*1 challenge the Landowners Finally, regarding Utah exclusion irrigation contractual downstream Power’s specifical The Landowners requirements. Exhibit exclusion challenge the ly and calculations opinions consisting of the the amount regarding Brockway, Dr. Utah Pow to meet required actually water requirements. irrigation er’s contractual Land offered was This evidence Power that Utah to demonstrate owners How irrigation needs. its had overstated excluded ever, properly Exhibit 55 ad Brockway court, because the lower provided which numbers mitted and calculations opinion for his the basis irriga the actual less than Exhibit Land Additionally, the requirements. tion the nature outline fail to owners im they claim testimony that related Therefore, the lower excluded. properly its abused to have said cannot court this evidence. excluding discretion proven Landowners rulings consti- evidentiary court’s
the trial discretion, we accord- an abuse tute error. no reversible ingly find
CONCLUSION in favor judgment court’s district is affirmed. Power
the Utah
AFFIRMED. HARRIS, Alton
Robert Petitioner-Appellant, VASQUEZ, of California Warden
Daniel Quentin, at San Prison State
Respondent-Appellee. 90-55402.
No. Appeals, States
United
Ninth Circuit. May Submitted
Argued and 29, 1990. Aug.
Decided 19, 1990. Nov.
As Amended *3 McCabe, Michael and M. Sevilla Charles Laurence, Cal., Michael and Diego,
San Northern Union of Liberties American Civil Cal., Francisco, petitioner-ap- for Cal., San pellant. Atty. Bloom, Deputy Supervising
Jay M. Hanoian, Supervising Gen., R. Louis Cal., for Gen., Diego, Atty. San Deputy respondent-appellee. Atty. Sp. Deputy Scheidegger, Kent S. curiae, Sacramento, Cal., amici
Gen., Mont., Nev., Ariz., Idaho, States Wash. BRUNETTI, ALARCON,
Before NOONAN, Judges. Circuit BRUNETTI, Judge: Circuit Harris 6, 1979, Robert Alton On March two counts (“Harris”) was convicted On March to death. sentenced murder and peti- his third federal Harris filed corpus in for a writ tion South- District United States petition, In this of California. District ern denied the state had alleged that left, brother had and his until Harris tri- psychiatric assistance competent him stolen, giving car mislead- report the then false had presented al, prosecution that the When thieves. ing descriptions dis- newly testimony, hill, Harris shot walking up the boys began organic showed covered fired back. Harris Mayeski John disorders. other damage and mental brain head, and then into Mayeski’s another shot sub- had been that he asserted also Finding Baker Baker. after Michael ran interrogation, an unlawful jected brush, screaming in Har- crouching effective denied had been then shot him four times. ris evidentiary holding an Without counsel. point-blank into Mayeski shot turned and court denied hearing, the district the rifle Finally, Harris took his head. We affirm. petition. *4 Mayeski and shot carrying Daniel had been again. PROCEDURAL AND FACTUAL scene then left the murder The brothers BACKGROUND home, ate the where Harris and returned Harris’s Crimes1 I. Facts of hamburgers and boys’ of the remainder July of May and the Between months having the stom- laughed at Daniel for brother, Dan- his 1978, asked twice Harris contin- the brothers join While to him. ach robbery. bank planned iel, help in to robbery Harris the bank prepare for to ued be guns would his brother Harris told shooting the about giggled laughed and robbery. the necessary for Baker’s Michael saying he had blown boys, imagining off, himself amused and arm guns. two 2, 1978, Daniel stole July On police to be a officer what it would like pur- 1978, 3, two brothers the July On boys’ the families. to report deaths and nearby rural ammunition, ato went chased point-blank that from laughed Harris weapons firing the area, practiced and Mayeski’s brains John he had blown shot running roll- and trees while shooting at from the bits of flesh flicked and then out appropriate they considered ing drill—a Later that the street. pistol into of his end July robbery. On the bank for preparing the bank. robbed day the brothers more purchased 1978, 4, the two brothers they caps, in which and knit arrest- day ammunition were the brothers That same holes, masks in to serve as eye robbery taken into burned and the bank ed shooting They practiced robbery. interrogated, they were custody. bank When then reconnoi- and afternoon of the mur- again that the officers informed Daniel they intend- pri- confessed, the bank placing area around the blame tered the ders and por- to listened Harris. Harris marily ed to rob. he then and Daniel’s confession tions of an steal automo- decided The brothers and his midnight, Harris At confessed. 5, July car. On getaway as a for use bile by Dr. Wait Gris- interviewed brother were in a parked a car saw 1978, the brothers concerning the mur- wold, psychiatrist, the street parking lot across store grocery he had told Griswold ders and Harris years 15 Mayeski, John the bank. from assuring his brother after the victims shot old, were Baker, years 16 old, Michael and be hurt. they would not as- hamburgers. Harris car, eating in the hurt, July booked nobody would be Harris and brother Daniel that sured day Harris re- 1978, following got 6, and pistol pulled his then Investiga- in detail his confession peated With Daniel boys’ car. seat back again confessed Harris ear, car was Bolden. boys’ tor following in Harris’s arraignment, day, an hour before had same the brothers where to the area driven Newman. Officer day before. target practicing been 1978, sister 15, told his Harris July boys On agreed that boys Harris guess I jail, "now visited him trail, while she wait fire top of a should walk opinion Supreme Harris, (1980), Court California People v. facts are taken These affirming 679, Harris's conviction. Cal.Rptr. 623 P.2d Cal.3d mental such as investigate defenses boys, they were two killed those I because capacity, potential insanity, diminished old, robbed bank then years only 16 phase. Ryan pro- mitigation at really I want- was because kidnapped them with all of the these con- vided judicial last extra ed to die.” relating to Harris’s back- inmate; had material he when a fellow was made fession paid experts, for these The state ground. an- boys, Harris killed the why asked $1,000.00 for Dr. Read authorizing running punks swered, have no “I couldn’t Rodgers. Dr. me, I wasted identify $250.00 so could around them.” of the fact that in 1971 aware Ryan was EEG trac- received abnormal Proceedings II. State organic damage. brain suggestive ing Ryan J. appointed Thomas The court Pulley, F.2d See throughout represent (“Ryan”) II”). February Cir.1988)(“Harris (9th Dur- in state court. proceedings the trial prepared by memorandum Ryan “be- investigation, ing Ryan’s pretrial stating the results Joseph F. Aldrete evaluation of” a came aware stated: EEG abnormal by Dr. Wait Griswold performed tracing sug- EEG Impression: Abnormal attorney and of district request of the *5 damage. gestive organic of brain examina- summarizing Griswold’s report is abnormal be- This EEG Deatils [sic]: Dr. Griswold report, In his results. tion dysrhythmias persistant of cause [sic] in- Harris which of his evaluation detailed and the left frontal area the between testing psychological 10% cluded hours theright area right frontal with [sic] evalua- scoring, hours and sharper than the left. being faster and records, and perusal of report, and and tion persistant shows abnormal The left stated: waves. slow [sic] clear and give a able to Mr. Harris was the dysrhythmias the between Results behavior, prior description of his concise runs and the temporal right posterior alleged of- following the to, during, and being runs the left posterior left Har- that Robert opinion It the fense. right. The sharper the than faster at time of in that legally sane ris slow fada persistant right shows [sic] right from knew alleged offense he sharp very waves with some waves nature and was aware wrong interspersed. act. quality of his tracing suggests The EEG Comments: opinion that: It is at damage localized organic brain was, poste- the time of rpesent[sicj The time A. accused left offense, posterior mental far free from so area and alleged rior frontal as to be defect, derangement, is felt to be sec- or This temporal disease area. act particular glue and solvent able, concerning the chronic ondary to from I ex- distinguish right if charged, sniffing and continued generalized. wrong. pect it to become was, of the at the time The accused B. added.) explained that Ryan (Emphasis mental offense, free far so alleged results 1971 EEG the abnormal did not use as to be defect, derangement, disease Harris’s trial guilt phase of during act particular able, concerning the inconsistent have been it would because right. adhere to charged, II, Harris alibi defense. with Harris’s of a possess sufficient also aware Ryan does The F.2d 1368. C. accused the nature performed on Harris to understand EEG capacity subsequent mental homicides, and to him against 1977, years proceedings only two before de- in his own results. intelligently normal demonstrated cooperate which fense. trial, Har- guilt phase Harris’s At the boys; his he had killed ris denied psychiatrists on hired two Ryan confi- Daniel, brother, was that his chief report review Griswold’s dential basis E. called Charles also prosecution Harris testi- murders. had committed Diego Shramek, sergeant in the San behalf, admitting the bank his own fied on assigned to the County Office Marshal’s rob- kidnapping, denying the robbery but duty on Shramek was Vista area. Chula He boys. murdering the two bing and 1978, 26, escorted Harris July and had on at- confessions pretrial explained on that date holding cell to and from the did his brother. protect tempts Harris. Shra- during arraignment any psychiatric present he “heard entire testified that mek reason guilty by plea of not enter a did not and Abshire. between Harris conversation” Penal pursuant to California insanity he killed that Harris said testified Shramek 1016(6). Code Section “they identify could boys because the two ease, prosecution called part of its As punks running me. I couldn’t no Ashworth), who (aka Joey Joey Abshire I wasted could do so around that charges. Ab- custody on unrelated them.” holding cell as the same occupied shire Harris of two counts convicted jury testified Abshire July murder, kidnapping, rob- degree first said that: posses- bery, property, stolen receiving boys up in two took brother him firearm an ex-fel- of a concealable sion there they got up after hills and Harris, 28 Cal.3d People v. on. out; get one them to told [Harris] (1980). The Cal.Rptr. P.2d And shot him. got them out [Harris] mul- felony-murder and found the jury also the other side around went [Harris] required special circumstances murder tiple telling crying and kid was other law. under California him and to shoot [Harris] [Harris] phase, Harris testified At the *6 anyway. him shot guilt the jury phase he lied to the at that in if he had been asked was Abshire When did not the that he shoot he testified when be- officials law enforcement with contact them. that he did shoot boys, and admitted Harris, stated Abshire with speaking fore his However, that he also testified brother then following exchange “No, sir.” that: first shot fired the and had place: took him see didn’t my brother—I When any acting on behalf you Q Were he me. He was behind So shooting. spoke to you agents when governmental boy like he was buckled. I the shot. saw Mr. Harris? shot, something told me he was I knew No, sir. A raising shot, myself and I saw he was I him ques- shot him those I shot him. you gun and Q did ask Why running thing I was next again, and the tions? boy. the other I shot and paper and heard Well, in I read A sorry just I want- he that and that felt charges testified TV Harris on about exactly boys, specified and he killed those why happened murders ed know hap- when it asking him. that he sorrow: I was when felt why that’s Delis, at day to Officer the next pened, shooting the after told Abshire Harris guilt trial, at the when he testified time of boys was time, of the one boys the first jury, and a and lied to phase of head. him in the he shot alive and still in was visited he trial when week before leaving the that, when said also Harris told He also Becky. by his friend jail eating the murders, he was of the scene tes- him to attorney wanted Becky that his funny thought it was hamburger and boy’s sorry. that he tify was head boy in the he shot the when because remorse, Harris claim of support his To gun.” up on his “something came back as- Mendoza, deputy sheriff a Mr. had called why he said if Harris had asked When Jail, County Diego where San signed to the Har- testified boys, Abshire killed was Mendoza Mr. was confined. iden- Harris boys could said it was because ris inmates of the the care charged with tify him. battery of of a on a review July 1978 and he testified that Mendoza there. housed by Dr. Harris given to tests psychological Harris about with long conversation had a Dixon, psychologist a Griswold’s Abigail to find out case; wanted Mendoza Harris’s reports of considered emotionally be- Griswold office. Harris something about which crimes for safety investigation of the Harris’s charged with he was cause of Harris’s charged, reports Harris “had cut was custody, institu- federal “had heard at various he incarceration on one occasion” wrist Prison, State tions, himself in the California attempted to stab had that [Harris] attempts by alleged in the pencil reports or a various stomach inter- also if life. Griswold to know own [Harris] wanted chest.” “[He] Harris’s regarding him- trying kill father viewed Harris’s about really serious die, Dr. diagnosis, making his he should not he felt self, or childhood. whether and Sta- Diagnostic something about on the believe, relied said Griswold and, he I Disorders, second what Mental willing pay for tistical Manual that he fact Psychi- American edition, by the published also testified Mendoza done.” had about remorseful to be Association.3 atric appeared done. he had what a that Harris testified Dr. Griswold remorse, the claim To rebut “antiso- disorder classified personality Griswold, psychi- called prosecution II) (DSM No. 304.8.” personality cial Harris on examined who had atrist “char- personality a how such When asked Har- the time of At his arrest.2 night of itself,” Griswold acteristically manifests] licensed, had been trial, Griswold ris’s “usually these individuals stated psychiatrist board-certified, practicing unstable, they’re immature, emotionally and had years, been forty approximately times, irre- they’re callous, rigid at rather the American standing, of member, good somewhat impulsive, egotistical, sponsible, thirty least Association Psychiatric times, seem aggressive they passively founding member also He was years. ex- past profit inability to Forensic Scien- Academy of the American They have punishment. perience Col- American tists, a member scale, they tend to very frustration low as a He acted Medicine. Legal lege of behav- explain their order rationalize *7 Legisla- State California consultant add- (Emphasis difficulty.” their ior and Department Jus- the California and ture Harris’s that ed.) also Griswold testified and violent of violence studies their tice in to be appeared gestures,” “suicidal had considerable Dr. Griswold offenders. per- his with feigned, and consistent forensic field in the experience stated Griswold type. Finally, sonality aspects of dealing with try person who expect a he would that and suspects cases, evaluation and legal had committed sociopath and truly a cases, has legal and major defendants by to Harris type committed crimes per- regarding opinions his toas testified for and crimes for these truly feel remorse crimes. charged with sons a victims, expect such but killing the for be- himself remorse for to feel person testimony, diagnosis, his based Griswold being convicted. and for ing arrested on interview Harris his opinion Men- Diagnostic and Manual Statistical The Ryan objected to the intro- 2. Defense counsel (DSM) Ameri- published is tal Disorders testimony ground on the of Griswold's duction "provide clear Psychiatric Association anything can descriptions for "proper rebuttal it was not that categories order to diagnostic prose- time.” at this been offered [had] diagnose, investigators to clinicians enable Dr. Gris- purpose of clearly stated cutor about, study, various and treat the communicate claim Harris’s testimony was to rebut wold's remorse, Diagnostic and Statistical disorders.” mental suffers from show (3d revised ed. disorder, of Mental Disorders Manual his su- and that personality antisocial 1952, the 1987). publication in its initial Since feigned, which is consistent attempts were icide edition published second Association personality dis- an antisocial persons with (DSM-III), a third (DSM-II), edition a third testimony for admitted court order. (DSM-III-R). revised edition purposes. these Doctor, Q say, you, you And can’t can well-organized and ex- Ryan conducted Griswold, whether or not Robert Harris feels re- of Dr. cross-examination tensive morse these crimes. every facet of Dr. Griswold’s questioning During diagnosis. process precisely, A Not no. diagnostic cross-examination, pro- Dr. Griswold July him Q You haven't examined since concerning Harris’s reports 7th, three you, July duced have 6th. history and incarcerations No, A I have not. stated Ryan federal institutions. various Q you his Have observed reports. not seen two that he had here in courtroom? this stated: approached He bench No, I A not. Honor, say I would might I also
Your Q you opinion no as to So venture present these opportunity like an whether or not he is remorseful that I re- psychiatrist reports to time? provid- I and who ago some time
tained I opinion except A No that would doubt as to as I had with as much material ed very it much. I de- background. haven’t Mr. Harris’s you Q very You it much because doubt call a going I am yet cided whether person- him diagnosed as an antisocial like to have him I
psychiatrist but would ality? to take look opportunity have an A That is true. reports. these Q you have told us that an antiso- But remorse; person cial can feel added.) acknowledged, Ryan (Emphasis not true? however, provided prosecution Oh, likely. possible, it but it is not possession, in its A everything him with un- prosecution was also that the assumed Harris, Evelyn his Harris also called Ryan called reports. never aware of the Harris, mother, Jean his and Barbara sis- testify at the testified that Harris suf- ter. Both women phase. abuse as a child. fered extreme in detail re- Griswold Ryan questioned son, Evelyn testified that her Har- and nature of Harris’s the causes garding ris, She stated that prematurely. was born specifically personality, antisocial consistently denied her husband family back- childhood and “horrendous” approximately Harris was his child until had been the fact that Harris ground and that Har- twenty years old. She testified father. child as a struck beat always mean Robbie ris’s father “was medical there was probed whether He any let me ... show affec- and he wouldn’t personality antisocial cause Griswold’s him,” Harris’s father and that tion to rejection and what effect diagnosis, and *8 She also “lots of times.” struck Harris by parents his physical abuse abuse: early instance of recounted one personality in antisocial developing an years old and be- about two Robbie was persons testified that Harris. Griswold something eat that cause he wouldn’t like- as children more who abused were him in front of ... put father] [his [his disorder, personality from this ly to suffer him out of knocked hit him and father] something that is the disorder and that let me do high and ... wouldn’t his chair way person a developed due to the him; nose bled so nothing for [Harris’s] dialogue following took up. The brought through to it bled clear profusely that concerning remorse: place pillow. opinion per- that Q your And in (Ryan) Harris testified that “Rob- Barbara Jean personality] would antisocial son [an abused,” that Harris’s “father and bie was remorse? show mother.” very to was abusive [Harris’s] confirmed incident Harris Well, hold true Barbara (Griswold) it doesn’t A high from his knocked individuals, Harris was it is when but to all such ironclad convulsions, was in characteristics, that Harris yes. chair and typical of the one disorders, “newly constitute “mitigating” mouth, and his nose coming out blood a new tri- requiring evidence” discovered fur- father that Harris’s ears, and stated al; table a Harris with choke ther tried a new (3) father beat is entitled her Harris also stated She cloth. testimo- hearing uncon- Griswold’s “into because children and other Harris inaccurate; materially they ny was when times several sciousness on improperly Harris was abused from convicted kids,” (4) was Harris and interrogation described baby. She little of an unlawful he was the basis time Abshire, practiced who Harris Joey abuse and harassment conducted detail the their agent; children a state rest was claims her and on prison eventually sent father, was assist- who effective (5) was denied Harris molestation. counsel; and child abuse for ance rights were (6) process due Harris’s Har- fixing a verdict returned jury judge refused the trial when violated death, the trial as punishment ris’s sentence, Harris’s review independently a new for motions Harris’s judge denied law. required by California as af- Supreme Court The California trial. (PB), appeal pp. direct Petitioner-Appellant, on conviction For Harris’s firmed Brief evidentiary ha- petition for an requested i-ii, Harris a simultaneous viii-ix. denied Supreme (1) whether States issues: hearing The United on two corpus. beas Thereafter, trial Harris him at who assisted certiorari. denied Court peti- competently; two petitions, perform their duties habeas failed two state filed witness prosecution (2) United States whether certiorari for tions at pe- agent government was a Joey two federal Abshire Court Supreme Harris. District eventually questioned de- reviewing courts time titions; all simultaneously p. 34. Harris death sentence. Order from his Court relief Harris nied stay for application emergency 1358- F.2d Pulley, 885 filed Hams See April was set for date which execution complete procedural Cir.1988) his for (9th id. 1990. See petition. this history prior to primarily petition based Petition Habeas III. psychiatrists, of several declarations exam- who physicians third 26, 1990, psychologists, filed this March On The new year. corpus last within of habeas ined a writ petition federal infor- essentially the same received District doctors States the United (Petition) in to Dr. Griswold provided mation District Califor- the Southern conduct- psychiatrists, original defense that his trial two argues Harris now nia. independent examinations their own ed because: defective constitutionally differ Harris, diagnoses and arrived his constitution- was denied (1) Harris from Dr. Griswold's respects in some psychiatric assistance al other’s. each Oklahoma, 470 in Ake v. forth set L.Ed.2d Sees, specializing physician Dr. Karen medicine, two defense a physical (1985), in conducted in addiction their performed concluded incompetently Harris4 and examination trists life him; deprived throughout him suffered “has evaluations *9 premed- “very proba- did not and showing that he effect” fetal alcohol evidence from dis- stress mitigating post-traumatic from suffers bly and essential itate Dr. B, pp. 21-23. Exh. hearing; Petition penalty order.” exam- Harris be recommended who Sees (2) opinions post- with psychiatrist familiar by a Harris, which ined recently examined stated Dr. Sees disorder. stress traumatic damage and other organic brain show childhood, and disruptive and abusive Harris’s childhood medical reviewed Dr. Sees also 4. sister Barbara. testimony, older records, Harris's interviewed portions showing materials, history reports social legal Id., also suffers time Mr. Harris reached adulthood.” likely” that Harris that “it is not, syndrome. She did organic p. brain 8. Dr. Clark believes that Dr. Gris- from however, conclusion dispute Griswold’s “testimony diagnosing wold’s Mr. Harris personality antisocial Harris had an solely personality an anti-social disor- with disorder. substantially misleading der ... was as a opinion,” and medical-psychiatric that his Clark, agreed Westley psychiatrist, Dr. simply report testimony wrong and symptoms that Harris’s Dr. Griswold respects even as to certain material personality diagnosis of an antisocial fit the diagnosis personality antisocial disorder A, However, p. Exh. 9. disorder.5 Petition garding instability experience to learn from youth records he stated that “Harris’s Id., change pp. 9-10. Dr. a number of classic and behavior. thereafter reveal and over a consider- syndromes displayed “unequivocal stated that ... state- PTSD Clark time; lasting well into his period of personality able ments that an antisocial cannot throughout period years and adult experience” wrong learn from accord- were commit- capital offenses which ing psychological psy- and “established Id,., opinion, p. ted.” 5. Clark’s “[ujnder knowledge,” chiatric certain adult life throughout much of his suffered circumstances, personalities anti-social can caused significant stress disorder from a Id., modify p. learn and their behaviors.” abuse of physical psychological and by the 10. that, at the childhood. Clark stated McKinzey, psycholo- Dr. R.K. a clinical examination, displayed time neuropsychologi- gist, examined Harris for it of PSTD” as symptomology “little of the J, p. 1. Dr. cal defects.6 Petition Exh. “affirma- Dr. that Harris appeared to Clark McKinzey performed four tests: Bender- highly tively opportunity took Gestalt, Background Interference Center’s relatively stress envi- and low structured Procedure, Task, Rey’s Memory and Luria- weed out much of of death row to ronment Neuropsychological Battery. He Nebraska and related behav- symptomology his PTSD malingering, found that Harris was concluded, Id., pp. Dr. Clark ior.” 5-6. but showed negative tested for dementia existing medical childhood based damage severe localized frontal records, findings, Dr. other Sees’s diagnosed having Harris as Or- lobes. He sources, from Atten- that Harris “suffered Disorder, Personality frontal ganic lobe (ADD) as a child” and Deficit Disorder tion type, relying on the characteristics of adult persisted into his that “this disorder He disorder as stated in DSM-III-R. Id., agreed Dr. with Dr. p. life.” Clark psychiatric during in 1975 effect, claims that alcoholic finding of fetal Sees’s conjunction with Harris’s con- evaluation “ample indications of thought there was Pope manslaughter, that one Dr. trauma, viction for expo- alcohol head fetal childhood according diagnosed Harris sure, improperly suffi- youthful substance abuse McKin- signs detailed in DSM-III-R. damage by the organic cause brain cient to Clark, Sees, workups of Drs. recent mental state examination 5. Dr. Clark conducted Luckasson, Meloy the results of Dr. Sees’s He from Harris and reviewed and Missett. noted examination, report records, things: the 1977 Griswold prior among the ab- other testimony penalty phase, at Harris's and his damage demonstrating normal 1971 EEG relating to medical documents Harris's other lobes; temporal normal frontal EEG; history, testimony Har- average x-ray; skull a 1975 a 1978 normal penalty phase, and at the ris’s mother sister test; psychosis; IQ without a Rorscharch test prison records. certain tests; "ignored” two normal Bender-Gestalt test; memory data various abnormal Bander McKinzey facts reviewed the statement of 6. Dr. range showing Average of intellec- to Borderline opinion, Supreme the California damage “again functioning; signs of brain tual Harris; of Daniel the trial interview upon;” depression; confusion not remarked pri- regarding probation report and the agita- strength; poor ego and consideration conviction; manslaughter medical childhood *10 conflicting was avail- tion. All this information records; reports; prison EEG 1971 abnormal retained de- and the two able to Dr. Griswold report; report; of Dr. Griswold’s declaration psychiatrists. attorney Ryan petition; the fense to this and Thomas that, “[d]uring stated Ryan’s declaration the “meets that Harris concluded zey also Mr. of representation of course [his] the Personali- Antisocial for criteria diagnostic psychi- Harris, aware became of [the] [he] “vio- that Disorder,” felt but ty by Dr. Gris- performed evaluation” atric prop- “more assaults” lent, senseless indicating report and Griswold’s wold personality organic his erly ascribed” personality antisocial from suffered personality. antisocial to his than disorder Ryan P, 1. Petition, p. Exh. disorder. reason- Id,., He concluded p. 5-6. confi- experts on a mental “hired defense work-up would state able, mental adequate investigate mental defenses basis to dential organic brain of the yielded evidence and capacity insanity, as diminished such which disabilities the mental disorder [phase]." penalty at the mitigation potential rea- of as defenses been used could have psychiatrists] the “provided He [defense or delibera- premeditation of doubt sonable offenses, in- related materials with men- mitigate his “substantially tion and to Dr. Griswold and the police reports cluding if convict- offenses the for culpability tal had materi- also psychiatrists report.” The Id., p. 9. ed.”7 Id., attorney.9 by district the provided als Missett, ex- psychiatrist, R. Dr. James his that “to knowl- stated Ryan 2. also p. psychiatrists the opinion the pressed “primarily efforts psychiatrists’ edge,” the attorney public with by Harris’s interviewing retained Mr. consisted care standard the to meet Id., psychia- “failed p. funds 3. him.” evaluating psychiatrists expected docu- ordinarily Ryan for additional not ask did trists Exh. Petition knowledge,” and, evaluations.” “to penalty mentary death materials conclusion, Dr. reaching neurophysiological this H, p. 6. not conduct they did Dr. Gris- report electroencephalograms. testing the reviewed such Missett psychia- the from Ryan the offense stated that wold, Id., 2-3. pp. facts decisions, help- any with provide not Supreme “did [him] trists California Sees, impeaching to use information Clark of Drs. ful declarations phase,” testimony at the records” medical early childhood Griswold’s “various “any receive not that he did However, of Harris’s claimed neither Harris. any source whatsoever and, from for information available was psychiatrists trial organic brain suffered deliberately chose reasons, Ryan [Harris] tactical effect, post-trau- fetal alcohol syndrome, reports.8 written prepare them to have not or an deficit attention stress disorder rely matic compelled to Thus, Dr. Missett he claims that Id., p. Ryan 2. disorder.” filed Ryan’s declaration exclusively on such have introduced as would petition current support of available, if had been trial it phase in- penalty available of the the sum “representing at the its use” have “considered and would efforts under- regarding formation state mental of the phase on issue guilt retained by taken 10 Id., p. 2. special circumstances.” Id., p. 2. defense.” ago. years See case eleven in a reviewed EEG the abnormal noted that be 7. It must Moreover, Answer, Ryan hired 1. Exhibit damage was available showing lobe frontal basis,” Petition Griswold, "a confidential psychiatrists on Ryan, Dr. counsel defense reasons, and, chose not to for tactical Exh. F Ryan did use psychiatrists. defense Thus, no record is reports. there obtain written guilty as it would phase information during^the procedures used of the alibi defense. Harris's inconsistent Har- their examination results per- trists or the an EEG test Ryan also aware reading. ris. produced a normal formed in Ryan using considering at the it not recall does which materials the same These 9. materials II, He at 1368. 885 F.2d penalty trial. Harris current doctors. Harris's have been reviewed however, consider- did, he was the court inform during cross-ex- ing psychological suspect Ryan’s accuracy declaration 10. Griswold. of Dr. amination abnor- Ryan regard. knew in this damage. organic suggesting brain (An- mal EEG Petition Answer is dead. Dr. Read abnormal to use Harris's Ryan decided Rodgers abroad swer), 2. Dr. Exhibit guilt phase of during EEG results exactly materials what recall may able to not be *11 28, stay request tion and his on March more than 35 Petition contained Harris’s exhibits, including 1990, declaration and the court issued its memorandum additional Meloy, psychologist, 28, following day. Dr. Reid March of J. decision On Luckasson, attorney and an Ruth 1990, Professor appeal Harris filed his notice of pro- Mental Retardation coordinator the district court’s order. The district University New Mexico. at the grams proba- court denied Harris a certificate of by Harris’s current Meloy asked Dr. cause. ble give opinion an concern- counsel to defense with antisocial capacity persons ing the Appeal IV. experi- to learn from disorders personality 1990, 30, March Harris filed in this On of a decrease occurrence and as to the ence application stay emergency court an for a persons as these conduct in antisocial of a of execution and issuance certificate that, Meloy Dr. stated years. in progress 30, 1990, March under probable cause. On in convention according “early belief and court, single judge the rules of this is- field,” as reflected health the mental proba- stay sued the and the certificate of “as- (1968), psychopaths DSM-II ble cause. Peti- experience. from to not learn sumed” Attorney General California im- C, recognized that tion, p. 1. He then Exh. mediately applied Supreme Court of outmoded, has been this statement vacating the United States for an order of the disorder description dropped as April March 30. stay order issued on On (1987). He (1980)and DSM-III-R DSM-III Supreme de- the United States subject his book on quotes from application. nied the sig- psychopaths “do finally concludes learning pun- nificantly less well” appeal, argues that the district On non-psy- ishment, learn as well as but can denying erred in his Petition and court Id., positive reinforcement. chopaths from refusing evidentiary hearing. an to conduct that reliable Meloy also stated p. 2. that, remand, upon argues also “antisocial behavior indicates that to a different case must be transferred age of around the diminishes significantly judge. district reasons states that the forty, further but is unclear.” diminution conduct for this DISCUSSION Id., p. 2. the district court’s denial We review Dr. Gris- reviewed Luckasson Professor habeas petition for a writ of of Harris’s doc- declarations of other report, the wold’s Risley, 878 F.2d corpus de novo. Norris v. above, related and materials tors described Cir.1989). (9th K, Petition, Exh. background. Harris’s Harris at also interviewed p. 1. Luckasson Corpus Habeas V. Abuse Writ of gave 1990 and Quentin March San contends of California State con- intelligence test. Luckasson in this third federal the claims each of “impaired intellectu- that Harris cluded by Rules petition is barred corpus habeas Luckasson lifelong duration.” ability al 9(b) Governing Sec- 9(a) of the Rules diagnosis Dr. Griswold’s disagreed with States Dis- in the United tion 2254 Cases Dr. Gris- stated that and also opinion foil. 28 U.S.C. trict Courts. See § it failed in that report “deficient wold’s 9(a) agree that Rules Rule 9 We Mr. Har- or describe adequately to assess 9(b) a basis for dismissal provide Id., p. problems,” intellectual ris’s serious petition. Harris’s However, made no comment she appointed the two assistance of garding 9(a) provides that a Rule psychiatrists. showing upon a may be dismissed claim prejudiced in its (1) has been the state that: evidentiary hear- conducting an Without claim; (2) this respond to the ability Peti- denied Harris’s court ing, the district alibi defense. inconsistent have been it would because *12 psychiatrists with investigations, has found delay; petitioner’s resulted prejudice this “new opinions, and claims not acted with new has (3) petitioner rights his shows he was denied matter of law. diligence as a evidence” reasonable Ake, the due correctly grounded a case on court conclud- under As the district Id. ability However, in its the facts and prejudiced clause. ed, process was the state claim and new Ake new Harris’s relied on respond circumstances de- now cannot because it Harris claim are identical to those which evidence trists psychiatrists. Harris’s pose argued support either of of his ineffective has Answer, 2. Dr. Exhibit pro- dead. Dr. Read is and due of counsel claims assistance may not be Rodgers abroad able is suffi- claims are claim. The earlier cess he reviewed materials exactly what recall Rule present one that ciently similar Answer, Ex- years ago. eleven in a case little sense 9(b) It would make applies. 1. hibit failure to allow relief based on deny habeas re- grant habeas examinations further result- prejudice that this clear It is also those examina- on the results of lief based raising delay nine-year ed from Harris’s tions. hired the counsel Defense these claims. confidential ba- on a psychiatrists defense subjected to he was claim that reasons, not chose and, tactical sis for raised in interrogation not an unlawful prepare written re- have It was petitions. federal habeas prior his examinations of of their time ports at the Supreme to the California presented not bring his Ake claim did not Harris. Harris Because March 1990. until 1990, although claim until or new evidence previous in his have been raised issue could upon by relied material background all the conviction in on his state collateral attacks original his two Griswold, furnished to an abuse of system, is federal court it by his used psychiatrists, 9(b) Rule for violation of writ and a knowledge within doctors was present petition for it in this third to raise Harris years five after more than for and control corpus relief. federal was decided.
Ake
of counsel
Harris’s ineffective assistance
claims with
raise these
Harris did
9(b)
by Rule
because
clearly barred
claim
he has had
diligence because
reasonable
ground
“new or
different
it does
raise
diagnoses
has
allegedly defective
raised an
previously
Harris
relief.”
supporting
new
the facts
been aware
claim on
assistance
counsel
ineffective
dam-
Organic brain
since
diagnoses
pur-
attorney failed to
that his
ground
history.
medical
in Harris’s
age
not new
damage.
brain
possible
evidence
sue
of Har-
9(a)
for dismissal
Thus,
allows
Rule
II. 885
claim
denied that
Harris
We
evidence claim.
and new
claim
Ake
ris’s
F.2d
1367-68.
dismissal of
9(b) allows for
Rule
if it fails to
petition”
or successive
9(a)
“second
Rules
determination
Our
ground
relief
different
or
allege “new
claim in
each
9(b)
dismissal of
allow for
on the
determination
prior
and the
federal habeas
petition for
Harris’s third
assert
new
if
failure to
merits”
ordinarily
end our
corpus relief
the writ.”
an “abuse
grounds constituted
however,
concluded,
view. We
(1988).
9(b)
foil. Rule
U.S.C.
§
if we
justice will be served
interests of
claims
of Harris’s
of each
reach the merits
brought inef-
petitions,
earlier
corpus,
on habeas
reviewed
that can be
and a
claims
of counsel
fective
concerning
questions
that all
hope
of with
the failure
claim based
process
due
judgment
validity
the state
court’s
to obtain an
the state
both his counsel
years
eleven
resolved
finally be
after
will
of brain
pursue
additional EEG
Governing
appeals.
Rules
See
of writs and
II,
F.2d at 1365-
damage. See
United States
2254 Cases
Section
to these
similar
Ake claim is
68. Harris’s
9; Advisory Committee
Rule
District Court
is that
claims;
now
the difference
earlier
States,
9;
v. United
to Rule
Sanders
Note
mental state
further
obtained
(indigent
to hire the
of his
Fur
Alleged
VI. Harris’s
Ake Claim
ther,
guarantee
Ake does not
access to a
psychiatrist
only
“who will reach
biased or
he was
argues
Harris
denied
favorable
Ly
conclusions.” Granviel v.
qualified psychiatrist who “con
access to a
185,
(5th Cir.),
naugh, 881 F.2d
192
cert.
professionally competent examina
ducts
—
denied,
U.S.-,
2577,
110 S.Ct.
who
on this
tions
the defendant
(1990).
L.Ed.2d 758
competent as
provides professionally
basis
Brief at 15. Harris
Appellant’s
sistance.”
also asserts that he had a
psychiatric
to
contends that access
such
right to
psychiatric
state-funded
required by
process
the due
assistance is
respond
to
penalty phase
to Dr. Griswold’s
Oklamona,
protection holding Ake
testimony.12
deciding
Without
if Harris
tional
“
hearing is man
cases,
sentencing
‘a new
falls
the rule
unless
review
collateral
on
psychiatric ex
entail
in cases which
dated
exceptions. Teague’s
two
within
narrow
they
grossly insufficient
so
aminations
review
corpus
habeas
on federal
limitations
mental
of either
indications
ignore clear
constitu
concerning the
to claims
applies
”
damage.’
organic brain
or
retardation
pen
of the death
imposition
the
tionality of
231,
(Fla.
Sireci,
232
v.
536 So.2d
State
—
-,
Lynaugh,
v.
U.S.
alty. Penry
Sireci, 502 So.2d
v.
(quoting State
1988)
(1989).
2934,
256
106 L.Ed.2d
S.Ct.
109
v.
Mason
(Fla.1987) (citing
1221,
1224
matter, we must
Thus,
preliminary
as a
(Fla.1986))).
State,
734,
A
736
489 So.2d
rule
constitutional
whether
determine
experts” claim is
of
“competent assistance
a “new
apply would be
us to
asks
re
post-conviction
in a motion
brought
Teague.
under
rule"
Rule
Criminal
to Florida
of
pursuant
lief
“if the
a new rule
announces
A decision
State, 489
Mason v.
3.850.
Procedure
by precedent exist
not dictated
was
result
“new
cases created
at 735. These
So.2d
conviction
defendant’s
time
ing at the
Florida sev
applicable
the state
rule”
Teag
(quoting
final.” Id.
at 2944
became
appeal be
direct
years after Harris’s
eral
original)).
ue,
Ake nor
indicated
As we
at 1092.
require collateral
conviction
Harris’s
out
however,
made
Harris has not
above,
testi-
substance
view the
do
claim,
we therefore
an Ake
state
where
mony
retroac-
retroactivity
but
Ake’s
decide
such as-
access to
defendant’s
limited
by Harris.
proposed
new rule
tivity of the
new
on a
is based
sistance,
claim
grounded
rule
Moreover,
fact
rule.
does not
process clause
due
part on the
automatically falls within
it
mean that
claim
that Harris’s
Having decided
Rather, the
exception.15
rule”
“watershed
law,
*16
constitutional
of
on a new rule
rests
exception are
the
contours” of
“precise
within either
it fits
whether
decide
we must
110
at
Saffle,
S.Ct.
to discern.”
“difficult
Teague.
recognized
exceptions
1264.
ret
permits
Teague
exception to
The first
requir-
type of rule
example of the
anAs
rule that
of a new
application
roactive
re-
on collateral
application
ing retroactive
beyond
conduct
private
of
a class
places
indigent de-
right of
view,
the
cites
addresses a
prohibit or
power to
the
Saffle
state’s
v.
under Gideon Wain-
to counsel
fendants
guar
constitutional
categorical
substantive
792, 9
335, 83 S.Ct.
U.S.
372
wright,
a certain
prohibiting
antee,
aas
rule
such
at
(1963). Saffle, 110 S.Ct.
799
L.Ed.2d
110 S.Ct.
Saffle,
punishment.
of
category
rules
According
Teague,
to
“such
1264.
clearly inapplica
exception is
This
at 1263.
recalling
classic
by
the
illustrated
are ‘best
ble.
habe-
a writ of
the issuance
grounds for
domi-
the
corpus
proceeding
as
exception is for
Teague
The second
—that
violence;
prosecutor
the
that
by
nated mob
procedure”
criminal
rules of
“watershed
2616, 2623,
447,
436,
L.Ed.2d
91
106 S.Ct.
U.S.
apply a new rule
determining
whether
15. In
Rather,
Teag-
(1986)
opinion).
review,
(plurality
impor-
364
it is
retroactively on collateral
states,
purpose
review is
major
of habeas
pur-
ue
the
the
is on
the focus
tant to remember that
judges
con-
for state
provide an incentive
corpus
is
writ of habeas
poses
which
the
with established
available,
proceedings in accordance
purpose
duct
rule
made
Teague,
S.Ct. at
principles.
Teague,
109
109
constitutional
petitioner seeks.
benefit
whose
States,
Mackey
(quoting
v. United
1072
S.Ct. at
1160, 1174,
Teague
"if a
point,
667, 682,
*17
psychiatrist’s
of a
judicial
A
evaluation
accuracy.
enhance its
rather than
system,
the
not essential
to
is
opinion or advice
that his
no evidence
has submitted
pro-
accuracy
fairness of
criminal
and
unlicensed, inexpe-
psychiatrists
trial
judicial
availability of
such
cess.
only
rienced,
unqualified. He offers
or
proceeding
in a federal habeas
evaluation
who,
years
experts
eleven
of
declarations
has been
allow a defendant who
would
that, in
trial,
testify
prepared to
are
after
as-
psychiatric
competent
to
given access
incompetent
Harris received
opinion,
their
Ake to establish
a constitu-
under
sistance
having seen
without
and assistance
advice
his
infirmity to
death
tional
ques-
examination or
any report of their
opinions
psychiatrists
of new
through the
discover,
proceeding,
during
appli-
[habeas]
al court
Teague’s
on
retroactive
limitation
Teague,
grounded
109
on the
commands.”
of constitutional rules
new constitutional
cation
Isaac,
finality
judg-
comity
Engle
of state
U.S.
(quoting
of
and
v.
456
interests
S.Ct. at 1075
Teague
1558, 1572,
Teague,
33,
at 1073. As
109 S.Ct.
ments.
L.Ed.2d
102 S.Ct.
71
128 n.
clear,
application
new rules to
of
"the
makes
(1982)).
783
may more intru-
review
be
cases on collateral
pertinent to the
especially
These concerns are
prosecutions,
enjoining of criminal
sive than the
to
present
has been unable
case. The state
37, 43-54,
Harris,
Younger
91 S.Ct.
cf.
746,
elev-
carry
for more than
out
sentence
750-55,
(1971),
it contin-
for
L.Ed.2d 669
during
marshaled its
years,
time it has
en
which
in
resources
ually
states to marshal
forces the
prior
respond
federal habeas
to two
resources to
keep
prison
whose trials
defendants
in
order
appellate
of
in a number
petitions that resulted
then-existing consti-
appeals conformed to
petition is based
proceedings.
current
Harris's
Teague,
S.Ct. at 1075
standards.”
tutional
interpretation
extremely broad
novel and
on a
original)
are under-
(emphasis
"State courts
in
years
convic-
after Harris's
decided six
of a case
they faithfully apply
standably
when
frustrated
only
tion.
have a feder-
existing
law
constitutional
notes or doc-
any available
dinarily review
their conclusions.
tioned them about
psychiatrist
and discuss with
uments
has cautioned that
Supreme Court
science,
felt
psychi-
he
which
an exact
facts or observations
try is “not ...
those
frequently.”
widely and
Be-
disagree
reasoning process.
atrists
in his
significant
at 1095.
Ake,
470 U.S.
Har-
neither of
he understood
cause
available
psychiatrists were
ris’s defense
heavily
declaration
Harris relies
prepared a writ-
interview, and neither
Missett,
psychiatrist
Dr. James
rely on the
compelled to
he was
report,
ten
University
member at Stanford
faculty
declaration
in the
contained
information
prove that
attempt to
in his
Medical Center
representing
“as
Ryan
attorney Thomas
the de-
assisted in
who
psychiatrists
information
the available
the sum
incompetent advice.
furnished
at trial
fense
psy-
the efforts undertaken
garding
retained to review
Missett was
Dr.
relating the defense.”
In
documents
retained
various
chiatrists
examine
Dr.
and examinations
declaration,
evaluations
dated March
his
his
following
that were conducted
Har-
the conclusion
reached
Missett
opinion
express an
form and
arrest and to
“failed to meet
psychiatrists
ris’s
appointed
of the
efforts
as to whether the
expected
psy-
ordinarily
care
standard
standard
“applicable”
met the
psychiatrists
penalty evaluations”
in death
chiatrists
capital
evaluations
care for such
diagnostic
“minimal
failing
perform
cases.
under
required
exercises”
investigatory
H,
Petition,
p. 6.
Exhibit
circumstances.
that,
reviewing the
Dr. Missett stated
however, is based on
opinion,
Dr. Missett’s
or-
psychiatrist,
work of another
showing
what information
exists
mentation
Psychiatric
ac-
Association
American
17. The
counsel’s con-
psychiatrists
reviewed. Harris's
knowledges
evolving
inexact nature
protected by
psychiatrists
discipline.
In
introduction
with the
sultations
DSM-III,
confidentiality.
cautions that
the association
Harris fails to of-
cloak of
ongoing
"only
opinions
one still frame
volume is
any
or
of what advice
fer
men-
attempting
better
process
understand
gave.
have in this record
All we
two doctors
ac-
at 12. DSM-III-R
tal disorders." DSM-III
knowledges
declaration,
conclusory
which includes
Ryan’s
"represents
still
another
it
the doctors were
statements that
the nebulous
fact,
the Ameri-
at xvii.
DSM-III-R
frame."
“knowledge”
Ryan’s
what
"helpful” and to
to revise
Psychiatric
chose
Association
can
the defense
records or materials
experimental
data
new
DSM-III because
Ryan’s
they
knowl-
took.
efforts
what
diagnostic crite-
some
"inconsistent with
equiv-
is not
edge
in his declaration
as stated
publica-
experience
since
of DSM-III
ria"
psychiatrists and is
of the two
of the work
alent
the cri-
“many
instances which
tion revealed
"malpractice”
faulty
basis for
Missett’s
*18
clear,
entirely
were inconsistent
not
teria were
Ryan knew of Har-
We do know
conclusion.
contradictory."
categories, were even
or
across
decided not to use
EEG
abnormal
ris's 1971
disorder
that its mental
Id. DSM-III-R cautions
records
that the
We also know
such evidence.
current
a consensus of
"reflect
classifications
psychiatrist con-
over to
turned
evolving knowledge"
the field
in
formulations
damage.
organic
brain
tained
(emphasis
psychiatry.
at xxiv
DSM-III-R
of
added).
given opinions and advice
could have
doctors
regarding psychiatric
DSM-II,
the inconsistencies in
One of
"help-
theory
was not
III,
ability
persons
of antisocial
and III-R is the
Ryan’s opinion would not free
it
in
ful” because
experience.
from
or to learn
to feel remorse
Harris,
may
their
have caused
advise
or the
ability
person’s
regard
antisocial
With
subjected
to cross-examination
be
punishment, DSM-
learn
remorse or
from
feel
II,
mitigation
relied,
defense’s
issue in the
a collateral
on
Dr. Griswold
states
which
on
could have
of which counsel
guilt
presentation
learn
persons are "unable to feel
or
such
—all
"helpful"
assessment of the
in
punishment.”
not
experience or
DSM-II
from
deemed
jury. pure
presenting
DSM-
trial
address the issue.
he was
43. DSM-III does
case
—
people
Person-
it
with Antisocial
not know because
re-
strategy.
states that
we do
III-R
ality
But
"generally
Ryan's
about
have no remorse
state-
Disorder
confidential
unstated.
mains
others;
they
on
behavior
the effects of their
may
he did not have
declaration that
in his
ment
having
mis-
justified
hurt
even feel
any
whatsoever that
from
source
information
at 342.
DSM-III-R
treated others."
syndrome
organic
brain
from
suffered
not to use the 1971
with his decision
in conflict
Harris,
again
be
18. It should
noted
EEG.
abnormal
state,
docu-
of whatever
complete control
is in
was,
opinions
regarding
“diagnostic and
or what their
as to what
speculation
pure
Harris’s mental state or condition.
psychia-
the trial
investigatory exercises”
performed. Dr. Missett
actually
trists
may
impor-
think of the
“Whatever one
that was
ignorant of the material
simply
rule,
proposed
tance of
it has
[Harris’s]
Rodgers, or the
by Drs. Read and
reviewed
centrality
primacy
of the
none
Harris’s mental condi-
made of
evaluation
adopted
rule
or other rules
Gideon
tion.
may
thought
within the
which
to be
exception.” Saffle, 110
rule]
[watershed
declaration,
only
Ryan states
Ryan’s
In
proposed
S.Ct. at 1264. Because
with materi-
“provided the doctors
that he
repre-
requirement
constitutional
does not
offenses, including the
related to the
als
rule,”
precluded
sent a “watershed
we
and the Dr. Griswold
police reports
adopting it in this federal
Teague from
fact,
de-
Ryan “provided
port.”
[the
corpus proceeding.
material
with as much
psychiatrists]
fense
background.”
to Mr. Harris’s
had as
[he]
Psychiat-
Assistance A
VIII. Effective
Harris’s current
opinions
Because
Expert
Law
ric
Under California
competency of the
concerning the
experts
Supreme
As the
Court has stat
psychia-
trial
rendered
assistance
ed,
protected by the
“[liberty
a
interest
pure speculation, these
trists are based
may arise
Fourteenth Amendment
from
probative of the funda-
are not
opinions
Due Process Clause and
two sources—the
or of the
of Harris’s trial
mental fairness
Helms,
of the States.” Hewitt v.
the laws
performed
competency
the evaluations
864, 868-69,
460, 466, 103
459 U.S.
S.Ct.
By submit-
psychiatrists.
by Harris’s
(1983). When a state uses
L.Ed.2d 675
psychiat-
of his new
ting
speculations
these
a
mandatory language in its enactment of
advisors,
merely invites this
ric
measure,
pro
creates a
statutory
the state
malpractice debate
preside over a
court to
471-72, 103
liberty interest.
Id. at
tected
of facts. Such
hypothetical
set
based on
871;
Oklahoma, 447 U.S.
Hicks v.
the accura-
not enhance
proceeding would
2227,
Harris
An
examination
was the
personality
that the dif-
diagnosis
antisocial
demonstrates
and DSM-III-R
unprofession
inadequate and
diagnoses may
product
of an
be the
product
ferent
is
argument
This
psychiatric evaluation.
the inexact science of
evolution of
al
argument, which
basically
“malpractice”
person’s
antisocial
try.
regard
to an
With
and,
have
as we
already rejected
pun-
remorse or
ability
have
to feel
learn
we
above,
disagree
merely
DSM-II,
ishment,
Dr.
fully discussed
on which
Griswold
ar
Harris further
expert opinion.
relied,
persons
are “unable
states that such
ment
falsely testified
experience or
Dr. Griswold
learn from
guilt
that
to feel
or to
gues
beyond
Harris was
penalty phase that
at 48. DSM-III
punishment.”
DSM-II
feeling
incapable of
issue. DSM-III-R
was
not
rehabilitation
does
address
has mischaracterized
Personal-
people
with Antisocial
remorse.
states that
and has not demon
testimony
no remorse
“generally have
ity Disorder
Griswold’s
testimony
on oth-
any
that
of Griswold’s
of their behavior
strated
about
effects
having
justified in
ers; they may even feel
false.
was
DSM-III-R
others.”
hurt or mistreated
assertions, Dr. Gris-
Contrary to Harris’s
clearly
testimony is
Dr. Griswold’s
Harris, or
socio-
never testified
wold
DSM-II,
does not con-
with
consistent
beyond rehabilitation.
generally, are
paths
flict with DSM-III-R.
Rather,
testified
socio-
Dr. Griswold
learning from
difficulty
conclusion,
presented
not
jury
paths seem to
categorically
This
punishment.
experience or
with evidence
DSM-III-R,
DSM-II,
has of-
rehabilitate. Harris
supported
impossible to
Reid
that are not
Meloy.
opinions
Dr. J.
declarations
fered new
tes-
entirely consistent
Griswold’s
that he
testified
Dr. Griswold also
any of
he has not shown
timony, but
feel
sociopath
ordinarily expect
not
“false” or
statements were
Dr. Griswold’s
cross-examination, Dr.
During
remorse.
failed
“materially inaccurate.” Harris
but
possible,
“it is
testified that
Griswold
testimo-
that Dr. Griswold’s
to demonstrate
person
for an antisocial
likely”
...
of due
claim of a
supports his
violation
ny
fur-
testified
Dr. Griswold
remorse.
feel
subjected he has been
or that
process
characteristics of
general
ther
punishment.
unusual
cruel and
will not be found
personality
antisocial
person. Harris has
antisocial
every
Counsel
Assistance
XI.
Ineffective
any
showing that
any evidence
presented
court,
raised
In the district
materially inaccu-
statements
these
claim.
of counsel
an ineffective
rate.
*21
Whitley,
Deutscher v.
relies on
argument
any
presented
has not
Cir.1989),
we held
(9th
where
F.2d 1152
incorrectly
ruled on
court
the district
that
investi-
failure to
counsel’s
a
that
defense
preserve
to
issue,
attempts
but
this
inef-
state was
mental
the defendant’s
gate
his brief.
37 of
in footnote
issue
resolving
In
of counsel.
assistance
fective
counsel
of
assistance
ineffective
Harris’s
of coun-
ineffective
Deutscher’s
test of Strick-
two-pronged
claim fails
a
Deutscher had
claim,
that
noted
sel
we
Washington,
land
schizophrenia,
history of
documented
(1984), which
L.Ed.2d
intoxication, organic brain
pathological
per-
showing of deficient
requires both
insti-
to mental
damage, and commitments
preju-
actual
showing of
formance
counsel
Defense
at
Id.
1161.
tutions.
that defense
not shown
has
dice. Harris
the ex-
any evidence of
produce
to
failed
the “wide
not within
conduct was
counsel’s
child.
as a
Deutscher suffered
abuse
treme
assist-
competent
range
professionally
of
fact,
counsel
In
defense
at
Id.
1161.
2066.
at
Id. at
ance.”
mitigation evidence
any
present
“failed to
argument that
solely on the
all,” relying
range
“wide
of
certainly within
It is
have
it
that must
was so brutal
the murder
for an
competent assistance”
professionally
Id. at
mind.
of a diseased
product
been
ex-
selected
properly
rely
attorney to
on
1154, 1161.
any
alleged
facts
perts. Harris
chosen
not have
Ryan should
showing that
con-
contrast, Harris’s trial counsel
In
the de-
assisted
who
psychiatrists
the two
psychiatrists, on
independent
two
sulted
any reason to
fense,
Ryan
that
or
basis,
mental
investigate the
confidential
in-
were
psychiatrists
the defense
believe
capaci-
insanity
diminished
defenses
their credentials
or that
competent,
at the
mitigating evidence
provide
ty and to
have stated
way. As we
any
deficient
the court
Ryan informed
penalty phase.
the record
above,
there is no
introducing psychiatric
considering
he was
psychiatrists
two defense
regarding the
hearing,
chose
but
penalty
testimony
conclu-
Ryan’s
than
opinions other
work or
them.
not to call
does
It
self-serving declaration.
sory,
com-
alleged
Additionally, the
errors
psychiatry,
Ryan, untrained
indicate
fall far short
by Harris
plained of
questioned the
or should
questioned
established
prejudice
standard
or should
psychiatrists
competence of the
produced substantial
Ryan
Deutscher.
guilt
at the
defense
a different
have chosen
phase of
penalty
at the
mitigating evidence
the record
In fact
phase.
penalty
Har-
He
trial.
demonstrated
Harris’s
very
Ryan, in a
clearly indicates
case
as a
subjected to extreme abuse
ris was
case, had access
his
defense
difficult
Harris’s
through the
child
and,
at the time
even
chosen
testified
Dr. Griswold
sister.
mother and
Griswold at
of Dr.
examination
his cross
from an anti-social
suffered
that Harris
considering us-
trial,
still
penalty
Ryan’s cross-ex-
disorder.
personality
testimony.
ing psychiatric
Griswold, Ryan established
amination
personality disorder
antisocial
range
that Harris’s
the “wide
clearly within
It was
being abused
his
resulted from
probably
competent assistance”
professionally
explored Harris’s
Ryan further
a child.
present
choose not
Ryan to
forth evidence
bringing
background,
with his
conflict
theory
could
defense
facts
All of these
drug abuse.
Harris’s
on
mitigation based
alibi defense
ability
deliber-
to Harris’s
were relevant
his abusive
alleged remorse
remorse,
primary defens-
feel
ate
trial strate-
acceptable
is It
also
childhood.
Ryan’s
phase of the trial.
es at
psychiatrists to
call
not to
gy
choose
well-calculated
strategy was
subjected to cross-
they
testify
can
when
“speculation”
than
on far more
based
persuasive was
equally
based
examination
mitiga-
pieces
bits
and “secondhand
a different
reach
opinions
evidence,”
well within
and was
tion
See,
supra, note
conclusion.
*22
competent as-
shire’s cell and demanded them back.
range
professionally
wide
interested,”
“just
Abshire told me he was
Id.
sistance.
return them later
and would
after
Interrogation
XII.
Approximately
Unlawful
read them.
one and one-
days
my
I
half
later
left
cell to shower.
that his sixth
Harris contends
showering
When I
I
finished
found that
rights were violated because
amendment
my papers
my
had been returned to
cell.
Abshire,
Joey
prosecution relied on
during
testified
jailhouse informant who
showing
Daniel Harris never states facts
had admitted to
guilt phase
that Harris
permitted
arranged
or
that state officials
that Abshire
Harris contends
the murders.
visit, or,
matter,
for that
knew of the
agent and was
acting
government
a
as
visit.
to elicit incrimina
planted in Harris’s cell
The declaration of Daniel Harris’s trial
argues that
ting
Harris also
statements.
solely
misinterpre-
attorney’s is based
on a
information that
prosecutor
withheld
tation of Daniel Harris’s declaration. The
agent,
actually
government
a
Abshire was
attorney incorrectly
reads the declara-
right to a fair trial
which violated Harris’s
stating
jailers permitted
that the
tion as
83, 87,
Brady Maryland,
v.
U.S.
under
visit.
Abshire’s
1194, 1196,
Abshire challenge cell, right to has created a my California day when I was out of One psychiatric assistance competency of my legal papers in- all Abshire removed 987.9. Harris Code my case based Cal.Penal cluding police reports § about any “new evidence” presented papers in Ab- has my cell. I saw the retroac- court, may be asserted *23 fore the time of the condition mental his tively by a defendant. not did Dr. Griswold trial. or offense potential Harris’s regarding falsely testify to right a new constitutional 2. Such in lack remorse of rehabilitation for was estab- assistance psychiatric effective eighth process or due of violation 1985, after Supreme Court by the lished has Finally, Harris rights. amendment petition his second and while Harris’ ineffective he received that to show failed courts. the corpus before was habeas for he was unlaw- that or of counsel assistance evidence that he has alleges 3. Harris Abshire. by inmate interrogated fully psy- effective denied he was that to show is remand- that, case if the argues hearing his the chiatric assistance dis- a different to assigned ed, be it must sentence. Enright’s “re- Judge of because judge trict under Therefore, relief.” petitioner is entitled grant to ... luctance if we affirm determine hearing issue since will that reach this to a do not law our We alleges. he decision. what prove court’s district will his evidence the AFFIRMED. Oklahoma, 470 U.S. 1985, in Ake v. (1985), the 1087, L.Ed.2d 53 concurring NOONAN, Judge, Circuit a established Supreme States United part: dissenting in part right right: the new, unknown previously very nar- a to decide is asked This court life to have for on trial his a defendant of Alton Harris Robert It is: Is issue. if his men- row assistance psychiatric effective any hearing as to evidentiary an to entitled If defendant at issue. was tal state words, do we know In other claims? his of help, the state such pay to poor too was now, district court without enough right right and The it. duty provide to that Harris’ facts, say any finding by the created duty were corresponding true, him to no entitle claims, if even finding in the Constitution Supreme Court lief? fairness. fundamental of requirement this stated reasons for the agree I are not rules constitutional Most new require not does petition majority Harris’ however, If, the rule retroactively. applied de- he was ground hearing on accuracy of determination enhances of coun- assistance the effective of prived fair- to fundamental goes of the facts up new evidence has he turned or that sel retroactively. The ness, applied the rule false testimo- put forward state that the this kind. Ake rule is of undisclosed or that him ny against upset- retroactively is a rule Applying against testified government agent time. known at was not ting. rule mental state Harris’ agree that I also him. its ignorant of innocently state was evi- The psychiatric requiring an issue lawyer were The defendant duty. I trial. phase of guilt in the dence ask. Retroac- they could what colleagues my unaware disagree with respectfully re-creating the earli- means right application has tive I believe because asking, did “What proceeding he was er to whether as present evidence to, the rule had if right effective right to have defendant his constitutional denied is, right “A answer phase in effect?” in the been assistance, provided effective his trial. poor too if the state defendant by the steps, in four conclusion I reach it.” pay for in doubt: I which find none He it. pay for poor too Harris was of “bed- right constitutional new 1.A he says The state get it. alleges he did accuracy of affecting the fairness rock” We taken. been No fact, did. triers determination declarations, affida- allegations, only exist after Supreme Court by the found tested them none of arguments, vits, and filing and after a trial conclusion claim If Harris’ by cross-examination. is be- corpus that petition aof Seven thought otherwise. the Court new trial true, to a he is entitled should granted the true, the Court members not be If it should to his sentence. as have denied. Rehnquist would Justice must there- We execution. must face a federal district time to let fore take argues Ake The State of California what the and decide judge hear evidence provides a if state satisfied hearing must be evidentiary are. An facts by his is indicated competency whose trist held. psychiatry, But license. professional *24 licensing guaran- law, is no professional in exists, that now right new Creating the com- perform will practitioner that the tee gave a Supreme Court the United States reasons, variety of For a petently. set of law to a criminal in new status fallibili- phrase “human up in the summed a mixture opinions that are procedures on occasion professionals fail ty,” licensed theories, data, dis- accepted empirical of up professional to standards. measure to Psy- and art. intuition puted hypotheses, tool, dependent highly chiatry is a delicate says, “No in matter The state effect practi- experience ability and job. on the All botched his psychiatrist the into by the Constitution oppor- Brought right to was the tioner. defendant had the of a question might the blunt conjunction professional with have a who tunity to No, or Death?— Life have job. or the We capital expected case—Yes to do been have illuminate posi- skill can The psychiatric duty provide more.” state’s sensitive to no mind so The the defendant’s substance. form above puts dark corners tion satisfy feel more may to lay persons permits a charade jury position that a state’s every But obligations. verdict. of their confident its every criminal and, logically, capital case— need for analysis of begins the Ake its by psychiatry illuminated be case—should speaking justice” by to “meaningful access accept- has that our law proposition not a is adequate defense of an the “basic tools ed. 1093, 77, at 105 S.Ct. Id. at appeal.” or Carolina, to hearing as 404 U.S. evidentiary an North The case for Britt v. quoting 433, 431, in the 227, 30 L.Ed.2d psychiatric 226, assistance 92 S.Ct. the need metaphor be will now emphasizes Harris’ trial the phase of Ake then referring to by implements detail. twice in more spelled out of useful 77, 1093. 105 S.Ct. at at Id. such “tools.” requires Ake Ake. set The standard emphasis on is an tools emphasis on state is mental the defendant’s that where useless; non-functioning is tool A function. minimum, assure issue, “at the state at non-functioning psychiatrist. is a so psychi- competent to a access the defendant ac- appropriate ex- never been position an has conduct who will The state’s atrist evaluation, the prepara- duty of analogous in assist cepted as to amination indigent of the defense.” defendant tion, an presentation provide to state 83, S.Ct. was first Oklahoma, obligation 470 U.S. at Since Ake v. counsel. Alabama, 287 U.S. appropriate conduct an in Powell v. to at 1096. Failure enunciated (1932), the 55, in evalua- to assist 77 L.Ed. failure 53 S.Ct. examination provide “effective presentation to tion, has preparation obligation been set. at 105 S.Ct. meet the standard at to Id. is failure assistance.” at all. no counsel counsel Ineffective part of an essential That this standard 387, 396, 105 469 U.S. Lucey, Evitts v. See by the underlined Ake is holding in (1985). Inef- 830, 836, L.Ed.2d Rehnquist Justice case. dissent all. at is no aid aid psychiatric fective grant “the broad that he states to obligation argued psychiatrist might be competent It a right to ‘access specific counsel, being rooted provide examina- appropriate an who will conduct Amendment, re- the Sixth evaluation, language of prepara- tion, and assist ” obligation than the state more quires Id. presentation tion of defense.’ Such assistance. provide opinion; (dissenting Both mistaken. argument would members original). Seven emphasis confront accused witnesses obli- which and the provide counsel obligation to and, witnesses are com- confront the psychiatric aid accused provide gation to favor, developments. moreover, in his late constitutional witnesses has paratively express text required by upon each state to put Neither are has been obligation or the Bill original Constitution assistance give effective the Court emerged as Rights. Both deploys state against whom accused experience, concluded, light of in the psychiatric witnesses. preserve order done in must be what ap- to Ake objection basic The state’s Rights guaran- Bill of rights that the those imposed burden that the pears to be tees. Ake, the Prior is burdensome. Ake in a of the accused to counsel California, state comply with State court, obligation of in a state the accused be law, only see that needed provide effective the state to to secure funds needed the minimal given *25 on the are founded indigent, to the counsel by a li- examination minimal Amendment the Fourteenth requirement of Ake, ap- the state as psychiatrist. censed life, liberty, property be or person’s that no fear, that the examination requires pears to That of law.” process due taken “without psy- the and that competently performed be by read the phrase, fertile and succinct sufficiently compensated be chiatrist experience with light of in the Court evaluation, preparation, the assist he will decla- Amendment’s the Sixth reference to of the defense. presentation, to led the Court rights, of federal ration States of the United impose the states upon up, the state opened box is A Pandora’s legal assist- duty provide to effective the a morass will sink in The courts exclaims. Analo- defendant. impoverished to ance an challenges to the effectiveness post-trial of law, the read process of gously, due provided. assistance of the has led the experience, light in of the adds, notorious- are the Psychiatrists, state duty the of upon states impose the Court to A defen- from each other. ly apt to differ a defen- to psychiatric assistance effective get a second able to always dant will be to afford it. poor too dant otherwise say psychiatrist first to psychiatrist counsel, a Sixth right the to As with incompetently. performed to the right is relevant federal Amendment in happened of what has appraisal A fair process of “due of Court’s construction does Ake was decided years since the five The Amendment. in Fourteenth law” It is true fears. the state’s not confirm guarantees accused Amendment Sixth psychiat- challenge to a permitting with the wit- right “to be confronted compul- in have result “to a must given him” and ric defendant against nesses aid in his obtaining witnesses ver- which state sory process grounds on enlarging the way in this Sixth Amendment favor.” The The obser- may questioned. same dicts be of be contest a trial will guarantees that true of the effect have been vation can afford only the state When witnesses. effective right to the recognizing the testimony witnesses, and when expert counsel. assistance crucial, the will be witnesses expert to counsel analogy The witnesses. to be a contest trial ceases disagree- likelihood of also as holds parade of expert The becomes also Lawyers psychiatrists. among ment case, all usual experts state’s —in disputatiousness are their known honest, qualified; but well-meaning, differing positions out ability to carve their by knowledge- “confronted” none of them potentiality, peers. The their those of from met cross-examination, of them none able differing likelihood, lawyer of one even ac- favor of the by expert witnesses the effec- view of lawyer’s another from fairness” assure “fundamental cused. To not made strategy has of trial tiveness from it; the trial prevent puts as Ake on insistence the constitutional unworkable charade; the constitu- preserve being a assistance. in effective aas forum meaning of a trial tional Times, February earth, New York death. on exists profession No 1986, p. 15. or medicine or law theology it be whether do professionals in which judging, distinguish as used art is Whatever other, sometimes each disagree with not courts, of lesser pronouncement dicta never It has deeply. noisily, sometimes law constitutional exposition solemn per- competent measuring a barrier been case, an issue in Supreme Court such are that there in such fields formance the dis- arguably essential although that there disputes, disagreements easily case, not to be position are different there thought, that schools of a requirement as dicta. dismissed Psychi- procedure. ways of evaluation is a phase hold- at the psychiatrist learned, any other is no different atry ing of the Court.. insti- As academic profession. disputatious history, underscores case, effective A famous to measure learned tutions Sanford, disciplines In Dred Scott the contentious this conclusion. performance (U.S.1857), curriculum, courts L.Ed. their How. constitute effective a descendent measure Court held Supreme have learned lawof trials, there so citizen criminal never could slaves performance black per- competent held that also The Court to standards no barrier United States. psy- applied to the introduc- being prevent set could Congress formance the accused. furnished the territories. slavery into chiatric tion of *26 it unnecessary once was ruling was second de- The sentencing phase. and the Ake not have did Dred Scott that determined the issue of the had raised in Ake fendant Nonetheless, rul- second the sue. status trial at his assistance psychiatric of denial knowledgeable per- by all was treated ing The phase. penalty at the denial its was not War The Civil holding. as a sons section separate ain held Court Supreme dicta. fought places over state the opinion when of its the of jury the before Supreme The Ake. Novelty The of defendant, the of the dangerousness future enunciated Ake, never Court, had prior to ex- psychiatrist to a right defendant the defendant indigent of an right the Referring to its phase. trial in the actly as in the psychiatrist aof assistance effective phase, at the right of this discussion presentation of evaluation, preparation foregoing discus- “The declared: the Court the earlier years Thirty-two his case. the conclusion a similar compels sion rel. ex States United decided had Court sentencing proceeding, capital of a context 391, 561, Baldi, U.S. 344 v. Smith evi- psychiatric presents the State when the defen- case (1953). In that 549 97 L.Ed. dangerous- future the defendant’s of dence pleaded 21, had 1948 September dant 83, at Oklahoma, 470 v. Ake ness.” ques- plea a the After murder. guilty to S.Ct. at 105 sani- defendant’s as to the raised tion was the Rehnquist underlined Justice Again, 28, two 1948 October ty. On objected Dissenting, he holding. defense; on November by the called were raised issues to reach need nowas “there by the appointed psychiatrist 1948 dis- so the sentencing proceeding, by found was The defendant testified. court treated may be this issue of cussion Court, Supreme The and sentenced. sane (dissent- 1100 92,105 at S.Ct. Id. at dicta.” raised on it was issue as disposing of seven members Again, ing opinion). we have “As declared: corpus, otherwise, accepting thought Court sanity was petitioner’s of shown, issue did So as dicta. opinion of label tes- Psychiatrists court. the trial heard Oklahoma, again Ake tried court 568, 73 S.Ct. at Id. suffices.” tified. That as- psychiatric with which, him supplying at 395. stage where the trial at sistance members other two joined In a dissent supplied him again guilty, found again doubted Frankfurter Court, Justice penalty phase, at prop- insanity had been plea of whether instead a life sentence he received where 634 sig- in a parental abusiveness by the deficits and exacerbated his doubt
erly rejected,
the con-
court-ap-
nificantly high proportion
fact
newly-discovered
al., Neuropsychia-
on whom
D.
et
demned.
Lewis
expert,
psychiatrist
pointed
tric,
Family
relied,
himself been com-
Psychoeducational,
had
the trial court
Id.
Con-
mental illness.
Juveniles
incurable
Characteristics
mitted for
14
States,
397. Baldi
enunciated no
in the United
to Death
73
demned
S.Ct.
1988).
assistance.
right
(May
to effective
Psychiatry,
145:584
Am.J.
“often invoked
thereafter
The case was
mitigating factors” had
“potentially
These
right
psy-
deny
indigent defendant’s
developed
these defendants
not been
when
Note, Expert Servic-
chiatric assistance.”
later, “lengthy,
Id.
Only
were sentenced.
Indigent Criminal
and the
es
prob-
revealed
Defendant:
painstaking interviews”
Ake v.
Mandate
The Constitutional
“[psy-
Id.
Baldi standard —
The
lems.
1326, 1353
Oklahoma,
Mich.L.Rev.
testified”;
been
case closed—had
chiatrists
(1986).
the rule.
Supreme
From 1791
it
a new rule when
A case “announces
right
there was
never held that
new obli-
ground
imposes a
breaks new
psychiatric assistance
effective
govern-
federal
on the States or the
gation
by providing such as-
satisfy
must
states
Lane,
Teague
489 U.S.
ment.”
If confir-
indigent accused.
to an
sistance
1060, 1070,
tial to
argument is
open to
which is
question
A
(quoting
Smith,
at 2831
yer v.
rule,
applied in the
whether
Ake
As
Sawyer).
Saw-
emphasis
Mackey;
accuracy
enhances
penalty phase,
clear,
“modified
has
the Court
makes
yer
al-
Literally, as conviction
conviction.
rule
test,”
the new
so that
Harlan’s
Justice
obtained,
sentencing phase
ready been
retroactively must both
applied
it is to be
if
exception. But to
fit within
can not
significantly
fairness and
go to bedrock
sentencing phase is
facing
person
death
accuracy of the determination
improve the
the trial
crucial than
or more
as crucial
Id.
of fact.
by the
made
triers
Teag-
to conclude
It is difficult
itself.
case doubt
present
in the
majority
the sen-
meant
exclude
Sawyer
ue or
funda-
of this
Ake is
new rule of
accuracy
spoke of
they
tencing phase when
Ake announces
and that
character
mental
*28
in the de-
sentencing, as
In
of conviction.
fur-
go no
we need
But
rule.
watershed
justice
guilt, the interest
termination
the re-
Ake reached
Ake itself.
than
ther
in-
being accurately
by
jury
the
is served
disagreement
its
indicated
it did and
sult
to consid-
jury is not able
formed. When
in Ake the
because
with Baldi
mitigating
the
to all
give effect
er and
it asked
affirmatively
question
the
solved
error.
evidence,
there is constitutional
to-
fairness
fundamental
itself: “whether
— U.S.-,
Penry
Lynaugh,
Ake
result”.
different
day requires a
2948,
L.Ed.2d 256
2934 at
Ake,
After
at 1097.
S.Ct.
at
im
is as
psychiatrists
The battle
sanity of a
suppose that the
could
no one
as
penalty phase
in the
portant
jury
deter-
could be
capital case
in a
defendant
psychiat
guilt phase. Effective
in the
it is
psy-
testimony
a licensed
by the
mined
phase enhanc
ric assistance
After
sanity himself.
of doubtful
chiatrist
full
ability to determine
jury’s
es the
process
due
suppose
Ake,
no one could
appropri
death is the
whether
information
testi-
“[pjsychiatrists
was satisfied because
such
the benefit
penalty.
ate
Without
licensed
or because
fied”
great
is “a much
there
opinion
psychiatric
by the state.
made available
decision.”
an erroneous
er likelihood
ef-
Ake,
requires
fairness
light of
bedrock
399, 414, 106
477 U.S.
Wainwright,
Ford v.
if the defen-
psychiatric
fective
(1986),
91 L.Ed.2d
is at
capital case
in a
mental state
dant’s
opinion).
citing
(plurality
Ake
issue.
done,
duty
of the defendant and
such as
deeds
monstrous
When
play
into
when the men-
case, of the state come
boys in this
killing of the two
put in
of the defendant is
issue.
tal state
avenge
natural desire
there is a
an
Harris’ mental state
The state made
perpetrator.
its
outrage and to eliminate
testimony.
It is not
issue
Griswold’s
suspicion, if not the
time the
At the same
was raised on rebut-
relevant that the issue
persons
to reasonable
certainty, must occur
not ask whether the evi-
tal. Ake does
awful
performed such
person
who
part
prosecution's
of the
initial
dence is
insane,
is,
laboring
least
if
deeds
on
the evidence is
case or whether
adduced
Normal hu-
infirmity of mind.
an
under
Ake,
right to
According to
rebuttal.
thinks,
engage
could not
beings, one
man
arises when the state
psychiatric assistance
If these
conduct.
in
and callous
such cruel
the defendant’s fu-
“presents evidence of
were,
abnormality
mental
suspicions of
Oklahoma,
dangerousness.” Ake v.
ture
fact,
competent psychiatric
confirmed
doubt
credibility
possessed. Similarly,
The
and force of the
as Ake established
inaccurate.
right retroactively
testimony cannot be measured in Harris’
there
no
proffered
in
raising
a need
the evidence
for Harris
an Ake claim his
advance. There is
basis
presented
petition
corpus,
in court.
earlier
for habeas
the lat-
to be
tested
years
ter of which was filed two
before
right
challenge
But is
Griswold’s
The new constitutional
decision Ake.
testimony subsumed within the new Ake
right to effective assistance of a
right
psychiatric
to effective
assistance?
surely
identical with the older
trist is
not
face,
challenge
its
to Griswold’s
On
right
constitutional
to effective
testimony
only
challenge
is
to evidence
lawyer.
of a
challenged
that could have been
when the
superficial
requirement
evidentiary
was offered. But this
evidence
The
alleges
response
inadequate.
put by
majority
is
hearing. Reliance is
Peters,
unchallenged
went
because
Silagy
Griswold
on dicta in
in advance not frivolous. specific and are
allegations held that expressly I in Harris
This court I, required. only allegations at 1197. F.2d the two alleges that Municipal Diego by the San
appointed to assist failed to assist
Court appropriate
him accordance pro- they failed to care; that
standard assistance; they did competent
vide investiga- adequate medical perform him of thereby deprived
tion; they at the mitigating evidence essential of, effective cross-examination testimony Dr. Gris-
and rebuttal by the offered
wold, psychiatric witness They specific. allegations are
state. they would proved If not frivolous. right, an- that the constitutional
establish Ake, effective
nounced evaluation, preparation, in the was violated. case of his presentation fact as findings of court has made
No state hear- evidentiary An allegations. these therefore, mandatory. is,
ing RELATIONS LABOR
NATIONAL Petitioner, BOARD, CORPORATION, Respondent.
CHAMP 89-70160.
No. Appeals, States
United
Ninth Circuit. 8, 1990. June
Argued and Submitted Aug.
Decided notes this 28 To illustrate S.Ct. 91 401 U.S. Harlan, procedural comply with state (1971) opinion of (separate fails defendant 404 L.Ed.2d J.)). particular litigating fact, availability of collateral is barred from rules and it is court, retroactivity problem claim can claim in state that creates constitutional review 1074; only if the Teague, at S.Ct. place. 109 on federal See be considered first Court, Mishkin, High and actu- Great for the default cause Foreword: shows defendant Law, Id.; 79 also Writ, resulting see Time prejudice the Due Process therefrom.” al 87-91, 72, 56, (1965). S.Ct. Sykes, U.S. 97 Wainwright 77-78 v. 433 Harv.L.Rev. " (1977). 2506-09, pro- 2497, This 594 53 L.Ed.2d ‘simply scope is not defined of the writ The magnitude dependent on the cedural bar to assure that perceived need by to a reference Engle v. at issue. claim of the constitutional is afforded a aof crime accused an individual ” 1572, 1558, 129, 71 Isaac, 102 S.Ct. Teague, 109 456 error.' free of constitutional trial Wilson, 783 L.Ed.2d 477 (quoting Kuhlmann S.Ct. at 623 later, who, years offer testimony; eleven different perjured knowingly made use recognize that a Although con- we opinions. was based on a conviction that the psychia- access competent to a from the defendant defendant’s extorted fession ” of an Teague, 109 S.Ct. might at the likelihood trist increase methods.’ brutal conviction, Lundy, Rose v. persuaded we are not 455 U.S. (quoting accurate 1198, 1216, L.Ed.2d 379 mal- “psychiatric medical that collateral S.Ct. J., rule (Stevens, dissenting)). opinions The of defense (1982) practice” review of the the kind of apply freely us to is not selected defen- psychiatrists asks fair- prerequisite goal. to fundamental serves the same “absolute or his counsel dant ness,” id., by the above above, is illustrated there is no noted record As rule” examples. It is not “watershed findings and evaluations application require attorney retroactive at tri- Harris’s trists who assisted fundamental fairness.16 Nevertheless, to ensure this court to Harris asks al. quality of their hearing to test the hold Supreme has stated hindsight opinions of against the limit- exception should “watershed rule” who claim “ which the procedures without ‘to those ed Allowing a de- incompetent advice. ceived is seri- conviction accurate likelihood psychiatrist new ” to search for a fendant Butler, at ously diminished.’ psychi- might undermine the opinion whose 1076). (quoting Teague, S.Ct. by defendant assistance received atric Teague say that enough under It is “not objectives of to further the does little accu- improving the is aimed at a new rule accuracy proceed- criminal fairness required ... racy trial. More ings. only at new exception is directed second accuracy and fairness rules essential petition provide an claims Sawyer, process.” of the criminal Har- example principle how excellent added). (emphasis at 2831 adopt would frustrate asks this court ris justice goals of the criminal legitimate