated any juror credible to think that reasonable such, I capacity. As am on diminished testimony all the establish- could listen to doubt beyond a reasonable convinced capacity, and disbe- ing his diminished then was the confession harmless admission lieve, reject, ignore be- evidence error. language of the of the confession. cause Appellant tempered any of his harshness 2. Tenor of Confession appeal by his direct written confession prevent did not confession if the Even and all opening in his statement asserting claim of his dimin- showing at trial evidence substantive majority contends that capacity, ished drug his and alcohol use. Thus his written then, “I Paul Korden- “cold” statement explana- with an supplemented word was firing aiming and brock, trigger, pulled his state when he tion of mental shot get they wouldn’t so that heads at their two men. did not believe That juror at least one caused may have up,” logically defense be attributed cannot with diminished acted disbelieve confession, a confession that no made any juror agree I do capacity. drug and alcohol Noth- reference use. by the “cold” influenced could have been ing he added trial to soften the confes- way. in such a confession tenor slightly inconsistent sion’s tenor even reference to the again makes no contrary to his written with or statement. testimony intro- uncontested Although agree I that the written confes- his intoxication. established which duced jury, may appeared “cold” sion the issue is question, whether I view As majority that it agree with the cannot that he shot statement appellant’s written given all the prejudicial. juror, No get up” was “they so wouldn’t them so intoxication, reject- could have cold, evidence of callous, calculating, inflammatory, evidence out of hand because ed the could cause rea- prejudicial that it confession’s tenor. juror all of evidence reject sonable majority argues, correctly, I think Moreover, with that defense. I cannot agree any juror one member of the believed reasonable would “[i]f reject disbelieve or illegal portion all the of the confession evidence of his simply intoxication because of the dispel arguments in tenor of mitiga- ... tended to the confession. I am beyond any convinced tion, the constitutional error was harmful.” reasonable doubt that the erroneous admis- Majority Opinion strongly at 1098-99. I appellant’s sion confession was harmless conclusion, disagree however, with its sentencing in the phase. impossible say beyond is to a reason- “[i]t view,” juror able doubt that no held such a be unreasonable or that would to “[i]t III.

assume” that none did.5 Id. (emphasis add- ed). It is not sufficient for the mere- Psychiatric Failure To Have Testimony ly to assert its conclusion and entertain the Appellant claims that since he is juror might swayed that a notion have been indigent, the Constitution him entitles to a by rejecting appellant’s the confession in psychiatrist state-funded him assist capacity diminished defense. It is at least guilt sentencing phase of his trial. obliged why to set forth some reason a Although appellant did insanity not assert juror take such a view the face of defense,7 as a hoped psychiatric he to use appellant the uncontested evidence intro- testimony to establish a defense of dimin Fahy, See duced.6 375 U.S. at responsibility ished based on his habitual 230; Owen, at 849 F.2d at 540. After drug hoped and alcohol He abuse. also evidence, considering that I it is believe testimony use the same purposes for only possible and reasonable to believe mitigation sentencing phase. in the For view, juror that no held such a that it is but below, agree the reasons set out with the beyond reasonable doubt that none did. appellant District Court that was not de prived any right. constitutional being damning

Far “the statements that undermined his defense of diminished Appellant first obtained the services of a capacity,” Majority Opinion appel- at Cincinnati, Nizny, Dr. psychi- Melvin Ohio confession, lant’s it because did not men- Nizny atrist. Dr. examined use, drug logically tion or alcohol could not gave attorneys report an oral of his impeded ability prove have diminish- Although Nizny ordinarily evaluation. Dr. mitigating ed as a factor when require payment did not until after he had nothing though Nizny in the confession was inconsistent testified and Dr. even contention, support points insanity 5. In of this the Court as a defense. The Court believes that during jury, sentencing out that the tions, delibera- ample opportu- Kordenbrock has been afforded judge asked the trial whether it could nity develop if such defense one exists.” impose imprisonment parole, life with no indi- Continuance, 2, 1981, Denying Order June cating struggling with its deci- Neace, Judge County Sam Boone Circuit Court. majority reading I believe the much sion. is too Appellant’s counsel testified at the District Court jury’s request. into the inquiry Mere indecisiveness or evidentiary hearing on the writ that sentencing options hardly into evi- sanity was never considered as a defense: juror may dence that a have been influenced your Q: I understand that belief was at all the confession. insane, your times that client was not nor was statement, making I am aware that the incompetent to stand trial. Is that correct? government, beneficiary as prove beyond of the Miranda vio- belief, my my A: That's and that is —that lation, must a reasonable doubt my belief. did that the violation not contribute to the ver- However, dict. that does not obviate the need you how, Q: ... time did ever light [N]ever for the Court to articulate trial, pursuant statutory requirements presented juror evidence a reasonable rejected ignored Simply Kentucky your could have serting it. as- file a notice of intention to rejected may defense, that one it is not insanity you? did claim an sufficient. A: I—that’s correct. I had no factual basis to do that. 7. "Counsel defendant Kordenbrock have Deposition Monahan. of Edward rely upon notice never served of an intention to bill, steps assistance, counsel for Nizny’s not submitted obtain Dr. Nizny County that Boone Dr. caused the lower advised court to conclude that pay refuse to his bill. Counsel knew appellant psychiatric was not “denied” as ongoing dispute sistance; an over there was merely maneuvering he was county or the state was re- whether the appealable create an issue. Kordenbrock paying experts appointed sponsible for Scroggy, F.Supp. (E.D.Ky.1988). v. 867 defendants. Counsel ad- assist criminal finding This is a factual made after an Nizny that Dr. vised the Circuit Court evidentiary hearing extensive which can be give report testify a written or would not only clearly set aside if erroneous. See guaranteed payment. The unless he was Co., Rabidue v. Osceola 805 F.2d Ref. directing an order Circuit Court issued Cir.1986), denied, cert. 481 U.S. pay County Boone Fiscal Court to Dr. Niz- 1041, (1987). 107 S.Ct. 95 L.Ed.2d 823 ny. The Court refused to do so. record, Fiscal Upon examination of the I am not made no effort en- Appellant’s counsel persuaded that a mistake had been made. order. The District Court (“A force the found finding clearly erroneous when al urged that counsel could have the Circuit though it, there support is evidence to county in contempt Court to hold officials reviewing court on the entire evidence is levy county or to on bank accounts or to left with the definite firm conviction subpoena Nizny testify. Dr. It further committed.”) that a mistake has been Id. Nizny found that Dr. would have voluntar- clearly The holds erroneous the dis ily subpoena Kentucky from the honored judge’s finding appellant’s trict coun though court even served Ohio. Nizny testify sel did not want Dr. be cause, says, finding it on based Nizny Dr. was never advised of the assumption court, erroneous that the state County directing order he Boone Court’s be testified, Nizny if had required would have paid upon filing report of his one half disclosure of the fact that he and the other half after testified. The robbed, gas shot and killed the station at found that counsel’s failure District Court night tendant before. Although the payment Nizny to secure and to have Dr. night murder the before was one of the attempt testify was a deliberate to create aspects report unfavorable which appealable issue. court concluded judge caused the district to conclude de Nizny’s Dr. evaluation would not have fense counsel did not want him as a defense, wit been useful to and that ness, only Moreover, it was not the one. Nizny’s aware of it. Dr. his counsel was larger degree, agree I with the district report any to counsel did not indicate oral Further, judge’s during statement arguments made appellant had re- mental illness. quoted him majority opin before in the Nizny night Dr. that on the vealed to be- “any judge ion that robbery the Western would have let the fore the Auto store prosecution gas Nizny station Dr. he had robbed a and killed the on this attendant, [shooting] Although witness. The issue.” unfavora- the informa Nizny’s report,8 plus prejudicial, Dr. highly pro ble nature of tion was it was also Certainly failure to take of the obvious counsel’s bative. the fact could not be Nizny's ample, Court also found ques- 8. The District that Dr. the weekend before the event in report preliminary tion, was also unfavorable in that he cleaned his uncle’s barn of manure in personali- appellant had an he found ty,” "anti-social board; exchange for room and I do not be- is, regard rights no he had of his lieve that one would consider this action that Also, Nizny woman. Dr. fellow man or con- totally totally of a man self centered or devoid reported that "it could not be cluded and said feeling person. again, for another Then probable." that rehabilitation Kordenbrock being preoccupied dog described foot- Scroggy, F.Supp. (E.D.Ky.1988). prints promised girl- car on his and had Nizny’s majority report Dr. state that "indi- friend that he would have it washed. After totally was not 'a cates that Kordenbrock man crimes, he described attention to this but totally feeling devoid of self centered none to his victims. Majority Opinion person.’" another at 1106. added.) (Emphasis says report What the is: trying, way, in an adolescent found him please responsibility. ex- to assume For

1H7 prosecution. concealed from the If Dr. reasko called the court and told it he would Nizny testify appellant proba- were to not assist because of a misunder- bly employees shot the store because he standing with counsel. The court denied glass was startled when the broke rather appellant’s motion for a further continu- than because he wished to eliminate them ance and the case was tried. just as witnesses or wanted to murder Appellant Oklahoma, relies on Ake v. them, would not the fact that he had shot 84 L.Ed.2d 53 gas night station attendant the before (1985) for his claim that the Constitution probative be most evidence to test falla- guarantees him court-appointed psychiat- ciousness in the opinion? Surely, doctor’s expert ric to assist in his defense and in the Nizny Dr. would have had to take into penalty phase of trial. Ake held that: prior account the killing reaching in any opinion on rehabilitation. The likelihood of when a defendant demonstrates to the is, being evidence admitted in my opin- judge trial sanity at the time of ion, Moreover, certainty. almost a significant offense is to be a factor at Court’s inference that counsel did not want trial, must, minimum, State at a as- Nizny Dr. depend as a witness does not on sure the defendant competent access to a certainty that the evidence would come psychiatrist who will appro- conduct an in, but the likelihood. It was on this likeli- priate examination and in assist evalua- hood that counsel would make their deci- tion, preparation, presentation Although sion. I do not condone the defense. state’s pay Nizny, refusal to Dr. I find no at Id. S.Ct. 1096. The Court constitutional violation. qualified right: Counsel’s further efforts to secure an- course, This is not say, psychiatrist other failed. The case was indigent defendant has a constitutional (it again previously continued been con- right psychiatrist to choose a per- of his unavailable) tinued Nizny when Dr. liking sonal or to receive funds hire and the trial appellant court ordered to be his own. Our concern is that the indi- by psychiatrist examined at a insti- state gent compe- defendant have access to a appellant’s tution who could assist de- psychiatrist purpose tent for the we have fense. discussed.... order, Pursuant to that appellant was Appellant Id. claims his constitutional 21,1980, by seen on November a Dr. James rights were county violated because the Services, Psychiatry Bland of Forensic pay Nizny’s refused to for Dr. services and public hospital operated by Kentucky expert offered, because the state-funded Department of Human Resources. Dr. Bland, determining Dr. was limited to ap- Bland was appellant to examine on the pellant’s competence sanity, and could issue his competency sanity. Be- concerning make an evaluation his di- cause the experts state restricted such to a responsibility minished mitigating or other objective neutral and concerning evaluation factors. only competence to stand sanity, trial and and because he feared that Dr. Bland’s However, appellant’s claim that opinion might confidential, ap- not remain scope Dr. Bland’s examination and testi- pellant’s counsel him cooper- advised not to mony was too limited to be effective is ate. without merit. Dr. Bland testified at the 15, 1981, evidentiary hearing in May

On the District requested granted appointment and was that he could have of a Dr. addressed all of the psy- psychiatric Michael Gureasko to act as a defense issues counsel want- However, 18th, May Moreover, chiatrist. on Nizny Dr. Gu- Dr. appel- ed to address.9 physician specializing psy- questions posed Q: 9. Dr. Bland awas Are of the [nineteen] chiatry. [appellant’s He testified that he would have been in the letter from Mr. Monahan Nizny Septem- able to examine all areas of that Dr. trial to Dr. counsel] ... 8th, Nizny requested correspondence you to examine: ber the objection you that Dr. Bland was neutral THE lant’s COURT: But would have made give way the evaluation and called it either could not effective de- and therefore you saw it. You would have made the is without merit. fense assistance Ake you thought crazy If evaluation. he was requires competent psychia- that a merely drugs irresponsible from the provided indigent to assist defen- trist be drugs, or in- couldn’t form the criminal dants, psychiatrist not the of their choice. drugs, mitigating tent from the or form a Appel- 470 U.S. at circumstance, anything family in his argument that Dr. Bland was not lant’s background mitigating were a circum- him required to examine at his counsel’s you just reported stance like have by Dr. direction is belied Bland’s stated it, you right? saw pursue the willingness to examination just THE WITNESS: I would have re- along plotted by defense a course counsel: ported gave it as I it saw and also Q: you you Would have—would ... interpretive opinion about how that engage if directed the court might might my have or not have in any matter which the—defendant’s other opinion affected the situation. might you pursue, attorneys ask if Id. by the court? ordered unpersuaded by majority’s ap- I am A: Yes. peal to Dr. Bland’s statement that he would Q: Regardless of the amount of time expert be as an “in available a limited might take? it which way.” Although it is true that his investi- gation “might potentially not and would depth might not include the of areas that Yes, I would. A: pursued by defense-only psychiatrist be Dr. Bland. Dr. Testimony of Bland also looking everything possible terms of neutral, objective defendant,” evaluation stated that expert favor such an [of] appellant supplied any have with required by Appellant would is not Ake. is re- appellant questing, information that could use majority grant, and the would only very expert. defense: best defense How- prohibited, have been unable or unwill- THE would WITNESS: That was not an unusual address, asked, Yes, you ing your had been able to examine to be honor. I cooperated Kordenbrock and had Mr. with could have. you? Testimony of Dr. Bland. Dr. Bland was also say I would prepared investigate testify A: I can’t be able to answer appel- and as to any way. them in substantial That family history psychological all of lant’s back- depend on a lot of factors. But I don't ground: any here that I wouldn’t be able to ad- part your your Q: see As examina- mental — they’re types ques- accused, Doctor, And in fact during period dress. tion of an commonly pro- are asked in trial thorough history taking important? tions that ceedings regarding is a my testimony. A: Yes. right. questions commonly Q: Those are you history Q: All part Would include in as posed capaci- questions in cases where mental your opinions any drugs effects of or alco- ty might illness be an issue? or mental might hol which the defendant use either A: Yes. chronically, or on the occasion of the crime subsequent or on the occasion of a confession to the crime? particularly Turn THE COURT: to number part history. A: Yes. That would be statutory mitigating and otherwise what in Paul’s commission of factors exist these you have been able to offenses? Would con- you Q: prepared And would have been testify you sider that and on that if had come Doctor, testify, by you if called the defense if they up up some—if had come with with any any found there to be effects of of those something to the defendant? favorable things your respect opinions as THE Yes. WITNESS: capacity of an individual? A: Yes. Likewise, family background, intelligence Q: THE COURT: What about number can you given Paul be rehabilitated? Could and other environmental factors? Yes, sentencing phase opinion an A: that would be considered. in the on that? Id.

1H9 ever, requires compe- Ake at most to state-funded psychiatrist), defense cert. psychiatrist evaluation, tent to “assist denied, preparation, presentation of the de- (1979). L.Ed.2d 310 fense.” 470 U.S. at Finally, even if the state court did im- testimony Dr. Bland’s shows he could have properly deny appellant access to Dr. Niz- provided and would have necessary as- ny, agree I with the District Court that his sistance. rights constitutional under Ake were ade- agree I with the District Court that Dr. quately protected by the testimony of Dr. assistance, Bland’s had taken ad- Eljorn Don Nelson. Dr. taught Nelson it, vantage of would have met Ake’s com- pharmacology at the University of Cincin- mand of guaranteeing appellant “access to College nati of Medicine and directed the competent psychiatrist who will conduct college’s drug poison information cen- appropriate examination and assist in students, ter. He teaches medical physi- evaluation, preparation, presentation psychiatrists cians and diagnosis about the of the defense.” agree Id. also that as a drug treatment of and alcohol abuse. strategy matter of appellant chose not to He special training received in the area avail himself of this witness. His concern of psychopharmacology. It again impor- confidentiality over could have been met tant to note admittedly never a court order. The trial court evidenced a made his sanity an only sought issue—he cooperative provide appellant attitude to to establish diminished and the with the psychiatrist. service of a inability specific to form intent because of Appellant’s rights constitutional under drugs trial, and alcohol. At Dr. Nelson Ake were guarantee not violated. Ake’s testified that he had appellant examined psychiatrist of a only state-funded arises and long detailed his history drug and after defendant shows that sanity will alcohol abuse. He then specifical- testified significant be “a factor at trial.” Id. See ly appellant’s about mental state at the Vasquez, (9th also Harris v. 913 F.2d 606 time of the crime: Cir.1990); Cartwright Maynard, v. 802 Q: Doctor, you opinion do have an (10th as to Cir.1986); F.2d 1203 Volson v. Black- ability Paul Kordenbrock’s burn, fully con- (5th Cir.1986); 794 F.2d 173 Bowden 9:30, trol his Saturday, actions at Kemp, Cir.1985). 767 Janu- Ap- F.2d 761 5th, 1980, ary pellant based on ... attempted insanity never to raise information as drugs? a defense. about his level of sought At most he to show that was through drug diminished A: I think that Paul Kordenbrock was use, depriving and alcohol thus him of the under the influence of alcohol and/or specific necessary intent to convict him of Diazapam Phencyclidene and/or and I Although intentional murder. Ake does he, probably, think as a result of that bright not establish a line test for deter ability had a diminished judg- to exercise mining when a defendant has demonstrated ment, decisions, ethical and formulate “sanity that at the time of the offense will complex thoughts. I think he was basi- always factor,” significant be a it is clear cally, terms, lay in he was drunk and “ defendant, requires that ‘Ake at my opinion. stoned. That is minimum, allegations make supported by Q: you ... opinion have an as to [D]o showing a factual that the defendant’s san ” whether or not Paul Kordenbrock was ity in fact is at issue the case.’ Cart psychologically physically and addicted wright, (quoting 802 F.2d at 1211-12 Vol drugs at Saturday, January 9:30 on son, 176). showing 794 F.2d at Such a 5th, 1980? by merely positing not made A: I drug physically psy- was a habitual think he was and alcohol abuser. 1383, Wainwright, chologically Pedrero v. addicted to If See 590 F.2d alcohol. (5th Cir.) (pre-Ake .holding Diazapam ease street tablets contained he insanity by showing certainly is not made an issue psychologically physi- drug entitling defendant was a addict him cally dependent to that. significant opportunity Dr. Nelson. Dr. Nelson’s loses a to raise

Testimony of the heart of testimony jurors’ questions went to minds about appeal, appellant fails to es- defense. On proof aggravating State’s anof factor.” Nizny’s testimony Dr. would tablish how (emphasis add- Id. at 105 S.Ct. testimony. Dr. Nelson’s differ or add to ed). Bowden, In the court stated Nizny’s Although he claims that Dr. testi- Ake, “[ujnlike sentencing situation explained the'jury mony why would prosecutor Bowden’s had no need to did, way ap- it behaved present psychiatric show an evidence to pears Dr. Nelson's examination and factor, aggravating presented and he none. testimony sufficient to establish the were dangers inequities which con- responsibility defense diminished consequently cerned the Court Ake did capacity. Simply asserting that Dr. mental 767 F.2d 764 n. 5. Nor do exist.” testimony Nizny’s would have been benefi- dangers inequities those exist in this enough. is not a defendant cial “Where appeal. presented psychiatric The state no undeveloped than asser- offers ‘little more experts sentencing phase, only a at the requested tions that the assistance general family practition- doctor who was a beneficial, deprivation find no of due be we drugs. er who testified about the effects of process judge’s in the trial decision [to such, appellant constitutionally As was not ” Bowden, deny psychiatric assistance].’ psychiatrist to a un- entitled state-funded (quoting 767 F.2d at 765 Caldwell v. Mis- addition, testimony given der Ake. 323 n. sissippi, 472 U.S. by Dr. Nelson went to the effects of his (1985)). L.Ed.2d 231 2637 n. drug and and could used alcohol abuse be not that he was Appellant’s defense was purposes mitigation and to counter mentally insane or diseased—it the state’s witness. ability affected his drugs and alcohol specific intent and should to formulate IV. mitigation in his sen- have been used for Jury Unanimity Instruction Re Therefore, the District agree tence. agree major Nor can I with the denying access to Court that error ity opinion constitutional to the extent that Nizny Dr. was harmless rights judge were violated when the trial appellant and testi- Dr. Nelson examined jury penalty phase Appellant’s consti- instructed the the fied to the same issues. aggravating were not violat- that an factor had to be found rights tutional under Ake unanimously, regard ed. but was silent with many agree finding how had to a miti guarantee of access to Lastly, Ake’s gating Appellant factor. claims this sentencing phase psychiatric in the counsel jury mistakenly caused the believe that to these facts. apply not trial does finding mitigating required a factor also in two situa guarantee applies Ake's claim, unanimity. reviewing In I first sanity sig is a defendant’s tions—when the note that errors of instruction are not re “in nificant trial and the context factor at proceeding in a viewable habeas unless proceeding, when capital sentencing of a they deprive appellant pro work to of due presents psychiatric evidence the State Smith, Long cess. v. 663 F.2d 18 dangerousness.” the defendant’s future 1024, Cir.1981), denied, 455 U.S. cert. Ake, 83, 105 at 1096. Ake 470 U.S. at S.Ct. (1982). 72 L.Ed.2d 143 S.Ct. right a only guarantees a defendant the “ determining this ‘whether standard for is sentencing phase op psychiatrist at the ailing by instruction itself so infected pose government’s psychiatric testimo resulting trial that conviction the entire explained ny. Supreme ” process,’ merely violates due whether psychiatrist arises need for a defense Kibbe, it is erroneous. expert Henderson government uses an be when the 1730, 1736, 145, 154, 97 assist U.S. S.Ct. “[wjithout psychiatrist’s cause a (1977) (quoting Cupp v. ance, L.Ed.2d 203 cannot offer a well-in defendant 141, 147, view, 94 S.Ct. expert’s Naughten, and there- U.S. opposing formed H21 (1973)). Thus, 38 L.Ed.2d 368 It is clear that I separately write on each of the given instructions here remaining parts did not “in opinion. the entire trial” deny appellant fect[] V. Miscellaneous Claims process.

due I agree with majority’s treatment of held, As the District Court there is noth- B., C., issues E., D. toAs issue ing in the instructions that would lead the police’s believe that the action of displaying jurors finding to believe that mitigating a pill bottle before Kordenbrock during required unanimity. factor The instruc- interrogation was intentionally manipu- carefully tions stated finding ag- lative. I also police’s believe oh- gravating required factor agreement, such so-convenient loss of pill bottle and it reasonably but cannot be inferred that erasure of tape bungles are inexcusable as to finding mitigating silence factor for courts to capital tolerate in cases. likely cause jury to assume that unanimity requirement. was also a Indeed A., As to Issue I disagree that the stan it would indicate opposite. The instruc- dard announced in v. Mississippi, Caldwell tions misleading. were not 320, 105 86 L.Ed.2d 231 (1985), was Caldwell, satisfied. Thieret, (7th Cir.), Kubat v. 867 F.2d 351 — Court held that it is “constitutionally im denied, U.S.-, cert. permissible to rest a death sentence on a (1989) 107 L.Ed.2d 159 upon relied in the determination made a sentencer who majority opinion, clearly distinguishable is been led to responsibili has believe silence, from the instant case. Unlike ty determining the appropriateness of jury specifically there was they told that the defendant’s lay death elsewhere.” must find mitigating unanimously. factors Caldwell, 328-29, 472 U.S. at 105 S.Ct. at If, deliberations, your after you unan- Caldwell, 2639-40. In the Court dealt with imously determine that there is no suffi- prosecutor’s inaccurate statements to a ciently mitigating factor or factors to jury regarding sentencing responsibili its preclude imposition of the death sen- unique This case ties. because while the defendant,.... tence on the prosecutor accurately informed the If, your deliberations, you after unan- the Kentucky capital sentencing law in imously conclude that there is a suffi- effect at the time of Kordenbrock’s case ciently mitigating factor factors to requires to “recommend” the sen preclude imposition the death sen- capital tence in a sentencing proceeding, tence, .... the statute itself accurately did not reflect (emphasis at Id. 369 added in original). the sentencing de responsibility of facto Although another permitted instruction the jury the which was to the fix sentence. jury to so state if they were unable to In cases where the term “recommenda verdict, reach a unanimous that could not upheld has been jury tion” for instructions correct the erroneous instruction. informing jurors the of their sentencing I therefore conclude the instruction function, the actually states involved limit deprive appellant not process did of due jury’s giving the function to non-binding a right. invade constitutional See, recommendation judge. to the trial Dugger, 1464, Harich v. e.g., 844 F.2d MARTIN, Jr., BOYCE F. Circuit (11th Cir.1988), denied, 1473-74 489 cert. Judge, concurring part dissenting 1071, 1355, U.S. 109 S.Ct. 103 L.Ed.2d 822 part. (1989) (Florida); Project, see also Nine I concur in the majority’s opinion revers- Annual teenth Review of Crim.Proc.: Unit ing Paul Kordenbrock’s and sen- Sup.Ct. 1988-89, conviction ed States App. and Cts. of grounds parts 669, (1990) tence on the set out in II-IV 78 1294 (noting Geo.L.J. n. 2747 However, opinion. remaining Florida, Alabama, on the and Indiana use a issues, I have additional jury comments and/or system recommendation as an adviso slightly a different analysis ry opinion of the judge). Kentucky issues. for trial

1122 applies misleading jury in effect at the time well instructions sentencing statute Consequently, sentenced mischaracter- I that this as well. believe Kordenbrock jury’s binding nature of the deci highly presents ized case unusual situation when fact capital as a “recommendation” description sion an where accurate penalty as either life or jury fixed the sentencing be- statute is unconstitutional Consequently, capital sentenc death. inaccurately de- Kentucky’s cause statute by were amended ing jury instructions jurors’ actual role. scribed v. Kentucky Supreme Court Tamme Commonwealth, (Ky.Sup. 759 S.W.2d 51 Psychiatric VI. to Provide Refusal Ct.1988), accurately jury’s state the role. Expert the Defense for held that fo- Most courts have Caldwell Applicability A. v. of Ake Oklahoma solely prosecutor’s statements cuses on sentencing applicable law regarding on join Judge I Chief Merritt’s dissent there must be a misstatement and that Ake v. this issue. The is whether a violation regarding that law for Caldwell 1087, Oklahoma, 68, 470 105 S.Ct. 84 U.S. Yet, place. speaks taken Caldwell (1985), providing L.Ed.2d 53 is limited to terms, holding that it is “consti- in broader indigent psychiatric ex- defendant with tutionally impermissible to rest a death sanity-related pert presenting for by a determination made sentence on I on defense. believe that such a limitation led to believe that sentencer who has been holding unusually myopic read- Ake’s is an determining ap- responsibility opinion. ing reasoning in that propriateness of the defendant’s death rest fully agree Judge with Chief Merritt’s 328-29, Caldwell, 472 U.S. at elsewhere.” analysis of this issue. The extension The fact that the 105 S.Ct. at 2639-40. beyond sanity supported Ake issue is Kentucky statute are inaccu- words of the by Justice Marshall’s Mathews v. El- both instructions, rate, prosecutor’s 893, 319, 424 96 47 dridge, U.S. S.Ct. the harm and constitu- immaterial because (1976), process analysis in L.Ed.2d 18 due jurors’ from the deficiency stem tional Ake and the lower federal courts and sentencing respon- perception false of their recognized state courts that have that Ake sibility. proposition stands for state challenge to the for a The standard must furnish the defense with the “basic in Dug was set out instructions themselves Ake, adequate for an defense. 470 tools” 1211, 401, Adams, 109 S.Ct. ger 1093; 77, see, e.g., 105 U.S. S.Ct. (1989). The held 103 L.Ed.2d 435 Armontrout, 835 F.2d 1243 Little v. “necessarily must show that the defendant (8th Cir.1987) (en banc), denied, cert. 487 jury improp remarks made 101 L.Ed.2d 894 U.S. S.Ct. assigned to the erly describe the role (1988)(holding required non- Ake even Here, at 1215. by local law.” experts); psychiatric Kemp, Moore v. Kentucky statute was the fact that (11th Cir.) (en banc), denied, F.2d 702 cert. does not mean that in accurately described 95 L.Ed.2d U.S. application, the law was constitutional. (1987); Coker, 412 847 v. N.W.2d State gave a false clearly The statute 589, (Iowa 1987) (defendant entitled 593 responsibility ne sense of its actual —thus expert under Ake to on intoxication de Kentucky Supreme cessitating the Court’s fense); R., 718, In re Allen 127 N.H. 506 Tamme, amendment, statutory of the in (Ake (1986) defendant to A.2d 329 entitled Dugger, the Court de instructions. expert mental health on issue of defen- because the defen clined to reach the issue competency to waive Miranda dant’s object allegedly im dant failed to 316 rights); Massey, but see State v. N.C. proper Interestingly, instructions. 811, (1986) (defendant 558, 342 816 S.E.2d the issue as a Court referred to Caldwell expert competency on to not entitled despite the fact that it was a issue Love, rights); v. issue, waive Miranda prosecutor’s not a state instruction Stafford (Okla.1986) (Ake limited to my P.2d 894 supporting ment view Cald- 726 issue—

H23 psychiatric experts only); parte Ex Gray (emphasis supplied). The tasks of the de- son, (Ala.), denied, So.2d 76 cert. psychiatrist 474 fense were described as “to 865, 189, U.S. 106 S.Ct. 88 L.Ed.2d professional 157 conduct a examination on is- (1985) (Ake psychiatrists limited to defense, and the sues relevant to the help deter- insanity defense). I believe mine that under whether insanity Jus defense is via- ble, tice process/fundamental present Marshall’s due testimony, assist in analysis, preparing fairness provides experts Ake cross-examination of a on issues other sanity. than State’s psychiatric 82, witnesses.” Id. at 105 S.Ct. at 1096. It is clear that the Ake Moreover, I believe that Kordenbrock’s majority did contemplate not a psy- neutral right to an expert for capaci- his diminished chiatrist as satisfying process. Indeed, due ty defense is equally cognizable under his Rehnquist Justice assailed majority in equal protection argument. clause In a dissenting opinion for establishing the pre-Ake case, state habeas the Fourth Cir- right to a “defense 87, consultant.” Id. at cuit equal held that the protection clause 105 S.Ct. Moreover, at 1098. Ake, required provide the state expert assist- Court all but overruled United States ex ance for a criminal defense “when a sub- Baldi, rel. Smith v. stantial exists over an issue re- (1953), 97 L.Ed. 549 where state quiring expert testimony for its resolution had supplied psychiatrists. neutral and the position defendant’s cannot fully be The reason for a partisan witness is developed professional without assistance.” Bland, clear. psychiatrist, Dr. the state Martin, (4th Williams v. 618 F.2d 1021 testified Judge before Bertelsman at the Cir.1980). right, This according to the hearing habeas that he pursue could not court, “firmly equal on based pro- theories by defense, desired assist their tection There, clause.” Id. at 1026. cross-examination, guarantee nor confiden- request was pathologist for a to assist the tiality to the defense. As by stated argument defendant’s gunshot Circuit, Tenth duty Court’s appoint wound did not cause the victim’s death. defense expert under Ake “cannot be satis- equal court held that protection fied with appointment expert of an who required clause the appointment of the pa- ultimately testifies contrary to the de- thologist. I believe Kordenbrock satisfies fense .... The essential having benefit the standard in Williams v. Martin and expert an place the first is denied the that his expert entitlement to an solidly defendant when the services doctor equal protection established under must be prosecution.” shared with the clause as well as process under the due Sloan, United States v. 776 F.2d reasoning in Ake. (10th Cir.1985); see also States v. United agree Judge with Chief Merritt that Crews, (10th Cir.1986) 781 F.2d 833-34 Kordenbrock’s counsel cannot be found to (despite testimony of treating four appealable have manufactured an issue court-appointed psychiatrists, defendant “deliberately failing payment to secure for was entitled to his own psychiatrist to aid expert.” in the interpretation experts’ finding I also concur with Judge Chief Merritt’s cross-examination); and to assist but see reasoning that Ake requires more than Magwood Smith, F.2d expert. language “neutral” of the ma- (court Cir.1986) upheld denial of de- jority opinion and in Ake dissent shows request fendant’s for independent expert expert was deemed to abe defense where three of the experts state’s six testi- expert. give While Ake does defen- defense). fied favor In Magwood, expert choice, dant the of his it does indi- the court present- overlooked the fact that cate that the defense is entitled an ex- ing testimony only of many one pert will appropriate “who conduct an ex- psychiatric functions expert of and the evaluation, amination and assist in prepa- deprived defendant was of the assistance ration, presentation cross-examining of experts. the defense defense." Ake, 470 U.S. at 105 S.Ct. at impartial 1096 The use of expert subverts KRUPANSKY, Judge, single Circuit by making a ex-

adversary process dissenting. the issue. The decider of ultimate pert the only principled make a can judge Kennedy’s dissenting join Judge I there is a “battle decision when following comments. opinion with likely more truth is experts” where dissenting court and the As the district its presenting each side emerge through observed, Niz- the absence of Dr. opinion expert, the a "neutral” case. With own during testimony ny’s appearance and the really challenge the find- cannot defense sentencing proceedings the state trial and testimony that because ex- ings of adverse imple- strategy a defense calculated indi- available to the pert is the one who, by legal counsel from mented astute Moreover, potential a for gent defendant. outset, recognized the perceived and emerges when a state of interest conflict appellant’s ac- implications callous incriminating evidence—is agency uncovers when, planned the course of a during tion public? to the duty the defendant or its at- Stanley Allen and robbery, he killed to an is not entitled a defendant While Thompson by delib- tempted to kill William testify issues in a expert who will them, shooting in the erately each of back wishes, expert way that the defendant head, ordering them to lie face after way a retained in the “partisan” must be storage of a room at down on the floor to the de- provide assistance expert would Auto in Flor- rear Store of Western Note, Expert Servic- generally fense. See ence, Kentucky, both men worked. where Indigent Criminal Defendant: and the es Challenged by the malevolence of Ake v. Mandate of The Constitutional actions, were confirmed appellant’s which Oklahoma, 1349-64 84 Mich.L.Rev. oral by psychiatric examination and Comment, Expert (1986); Nonpsychiatric Nizny, respected psychi- Dr. evaluation of Showing of Requisite Assistance choice, imple- appellant’s counsel atrist of in the Post-A/ce Crimi- Need: A Catch-22 designed trial tactics mented a course of Emory L.J. System, nal Justice purposes of into the record for induce error (1988). 1008, 1018-22 they successfully appeal, a result accom- Recently, the Circuit held Ake Fifth court’s conclusion plished. The district by appointment of a court not violated in- deliberate efforts that defense counsels’ report examination whose psychiatrist Nizny testifying appel- against sured Dr. prosecution. Gran both the defense and firmly supported by the lant’s defense was 881 F.2d 185 Cir. Lynaugh, viel v. clearly erroneous. evidence and is not — U.S.-, denied, 1989), cert. by appel- It is conceded the defense (1990). In a dissent L.Ed.2d 758 placed alleged never nor had lant has certiorari, Jus from the Court’s denial the Boone Circuit insanity in issue before author, Marshall, joined Jus Ake’s tice Court) (Circuit Kentucky or subse- Court of Brennan, as un the decision tice blasted quent It should also be noted courts. of a requirement clear to Ake’s faithful request for funds retain a “disinterested” ex expert partisan —not choice was nevertheless psychiatrist Marshall’s dis pert. I that Justice believe granted. majority obviously not a sent, although particularly persuasive com is a opinion, psychiatrists to The first of three exam- requirements since he is ment on Ake’s Dr. W. appellant was Warner ine opinion’s author. evaluating appellant’s Anderson. com- his mental state petency to stand trial and analy- Judge Merritt’s I Chief concur shooting, robbery at the time of the concerning whether issues sis of the Dr. Anderson concluded: join Ake. also pharmacologist satisfied from the ex- I could find no evidence analysis of the Judge Chief Merritt’s man suffers jury’s considera- amination regarding the instructions not ac- He could mental illness.... in Part VII of the mitigating tion of factors including drugs anything count opinion.

H25 that would have altered his mental agreed state pay Nizny Dr. one-half his of fee day alleged on the murder.... upon submission of his report, written He did appear to be remorseful about balance to be forthcoming at the conclusion the fact that he had taken someone’s of his testimony, although it was Dr. Niz- life.... The history presented that he ny’s policy to fee submit schedules suggested episodes a series indicat- of after he had concluded examinations, his ing behavior. He antisocial is aware of evaluations, submitted a report written and the seriousness of the charges against testified at trial. Dr. Nizny sug- had not him and is aware possible conse- gested or requested defense pay- counsels’ quences could result being exe- arrangement. ment cuted the electric chair. I feel he is Defense counsel also alerted the Circuit capable of assisting counsel in his own defense, Court that the County Boone (emphasis added). Fiscal Court (Fiscal Court) probably would pay refuse 14, 1980, On or May about at the Circuit Nizny Dr. jurisdictional of a because con- suggestion, Court’s defense counsel in- troversy between it and the State of Ken- quired into availability qualified of psy- tucky over political which subdivision was facilities, chiatrists at various particu- state responsible payment of expert larly the fees in Grauman Forensic Psychiatry cases, (Forensic criminal ongoing Unit which Psychiatry Services) controversy who require were available provide objective “an commencement of a man- evaluation” for damus competency both or the ex- action necessitating the postpone- disease, a defect, istence of mental appellant’s or con- ment scheduled trial on No- dition the time of alleged 6, criminal vember 1980. At the conclusion of the Subsequent act. to further communication hearing the Circuit Court ordered the Fis- Grauman, request defense counsels’ cal Court pay Nizny’s Dr. fees and con- participate appellants defense was tinued the trial 6, of November declined department because “this cannot With this reflection of historical circum- itself to allow be used as the tool for either surrounding stances defense “ef- counsels’ in criminal side matters but maintain must forts” to obtain psychiatric assistance on objective stance.” appellant, behalf of the United States Dis- Subsequent to an in hearing camera con- trict Court for the Western of Ken- District 18, July on ducted the Circuit Court tucky noted that on November authorized defense counsel to select and Nizny Dr. had appellant examined the after employ psychiatrist, psychologist, and a orally reported counsel, to defense psychopharmacologist their choice psychiatric appel- examinations of paid by whose fees would be the state. On lant that, reflected no mental illness and August 1980, defense counsel advised during the interviews, course of extended the Circuit Court that discussing after appellant had disclosed that on night psychiatric desired evaluations related before the murder of Allen and the at- expert opinions concerning appellant’s di- tempted Thompson murder during minished immediately before and robbery during robbery psychiatrists with 16 Western Auto Store he had psychologists, all killed service “refused assist station attendant rob- while the defense.” bing a Star Kentucky. Service Station in also Nizny He told Dr. that after mur- However, August on 1980 defense girlfriend der he visited his where he met counsel notified Circuit they Court that partied Michael Kruse and with three wom- had selected Melvyn and retained Dr. Niz- en following until the morning. Nizny ny Dr. as their psychiatric expert of choice. opined to defense counsel 13, 1980, that as a result October 6 On coun- defense sel, of his three support examinations of the motion for a continuance, Nizny’s that Dr. concluded that advised re- “an had port would not personality,” be available until November antisocial with no regard for 5, 1980, and that defense counsel rights beings of his human fellow full-fledged psychia- defense acting as our the rehabilitation not be said

that “it could trist.” probable.” Kordenbrock] [of 22, 1981, scheduled April On trial was highly prejudicial with this Confronted 6, 1981, May defense June 1981. On evidence, which would have damaging and Dr. appointment of requested the counsel through the to the state available become Gureasko, psychi- forensic another Michael Nizny,1 defense of Dr. cross-examination choice, request which atrist of their Nizny Dr. notified promptly counsel May 1981. On granted on Court Circuit pay to had refused the Fiscal Court 18, 1981, continu- May a defense motion for not probability all and that fees by the affidavit of supported filed ance was professional servic- him for compensate Dr. day same Gu- Dr. On the Gureasko. counsel and that defense promised es as re- Court to telephoned the reasko Circuit Contempo- payment. guarantee could of of his affidavit and quest the withdrawal counsel the Circuit told raneously, defense participate in the case not to his decision Nizny would not submit Dr. “disagreement or misunderstand- due to a appear to report and would refuse written The motion for ing defense counsel.” paid or until he was witness as a defense pro- case was denied and the continuance of his fees. guaranteed payment trial. to ceeded although the Cir- noteworthy that It is reflects sequence of events The related ordered the Fiscal Court had cuit Court defense coun- objective of manifestation fees of Dr. professional pay honor discourage any objective efforts to sels’ ignored, defense decree Nizny, which examination, evaluation, or tes- psychiatric no effort to enforce Cir- counsel made appellant, of which timony on behalf by proceeding in con- order cuit Court’s shop- appearances psychiatric of all levy upon county otherwise tempt or to F.2d ping. Vasquez, Harris subpoena request toor or bank accounts Cir.1990), a case of which was 620-21 by deposi- testify person

the doctor to brutality, ap- equal premeditation and tion. psychiatric profile revealed an pellant’s reflecting upon counsels’ defense Also remorse personality” without “anti-social Nizny present Dr. efforts “good faith” profit past experi- “ability to or the the doctor’s disclosure as a witness punishment.” The Ninth Circuit ence or informed of the Circuit been he had never appellant was rejected argument paid, directing his fees be Court’s order qualified psychiatric as- access denied that he would have vol- and his assertions defense, for tactical because the sistance requested as a witness if untarily appeared case, reasons, suppressed much like this beyond subpoena he was though even psychiatrists appel- testimony of two Kentucky Circuit Court jurisdiction Thus, I concur with dis- choice. lant’s paid. though he had not been and even dissenting opinion trict judge deliberate- that defense counsel conclusion 21, 1980, the Circuit Court On November pur- record for ly error into the induced Psychia- Forensic ordered Nizny’s failure poses appeal and that Dr. because defense for evaluation try Services not, appellant’s trial did under appear in their “unsuccessful been counsel had case, constitute the circumstances psychia- the services of procure efforts infringement. constitutional choosing, the trial of own trist of their sagacity effectiveness delayed be- subtle unduly having been this cause implementing counsels’ tactics expert assist- defense lack of such cause of the again dem- strategy is appellant’s defense immediately di- Counsel ance.” Defense have the de- by their decision with onstrated “not to communicate rected jury by personally is not address long as Forensic fendant as psychiatrist testimony. trial fully dissenting opinion has discussed verse 1. The admissibility Nizny’s ad- relevancy of Dr.

H27 reading a prepared obviously tailored sponse, “Sir, which it, was I did I told opening statement which emotionally you.” de- simply This is not a case where physical scribed his and mental police condition as were trying to browbeat a impaired by heavy and drug suspect continuous into confessing to a crime that he and alcohol consumption night might before not have committed. immediately preceding the Western The interrogation was not prolonged

Auto robbery. Store unreasonably; the verbatim transcript takes less than typewritten pages, The result of defense counsels’ adroit with a new line for the start of each legal maneuver apparent from the ex- question and each answer. There is no pressed concerns of at my least two of indication that appellant was de- associates who have become troubled prived of food or drink or privi- bathroom the stark contrast appellant’s between leges. When he cigarette, wanted a signed confession which was read to the given cigarette. a When he asked direct, “as simple, calm, and confi- break, for an exercise given he was murder_ dent recitation of cold-blooded exercise break. long This is a way in- entirely any devoid of reference to alcohol deed from the rubber or the hose rack use, or drug any suggestion of hesitancy and thumbscrew. act or confusion of or purpose, any tinge of regret” and the The interrogation defendant’s opening state- reflects that for two ment at trial and a half wherein he hours two interrogating detailed a “narra- officers heavy cajoled, solicited, tive of and continuing urged, coaxed, drug and alco- and re- quested consumption hol explain immediately or preceding the offer some reason for killing, an appeared murders description abbreviated which of the have perpetrated cold, been robbery and in a shooting language thinking calculated manner. during of Not purpose, period, uncertain this entire explicit and then an ” apart from expressing denial money of an need for intent shoot ‘to anybody.’ pay hospital bills, appellant once, did the The reason disparity for the is obvious directly or indirectly state infer or that he from a review of the verbatim transcript of confused, irrational, hallucinating or in appellant’s interrogation conducted immedi- any way physically or mentally incapacitat- ately subsequent to his arrest Judge which by fatigue, ed ingestion drugs of or Nelson, in a opinion, concurring character- alcohol or combination thereof when he ized the following language: shot his victims in the back of the head appellant’s right exercise of his they while helplessly were lying face down produced silent remain no con- untoward on the floor. sequences at all. There was no exercise My colleagues, discussing their trou- physical force, physical no threat of avoid, silentio, bled appel- concerns sub force, physical no hint of force. The lant’s unequivocal denial having in- transcript verbatim the interrogation gested any drugs, being or or alcohol con- suggest does not police ever lost fused, spaced-out, or irrational from fa- tempers, their or so even much as raised tigue, drugs, during alcohol the morn- their voices. If I prosecutor been a ing and at the time he shot his victims. case, in this I daresay would have been quite colloquy content to which be videotape could considered pertinent questioning to the defense of open shown diminished ca- court. pacity resulting from drug or alcohol is point At no did police try get certainly concise dispositive of the ex- appellant to shade truth in any way. pressed arising concern disparity After said he was the appellant’s between the signed confession pulled one trigger, who for example, opening and his statement. the questioner jack us[;] said “Don’t if Q: you you taking us[;] drugs didn’t Were some kind of you did[,] tell if [do it] or something, you tell were out of it? us.” There is no reason at all to sincerity doubt the No, re- A: Sir. out, longer? much you <! How mentally worn you

Q: Were A: Just Q: way over bills. there’s tell We behind pital bills? don’t really didn’t ing? worrying It’s been ^[*] just like for us do Had bound know why # that, yourself sick you been night, there’s bound done crazy thing. know I needed to it you just don’t ^[*] and be some you to happened what up for 3 or you (cid:127)}: over money cooperate you were do- can’t damn reason People just (inaudible) ¡ü your get that undo it. to to be days hos- pay ^[*] A: The one <1 Two <3* Q: you know of a right now. look how and all the Paul, stuff Yeh. Paul, ^[*] in a struggle with did out, more people we’re way 4- those much we’ve that, guy started to it’s years. the we’ve just a matter of going ^[*] just a matter guys put body you? got out ^[*] to already dug up ain’t find all get up when up any kind ^[*] even working of time, time, cold, this ^[*] came in. got it or customer you do something that made far, you know. go that you going get to to Q: he was you Did think something? fight you or up Paul? you numb Was know. A: What? A: didn’t Q: you numb? Q: you? Was Did that scare No, sir, I wasn’t. A: Numb. answer) (no jail going to Q: you afraid of back Moreover, signed confession which Was him? you had to shoot material disclo- much that totality of his contains interrogation you is the fear it that much? during his Did sures made read, acknowledged, and he statement Well, I was scared shitless. A: sign at the conclusion willing to was con- remaining from the omissions inquiry. Judge Nelson related fession of concern Judge musings Nelson’s The answer preceding the immediately the events jurors do an emotional level—and that “at view shootings while exclusion think it of have emotions—I [the storage room the rear retail area from appel- from phrases disconnected selected gun- holding his victims he where was con- his written interrogation from lant’s Shortly after totally obscured. point was the scales” is tipped could fession] storeroom Thompson into the directing review of the verba- from a apparent also shelves, cleaning Allen was where the clerk quest for informa- transcript of tim down, head men to lie face he ordered both tion. head, he then position, in a 9 o’clock store and enter the heard a customer context, appellant when stated Read in his accom- between audible conversation he was not refer- shitless” he was “scared person. Obvious- unknown plice some mind, confused, state of irrational ring to a happening” know what ly “he didn’t was capacity of diminished form panic, or other he heard retail until after area before, during, immediately experienced it was “too the store customers leave when had been induced murders that or after the late”. He ex- drugs, was or alcohol. by fatigue, being of identi- fear a calculated pressing from various extrapolations The isolated prison at some future fied and returned transcript which interrogation pages of as a violator or probation aas time either clarify adamantly appellant refused robbery. instant participant in the by his inter- importuning during persistent down probation on Q: you still Are disjointed, appear meaningless, as rogators Covington? fail to reflect which expressions unrelated Yes, defense appellant’s claimed upon A: sir. capacity. diminished Q: long? How

H29 Contrary to the panel The state counterbalanced appellant’s inferences of majority, appellant claim of diminished overwhelm- foreclosed fully presenting his evidence di- ing proof, independent of appellant’s capacity, minished the record discloses signed confession, which reflected a well that he introduced totality planned, efficiently implemented robbery evidence which he was desirous placing escape. Key to the state’s evidence its consideration. against before positive iden- tification of eye- and the Initially, staged scripted personal witness detailed account of William Thomp- appearance before the where he read a son, manager of the Western Auto carefully prepared, emotionally charged, Store, miraculously survived, who the in- opening statement insulated from tended instantaneous death from the bullet personal threat of impeachment through directed to his head appellant. He cross-examination2 was dramatic. He de- only not survived but remained conscious scribed how he accomplice and his had par- during the entire ordeal and had total recall night tied the before the Western Auto of the entire incident. Store robbery, hangover during his morning of the robbery, how he “shot Thompson testified that two on consecu- gunned” three cans of and beer days swallowed tive next preceding robbery, ap- single qualude a tablet leaving before pellant his and his accompliceKruse visited the residence, sister’s party, site of the to Western Auto Store and ap- browsed for rob the Western Auto Store. He related proximately 30 minutes on each occasion how he and accomplice stopped his enroute under suspicious circumstances. On each and had a ham sandwich, and pur- cheese of the two Thompson visits was the gasoline chased and qualudes ten person of which attending the store. During these each they consumed two before proceeded appellant visits and accomplice his noted “get guns.” explained He the store room at the rear premises jury how he was “all up messed from the which protected from view of cus- night before and what he had already con- tomers pedestrians and sidewalk and the sumed that morning” and how “I a location heard glass locked handgun dis- crashing of glass and I’m not sure play what cabinet. my movements, caused next Ibut shot both The state’s evidence developed further that, men.” He then told the “I ran to leaving that after apartment sister’s on the front of the store and Mike had the Saturday morning, 6, 1980, January appel- guns and we left. I never intended to accomplice lant and proceeded Kruse anyone. shoot just happened. It I ran gas a station they bought where gasoline around the day next trying and a half qualudes and ten from the station attend- guns. got sell I arrested the next ant. They proceeded then directly to the Sunday night and told them I did it and isit Western approximately Auto Store five something that I living have been with for away. minutes leaving Before their auto- past eighteen days. months and 26 I mobile, parked which was across the street put don’t know how to it in words how store, from appellant took revolver

feel.” the seat under of the vehicle which he parade A of defense witnesses carried followed into Western Auto Store. who attested to the appellant’s impeach- Thompson testified that he observed both opening ment-free statement. subject men enter the approximately store at 9:30 of his diminished immediately a.m., be- immediately when di- fore, of, at the instant after and the shoot- gun rected him at point into the rear stor- ing, thoroughly age exhausted for the room cleaning Allen was where shelves through appellant’s opening statement and and gun point ordered both men at lay direct down, head, cross-examination of the wit- face head to in a 9 o’clock appeared nesses who on his position behalf. Thomp- while he stood over them. 2. The did defendant testify take witness stand his own defense. $200.00. for the sum of guns to Ramell he a customer testified heard further son on to the home pair then continued during conversation store enter the friend, Richard Feh- appellant’s another of accomplice directed the which (Fehler), arriving approximate- at ler there store to have his hardware ato customer negotiated the sale He ly 10:30 a.m. Thompson further sharpened. chainsaw picked Fehler and guns to sold additional he heard the customer testified after Appellant and tape up a cassette deck. breaking the sound depart he heard apart- his sister’s then returned to Kruse glass of was the he surmised glass, which p.m. ment, approximately 12:30 arriving at display cabinet. gun approximately they where remained further that some Thompson testified they attempt- during time which two hours shattering of heard the he moments after tape deck. Karen the cassette ed to install searing felt a exploded and he shot glass a (Bowman), appellant’s sister’s Bowman in the back of the burning sensation ap- roommate, both men testified that he heard a second head, pause before during period of time. peared normal knew was Allen. directed shot which (cid:127) p.m. and 2:30 departed Kruse about proved The state further Bowman’s car appellant borrowed a marksman citation awarded had been cousin, Jim Hoff- home of his drove to the service with the Ma- years during his two Hensley man, Larry he was to meet where into rines, two fired his the shots purchas- (Hensley), who was interested ap- of from distance fired a victims were Ap- remaining handguns. ing appellant’s ap- ten feet. It was eight to proximately remaining of his pellant negotiated the sale firing single a shot from that parent that payable the next guns price $300 for a of as the distance, area as base into an small Fehler, ac- and who had day. Appellant skull, required sustained con- of a human residence, re- him to Hoffman’s companied arm, hand, steady centration, steady a a they where met Fehler’s home turned to trigger finger. Common and a controlled p.m. approximately 7:00 While Ramell at premeditated knowledge dictates selling re- were the appellant and Fehler intended cause instant head shot Hensley at the handguns to Hoff- maining evi- apparent from the also death. It was residence, tele- had viewed a man Ramell and same concentration the dence the murder and account of vision news placing the first shot of physical control complete photographs robbery deliberately repeated a second had to be Appellant appellant and Kruse. resembled accurately second place the shot time to residence hurriedly left the Fehler when the size of a billiard ball. about into an area him attempted Ramell about appellant the firing both shots After pur- he had guns which the source of the and found a card- rear room the searched Ramell, Fehler, appellant. the chased from packing the hand- suitable board box agreed police and Hensley notified the and retail area carried the guns into which As re- investigation. in an cooperate The further dis- evidence of the store. effort, ap- appellant was sult of their thereupon two men careful- night closed of p.m. 10:10 on the prehended at the shattered guns the

ly separated appearance from January The Sunday, case display immediately the appellant glass of the shards and action during cardboard the weapons robbery into the con- placed subsequent the casually appellant walked sales negotiating he was period tainer which when as normal. handguns automobile. street to Kruse’s was described across the of calculated, and composed, accomplice Certainly, thereafter and his appellant The of away negotiate the sale systematic lot some distance efforts to a parking drove signs no of handguns displayed handguns. stolen divided the they where remorse, irrationality or other evi- panic, of the residence proceeded to They then capacity. of diminished dence (Ramell), friend, Gary Ramell appellant’s confession, signed Albeit, 10:00 a.m. approximately arriving there Ryan, may have by Judge suggested as three sale of appellant negotiated the

H31 simple, direct, been “a calm and any, confident credibility to appellant, his wit- murder_ of recitation cold blooded nesses, de- and their testimony. panel ma- any suggestion void of of hesitancy to act jority in absentia now invades jury’s or confusion purpose, hint of exclusive domain judge weight regret” and unqualified “an confession of credibility of the trial-developed evidence premeditated was, murder.” It neverthe- by rejecting unanimously its assigned cred- less, the statement that the want- ibility evaluations with a conjectured possi- sign. was, detail, ed It in no inconsist- bility anchored in factually unsupported ent with the overwhelming proof indepen- suppositions hypotheses, presumptions dently developed by the state unani- that do not rise to the legal level of a mously accepted by peers twelve probability that, “it would be unreasonable who sat in judgment and sentenced him to to assume that not one member death. jury, petitioner, in sentencing gave sum, dispassionately reviewed, it was weight to the when considering confession the state’s overwhelming proof of pre- the death speculation sentence.” The meditated, deliberate, methodical, merci- single juror might have swayed by been less, and cruel course of conduct which was in rejecting confession appellant’s di- pursued by from the selection minished defense face the robbery target, “casing” state’s overwhelming evidence is not premises, systematic perpetration of highly improbable, impossible. but To the crime, including the execution and at- contrary, it is beyond reasonable doubt that tempted execution of identifying all wit- none did. I am convinced from the record nesses, to his post-execution activity in ne- beyond a reasonable doubt that the errone- gotiating the of sale his weapons, stolen ous admission of appellant’s confession that reflected objective the manifestation was harmless in the sentencing phase of of the complete physical and this case.

mental self-control: a self-control Accordingly, join

demonstrated I in immediately Judge Circuit and KEN- before at the moment NEDY’S deliberately dissenting opinion, fired the which two affirms shots into the helpless men, disposition skulls of two the of the district court.

while he his robbery executed with the precision of a planned military manuever, WELLFORD, Judge, Circuit dissenting. which included the intended execution of all identifying witnesses, during and an orga- fully Judge in Kennedy’s opin- concur escape. Appellant’s nized demonstrated ion with the reservation that I am not deliberate of course conduct any belies irra- persuaded that Kordenbrock’s trial counsel tional, confused reflex actions that con- was trying to appealable create an by issue veyed “the impression of clouded thinking inept handling his somewhat of Dr. Nizny’s purpose” and panic. state of potential as a witness for defendant. event, bearing guilt this has no on the jury, not the members of this review- stage of proceedings light the court, of ing the opportunity of observing overwhelming the behavior evidence Kordenbrock upon of the witnesses stand; intentionally and, killed man witness their one for manner of but testifying; circumstance, the reasonableness and fortuitous would probability of have killed their testimony; Furthermore, another. opportunity they see, Oklahoma, Ake v. had to hear, and 470 U.S. things know the 105 S.Ct. 84 about which L.Ed.2d testified; (1985) they accuracy requires only indigent their an defen- memo- ry; candor; their or lack of dant who specifically pleads candor insanity their or its intelligence, interest, bias, equivalent, together provided is to be a competent with all psychiatrist evaluation, circumstances “to surrounding prepa- assist in their testimony, obviously ration, assign greater presentation defense,” credibility to the witnesses (or counsel’s) not one testimony defendant’s presented little, assigned state. It if choice. Defendant’s rights constitutional court-appointed, prejudiced by a ty is not under not violated were

under Ake Availability of a neutral expert. case. neutral of this circumstances “the defendants with expert provides supported by fully is of Ake This view building of integral raw materials (9th Cir. 913 F.2d 606 Vasquez, Harris v. Ake, at 105 S.Ct. an effective defense.” 1990): permit required 1093. The is state access that he was denied argues Harris shop for a favor around defendants “conducts psychiatrist who qualified ato expert. able competent examinations professionally Id. at 192. pro who on this basis the defendant competent assist professionally vided of both with the views agreement I am in Harris Brief at 15. Appellant’s Ly ance.” v. Vasquez and v. Harris Granviel psychiatric access to such proper interpre contends respect to the naugh with process required by is due Martin Judges assistance Merritt and of Ake. tation Oklahoma, holding in Ake v. protection upon authority such as United States rely 68, 105 Cir.1985). 84 L.Ed.2d (10th Sloan, 776 F.2d 926 v. (1985). disagree. We where involved a situation case That insanity Ake, defense of holding judge, with a narrow trial faced Under appointed same indigent incompetence, defendant provide an and/or state must defendant who psychiatric psychiatrist assistance to examine the with access (1) guilt as a witness at the to serve be available circumstances: two rul essential trial, has as well. The prosecution the defendant phase of a when time is not satisfied sanity ing at the that Ake of Sloan was demonstrated expert who significant of an ulti likely by “appointment to be a offense is (2) the defense on contrary at a determining guilt; mately testifies factor at 929. The competence.” Id. sentencing proceeding, when the issue of capital case, Sloan, capital not a evidence of psychiatric fact situation presents state the fact distinguishable from dangerousness. completely future defendant’s [Fn. case. United in the instant situation Id. 11] Crews, 781 Cir. F.2d States recently has considered court Another Judge in his 1986), Martin also cited chal- constitutional indigent defendant’s Ake, of involved expansive interpretation Ake, appoint- upon lenge, relying case, also a non- in the as the basic issue court, insani- in the case of an by the ment case, sanity or of competence capital charges, of a capital murder ty plea to appointment requested defendant who testimony opinion and “whose psychiatrist inapplica also psychiatrist. a is of Crews v. sides.” Granviel to both is available case; a interprets it this ble to the facts of Cir.1989). F.2d 185 Lynaugh, (18 requirement statutory U.S.C. federal to Korden- was available expert an Such defendant, 3006A(e)(1)) and whether § denying chal- case. this brock in pleading incompetence insan specifically stated: lenge, the court psychia of a ity, appointment is entitled not an examination “A is psychiatrist’s Ake is a in this defense. to assist him trist not purpose Its adversary proceeding. specific un applicable to holding narrow show of facts the establishment to aid in presented circumstances factual usual certain committed ing an accused that case. crime; its constituting a rather sole acts an expert to form an purpose is to enable GUY, Jr., Judge, B. Circuit RALPH capaci mental opinion as to accused’s concurring. v. intent.” form criminal Stultz ty to opinion Kennedy’s (Tex.Crim. Judge concur State, S.W.2d Miranda is- additionally only on the write quoted in Granviel App.1973), out, Kennedy points As Judge at 115 sue. 552 S.W.2d [107] State appeal the district ability government did Granviel’s [(Tex.Cr.App.1976)]. was ob- the confession ruling concerning his sani court the truth uncover

H33 tained in violation of Miranda. Had rogation would have Early been. in the us, however, issue been before I would interrogation, example, the appellant have concluded contrary to the said, district among things, other that “something court. Since I believe the confession was snapped,” that he “didn’t know what was admitted, properly that obviously influ- happening” when the customer came into my judgment ences on the issue of the store, that he didn’t realize what was effect, prejudicial any, if of the confession happening late,” until “too and that he was guilt in both the punishment phases of “scared shitless.” None of this was in the this trial. statement, written which simply said that appellant aimed at the victims’ heads NELSON, DAVID A. Judge, Circuit and fired “so that they get wouldn’t up.” concurring, joined by Judge Circuit At a level, rational perhaps, the stark RYAN. phraseology of this ought admission not Like Judge Merritt, Chief I am not satis- have made difference. But at an emo- beyond fied a reasonable doubt that sup- tional jurors level—and do have emo- pression of portions the tainted ap- tions—I think it could tipped pellant’s confession would have made no scales. I therefore concur in the conclu- difference in the vote of any member of the sions announced in Parts II and III of the jury. My doubt extends jury’s reso- majority opinion. I also concur in the dis- lution of question both the whether the position miscellaneous claims dealt appellant guilty premeditation and with in Part V. whether he should be sen- As to whether appellant gave his tenced to death. written statement compulsion, under I have against appel- untainted evidence quarrel no suggestion in Part IV strong, lant was very as the dissents of of the majority opinion that we need not Judges Kennedy and Krupansky per- decide question. having suasively demonstrate, if this had not invoked right off questioning cut capital case, been I would have been gave statement, before he the written Mi quite willing to invoke the harmless error progeny, randa and its including Michigan rule.1 Death eases can be different for v. Mosley, jurors however, as well judges, as for (1975), L.Ed.2d 313 teach that the interro it seems to me that wanted to gation stopped forthwith; should have been know whether the could be sen- taking even a voluntary statement imprisonment tenced to life possi- without improper; thereafter was and that habeas bility parole (an option not available corpus proceedings may be used to set law) Kentucky might under very well have aside a conviction and sentence obtained for imprisonment settled possi- life with a through voluntary use of a statement tak bility parole of had it not been for the en subsequent to a request question impact appellant’s emotional of the written ing be off. See cut Martin v. Wainwright, statement. (11th 770 F.2d Cir.1985), 922-24 mod statement, That jury as read to the ified, dur- Cir.), 781 F.2d 185 denied, cert. ing case-in-chief, the Commonwealth’s 479 U.S. 107 S.Ct. 93 L.Ed.2d 281 me as significantly (1986) strikes more damaging, (right to cut questioning off not forensically, than an of account the unex- “scrupulously questioning honored” when ceptionable portion of the preceding inter- was continued after suspect said “Can’t we potentially devastating signifi- One fact of any juror's could have confession affected vote. appellant psychiatrist cance—that the told his undisputed prejudicial But it is that the effect of day that he killed someone else the before he appellant’s single killing account of the killed Mr. never known Allen—was made to the placed analyzed which he was on trial must be jury. jury If the had understood that there were light what the of was told in the trial that homicides, robbery-related two day apart, committed a occurred, actually and not what another obviously it be harder for us to might be yet told in a trial to come. portions conclude that the inadmissible tomorrow;” he did not want a orally writing and in voluntary confession wait until inadmissible.) willing make a state- lawyer and was day held later obtained ques- questions. In the ment and answer written confession was appellant’s If the followed, appellant re- tioning that sense, in a constitutional “compelled” not really that he did peatedly demonstrated however, it is accurate to I not believe do silent; right to remain understand opinion does at majority suggest, as the questions were met with com- many of the was a violation of points, that there

several silence, saying nothing plete appellant Supreme norms. The Court constitutional waiting ques- simply all and for another at exclu- it clear that Miranda’s has made put. tion to be broadly than “sweeps more sionary rule right exercise of Oregon itself.” Fifth Amendment conse- 298, 306, produced remain silent no untoward Elstad, of (1985). quences There was no exercise “The Fifth at all. 84 L.Ed.2d force, force, physical prosecu- physical no threat prohibits use Amendment physical force. The verbatim compelled no hint of in chief tion in its case not 306-07, transcript interrogation does testimony,” id. tem- suggest police ever lost their original), Mi- (emphasis while 1291-92 their pers, or even so much as raised and more. I have prohibits that randa prosecutor in this case voices. If I had been a judgment joined in the court’s case, quite daresay I I would have been says I I think the Constitution not because videotape question- must, Supreme content to have a I think the but because ing open shown in court. says must. point police try get any foreign At no did the from almost To an observer any way. truth in jur- appellant to shade the England and other country including — appellant After the said that he was the the same common law that follow isdictions example, pulled trigger, for one who we do—the conclusion tradition jack us[;] you if required questioner to ex- said “Don’t trial court was Kentucky did[,] it,] us[;] you if tell us.” didn’t tell appellant’s written confession clude the [do voluntary might There is no reason at all to doubt was even if the confession sincerity appellant’s response, which circumstances of Given the well seem odd. “Sir, it, confession, you.” I did I told This that led to the was interrogation police were simply not a case where the large part of the civilized world there is a suspect into confess- suppressing trying to browbeat a wisdom of in which the might ing con- to a crime that he not probably would not be confession committed. sidered self-evident. with, interrogation prolonged un- any questions at begin before

To reasonably; transcript takes police told the verbatim put all were typewritten pages, with a new right to remain less than 40 he had him—twice—that question and each he had line for the start of each They told him—twice—that silent. lawyer any answer. There is no indication talk to a before right asked, deprived of food or drink or and that he had a questions were he wanted a during any privileges. him bathroom When lawyer with right to have a cigarette. cigarette, given he was When might he consent. questioning to which break, an exercise he was if could not he asked for him—twice—that he They told long This is a appointed given an exercise break. lawyer, one would be afford or the wished, way indeed from the rubber hose him, questioning before if he if him—twice—that rack and thumbscrew. they told began. And questions answer without he decided to proved in to be a It is true that what still have the he would lawyer present, attempt persuade appel- successful to any answering at time. right stop to he had indi- talking lant continue after ques- preferred stop, he cated that he The said at the outset appellant’s concern played on the tioners rights. He stated both understood these

H35 “girls” three with whom he had mitted confession did not contribute to the spent preceding night not be taken into verdict and subsequent death sentence in custody or by otherwise “hassled” the Cin- case, I cannot vote to affirm. cinnati police. This kind of psychological My reasons are those so well stated by pressure does not necessarily render a con- Judge Nelson his concurring opinion. I fession involuntary, see Martin v. Wain- add, however, this additional thought: wright, 926-27, 770 F.2d at I suspect prior Miranda, few American One need read the illegally admitted judges would have considered the use confession, written and then the defen- such a ploy impermissible. opening dant’s statement, appreciate having asked that the questioning be end- stark contrast between the two. The writ- ed, Miranda it makes clear that the police ten statement reads as a simple, direct, go did far; too it is not all clear that calm, and confident recitation of cold-blood- they went too far under the Constitution ed murder. It is entirely devoid of any itself. reference to alcohol drug use, or any sug- Be that as it may, we are obviously gestion of hesitancy to act or confusion of bound to follow the decisions of the Su- purpose, any hint regret. The defen- preme (or Court unless the Court Congress, dant’s opening trial, statement at on the where Congress power act) has instructs hand, other ais detailed narrative of heavy us otherwise. There were strong reasons and continuing drug and alcohol consump- Supreme for the Court’s adopt decision to tion immediately preceding killing, an the prophylactic rules that put were into description abbreviated of the robbery and place Miranda, perhaps even the shooting in language conveying impres- outer limits of those rules—which is all we sion of clouded thinking and pur- uncertain dealing are with here—are immutable. If pose, and explicit then an denial of an Supreme Court is concerned about the intent “to anybody.” shoot practical effect of the more far-reaching of While the two statements are consistent parts non-constitutional of the Mi- that, both, the defendant acknowl- rules, however, randa this case might be edges the robbery killing, they are appropriate an one for further scrutiny. dramatically inconsistent in the important respect With to Part III of Judge Kenne- details concerning the clarity of the defen- dy’s opinion and Judge Part VI of Merritt’s dant’s thinking, his use of alcohol and opinion, both which deal with the consti- drugs, and his criminal purpose; word, in a tutionality of the Commonwealth’s refusal mind, his state of the vitally important provide psychiatric expert appel- single determines, element that last says lant wanted, my it is understanding analysis, whether the defendant shall be funding problem that existed put to death. the time of trial has now been resolved. appears Because it that a psychiatric ex- illegally admitted confession is not pert provided will retrial, be on I do not only explicit damning admission of think it necessary for us to decide the is, the killing, it its language, tone and the present issue—and record contains content, as well as the absence of claim some factual idiosyncrasies which suggest of diminished capacity or uncertainty of to me that it prudent would be for us to purpose, powerful proof circumstantial of a steer clear of it. clearheaded intention to execute both vic- As proposed jury instruction re- tims. It complete is a unqualified con- garding unanimity on mitigating circum- fession premeditated murder, strikingly stances, I concur in Part IV of Circuit inconsistent with the defendant’s court- Judge opinion. KENNEDY’S room claim of capacity. diminished As such, it is powerful, the most although not RYAN, Circuit Judge, concurring. sole, evidence the record of the de- Because I am say, unable to beyond a fendant’s premeditation. malice and I can- doubt, reasonable that the unlawfully ad- say, beyond doubt, a reasonable not “contribute did evidence

such California, Chapman

verdict.” 824, 827, 17 L.Ed.2d 18, 23, 87 S.Ct. U.S. (1967). Judge NELSON’S in Circuit

I concur respects as well. in all

opinion other AND CASUALTY

In re AETNA COMPANY, Petitioner. SURETY

No. 90-5184. Appeals,

United States Circuit.

Sixth 13, 1990.

Reargued June 26, 1990. Nov.

Decided (argued), Office

Claire McGuire Bank Counsel, Loan Federal Home Gen. D.C., for FDIC. Bd., Washington, Knoxville, (argued), Mayfield Janet L. Tenn., G. Hull. for Thomas Luther, Usary, Lu- S. Steven B. William Speed, Anderson, Ruth & Cleary, ther, (ar- Tenn., Larry L. Simms Chattanooga, Dahlberg, Blanken- A. Paul gued), Julia Washing- Crutcher, Gibson, stein, Dunn &

Case Details

Case Name: Paul Kordenbrock v. Gene Scroggy, Warden, Kentucky State Penitentiary

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jan 30, 1991

Citation: 919 F.2d 1091

Docket Number: 88-5467, 89-5107

Court Abbreviation: 6th Cir.