Ronald Allen Smith v. Jack McCormick Warden, Montana State Prison

involving determinations, nal cases FISA We conclude that the legal material is- inspect, camera, this court can the same sues involved in the district court’s deter- documents classified reviewed the dis mination of legality also are on reviewable trict court to determine appeal whether the sur from a deportation final order. On legal, veillance hand, and can determine the other if the surveillance evidence used, whether the district court abused its discre is not or is not depor- material refusing decision, tion disclose contents of process tation Hamide’s due application. Sarkissian, rights FISA in that proceeding will not have been 964-65; Badia, F.2d at see 827 F.2d at violated.

1463-64. The lack hearing of a factual does not make the inadequate thus record CONCLUSION appellate review. In the statutory absence of a or constitu- We find issues factual involved challenge independent tional of the INS district court’s determination FISA proceedings, express about which we appeal would reviewable on from a final opinion, review of the district court’s sur- deportation order. veillance determination must be limited to appeal deportation from a final order. Because the district court’s order finding Legal b. issues the FISA surveillance lawful was not a only legal When issue is involved order, final and because both the factual and a hearing unnecessary, ap factual legal and the issues involved will be review- pellate jurisdiction encompasses legal de appeal on deportation from able a final terminations on which the final order is order, we find jurisdiction we lack over contingent, where sought the relief is in appeal. Hamide’s deportation consistent with the order. appeal is DISMISSED. Chadha, 462 U.S. at 103 S.Ct. at 2777-78; see Mohammadi-Motlagh, 727 at 1452. If

F.2d evidence from the surveil deportation

lance is used in proceed

ings, legal issues related to the district

court’s FISA determination therefore will appeal

be reviewable on depor from a final 1) tation order if depends on the order SMITH, Ronald Allen gathered evidence through the FISA sur Petitioner-Appellant, veillance, 2) and Hamide seeks relief incon order, sistent with the such as cancellation deportation. McCORMICK,* Warden, Jack Prison, al., State et requirement The first easily If met. Respondents-Appellees. the surveillance evidence is material to the deport, decision then court will re- No. this 88-4115.

view FISA If the evi- determination. Appeals, United States Court merely dence is incidental the final de- Ninth Circuit. order, portation then Hamide will have lit- tle challenge incentive to it in Argued context and Submitted Oct. 1989. appeal deportation. The sec- Sept. Decided 1990. requirement ond easily is even more satis- Any appeal deportation fied. from a final likely will seek relief

order inconsistent deportation.

* predeces- Jack McCormick is substituted for his State Prison. sor, Henry Risley, as Warden of the Montana

gens child, as a and had consuming been to 20 tablets of LSD day during summer of 1982.

Without a car or much money, the three walked across the U.S. border into Mon- south, tana and hitchhiked coming to East Glacier, August Montana on 4. Munro had purchased large a quantity of LSD for the trip; he testified that he and Smith con- sumed at least 40 during “hits” each Au- gust 3 August and 4.

In East Glacier the young stopped men in a approximately bar at one o’clockin the Gardner, Fiedler they Cliff Gardner afternoon. There & Der- drank beer and Cal., ham, Francisco, played San for pool with petitioner-ap- bar, some others in the pellant. including Harvey Man, Jr., Mad and Thom- Rabbit, Running as Jr. After about an Gen., Betsy Brandborg, Atty. Asst. and hour, Smith, Munro and Fontaine bought Dorothy McCarter, Gen., Atty. Asst. Hel- more beer to take with them and started ena, Mont., respondents-appellees. walking along west Highway hoping to They hitch a ride. picked up by were Mad Running Man men, and Rabbit. The five drinking, all drove until Mad Man and Run- ning stop Rabbit decided to and urinate in FLETCHER, FERGUSON, Before and some roadside bushes. FERNANDEZ, Judges. Circuit Running When Mad Man and Rabbit re- FERGUSON, Judge: Circuit car, turned to produced gun, Smith a knife, they and Munro a had carried appeals Ronald Smith from the U.S. Dis- Intending with them from Canada. summary judgment trict Court’s denying car, steal the Smith and Munro walked Mad petition his for writ of corpus. habeas Running Man and back into the Rabbit Smith, sentenced death for the murder bushes. There Smith shot Mad Man. Montana, of two Native American inmen gun Smith then reloaded his and shot Run- asserts numerous constitutional violations ning The two Rabbit. victims were killed sentencing process. in the

instantly. and Munro then returned Smith car, to the and drove off. The car was I. recovered Fontaine and were when Munro 3, 1982, August On Ronald then later in robbery arrested for armed Califor- old, years hitched a ride from the town killings. nia. Fontaine linked Smith to the Alberta, Canada, of Red Deer in toward the Smith Wyoming. was arrested accompa- U.S.-Canadian border. He was charged Smith with two counts of was men, Munro, nied two other Rod a aggravated and counts of kidnapping two friend spent with whom Smith had time 1,1982, On November deliberate homicide. Fontaine, jail, and Andre someone Smith to the crimes. pled guilty Smith only had known a few months. The three men, young lacking employment stable and February Smith moved to On having jails, served time Canadian guilty, had and change plea to asked for the they decided had no future in Canada and He stated that he penalty. death wanted a would set off for Mexico. Smith and Mun- because he had received death' sentence users; heavy drug ro were apparent- Smith against his life from Native threats Ameri- ly begun using because, heroin and prisoners, having spent hallucino- can to examine 1983 ordered no prison, saw life nearly half his court. report for the prepare living prison. continue reason to psychia- to the objected Defense counsel plea, guilty acceptance of Following court rather directly reporting trist’s held March hearing Not- defense. acting an aid than mitigat- aggravating 1983, to consider objection, the withstanding the presented The state ing circumstances. direction held under examination testified, hearing. Smith at the

witnesses thp court. directly to reported the court die. He asserted request to reiterating his specific was limited examination mitigat- circumstances were no that there day of capacity on question mental At the conclusion ing his crimes. killings. the execu- Smith’s ordered hearing, the court Decem- tion. at the testified The hearing. the In 1, 1983reconsideration ber however, filed a mo- Smith Subsequently, use assuming opinion, even psychiatrist’s sen- of the death for reconsideration tion immediately be- of LSD quantities large of court-ap- of a assistance and for the tence usage not substan- crime, did such the fore hearings on the At psychiatrist. pointed ac- capacity or mental tially affect Smith’s 1983, 3,May on for motion reconsideration pe- testimony, Smith Following this tions. 1983, that 1, testified Smith December and of another appointment for the titioned and plea guilty changed his he when denied, and was motion That psychiatrist. deeply depressed, had been to die he asked filed 1984, 15, trial court February the on reference omitted purposefully had and The to die. sentencing Smith its order that explained He mitigating factors. any circum- aggravating that found had shootings he for upon his arrest existed penalty a death justifying stances confinement without solitary placed in been 46-18-303, and Ann. Mont.Code § under He now air, or exercise. sunlight, fresh mitigating circum- were there that be- of the sentence sought reconsideration for “sufficiently call substantial stances to better cause, having been transferred leniency”. optimistic conditions, more he was prison he and because prison, surviving about affirmed Supreme Court Montana The urged family, who by his been visited had Smith, Mont. 217 sentence, State live. him to re- (1985),petition 1087 705 P.2d of hearings on reconsideration P.2d At 705 denied, 217 Mont. hearing sentence, that for stated Smith death of certiorari to A writ had been addicted years he previous five denied, was Smith U.S. shooting day of the LSD, that on and Montana, Fon- state. a dissociative he had been in post-conviction (1986), as was L.Ed.2d con- also testified and Munro taine Supreme Court. in the relief Mun- use. drug and alcohol relief, firmed habeas for federal then filed Smith and alcohol ro, LSD who had consumed summary judgment. on which was denied (Munro) that testified the district timely appeals He now day crime. hallucinating on court. background, criminal his discussed Smith previous crimes

indicating that none his II. his inter- stated He violence. involved brought forward He in rehabilitation. est A. his claim supporting evidence character character, out violence sentencing violat- that his asserts con- rehabilitation. He capable of he was ex- was denied process because he ed due shootings. for the guilt to admit tinued his preparing assistance psychiatric pert We mitigating circumstances. testimony on claims contradictory light of the agree. June court on mitigation, the trial possible Oklahoma, Ake Under understanding or her of the defen- (1985), 84 L.Ed.2d 53 when history, explain dant’s mental to the indigent places his mental defendant jury how those observations and that his- issue, must, state at “the mini State at a tory are relevant to the defendant’s men- mum, assure the defendant access tal Finally, expert condition. can competent psychiatrist who will conduct an in preparing “assist the cross-examina- appropriate examination and assist in eval tion” experts retained uation, preparation, presentation government. 83, 105 defense.” 470 U.S. at S.Ct. at 1096. Fazzini, United States v. 871 F.2d trial, right applies only This but also — denied, (7th Cir.1989), cert. U.S. -, phase:” “the (1989) (cita 107 L.Ed.2d 518 repeatedly recognized “We have the de- omitted). tions compelling adju- fendant’s interest in fair sentencing phase dication at of a Consistent with the adversarial na State, too, capital pro- case. has a fact-finding process ture of the and the assuring found interest its ulti- quasi-scientific psychiatric opin nature of erroneously mate sanction im- ion, the Ake explicitly rejected the posed, why monetary and do not see we psychiatrists expected notion that can be to persuasive considerations should more diagnosis reach a unanimous of the current in this context than at trial. mental condition of a defendant and unani prognosis mous expected as to future con consequence the of error is so [WJhere duct or that thing there is such a as “neu great, responsive psychi- the relevance of psychiatric tral” testimony: evident, testimony atric so and the bur- Psychiatry science, is not ... an exact slim, process den the on State so due psychiatrists disagree widely and and requires psychiatric access to a examina- frequently on what constitutes mental issues, testimony tion on relevant to the illness, appropriate diagnosis on the to be and to assistance in psychiatrist, of the given symp- attached to behavior preparation sentencing phase." at the toms, treatment, on cure and and on like- 83-84, 105 Id. (emphasis at S.Ct. at 1096-97 dangerousness. lihood of future Per- added). haps single, there often is no because right psychiatric The to assistance psychiatric legal accurate on conclusion right place report does not mean the the case, insanity given juries in a remain the psychiatrist of a “neutral” the before issue, primary factfinders on this court; right rather it means the to use the they opinion must resolve differences in psychiatrist services of a in whatever ca psychiatric profession the within the on pacity appropriate— defense counsel deems by basis of the evidence each offered decide, including psychiatrist’s with the party. assistance, present par not to to the court impairment. ticular claims of mental As 105 S.Ct. at 1095. Ake, observed, the 7th Circuit under us, indigent In the case defen- before the independent psychiatric expert per- The requested court-appointed dant Smith may forms three functions which be cru- psychiatrist possible miti- help establish cial eases where mental health is a gating The trial court circumstances. First, expert substantial issue. the can agreed ap- was psychiatric evaluation that in determining aid a defendant whether a However, propriate. appoint- rather than defense based on mental condition is preparation ing an assist Smith expert to by particular warranted the defendant’s resentencing hearing, judge the trial for a Second, expert circumstances. can court, for the which ordered an evaluation coherently present jury to the his or her defendant, directly reported observations of the as well as to the court: would be know enough to he had A: I think granted the court On June doing. he was know what he didn’t psychiatric motion the defendant’s psy- appointed a he knew what The court think he Q: don’t evaluation. You Stratford, exam- chiatrist, Dr. William doing? was to the court report defendant ine the didn’t know. I’m sure A: he could determine (1) whether as to: Court, on au- But defen- given of the versions penalty, wrote: death review tomatic (2) credible; was and what dant was assumed that he testified Dr. Stratford August on mental condition defendant’s “eight ingested had the defendant 4, 1982. day before hits” of LSD or nine P.2d 217 Mont. State ten “at least consumed crimes con- psychiatrist’s day of beers” twelve to the court-or- limited tact with Smith crimes_ Strat- testimony of Dr. [T]he never counsel Smith’s dered examination. defendant that the clearly reveals ford to discuss met with amount” using a “substantial been possible assess or to otherwise evaluation during daily basis” “almost on of LSD circumstances. According crimes. month before sentence, impose the death deciding to Stratford, of LSD continued use Dr. heavily on the relied Montana courts tolerance which to a gives quickly rise other testi- report pro- to discount larger doses larger and requires changed dra- behavior mony Therefore, effects. significant duce and alcohol. LSD matically after he used would use of LSD repeated defendant’s Fontaine, who Andre example, ef- For have little to significant doses cause fect_ day of the murder on the testimony ... with Smith Dr. Stratford’s mur- immediately before days the defendant’s any force removes testimony: der, following gave argument. he reacting after Q: How was Smith 1087, 1102. 705 P.2d af- Was it of acid? three hits took the psychiatrist’s court-appointed Clearly the you degree that fecting him to such a deci- quite important in testimony was change? a could observe diminish- claims of Smith’s discount sion to yeah. A: Oh capacity. ed Q: could? You evaluation held that courts Montana satisfied yeah. psychiatrist A: Oh “neutral” by a assistance, psychiatric right to sense in no though psychiatrist even he pretty goofy when Q: got he And preparation or in evaluation assisted acid? took the was though the defense defense, and even crazy. Yeah, kind its A: with to rebut opportunity afforded damaging highly witness psychiatric

own the court. As prepared for report Now, testified Febru- Q: when Smith dem- stated, “The record Harrison Justice killing to pled guilty ary he had after a neutral was that Dr. Stratford onstrates he whether boys he asked those was two as to his psychiatrist who examined he day or drunk and was that intoxicated Dr. the offenses. at the time sanity doing. no that he knew what was said at the foregoing testified Stratford you agree that be—would Would that this on basis it was hearing that? evalu- psychiatric no additional found A: No. Smith, 217 necessary.” State ation 1110, 1114 453, 705 P.2d drinking? been Q: think he had Mont. You A: Yes. Ake, by “neutral” evaluation But under pro- satisfy due psychiatrist does Q: intoxicated? Or was capacity psychia- financial to retain other Judge Scalia stated cess. As then Circuit Competent 740 F.2d 1104 trists. Byers, counsel would want United States (D.C.Cir.1984), introducing refrain from harmful testimo- factfinder, ny to the but could still ask the have us

Appellant amici would court-appointed psychiatrist to consider availability mere believe analysis help prepare other lines of and to [psychiatric] ex- cross-examination of ... might other forms of defense. Counsel provide perts is sufficient to the neces- the use of the to assist- process. restrict sary in the criminal balance bearing refuting ance in other evidence on perhaps psychiatry be so if That would capacity; might mental choose not to physics, so were as exact science that, assuming psychiatrist pre- present testimony on certain forms of men- the ... ..., impairment op- cisely the data error of tal at all. None of these described analysis could demonstrated. It since the court tions was available Smith however, Ordinarily is, limiting scope from that. gave explicit far directions psychiatric evaluation, only psychiatric effective rebuttal and since the of his contradictory opin- testimony report opinion directly to the court. forwarded testimony ion ... We defense coun- further note since 1114. 740 F.2d at predict psychi- cannot the outcome of a sel competent entitled to his own evaluation, Smith was grant court-appointed atric expert. v. Chav See also U.S. only psychiatric assistance on condition of (D.C.Cir.1973) is, 486 F.2d to the fact finder automatic full disclosure (“Two, three, for the psychiatrists or four impermissibly compromises presentation of the court do not constitute Government and defense, by depriving him of an effective “ expert assistance for the de adequate adequate opportunity present ‘an [his] Sloan, fense”); 776 F.2d United States sys- fairly adversary claims within ” Cir.1985) (10th (state’s duty “can at tem.’ U.S. appointment of an not be satisfied with (quoting Moffitt, Ross v. contrary expert ultimately testifies who 41 L.Ed.2d 341 competence”); the defense on the issue of (1974)). Competent psychiatric assistance States, 423 F.2d Marshall v. United a “basic tool” preparing the defense is (10th Cir.1970)(expert who shares “a provided to the defense. Id. that must be duty duty to the accused and a to the full disclo- impose a condition as To such inescap public interest” is burdened “an efficacy the tool. away the of sure takes interest”). of able conflict problem addressed this The Third Circuit Alvarez, 519 squarely in United States the indi- The limitations on as well as (3d Cir.1975): 1036, F.2d 1045-47 right psychiatric assistance are gent’s to indigent is explicitly Kovel, stated in Ake: The 296 F.2d 918 United States provision competent “to of one entitled (2d 1961) that communications holds Cir. at psychiatrist,” confidence, 470 U.S. at accountant, in for the to an added); (emphasis but he is not enti- obtaining legal advice from a purpose of person- tled “to choose a of his attorney- protected by the lawyer are liking al or to receive funds to hire distinc privilege_ We see no client own,” id. S.Ct. at 1096. counsel tion between the need of defense accounting mat expert for assistance logical limitations These underscore of need in matters ters the same allowing necessity indigent’s of counsel psychiatry. assistance The effective state-appointed psychia- confer with the to preparation respect counsel with how, whether, deciding trist before recogni demands of an insanity defense psychiatric place the results of evaluation be as free to com tion that a defendant only psychia- fact-finder. If the a before expert psychiatric as municate awith provided makes an evaluation which is trist assisting. attorney he is with the defense, particular an indi- damaging for a defendant, wealthy gent, unlike a lacks In the case sentencing capital cases. a is defense The issue here whether

... potential us, had been involving a if Dr. Stratford before even counsel in a case run the risk and had insanity psychiatrist, must acting defense of as a defense expert whom hires psychiatric of no diminish- that a the same conclusion reached respect crime, defen- him day to advise with Smith’s capacity on the ed may be forced to condition dant's mental as- to a confidential was entitled counsel witness. involuntary government evaluation, an be and the of such an sessment would, rule we of such a The effect other, more pursue strategic opportunity effect of de- think, have the inevitable But favorable, mitigation. arguments for the effective as- priving defendants was restricted examination Dr. Stratford’s cases. A in such counsel sistance of inquiry prepared field of to a narrow necessity make in- psychiatrist will counsel, As the court. but for for defense surrounding the facts quiry about such, psychiatric evaluation process of attorney will. crime, just as the alleged inadequate. attorney cannot to the made Disclosures govern- proof in the furnish used to B. to the made case. Disclosures ment’s equally un- attorney’s expert should be request The dissent that Smith’s asserts placed on available, until he is at least psychiatric “adversarial” assistance for attorney must be The the witness stand. properly requested.” Because was “not judgment with make an informed free to record, contrary we to the this assertion defense course for the respect to the best to cite from the record compelled feel creating po- inhibition of without the requests repeated objections government witness. tential At issue here psychiatrist. for his own reject the contention Thus we ... are question of “there not the whether insanity at the time of the assertion psychia- is entitled to times when one attorney-client the offense waives added), the dissent com- (emphasis trist” con- respect privilege with ments, right indigents but rather trial. preparation for sultations made psychiatric assistance adversarial the same Disgust over wealthy persons retain. the Third Circuit that a agree We particular crime or the heinousness of psy with her communication defendant’s streamlining capital interest point of protected up to the chiatrist is the constitu- us to lower does not entitle of that communication. testimonial use indigents’ for defense. Nobles, tional standards also United States See 2171 n. 240 n. made his first April On (1975) (order de to disclose L.Ed.2d psychiatric assistance. request investigator’s report “resulted fense appointed psychi- a District Court to make voluntary election [defendant’s] to investi- instructions atrist with limited report”); of United testimonial use [the] pro- and to mental condition gate Smith’s 1468, F.2d 1470-71 Talley, States the court. report to vide Cir.1986) (9th (recognizing “attorney-psy defendant The dissent states “[t]he privilege” in com chotherapist-client based order; he parts of the objected to certain law); Edney v. States Ex rel. mon United report that the object to the fact did not (E.D.N. F.Supp. 1054-55 to the court itself.” might available Y.1976), (defendant protection waived timely objection, dat- fact, the defendant’s against prosecution’s use rebuttal read as follows: ed June expert defendant defense when one-time have the same 2. The Defendant should testimony state from on mental introduced testimony expert and required to (2d access expert), aff'd, 556 F.2d 556 different to him that would be available assistance denied, Cir.), cert. indigent. The Defen- if he were 2683, 53 L.Ed.2d 276 Confidentiali psychiatric dant’s Motion apply only psychiatric assistance] to assist ty [for must obtaining pro- trial, purpose for the assistance for ance at but also to such fessional rely who would right facts as to file additional develop- motions ing indicated objection. Defendant his exami- granted The court de- nation and fense’s request be able to establish a doctor- time to file additional patient prior motions relationship sentencing. without a The dissent’s “feel- portrayal ing” that defense that the doctor called Dr. serving would be Stratford case, make the dual defendant’s role as an and investigator. then objected later after displeased defense was 3. Order, The Court’s June testimony with the is inaccurate. Here are paragraph page requires the doctor representative some excerpts from the De- to examine the conflicts in the Defen- cember hearing: testimony, dant’s essentially and conduct Mr. Doran For the [defense investigation counsel]: an into the basis of those first your witness Honor I would call facts, report opin- to the Court his Stratford, William M.D. to the stand. upon ion investigation. based requirement Such a imposed upon the

doctor destroys relationship neces- Q[uestion]: In the you Court’s Order do sary to the doctor’s examination and recall the requesting that essen- evaluation, beyond the doctor’s realm tially you investigate discrepancies expertise, illegal constitutes an the Defendant’s testimony at pro- earlier delegation unconstitutional ceedings .... authority, Court’s operates as an That is correct. A[nswer]:

injustice to the Defendant.... (Emphasis added). quite The record is Q: youDo feel as a doctor that there is clear: the explicitly objected defendant pre- any inherent in performing conflict an cisely to both the nature investigative role for the Court on the being evaluation and to the report directed one hand performing an evaluation to the court. The contrary dissent’s claim of the Defendant on the other hand? insupportable. Well, you A: have worded that I The second sentencing hearing, in which any particular don’t see conflict.... psychiatrist testified, was held on De- cember 1984. Dr. report Stratford’s Q: you provided Is it true that me with govern- been forwarded to the court and report, written it however was for- counsel, ment and subsequently made Judge warded to originally, is that available defense report counsel. The correct? highly damaging claims of A: That is correct Mr. Doran. mitigation. The dissent asserts hearing that at this Q: Well, at, driving what I’m Dr. Strat- expressed objection “counsel to the fact ford, very is isn’t it you difficult for into that Smith did not independent have sphere your one mind assume the role psychiatrist. adversarial He did not ask investigator inquire of an into the report, to strike the or to refuse facts to make a determination —doesn’t it, consider to order another re- that in imply your fact you role that port... .Rather, he called skeptical have to be of what the version the to witness stand.” is from the different try defendants and to come to may some conclusion as

It is true what that defense counsel called the yet sphere truthful and in the other stand, to the witness without telling you assume that the defendant is objecting hearing report. at this to the first the truth as far drug as or alcoholic But defense counsel called Dr. Stratford to usage and come to an evaluation or medi- testify for the sole purpose discrediting of regard. cal conclusion in that Isn’t that report. Dr. Stratford’s Defense counsel an your part? inherent conflict on specifically object did to Dr. Stratford’s conflict, A: It yes. could be a report at the hearing, end of that before any sentencing, new specifically preserving by the as used drugs hallucinogenic such further witnesses no have Mr. Doran: I by inves- who, unfettered and I Defendant Honor that your I feel your Honor. in- a more duties, present could tigative closing state- lengthy not make need to the opinion as unbiased and formed regard to the case.... in this ment of at the time of mind state Defendant’s may testimony, I have doctor’s further incident.... may the in one and to motions make fact psychi- additional motion include a this characterize could for the dissent That by an inves- untainted evaluation atric not “did indicating that Smith as record may I have and requirement tigative evalu- psychiatric to the effectively object” to the Court to make motions additional puzzling. is process ation grant to me ask the I would so to “failed Smith that dissent states The any additional motions days consider when issue personal psychiatrist] raise [the make in this may desire I that Supreme to the Montana appealed he first case.... Smith, 217 Mont. inYet State Court.” _I De- granted the have Court: The (1985), the 1087, 1100-01 461, 705 P.2d in writ- submit 12th to until the fendant noted, “The defen- Supreme Court may he that motions any additional ing requested the the court argues dant when may later occur mind or which have Dr. investigation, [psychiatric] additional point is say at this I can him.... [A]ll he changed and became role Stratford’s are, what the motions see what will we some- Even were we the agent for State.” by any such motions requested is relief proper- not the was agree issue that how of the tran- long preparation how and the Montana appeal to first ly raised the I set then will may require script hear agreed Court, that court for thereafter deadlines additional forth the Ake decision after Ake claims Smith’s counsel. argument written Mont. State in 1985. issued added). (Emphasis Mon- (1985). Since the P.2d process, the court’s with In accordance and decided heard Supreme Court tana filed, on December timely of question defendant issue, obviously there is repeating motion an additional The claim. to this bar procedural state It psychiatrist. for a defense prior request not assert court did district federal no more motion did barred; this hardly true that is procedurally was Ake claim “in new examination request a than Su- “agree[d] it rather Stratford’s, Dr. place and stead” a second conclusion preme Court’s restated The motion states. required.” dissent not was evaluation psychiatric objections: June as- that one did believe The district suspi- assist- the elements 2. To introduce the defendant’s pect of duties, forwarding oth- investigative

cion, objection to impose claim—the ance doctor-patient directly with the to the trial court— report interfere erwise conflict an inherent courts relationship state creates not been raised had Stratford_ in our part Dr. shown we have on As was barred. however, this obser- record, of the review object. so error, did Smith vation his directed should have The doctor objected, so had even if Again, mitigating factor any findings towards would Ake claim principal basis to the Defendant’s related whatsoever psychi- provided remain: still usage inci- prior to the alcohol drug or assisting him in charged with expert atric usage could effect such any dent alone Smith this On basis defense. percep- Defendant’s upon the have hearing. a new entitled mind. or state tions Smith, an acknowledges dissent the Defendant Counsel defendant, psy- requested capital indigent pro- appropriate identifying an of process mit- of claims prepare assistance specialization chiatric degree of awith fessional it is is that position The dissent’s igation. in the and effects expertise use permissible respond for the state to to such at timely which he requested, but request by providing a “neutral” or was denied. examination, psychiatric “state” even when psychiatrist reports submits or testimo- C. ny against the defendant’s interests. argues Smith also that consideration of “Fundamentally,” dissent, states Dr. Stratford’s testimony, as well as use of “there is right no absolute to an adversari- information presentence from a report, vio psychiatrist al sentencing.” But here lated his 5th rights Amendment under Es

the dissent simply repeating is the lone 454, 101 telle v. 451 U.S. S.Ct. dissent to Ake: (1981). find, L.Ed.2d 359 Because we agree if I were to [E]ven Ake, under that Smith is entitled to a new right state-appoint- Court that some to a court-appointed psychiatric expert to assist psychiatrist ed recognized should be preparations defense for a new sentenc here, I grant right would not the broad ing hearing, we do not reach the 5th competent psychiatrist to “access to a Amendment claims. appropriate who will conduct an examina- evaluation, tion and prepara- assist III. tion, presentation defense.”

Ante, (emphasis at 83 S.Ct. at [105 1096] Smith asserts that the Montana courts added). psychiatrist A attor- refused to give consider or effect to rele- ney, job whose it is to advocate. His mitigating vant evidence in its decision to opinion sought question on a that the impose the death agree. sentence. We question State of Oklahoma treats as a any Since “unfairness” these fact. A. cases would arise from the fact that the only competent witnesses question penalty Montana death statute State, reads, being are part, hired all the de- in relevant fendant should entitled to is one com- determining impose whether to a sen- petent opinion the witness’ imprisonment, tence of death —whatever the court conclusion—from a who acts shall take aggravating into account the independently prosecutor’s office. mitigating circumstances ... Although independent psychiatrist impose shall sentence death if it should be available to answer defense aggravating finds one or more of the questions trial, prior counsel’s and to circumstances and finds that there are no testify called, if I why see no reason mitigating sufficiently circumstances defendant oppos- should be entitled to an leniency. substantial to call for view, ing or to a “defense” advocate. Mont.Code Ann. 46-18-305 § Oklahoma, 68, 92, Ake v. The statute also defines circum- S.Ct. (Rehnquist, L.Ed.2d 53 stances: J., dissenting). This view is not the law. (1) The significant defendant has no his- court, As a obliged circuit we are apply tory prior activity. criminal Ake, the rule of position rather than the (2) The committed while the offense was expressed in Ake’s dissent. Even if we defendant was under the influence of agree were with the dissent that the Ake mental or emotional distur- extreme right should be read narrowly, more in the bance. case before us the Montana respond- (3) The defendant acted under extreme ed to Smith’s claims of impairment mental duress or under the substantial domina- by ordering report presented person. tion of another eviscerating to the court argu- (4) mitigation. ments of The capacity ap- Smith was of the defendant entitled simply preciate to cross-examine psy- criminality the court of his conduct or chiatrist, present “responsive but to psychi- to conform require- his conduct to the testimony,” atric 470 U.S. at 105 ments of law substantially impaired. 1164 (1976) (plu- 2990-91, 944 2978, 49 L.Ed.2d in the participant (5) The victim was claims were Three of these rality opinion). the or consented conduct defendant’s the Mon- of listed subsections covered act. di- of His claims statutory scheme. tana in accomplice (6) was defendant The drugs and alcohol due to capacity minished person, by another committed an offense (4) sub- (“capacity ... invoked subsection relatively mi- was participation and his (2) impaired”) and subsection stantially nor. distur- mental or emotional (“extreme of the defendant, the time (7) The his criminal bance”); regarding claims his crime, less than commission (1) (“no signifi- subsection invoked record age. years of 18 activity”). prior criminal history of cant mitiga- exists (8) Any other fact listed, but not claims were of his Two penalty. the tion of under subsec- been considered should have Ann. 46-18-304

Mont.Code § in miti- exists (8) fact that (“any other tion structure, of a any if Montana the Under and references his character gation”): present, death is aggravating factors list of for rehabilitation. desire penalty, appropriate presumed to be is emerged in defects constitutional Two mitigating circumstances there are unless of these weighing courts’ the Montana a sen- justify “sufficiently substantial” First, regard to mitigation. of claims defen- capital aIf than death. tence less specifically not mitigation of those claims any of evidence brings forward dant by the statute, covered but listed factors, mitigating enumerated first seven (8), Montana “catchall” subsection consider must court the Montana evidence consider Smith’s courts refused leniency if determine factors weigh the term at all. The factors mitigating as mitigating If some other appropriate. not to was used “sufficiently substantial” seven, does factor, among the which mitigating weighing process of describe an- standard qualitative not meet qualifier which factors, rather as but disturbance (e.g., an emotional nounced mitigat as a consideration excluded from capacity or diminished “extreme” less than “did excuse ing factor evidence “substantial”) brought for- less than McKoy v. See conduct.” the defendant’s (8) appears to ward, catchall subsection — -, Carolina, 110 S.Ct. U.S. North other consideration such permit (1990) (citing 1223, 369 L.Ed.2d 108 factors. 104, 113— Oklahoma, 455 U.S. Eddings v. 876-78, 1 71 L.Ed.2d 16, 102 S.Ct. B. original). (1982)) (emphasis hearing, resentencing In his second claims which Second, evaluating those brought forward listed under specifically invoked factors mental (1) diminished he suffered factors: statute, trial both LSD; (2) suffered to use of capacity due analyzed each Supreme Court con- to alcohol capacity due diminished discretely, to determine mitigation claim showed (3) record his criminal sumption; sufficiently sub- alone was if that factor char- had eleven activity; (4) he violent The Montana leniency. to warrant stantial be- attesting that violent acter references as a weigh Smith’s claims courts failed character; admit- (5) he out of havior was “the circumstances whole, to determine if contrite, was committed guilt, ted the character together with offense all were factors These to rehabilitation. offender”, Pennsyl- propensities mitigating evidence. clearly relevant Ashe, U.S. v. ex rel. Sullivan vania 66, 73-76, Shuman, 483 U.S. Sumner (1937) L.Ed. 43 58 S.Ct. 2721-23, 97 L.Ed.2d 107 S.Ct. added), call sufficient to (emphasis were Louisiana, 431 (1987); (Harry) Roberts leniency. 633, 637, 97 S.Ct. U.S. v. Ari Court Walton North (1977); Woodson L.Ed.2d — 3047, 111 -, zona, Carolina, 428 U.S. necessary pun just and of the “suf- determination (1990), recently found L.Ed.2d 511 Appendix Appeal on at ishment.” Record leniency” to call ficiently for substantial added). (emphasis To declare that such 7-3 penalty statute death in Arizona’s standard brought on “must to bear” not burden of evidence regard to the constitutional with directly punishment vio determination of Id. sentencing. at capital in persuasion However, requirements an the constitutional that lates -, 110 S.Ct. at 3053-55. Ohio, 586, v. Lockett 438 U.S. nounced to our is not relevant holding Walton 2954, 2964-65, 604, 973 57 L.Ed.2d part 98 S.Ct. IV in this section nor analysis (1978) the sentencer (plurality opinion), that in Walton did opinion. defendant this “any aspect of a defendant’s consider statute or must “complain[ the Arizona not that ] Eddings v. record”, or and any character consideration from practice excludes 115, evidence”, Oklahoma, 102 S.Ct. 455 U.S. mitigating particular type of (1982), sentenc- L.Ed.2d 1 that noted, have made 71 which, would as the court Ohio, mitigating evi may give ers relevant v. Lockett out a claim under weight by excluding dence “no such evi 2954, 2964-65, 57 L.Ed.2d 98 S.Ct. also dence from their consideration.” See refused has (“It that the Court 973 is true — Parks, -, v. 110 S.Ct. U.S. state-imposed restrictions to countenance Saffle (1990). 1257, 1261, 108 L.Ed.2d 415 Yet may be mitigating circumstances on what agreed with the Supreme Court impose Montana deciding whether considered court, summarily dismissing “the de Id). trial precisely It is penalty.” the death to seek rehabilitation intention rele- fendant’s from consideration the exclusion self-serving.” P.2d at 1098. 705 alleges ... as that Smith mitigating evidence vant below. we consider and which wit- presented two character also Smith let- eleven character and submitted nesses C. support his assertion reference to ters and courts’ were out of character first the murders We examine that evidence for diminished character but of Smith’s would not have occurred treatment credibility of support the capacity, for rehabilitation. and to and his desire find- their desire for rehabilitation. his 1983 March After nor the Mon- the trial court ings, neither sought the death hearing, Smith which at any made reference Supreme Court tana no excuse he and stated that penalty On this evidence. to this character all killings, trial court nor remorse for record, find that cannot we applying the for part its basis listed mitigating Supreme Court considered Defen penalty its view death “[t]he under the catchall sub- submitted evidence respect for has and dant demonstrates (8). section own”; life, including, apparently, human to con entitled were The Montana courts expresses appar Defendant “[t]he evidence clude no sorrow remorse ently feels (8) catchall subsection under loss of by him or the submitted committed offenses a sen enough grant persuasive planned innocent lives death; they were not but than possibilities that tence less caused”; and that “[t]he mitigat it as to consider upon to refuse entitled may be rehabilitated Defendant below a it fell simply because essentially ing non evidence ... are incarceration “con sentencer must weight. The Appendix Appeal certain on Record existent.” mitigat to all relevant give effect rehearings, Smith sider and subsequent In the 1-4. Boyde by petitioner.” offered ing evidence character witnesses numerous presented — U.S. -, California, testimony gave extensive and letters Pen see also (1990); 316 L.Ed.2d change perspective his own about — -, U.S. Lynaugh, ny penalty. Yet sought the death time he (1989); Hitch 106 L.Ed.2d held that such evidence trial court 393, 398-99, 107 Dugger, must cock ... extraneous “peripheral and L.Ed.2d upon brought to bear the Court’s not be D. character to discuss Smith’s Failure even statute violates the Montana evidence also courts’ next address the Montana We findings in this case incom renders the in- of that evidence consideration Ann. Mont.Code plete. Under under the mitigating factors listed voked required 46-18-306, are Montana courts § Montana statute. fact findings of ... present “written claims of In of Smith’s its discussion trial by the records substantiated impairment, the Montana mental on their sentencing proceeding” and the findings quoted and relied court mitigat aggravating determinations at the trial court. State v. 705 P.2d capi record in incomplete An ing factors. had dismissed mental The trial court 1098. constitutionally inade sentencing is tal factor, for the mitigating as a impairment “full disclosure quate: there must be following reason: sentence,” Gardner for the death the basis 361, 1197, voluntarily and un- Florida, 430 U.S. 349, 97 S.Ct. That the defendant v. quanti- ingested (1977) opin hesitatingly substantial 1206, (plurality L.Ed.2d 393 51 crimes day these ties of alcohol on sentencing is “rational ion), capital so that committed, tablets and numerous were North Car reviewable.” Woodson ly days prior there- “hits” of LSD the 280, 303, olina, 96 S.Ct. 428 U.S. to, responsibility not relieve him of does (1976); Spaziano L.Ed.2d 944 repre- They are no less for his actions. Florida, 447, 462, 104 S.Ct. 468 U.S. reasons; his victims hensible for these (1984). L.Ed.2d 340 We are long, and their dead for as will remain presume evi permitted to that because deeply grieve as friends and families will factfinder, admitted before the dence was the Defendant had inconsolably, as if necessarily given consideration. Ed it was drugs ... neither alcohol nor consumed Oklahoma, 104, 113, dings v. in March specifically found As the court (1982); Penry 71 L.Ed.2d 1 were com- ‘none of the offenses of 1983 — U.S. -, Lynaugh, under defendant was mitted while the (1989). For, L.Ed.2d 256 as Jus emotional influence of a mental or Eddings, may noted in “we tice O’Connor they in fact calcu- but were disturbance judge speculate as to whether the trial by him in advance and carried out lated Appeals actually of Criminal and the Court fashion while the in a cold and detached mitigating factors and considered all of the the cir- entirely aware of defendant aggra to offset the found them insufficient ’ his actions ... cumstances and circumstances, vating or whether the dif 7-(3-4). Appeal Appendix Record on opinion and this Court’s ference between petition trial court’s treatment of the striking this final trial court It is ‘purely evidence is a matter of seman er’s quotes opinion from its follow- conclusion and Lockett require us Woodson tics’ ... sentencing original ing the March 1983 finding any legitimate remove basis for hearing hearing at which no evidence —a actually ambiguity concerning factors presented, and mitigation whatsoever was by the trial court.” 455 U.S. at considered defendant, pursuit of in his in which the (O’Connor, J., 102 S.Ct. at 879 concur affirmatively denied the penalty, the death ring). must there mitigating factors. The any existence of explicitly discuss in its fore written find presented the subse- mitigating evidence circumstances, ings all relevant into have entered rehearings should quent “including it finds insufficient those The court- consideration. the trial court’s v. Ris Stratford, See Coleman leniency.” expert, Dr. warrant appointed (9th Cir.1988) (Rein testify ley, F.2d not himself example, did dissenting), rev’d sub nom. hardt, J., impairment or Cole “no” mental suffered McCormick, (en disturbance; any im- opinion rather in his man v. 874 F.2d 1280 — denied, banc) Cir.1989), or “ex- cert. (9th pairment was not “substantial” enough satisfy -, 107 L.Ed.2d 337 treme” point in time following state of mind at that we mitigation. The standards for considering. testimony are colloquies Dr. Stratford’s are illustrative: Q materially, you say why you do When Judge Keedy’s order ...

Q[uestion] In use word? that there are cer- Judge Keedy indicates words, I used other sub- A would have enumer- mitigating factors that are tain stantially. I different kinds of lan- used that includes the ated statute ... and guage report. my opinion, in the mental or emotional influence of extreme drug extremely my report the effect was appre- capacity that his disturbance or present if at all. minimal his conduct or to criminality the of ciate Q you[r] assume that Does conclúsion[] requirements to the conform his conduct miti- mitigating to have a become a —to substantially impaired. of law was some gating factor that there has be prepared by report that I reviewed the by or material effect caused substantial sections ... Did you, you refer to these drug? your report was be you assume that Well, understanding essentially my A in legal guidelines? these prepared within up Judge to the of it that that decision is prepared My report was to be A[nswer] quantitatively I would think a rea- but being fully cognizant of the nature it person would assume that sonable I order and of law conclusions have to be substantial. would language which would respond tried these I am familiar with indicate that Q say To that there was substantial these terms I understand what terms and say that there was no effect is not to professional practice my on mean based effect? Well, say I that there was none A can’t position Q you or take the Did believe that the comparing your conclusions 320-21; 304-05; Transcript Appeal at on anything, mitigating factors could be 339. not tied to deliber- anything that could intent ... ? ate criminal Supreme Court followed The Montana concluding that analysis, court’s I the trial understanding that was my A That’s support “there substantial evidence was mental or emotional to look for extreme rejection of intoxi- the District Court's so on. disturbances and mitigating circumstance.” cation as added). (emphasis Because P.2d at 1098 Q Okay, assuming that Mr. Smith impairment did the evidence of mental number of taken LSD for a considerable “extreme” or statutory level of rise to the daily specifically on a basis years but “substantial”, “rejected” the evidence may have prior month to the crime for a circumstance, rather than aas day hits of LSD a as much as 50 taken considered, of mitigating circumstance as a crime, may have drank as prior to this factors. weight, along with other lesser day 12 beers on the many as any crime, as to your conclusion together mitigating what weigh The failure to drugs of these and wheth- may mental effects individually circumstances reality ability perceive er in fact his reflected in the leniency was also warrant proper way may have to act in a of Smith’s Supreme Court’s treatment shortly, “against been The court stated [a]ffected? record. crime, we cannot the record of this brutal given question My opinion A prior vio- lack of say that the defendant’s history drug ingestion and the sufficiently activity is a factor to the lent criminal degree acquisition of tolerance leniency.” at Id. had, to call for namely I LSD and substantial hallucinogens as there, show- ends 1097. The consideration degree tolerance to alcohol which that since ing that the court believed by long and colorful is characterized by itself did not record materially affect his criminal drug history did not underlying Eighth Amend- death, humanity less than require a sentence Dulles, [86], ment, Trop considered combina- see need not be record Yet mitigating evidence. L.Ed.2d other tion with [78 history had no requires that he consider- (plurality opinion), Smith’s claims 630] capaci- mental and that violent behavior record of the ation of the character drugs and alcohol are ty was affected the circum- individual offender carry a reinforcing, and different mutually offense as particular stances of separate- assessed if weight together than indispensable part of the constitutionally ly- inflicting penalty of death. process of summarized its Carolina, 428 U.S. v. North Woodson “we hold District by saying, analysis L.Ed.2d 944 conclusion that ‘no in its correct Court was (1976) (plurality opinion). sufficiently mitigating circumstance ” Penry O’Connor wrote As Justice leniency.’ P.2d to call for substantial — -, Lynaugh, added). The use of the (emphasis at 1098 2951, 106 (1989), than L.Ed.2d 256 “[r]ather each indi- that singular again reflects form unguided creating the risk of an emotional by weighed mitigating factor vidual of evidence response, full consideration aggravat- totality the against the itself penalty death mitigates against the that ing factors. jury give to a ‘reasoned essential if the sentencing jurisprudence capital Our back response to the defendant’s moral if record or clear that even Smith’s makes ” (citations character, ground, crime.’ and not in themselves impairment are mental omitted; original). in Justice emphasis death, they than for a sentence less cause the conjunctive use O’Connor’s —that mitigation and must be to still relevant are sentencing must analysis in moral death other factors weighed conjunction in with background, respond to “the defendant’s if of the circumstances determine all crime”, character, follows Woodson’s together a lesser sentence. warrant mitigating evidence must position that all recognized previously This has Court weighed “together”. sen- determination of that “[f]or tences, requires consid- justice generally consider, only must not The sentencer particular acts eration of more than mitigating evi- all the “give but effect" to by the crime was committed But at 2947. Penry, dence. 109 S.Ct. the cir- into account that there be taken “rejected” as miti- Supreme Montana together with cumstances of the offense sufficiently gating that evidence not sub- propensities of the of- the character and deprived leniency, and to warrant stantial Pennsylvania fender.” ex rel. Sullivan failing any by effect such evidence of 51, 59, 61, Ashe, 302 55 S.Ct. v. U.S. [58 weigh together it other circumstances. (1937). 82 L.Ed. Consideration 43] possible Simply list of to run a down the offense in or- both the offender and seriatim, deciding wheth- mitigating factors appropriate just at a der to arrive weight, fails one threshold er each meets a progres- as a has been sentence viewed appropriateness sentencing to focus development. See humanizing sive and Failure specific individual. of death for a York, [241], at 337 U.S. v. New Williams “uniquely individu- to assess defendants at 93 247-249 S.Ct. [69 Woodson, 428 U.S. at beings”, al human 1337]; Georgia, v. 408 L.Ed. Furman light of the com- at S.Ct. [238], at 402-03 S.Ct. U.S. [92 mitigating all the weight of bined moral C.J., (Burger, 2810-11, 33 L.Ed.2d 346] unconstitutionally evidence, “narrow is to prac- dissenting). prevailing While to consider relevant sentencer’s discretion individualizing deter- tice of might cause it decline to evidence that simply en- generally reflects minations McCleskey impose sentence.” v. the death constitu- lightened policy than a rather 279, 304, 107 S.Ct. capi- Kemp, 481 U.S. imperative, that in tional we believe (1987) (emphasis respect for 95 L.Ed.2d 262 tal cases fundamental explained, v. Sok Court Justice Shea has this is original). Compare United States 1581, 1586, phrase “sufficiently olow, substan because leniency” has used (1989) (applying totality of tial to call for been 104 L.Ed.2d Supreme qualify, Court to and restrict drug profile analysis circumstances it con “mitigating circumstances” will searches). Fitzpatrick, 606 P.2d at v. State sider. recent Although Court has (Shea, J., dissenting). The Montana Eddings speak that Lockett ly held repeated have the error discussed courts mitigating mainly to “what” evidence viz., they Eddings, only “considered rather than “how” consider sentencer must mitigating which would tend evidence to be considered, evidence must be Saffle legal support a excuse from criminal — U.S. -, Parks, 113, 102 at 876. liability.” (1990), it is clear 108 L.Ed.2d Woodson, Ashe, argu- case only post-1977 and their Pennsylvania mitigat- sentencer, an unenumerated ably to consider addition progeny, Keith, Mont. ing factor is State any rele excluding from consideration Keith, However, evidence, weigh 754 P.2d 474 must mitigating also vant are discussed “togeth factors seri- mitigating circumstances all atim, reference to their cumulative to do this with no courts failed er”. The Montana weight nor of whether consideration case. in Smith’s any shed taken as a whole

circumstances IV. light appropriate- different moral Id. penalty. 754 P.2d at ness of the death 1977, its death In Montana revised to did make reference 484-486. attempt in eliminate penalty statute to and de- claims of remorse the defendant’s Mon mandatory sentencing. A review himself, as as to the to reform well sire pen in death Supreme Court decisions tana personal prob- “miscellaneous defendant’s 1977 alty since indicates cases However, since the lems.” Id. at 485-486. of miti in the consideration inadequacies mitigating consider the evi- court did not case apparent in Smith’s evidence gating whole, and, according to as a dence pattern consistent since have been a view, individual no court’s to adoption “sufficiently substantial of the excuse, legal to a this factor amounted The Montana leniency” standard. call for given (8) clearly evidence was subsection to con regularly has failed Supreme Court con- weight mitigation. The court mitigating circum totality sider ritualistically that each circumstance cludes stances, weighing each individual instead call for substantial to “sufficiently the full against alone mitigating factor leniency.” Id. And, crime. the Court weight moral (8): catchall subsection has to use the “sufficiently failed substantial find We has the penalty case since 1977 applied in no leniency” death standard as to call for weight an unenu- given mitigating Supreme Court has unconsti- the Montana mitigating circumstance. merated of miti- tutionally the consideration limited Godfrey v. Compare gating evidence. Top, Kills on 787 P.2d v. Lester State 1759, 64 420, Georgia, 446 100 S.Ct. U.S. Dawson, (1990), v. 233 Mont. State 336 (sustaining applied” “as (1980) L.Ed.2d 398 Risley, v. Coleman (1988), P.2d 352 761 penalty stat- challenge Georgia death (1983), 237, 663 P.2d 1154 203 Mont. Penry, ute); at 2945. Osborne, 640 195 Mont. McKenzie Fitzpatrick, State v. (1981), 186 P.2d 368 V. de cert. (1980), P.2d 606 Mont. 1343 constitutional other nied, two Smith asserts Coleman, opinion in claims, circuit’s on this and State v. (1980), relying L.Ed.2d Ricketts, (9th F.2d 1011 (1979), Adamson there 605 P.2d 1000 185 Mont. (1) banc): Cir.1988) (en Montana’s “suffi- any unenumerated miti no reference to leniency” call for ciently Supreme substantial factors. As Montana gating Florida, However, unlike of death” Gardner “presumption standard creates 51 L.Ed.2d 393 sentencing, violative capital Amendments; (2) penalty (1977), applying the death Eighth where and Fourteenth Amendment, capital report, de- presentence relied on a Under the Sixth the court jury hearing on the fendant is entitled to a defense coun- kept of which was from part aggravating circumstances. sel, psychiatrist existence here the court and disapproved by arguments These have been clearly relied on statements Smith’s own opinion in plurality Supreme Further, Court’s applying sentencing. defense Walton, supra. Fontaine, Munro, examined counsel ample opportunity to and had Strickland

VI. explain any challenge, deny or otherwise stories. We therefore find below, aspect of their has proceedings In the claim without merit. assistance Smith’s Gardner asserted ineffective repeatedly Among allegations is Smith’s of counsel. change plea his that at the time of Conclusion guilty, attorney failed to guilty II, was denied In Part we hold that Smith examination deter seek a the court to process by the failure of due competence, and that the attor mine his him psychiatrist to assist appoint a defense on a misunder ney’s decision was based sentencing hearing. preparation for his applicable legal standard standing of the and remand reverse the district court We guilty plea. competent for a grant the writ of habe- with instructions Treating the claims of ineffective assist- State, within a reason- corpus unless the colorable, ance as time, appoints a defense able trial counsel to file a Court ordered Smith’s conducts a new and thereafter relied responsive declaration. The Court procedures hearing in accordance with exclusively declaration to find that on this opinion. set forth in this allegations “without merit.” were IV, III and we hold that In Parts evidentiary objected to the lack of an Smith to call for lenien- “sufficiently substantial hearing and renewed his claim before Montana, standard, applied in has cy” as also District Court. That Court sum- U.S. unconstitutional failure resulted an marily denied the claim. give to all relevant miti- consider and effect a “[Wjhere petitioner a raises colorable evidence; the Montana Su- gating and that assistance, and claim of ineffective where provide complete failed to a preme Court federal hear there has not been a state or discussing all relevant reviewable record claim, remand to the ing on this we must the dis- mitigating We reverse evidence. evidentiary hearing.” district court for an remand with instructions trict court and F.2d 1090 Wainwright,

Harich v. 813 corpus unless the grant the writ of habeas (11th Cir.1987). parte An ex submission of State, time, resentenc- within a reasonable proce an affidavit the trial counsel is the standards es Smith accordance with to a durally inadequate; Smith is entitled opinion. in this set forth evidentiary hearing. full v. Es Jackson remaining V, In Part we dismiss Smith’s telle, (5th Cir.1978); F.2d objections to constitutional McCauley, 563 F.2d 808- Woodcock penalty statute. death Cir.1977). (7th We remand to the dis evidentiary is entitled hearing VI, trict court for on that Smith hold In Part we hearing solely assistance of counsel. evidentiary ineffective to an assistance of coun- question ineffective an evidentiary also seeks district court and re- sel. We reverse hearing determine if the trial court re to conduct the evi- instructions mand with parte on ex conferences between lied hearing. dentiary court and the and RE- Rodney the district court accomplices, Munro We REVERSE Fontaine, instructions. determining sentencing. MAND with Andre FERNANDEZ, Judge, little that there are times when one Circuit doubt dissenting psychiatrist, concurring part, is entitled to a even at sen Oklahoma, tencing. part: Ake v. 1087, 1096-97, 84 L.Ed.2d portion respectfully dissent from the I II, III forth in Parts opinion

the court’s set IV, in Parts V and although I concur However, this is not case where we VI. should find that the lack of an adversarial psychiatric consultation results in overturn- turning the merits of the Before ing properly the sentence. It re- claims, be said about should few words quested.1 case. the facts of the notes, Smith, majority good for no

theAs (1) whatever, Request two Native Ameri- Psychiatric killed for a reason men, him had befriended and his can who Examination. part of the reason for companions. A 11, 1983, April defendant asked for a On the theft killings was of the these senseless psychiatric examination to ascertain wheth- importantly, More vehicle. victims’ er he suffered from a mental disease or sentencing hear- at his first Smith admitted defect of a character. At a he wanted to ing, he killed them because hearing May presented argu- on he kill it like to someone. see what would be support request, pros- ment to and the that, he the court that Beyond he informed really oppose ecutor said he did not it. The re- person, that he felt no was a violent could, prosecutor say went on to that he morse, again. He he could do it and that Stratford, perhaps, get Dr. the con- William the court that he was also informed sulting psychiatrist prison, to at the state drugs or intoxicants under the influence examination, perform the and Smith question. crimes in he committed the when presented objection to that. An order record, upon that the court sen- Based appointed Dr. then issued which Stratford Then Smith had sec- tenced him to death. report to examine Smith and to make a on thoughts. decided he was not so ond He Quite findings. clearly, the intent of after all and could be rehabilitated. bad report that order was that the would be then proceedings in the since

That resulted to the court. available prolonged have this matter parts objected The defendant to' certain date, delay common March of 1983to this order; fact object did not to the grudging rather legal system’s our under report might available to the that the disposition penalty of death approach to the The amended its order court itself. today that it opinion assures cases. Our objections.2 the in accordance with por- delayed further. Some will be even delay necessary; are other tions of that Thereafter, hearing a second portions of it are not. There, again, ex- place. counsel took objection to the fact that Smith pressed no Psychiatric

A. Assistance. independent have an adversarial did not the court to He did not ask psychiatrist. consti- majority asserts Smith’s it, to consider report, or to refuse rights have violated because strike tutional been he ask report. Nor did independent or to order another given not an adversari- he was already if it had court to recuse itself hearing for reconsid- psychiatrist al at the Rather, psy- he called the sentence, report. opposed to a seen the of his eration stand. There can be chiatrist to witness psychiatrist. “neutral” mere Dr. Stratford properly request ad- 2. The amended order instructed did 1. Since Smith not second set of state- the truth of Smith's assume psychiatrist, not reach the issue of versarial I do drugs regarding and alcohol. his use of ments to one if he would have been entitled whether so, and he had done Dr. Stratford testified that sup- requested properly one and had he had discharge properly able to on that basis was request. ported that psychiatrist. professional duties as 1172 by psy- hearing, requested performed his own adversarial new

After Smith’s chiatrist.4 examination. In that a further complained the nature of request, he about Thereafter, Smith did claim that Ake v. the nature examination and Dr. Stratford’s Oklahoma psychi entitled him to a second He still did not prior court order. However, opinion. atric as the Montana given a complain he had not been out, Supreme pointed this case was report would separate psychiatrist who Smith, very different from Ake. v. State requested that a only him. All he (1985); see 217 Mont. 705 P.2d 1110 “in place used new examination be Jones, (11th Clisby also v. 1047 907 F.2d request That stead” of Dr. Stratford’s. Cir.1990). This was not a case where because, denied, among things, other hapless defendant was forced to face ample time before the second Smith presentations psychiatrists, unwanted request and he did hearing to make that against to defend their without means then sentenced to death He was not do so. also comments. See United devastating time. a second Sloan, 776 F.2d 926 (10th States v. Cir. 1985) (defendant requested repeatedly short, appoint- for the In asked Smith psychiatrist provide the court him with a examining psychiatrist, and it ment of an prosecu other than the doctor used apparent that all concerned seems rather tion). case, asked for the asking an eval- this Smith for believed that Smith was psychiatrist objection and made whatev be made available uation that would psychiatrist’s report er to the fact that the did not effective- court and counsel. Smith solely eyes. that; was not for his own really asked for ly object to all he psychiatrist since he ultimate- was a second major What Smith asks for and what the of the first re- ly did not like the results ity grants overturning is the of his sen sug- port. Nothing jurisprudence in our give him an adversarial tence failure proceed in that gests that he is entitled to psychiatrist, though request even he never manner.3 possible exception one.5 noted ed With majority opinion, this Part VI of (2) Raising Before State Courts. Issue miscarriage justice. record shows no On above, did apparent As is from the Smith contrary, guilt manifest and actually personal raise propriety equally of his sentence is so. More than issue before the trial court. Murray, 477 U.S. Cf. that, however, he failed to raise that also (1986) (petitioner S.Ct. 91 L.Ed.2d appealed the case to the issue when he first could not raise constitutional claim on ha- A Supreme Court. review of the corpus petition beas he failed to because opinion careful and detailed during proceedings); raise it state habeas State that. Adams, Court of Montana reveals Dugger see also Mont. 705 P.2d 1087 reh’g de 103 L.Ed.2d — nied, -, It outlines the thirteen issues that Smith appeal (1989) claim of lack of a (procedural may raised on L.Ed.2d default —the separate was not psychiatrist petitioner raising adversarial claim in federal bar There, Id. corpus proceedings). one of them. P.2d at 1091. I habeas cannot agree again, essentially objected Smith that we should overturn the sentence itself, it under these circumstances. evaluation not to the fact that was Smith, not, effect, say rights. Iated constitutional 3. I do not that Smith did other State report. attack the substance of Stratford's That P.2d at 1100-02. properly by issue was considered decided That, also, is the Montana courts. as the demand for an adversarial not the same fact, corpus petition 5. In even in his habeas psychiatrist, court, that he was the state Smith did not assert majority grants, now demand which psychiatrist. separate, entitled to a adversarial wrongly so. raised The district court noted that Smith first argument it. that issue as a new before properly dispose 4. That court did of Smith’s claim that use of vio- somehow impressed by the that Smith now point that this case be fact Fundamentally, the is substantially affected Ake, did he the defendant decided was is not like because thought that he psychia- drugs and alcohol and now even ask for an adversarial not rehabilitated, why I simply there has been be fail to see trist. It is not that could default; required ignore it is that there is procedural judge was Smith’s trial psychia- right testimony absolute adversarial he not so affected prior that was courts sentencing.6 Moreover, The Montana trist at not and was redeemable. they said that this recognized that when two unof- determination execute agree. all. I The not an Ake case at was fending weighed must some- persons have Thus, this dissent. majority does not. mind, noth- heavily judge’s what suggests it error for

ing in the record was judge unimpressed remain to be and that Montana Death Application B. submitted at the other evidence Penalty Statute. hearing. second his that majority The holds burden, bore, or I not undertake to will their duties in a to understand courts fail by glossing the reader what ensorcell effect, it is said case. penalty death In actually wrote Supreme Court scrutinizing what was they are when that say it to it decided this case. Suffice when many circum- gather that they done fail to I in that court’s can see no error possibly re- together could stances taken report of its approach; I commend the a deci- mitigation to cause sult in sufficient per- interested unanimous decision all penalty. impose the death sion not to Mont. sons. State v. only can my opinion, that conclusion (1985).7 P.2d 1087 jaundiced eye by casting very reached was, fact, Therefore, de- unless Smith have done the Montana courts upon what counsel, prived of effective assistance here. properly imposed penalty death quite clearly considered judge trial reason, I can- For and should stand. him; placed circumstances before all majority’s opinion to the in the not concur that Smith simply impressed contrary. leniency. any grounds for established at the second hearing the evidence After explaining that it had

hearing and carefully in vain for other

“searched surrounding the commission

factors might call offenses which would

these prior adhered to its leniency,” the court pen- merited the death that Smith

decision striking majority it

alty. The finds after the sec- trial court’s conclusions as its conclu- hearing were the

ond same hearing. I do of the first at the end

sions might striking at all. While one find it That findings upon state courts. imposed right is to counsel to This is unlike 6. entitled, showing a federal simply procedural or re- It is not a state issue. one without See, Wainwright, e.g., quest. imperative. Gideon Here the Montana constitutional (1963). complied 9 L.Ed.2d they had courts were satisfied say the not for us to It is with Montana law. majority's Incidentally, agree with the I do not 7. Maass, F.2d contrary. O’Bremski See suggestion courts were re- (9th Cir.1990); Cupp, 768 F.2d Middleton fact, findings of quired more extensive to make denied, Cir.1985), (9th cert. agree authori- that the nor do I 92 L.Ed.2d actually proposition deal ties cited for that particular fact compel form of written it. No

Case Details

Case Name: Ronald Allen Smith v. Jack McCormick Warden, Montana State Prison

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 7, 1990

Citation: 914 F.2d 1153

Docket Number: 88-4115

Court Abbreviation: 9th Cir.