Lead Opinion
Katie Vargas (“Vargas”) appeals the district court’s denial of her application for a stay of execution filed on behalf of her son, Jeremy Sagastegui (“Sagastegui”), a Washington state prisoner, who is scheduled to be executed on October 13, 1998. The district court held that Vargas lacked standing as Sagastegui’s “next friend” and that the district court therefore lacked jurisdiction to entertain her application. The court dismissed her ease, but issued a certificate of appealability to this court.
We conclude that Vargas has produced sufficient new evidence pertaining to Sagas-tegui’s alleged incompetence, not considered at the last state court competency hearing two-and-a-half years ago, to support her standing for the purposes of invoking our jurisdiction to issue a stay. Accordingly, we reverse the district court and issue a stay of execution to permit the state court to conduct a hearing to determine Sagastegui’s present competency.
I. FACTUAL BACKGROUND
A complete description of Sagastegui’s offense and state court proceedings appears in State v. Sagastegui,
On November 22, 1995, Sagastegui was formally charged with three counts of aggravated murder in the first degree. Prior to trial, Sagastegui underwent a 15-day mental exam at Eastern State Hospital. The examining panel, consisting of a competency therapist, a clinical psychologist, and a psychiatrist, diagnosed Sagastegui as suffering from Alcohol Dependence, Episodic; Polysub-stance Abuse; and Antisocial Personality Disorder with Narcissistic Features, but unequivocally concluded he was competent. Based on the examining panel’s report, the trial court found Sagastegui competent to stand trial. A jury trial began on January 30, 1996. Sagastegui represented himself, assisted by advisory counsel. At the conclusion of jury selection, Sagastegui pleaded guilty to all three charges of aggravated first degree murder. At the penalty phase, Sa-gastegui refused to permit the introduction of any mitigating evidence. He was sentenced to death.
On March 11, 1996, the trial court considered Sagastegui’s request to waive his rights to appeal and to the assistance of counsel for any review of his sentence. The trial court again considered Sagastegui’s competence. The trial court questioned Sagastegui orally and reviewed his response to a written questionnaire. The court also considered testimony from mental health professionals who had previously examined Sagastegui at Eastern State Hospital. Ultimately, the trial court entered findings of fact and conclusions of law and expressly found that Sagastegui was mentally competent and able to waive his rights to appeal and to assistance of counsel. The trial court noted that Sagaste-gui’s decision to waive his rights to appeal and to the assistance of counsel was made voluntarily, intelligently, and knowingly.
Meanwhile, David G. Grubb, M.D., a psychiatrist for the Washington State Penitentiary (“the Penitentiary”), had conducted a routine mental health evaluation of Sagaste-gui to determine if Sagastegui needed to continue to be kept in the Penitentiary’s mental health ward. Grubb’s written evaluation is dated February 21, 1996, but it was not presented to the trial court for that court’s consideration at the March 1996 com
On May 8, 1997, Gerry S. Weber, Ph.D., a psychologist for the Penitentiary, interviewed Sagastegui for twenty minutes to assess a request by Sagastegui to live at the Penitentiary’s Special Housing Unit. Dr. Weber made no diagnoses and stated no opinion as to Sagastegui’s competence. He did conclude that Sagastegui “was oriented and displayed no signs of mental or emotional illness or of impaired contact with reality.” Dr. Weber also reported that Sagastegui had committed some “infractions,” including an episode where Sagastegui “became angered and tore up his mattress and broke his TV.”
On April 30, 1998, the Supreme Court of Washington affirmed Sаgastegui’s sentence of death. State v. Sagastegui,
On May 7, 1998, Ronald D. Page, Ph.D., a clinical psychologist for the Penitentiary, evaluated Sagastegui “to assess possible psychosis and suicidal potential” and issued a report. Dr. Page reviewed Sagastegui’s file and interviewed him for 30 minutes. He noted that Sagastegui had been prescribed Depakote and Thorazine, which decreased his emotional instability, promoted sedation, and enabled him to sleep 16 hours per day. Dr. Page conducted a standard Mental Status Evaluation on Sagastegui with the following results:
This man was unable to subtract serial 7’s beyond 93. His interpretation of simple proverbs was difficult to elicit except for a correct abstraction on “look before you leap.” Mr. Sagastegui seemed alert, well oriented, and attentive. His self report was satisfactorily well organized. Memory for recent and remote events was rather imprecise or general. Mood was positive, with congruent affect. Speech content appeared lucid, without apparent thought disorder. Mr. Sagastegui denied suieidal/as-saultive ideation claiming, “that would be kind of silly since the State’s going to do it for me.” Insight may be partial and judgment highly questionable.
Dr. Page diagnosed Sagastegui as suffering from Atypical Psychosis, now in remission; Alcohol Abuse, now in remission; and Personality Disorder NOS. He determined Sagastegui’s Global Assessment of Functioning (“GAF”) score to be 55.
In a report dated September 22, 1998, A. Steven Frankel, Ph.D., J.D., a clinical psychologist specializing in the diagnosis and treatment of Dissociative Identity Disorder (“DID”), indicated he had reviewed the reports оf the mental health experts who had examined Sagastegui and testified at the state court’s March 11, 1996 hearing. Dr. Frankel stated that DID, which was formerly known as Multiple Personality Disorder, is a difficult disorder to diagnose and that the possibility that Sagastegui suffers from DID
On September 23, 1998, Katie Vargas, Sa-gastegui’s mother, filed a motion in the Washington Supreme Court to participate as her son’s next friend, and to file a personal restraint petition on his behalf.
On September 26, 1998, G. Christian Harris, M.D., reviewed Sagastegui’s file and interviewed him for two hours at the request of the State of Washington’s Attorney General’s Office. Dr. Harris did not conduct a Mental Status Exam or any other psychological testing. In a report dated September 28, 1998, Dr. Harris diagnosed Sagastegui as suffering from only an Antisocial Personality. Dr. Harris detected some signs of depression but concluded “this depression is related to his lifestyle.” Dr. Hams fоund “no evidence that [Sagastegui’s] mental disorders are impacting his decision making in the legal processes involved in his pleading guilty and his decision to not appeal his death sentence.” Dr. Harris noted:
Some might question [my finding that Sa-gastegui is competent and suffers from no mental disorder that is interfering with his ability to evaluate his situation and make appropriate decisions] from the standpoint that there is evidence in the record that this man wanted to die for years and some might speculate that he has committed these terrible crimes and pled guilty to them with hopes that the state’s capital punishment statute will take the matter of his life and death out of his hands. My opinion regarding this possibility is that it remains a moot point. I do not consider that wanting to die is necessarily evidence that a person is demented or that a “mental disorder” is necessarily causing the individual to wish for death.
Dr. Hams supplemented his report with a letter on September 29, 1998 in which he expressed his disagreement with “many of the past diagnoses” of Sagastegui, particularly those by Dr. Grubb and Dr. Page. He categorically stated: there is no evidence Sagastegui has ever suffered from depression except as relatеd to his lifestyle; there is no phenomenological data to support a diagnosis of Post-Traumatic Stress Disorder; and Sagastegui has never decompensated or been near psychosis. Dr. Harris also denied the existence of Dissociative Identity Disorder and that Sagastegui might suffer from such an illness.
On October 1, 1998, without holding an evidentiary hearing, the Washington Supreme Court denied Vargas’s motions without comment.
On October 5, 1998, Vargas filed a motion in the United States District Court for the Eastern District of Washington to act as Sagastegui’s next friend. Vargas submitted the same evidence she had previously submitted to the Washington Supreme Court; the State also submitted the same contrary evidence it had previously submitted. Sagas-tegui filed a Declaration on October 6, 1998, stating his opposition to his mother’s motion to act as a next friend. The district court, after reading the file and briefs, held a hearing on October 7, 1998. It did not, however, take any testimony. The court concluded that Vargas failed to present meaningful evidence to support her claim of standing. Thus, the court held it lacked jurisdiction to act on her Motion for Stay of Execution. Nonetheless, the court determined that Vargas had made a substantial showing of the denial of a constitutional right with regard to the court’s jurisdiction. Pursuant to 29 U.S.C. § 2263, the court issued a certificate of appealability. This appeal followed.
II. THE STANDARD OF REVIEW FOR DETERMINATIONS OF STANDING TO INVOKE THE JURISDICTION OF A FEDERAL COURT TO ISSUE A STAY
A. STANDARDS FOR GRANTING A STAY.
Under 28 U.S.C. § 2251, a federal court is authorized to enter a stay of execution pending review of any habeas corpus proceeding. In Barefoot v. Estelle,
In requiring a ‘question of some substance’, or a ‘substantial showing of the denial of [a] federal right,’ obviously the petitioner need not show that he should prevail on the merits. He has already failed in that endeavor. Rather, he must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are ‘adequate to deserve encouragement to proceed further.’
Id. at 893, n. 4,
Finally, the Court explained that essentially the same standard exists for a stay pending a writ of certiorari to the Court following the denial of a writ of habeas corpus by a court of appeals:
there must be a reasonable probаbility that four members of the Court would consider the underlying issue sufficiently meritorious for the grant of certiorari or the notation of probable jurisdiction; there must be a significant possibility of reversal of the lower court’s decision; and there must be a likelihood that irreparable harm will result if that decision is not stayed.
Id. at 895-96,
B. THE REQUIREMENTS FOR “NEXT FRIEND” STANDING.
Under Article III, a federal court cannot consider the merits of a legal claim unless the person seeking to invoke the jurisdiction of the court establishes the requisite standing to sue. Whitmore v. Arkansas,
The Supreme Court recognized in Whitmore that a habeas petitioner may demonstrate standing as a “next friend.”
First, a next friend must provide an adequate explanation—such as inaccessibility, mental incompetence, or other disability— why the real party in interest cannot appear on his own behalf to prosecute the action. Second, the next friend must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate and it has been further suggested that a next friend must have some significant relationship with the real party in interest. The burden is on the next friend clearly to establish the propriety of his status and thereby justify the jurisdiction of the court.
Id. at 163-64,
Thus, in order to meet the first prong of next friend standing, Vargas must show that Sagastegui is “unable to litigate his own cause due to mental capacity.” Id. at 165,
whether he has [the] capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity ...
In Whitmore, the Court concluded that Whit-more, the putative next friend, lacked stand
In Demosthenes v. Baal,
As there was no evidentiary basis for the Court of Appeals’ conclusion that the District Court erred in declining to conduct an evidentiary hearing, the stay granted by the court did not “reflect the presence of substantial grounds upon which relief might be granted.” ... [Fjederal courts are authorized by the federal habeas statutes to interfere with the course of state proceedings only in specified circumstances. Before granting a stay, therefore, federal courts must make certain that an adequate basis exists for the exercise of federal power. In this ease, that basis was plainly lacking.
Id. at 737,
In Brewer v. Lewis,
C. THE' QUANTUM OF PROOF OF INCOMPETENCE REQUIRED FOR A NEXT FRIEND TO REQUEST A STAY.
The State úrges us to dismiss Vargas’s motión for lack of jurisdiction because she has not “clearly established” that Sagastegui is incompetent. Vargas, on the other hand, contends that because the district ■ court issued a certificate of probable cause based oh' a “substantial showing” as to jurisdiction, we must grant an automatic stay pending resolution of her petition on the merits. Neither party correctly states the standard we must apply in determining whether we have jurisdiction to grant a stay of execution to a “next friend.”
We conclude that our jurisdiction must be based on essentially the same quantum of evidence whether measured by the Barefoot standard for grant of a stay, by the Whitmore standard for next party standing, or by the juxtaposition of the two standards. If Vargas has produced meaningful new
No authority requires that this court determine on the merits that Sagastegui is not competent before we can grant a stay of execution in order to allow the state to conduct an evidentiary hearing to determine if he is competent. If this were true, there would be no difference between Vargas’s ulti
The quantum of evidence supporting Vargas’s standing and, therefore, jurisdiction of this court to exercise federal authority is logically connected to the degree of authority we are asked to exercise. Here, we are not reviewing a habeas petition. Wе are merely resolving whether or not we have jurisdiction to grant a stay of execution until an eviden-tiary hearing can be held as to Sagastegui’s competence. For this limited purpose, we conclude Vargas has standing.
III. VARGAS PRESENTS SUFFICIENT EVIDENCE OF HER STANDING TO REQUEST A STAY
As discussed above, Vargas’s standing depends on a showing by a sufficient quantum of evidence (1) that she is truly dedicated to the best interests of Sagastegui and (2) he is not competent to make the decision whether or not to pursue a habeas petition.
A. VARGAS HAS SHOWN THAT SHE REPRESENTS SAGASTEGUI’S BEST INTERESTS.
Vargas easily meets the best interests requirement. There is essentially a per se rule that a parent meets this prong of the next friend standing test. See, e.g., Hamilton v. Texas,
Although Sagastegui insists it is in his best interests to be executed, crediting his position begs the question of his competence. If Sagastegui is not competent to rationally determine his best interests, his viewpoint is not determinative. Moreover, we reject the contention that, simply because a condemned prisoner wants to be executed, it is not even “debatable among reasonable jurists” whether an otherwise qualified next friend represents the prisoner’s best interests. To accept that proposition would almost categorically eliminate next friend petitions.
B. SAGASTEGUI WAS COMPETENT PRIOR TO AND ON MARCH 11, 1996.
The Supreme Court has held that the prerequisite showing of the real party in interest’s incompetence “is not satisfied ‘where an evidentiary hearing shows that the defendant has given a knowing, intelligent, and voluntary waiver of his right to proceed.’” Baal,
The trial court twice determined that Sagastegui was competent—most recently following the hearing held on March 11,1996. The Washington Supreme Court explicitly affirmed those findings. Unless those findings are rebutted, we cannot conclude that Sagastegui was incompetent on or before March 11, 1996. Moreover, those findings are extremely well supported by expert opinions, psychological testing, and Sagastegui’s courtroom demeanor.
Vargas’s challenges to the state trial court’s findings at the March 1996 hearing-rest on: (1) affidavits from layрersons who know Sagastegui that suggest he is mentally ill and suffers from multiple personalities, (2) evidence that Sagastegui prevented a full and fair hearing about his competence by concealing his mental illness, (3) the existence of medical reports about Sagastegui’s competence that were not presented to the trial court, and (4) the affidavit of Dr. Frankel that suggests Sagastegui might suffer from a
None of the evidence presented by Vargas clearly and convincingly rebuts the state court’s findings based on its March 1996 hearing. The lay affidavits do present assertions that the examining experts and the trial court would undoubtedly have found helpful in assessing Sagastegui’s competence. Many of these possibilities were, however, known to the experts who determined Sagastegui was nonetheless competent at that time. Vargas presents nothing to suggest that, even in the absence of the trial court’s findings, this evidence would establish Sagastegui’s incompetence. Dr. Frankel’s report is conclusory, is not based on an examination of Sagastegui, and merely suggests the possibility that Sa-gastegui suffers from an undiagnosed mental illness which might render him incompetent.
Vargas’s challenge to the fullness and fairness of the trial court hearings also fails. Although we do not rule out the possibility that a defendant’s deception could undermine a trial court’s finding of competence, Vargas’s assertions are not sufficient to support such a holding here. Many of the experts who have examined Sagastegui have recognized that he is unreliable and/or deceitful during examinations. We decline, therefore, to conclude that all of the experts and the trial court were fooled into believing Sagaste-gui is competent because he lied to them in order to further a grand suicidal scheme.
Vargas does raise a troubling question about the possible withholding of relevant information from the trial court and examiners by the State. This is fairly speculative, however. The only report that Vargas is certain exists and was available to the State at the time of the trial court’s hearing, but was not presented, is Dr. Grubb’s report. The State states that it did not present that report to the trial court because Sagastegui exercised his privilege to prevent disclosure of the report. Given the overwhelming evidence of competence presented to the trial court, however, it is unlikely that Dr. Grubb’s report would have changed the court’s findings. We conclude Vargas has not rebutted the presumption of the correctness of the state court’s findings from the March 1996 hearing.
C. MEANINGFUL NEW EVIDENCE THAT SAGASTEGUI IS NOT CURRENTLY COMPETENT.
1. THERE IS NO STATE FINDING OF SAGASTEGUI’S CURRENT COMPETENCE THAT IS PRESUMPTIVELY CORRECT.
The state trial court last found Sagastegui mentally competent following its March 11, 1996 hearing. Other than the determination following that hearing held over two-and-a-half years ago, no express judicial finding regarding Sagastegui’s mental state has been made by any court. In its April 30, 1998 opinion affirming Sagastegui’s sentence of death, the Washington Supreme Court limited its consideration to the correctness of the trial court’s determinations and therefore only reviewed Sagastegui’s past competence. Sagastegui
An implied finding of a statе appellate court that has not conducted an evidentiary hearing does not rise to the level of the state findings presumed correct in Whitmore, Baal, and Breiver. In Whitmore, the state trial court had conducted two full evidentiary hearings within the preceding two years, both of which were reviewed and affirmed by
In Baal, the Supreme Court relied on findings made by the state court after a hearing held one week before the petitioners brought their federal petition.
In Brewer, the trial court had held two full hearings as to Brewer’s competence.
Only four months had passed between the full evidentiary hearing held by the state court and the review of Brewer’s petition by the federal district court. Moreover, the contrast between the evidence before the Brewer court and the evidence Vargas presents here is striking. In Brewer we stated:
Here, petitioner has submitted brief affidavits of two doctors who have never met Brewer as well as an affidavit of Dr. Bay-less, who examined Brewer and found him competent in 1988. Dr. Bayless speculates, based on information not available to him at that time, that Brewer’s mental condition may have deteriorated during his incarceration, and that Brewer may now suffer from a major deрressive disorder. As in Baal, this eonclusory evidence is insufficient to outweigh the substantial evidence in the record demonstrating the defendant’s competence. Within the last two and one-half months, no less than four psychological experts have personally examined and tested Brewer and found him competent.
Id. at 1026.
2. VARGAS HAS PRESENTED NEW MEANINGFUL EVIDENCE THAT SAGASTEGUI’S MENTAL CONDITION HAS DETERIORATED.
Vargas presents meaningful evidence that Sagastegui’s mental condition has deteriorated since March 11, 1996. This evidence tends to prove that Sagastegui now suffers from mental illnesses that were not diagnosed at the time of the state court’s findings, that he now requires medication he did not previously require, and that these illnesses and medications may substantially affect his present competency.
Conflicting testimony among Sagastegui’s examiners since the last judicial finding of competency creates, rather than precludes, a substantial issue as to Sagastegui’s current competency. On May 7,1998, Dr. Page diagnosed Sagastegui as suffering from atypical psychosis and stated that Sagastegui could degenerate if taken off his current psychotropic regime of Thorazine and Depakote. Thorazine is a psychotropic drug with sedative effects and is indicated fоr management of manifestations of psychotic disorders, severe behavioral problems, and the manifestations of the manic type of bipolar illness.
The State argues that Dr. Page could be correct that Sagastegui suffers from psychosis, but Sagastegui could still be competent. This is true. However, there is no evidence to support such a conclusion. Dr. Harris found Sagastegui competent, but basеd on the premise that he was not psychotic, not that he was psychotic but competent. Further, if Sagastegui suffers from psychosis and has a fragile grip on reality, as Dr. Page concludes, then he definitely suffers “from a mental disease, disorder, or defect which may substantially affect his capacity.” Rees,
Although we must accept the state court finding that Sagastegui was competent on and before March 11,1996, the evidence Vargas presents from Dr. Grubb and from laypersons corroborates the new evidence of his current incompetence. This evidence strengthens Vargas’s position in at least three relevant respects: (1) it helps to rebut Dr. Harris’s conclusions; (2), without denying Sagastegufis earlier period of competence, it tends to prove that Sagastegui has had prior periods of more serious mental disease; and (3) it corroborates Dr. Page’s findings of current serious mental illness. Moreover, the evidence alleging that Sagas-tegui has a suicidal wish to die seems at least partially linked to his psyсhosis, indicating that by reason of his mental illness he may not be capable of making “a rational choice with respect to continuing or abandoning further litigation.” Rees,
IV. VARGAS’S OTHER ARGUMENTS FOR HER STANDING
Because we conclude Vargas has made the necessary threshold showing of standing to support this court’s jurisdiction to issue a stay of Sagastegui’s execution, we do not consider her remaining arguments in support of standing.
V. CONCLUSION
Vargas has raised a substantial question as to Sagastegui’s present competency by presenting new and meaningful evidence that Sagastegui’s mental state has deteriorated since the last state competency hearing two- and-a-half years ago. If Sagastegui is presently incompetent, then Vargas will have standing to file habeas proceedings as his next friend; otherwise she will not. She has, however, met her burden at this stage of the proceedings by presenting sufficient new and meaningful evidence of Sagastegui’s present incompetence to support this court’s jurisdiction to issue a stay of execution to permit the state court to conduct a current competency hearing.
Accordingly, we reverse the district court’s dismissal of Vargas’s application for a stay of Sagаstegui’s execution, and issue a stay of execution to permit the state court to conduct a hearing to determine Sagastegui’s present competency.
IT IS SO ORDERED.
Notes
. The district court dismissed as moot Vargas’s motions for a stay of execution and the state’s motion for summary dismissal.
. A GAF score is a rough estimate of an individual's psychological, social, and occupational functioning used to reflect the individual's need for treatment. Diagnostic and Statistical Manual of Mental Disorders 20 (3rd. ed, rev. 1987). A GAF score of 55 indicates at least moderate symptoms or moderate difficulty in social, occupational, or social functioning. Id. at 12.
. By new, we mean evidence that reflects Sagas-tegui's mental condition since the last state corn-pelency hearing.
. The Stale argues that such authority may be found in Sumner v. Mata,
Dissenting Opinion
dissenting.
Sagastegui was determined to be competent to make his own decisions in his ease after extensive psychiatric examination and judicial proceedings in the State of Washington courts in 1996, affirmed by the Supreme Court of Washington this April. State v.
Obviously Sagastegui is not a normal, healthy individual. A normal, healthy person would not rape, stab and drown a three year old boy, lie in wait for his mother, shoot her dead when she came home, and then shoot her friend and as she lay dying, tell her “hurry up and die.” That is what Sagastegui did. But there is no legal significance to whether Sagastegui is mentally normal. What matters, all that matters to the case before us, is whether his mental abnormalities render him incompetent to make the critical decisions in his case. There is no evidence, new or old, that they do.
Sagastegui has, from the time he got caught, known and clearly articulated exactly what he wants — to allow his execution to proceed. He insisted on representing himself, and rejected aрpointed counsel. The state commission that examined Sagastegui’s competency reported that he wanted to “override defense counsel’s plan to fight the death penalty by the prosecution with activists’ testimony from Seattle.” He has filed two sworn affidavits in the past few weeks, September 25 and October 6, saying, “[i]t is my desire that my execution scheduled for October 13, 1998, not be delayed.” He has been carefully examined by numerous physicians and psychologists to determine whether his choice to allow his execution to proceed is itself evidence that he is mentally incompetent to make that decision. The state compe
The Supreme Court has set out precisely what must be established for one person to take over another’s case as “next friend.” Gilmore v. Utah,
First, a “next Mend” must provide an adequate explanation-such as inaccessibility, mental incompetence, or other disability-why the real party in interest cannot appear on his own behalf to prosecute the action. Second, the “next friend” must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate, and it has been further suggested that a “next Mend” must have some significant relationship with the real party in interest.”
Whitmore,
[Ojne necessary condition for “next Mend” standing in federal court is a showing by the proposed “next Mend” that the real party in interest is unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar disability.
That prerequisite for “next Mend” standing is not satisfied where an eviden-tiary hearing shows that the defendant has given a knowing, intelligent, and voluntary waiver of his right to proceed, and his access to court is otherwise unimpeded.
Id. at 165,
Demosthenes v. Baal,
Subsequently in Brewer v. Lewis,
In Wells v. Arave,
I do not think this case can be distinguished from this extensive line of authority going the other way. There is persuasive evidence that Sagastegui is not mentally
The majority errs in failing properly to apply controlling precedent because of an implicit presupposition that one must either be mentally healthy or altogether non-fune-tional. Mental illness is not binary, such that either one is entirely healthy, or so insane that he can do nothing; it is a continuum, like physical illness, and one can be mentally quite ill yet competent in some respects. And like physical illness, mental illness may disable a person for some functions but not others. Everyone involved in Sagastegui’s case has, from the beginning, recognized that there is something wrong with the man. But the possibility that the things wrong with his mind disable him from deciding how to proceed in his case has been decisively refuted by overwhelming evidence.
It was striking, as I read the transcripts of the extensive proceedings in which Sagaste-gui participated, just how competent he was. He insisted on representing himself, because, as he explained, he wanted to control his defense to prevent his lawyer from bringing in “anti-death penalty advocates from Seattle.” He was given stand-by counsel to assist him, and he used standby counsel effectively and сonsulted frequently. He spoke appropriately, objected carefully and effectively to matters he wanted out, and made his positions and the reasons for them clear. His precision in making a limited waiver of his medical privilege, to allow access to some but not all of his medical history, showed his ability to conduct his own litigation.
At the preliminary hearing on November 21, 1995, Sagastegui expressed his desire to represent himself but the presiding judge appointed counsel anyway. When Sagaste-gui renewed his request for self-representation at his December 1 arraignment, the court expressed concern but allowed him to represent himself and made his counsel “stand-by” counsel instead. At hearings on December 15 and 18, the judge inquired again about his waiver of counsel and asked him numerous questions before determining that the waiver was knowing, voluntary, and intelligent.
On December 29, 1995, the state superior court judge referred Sagastegui for a 15 day evaluation at Eastern State Hospital before allowing him to represent himself and enter a plea. The hospital’s “sanity commission” determined that Sagastegui was competent to stand trial and noted in its report that Sagas-tegui said that “[h]е would rather be dead he thinks than spend his whole life in an 8x10 cell in prison.” He was acting “in a manner he believes is in his best interest.” In the discharge summary, Dr. Cressy noted that Sagastegui showed “no evidence whatsoever of any mental disorder of the nature of schizophrenia or bipolar disorder ... his major diagnosis appeared to be a marked antisocial personality disorder with narcissistic features ... we saw no evidence of depression.” In its letter to the judge, the “sanity commission” echoed that there was “no current evidence of thought or mood disorder or other major illness. Mr. Sagastegui. is clear and cogent in thinking, oriented in all spheres and goal directed in behavior.” The commission noted that he had explained his waiver of counsel “in terms of wanting ‘total control’ over decisions in his defense.” Charles Mcllroy, a psychologist on the “sanity commission” also noted that there was no evidence of any major mental illness but was a “soeiopathic individual who shows no remorse for the death of three people ... [who] freely admits that he enjoys killing and remains at extreme risk for further acts of violence ... he fully fits the diagnosis of antisocial personality disorder which I see as his primary diagnosis.” There is not much more significance to diagnoses of sociopathy or antisocial personality disorder than that the individual is an extraordinarily bad person, without conscience, empathy or remorse, ready to do the most horrible things to others for the slightest benefit to himself.
On March 11, 1996, the trial court held a hearing on Sagastegui’s request to waive his rights to a general appeal and to the assistance of counsel for any review of his sentence. The trial judge required Sagastegui to answеr a seven page questionnaire to ensure that he fully understood the consequences of his decision and then questioned him thoroughly about his answers .to each written question. Sagastegui even discussed the possibility of giving a limited waiver of his medical records and the scope of the waiver he was willing to make (he limited it to disclosing the medications that he was currently using). The transcript of the hearing shows that Sagastegui was cogent, interactive with the court, and understood what was occurring. He rephrased questions posed to him to be sure he understood what was being asked, he asked people to repeat things he missed the first time, he went off record a few times to confer with stand-by counsel, and he asked the court reporter if she could “pick up nods.” When asked by the court to explain why he didn’t want counsel, in his own words, Sagastegui said:
other than the fact that it’s a right of mine, umm, a lawyer would have a separate and different agenda and goal from what I’m trying to accomplish ... with me giving up the attorney and with me giving up the direct appeal and the fact that I want to go through this as fast as possible ... having a lawyer and going through the direct appeal wouldn’t change any way that I would want to run this thing, my appeal. So, I would really appreciate it if I wasn’t forced to have an attorney and wasn t forced to go through the direct appeal.
Over the objection of Sagastegui that the witnesses were not competent to render an expert opinion, the sentencing court heard the testimony of all three members of the “sanity commission” who had evaluated Sa-gastegui for 15 days and determined that he was competent. One of the members testified that Sagastegui told her that he wanted the death penalty because he “did not under any circumstances want to be locked up for the rest of his life.” Dr. Cressy testified that Sagastegui was capable of rational decision-making regarding the death penalty and noted that Sagastegui’s decision “made good sense to me. In fact, I agreed with him. I would do the same thing.”
At the same hearing, Sagastegui also objected to referring to the commission as the “sanity commission” as this was a competency hearing, not a sanity hearing, and he objected to the presentation of more than one of the members of the commission as cumulative and beyond the scope of his waiver of confidentiality. He аlso argued that evidence of abuse while he was a child did not matter because of the scope of the Supreme Court review that would be made. In response to the testimony that Sagastegui suffered no mental illness and observation of his interaction with the court, the state court judge found him to be competent and to have made a knowing, voluntary, and intelligent waiver of his rights. The judge also found that Sagastegui was capable of rational decision-making and that his decision seeking the death penalty was not a suicidal desire.
On April 30, 1998, the Supreme Court of Washington reviewed the trial court record and sealed psychological reports and also determined that Sagastegui made a knowing, voluntary, and intelligent waiver. State v. Sagastegui,
Appellant also argues that the psychiatric evaluation of Dr. David Grubb is meaningful evidence that Sagastegui is legally incompetent. Dr. Grubb evaluated Sagastegui prior to the state court competency hearing. Dr. Grubb gave as his impression that Sagaste-gui probably had bipolar disorder, but as of the time he examined him, Sagastegui “shows no psychosis, thought disorder, or paranoia ... would not seem to be in need of any medication.” Dr. Grubb was performing an initial mental health unit evaluation for the prison system, not evaluating Sagastegui for legal competency. All Dr. Grubb observed wrong with Sagastegui when he examined him was an inappropriate degree of “ironic cheerfulness.” Nowhere does Dr. Grubb suggest that Sagastegui was legally incompetent.
Appellant also argues that the May 8,1997 report of psychologist Gerry Weber and the May 7, 1998 report of psychologist Ronald Page support her claim that Sagastegui is incompetent. Dr. Weber’s evaluation had nothing to do with Sagastegui’s legal competency and did not speak to it. It was to determine “psychological factors which may have a bearing upon his request to live at the Special Housing Unit.” Dr. Weber said that Sagastegui was “oriented and displayed no signs of mental or emotional illness or of impaired contact with reality.” Dr. Weber told him that execution would be hard on Sagastegui’s family to which Sagastegui told him that “there is no umbilical cord attaching him to anyone else, that he must make the decisions which he feels are in his own best interests, and again said that his death would make for more compelling lessons to others.” Nothing in Dr. Weber’s report suggests incompetence.
Dr. Page’s Mаy 7, 1998 evaluation of Sa-gastegui was “to assess possible psychosis and suicide potential.” He noted that Sagas-tegui had been prescribed Depakote and Thorazine to “reportedly decrease his tendency to affective lability and promote sedation, enabling him to sleep 16 hours per day.” He concluded that he posed “no imminent threat of suicidal potential” and appeared alert, well-oriented, and attentive. In a supplement to his report, Dr. Page listed his diagnosis as atypical psychosis, now in remission; alcohol abuse, now in remission; and “personality disorder NOS.” Nowhere did Page suggest that Sagastegui was legally incompetent. The modifiers “remission” and “atypical” mean that whatever kind of psychosis Sagastegui might have, he was not showing symptoms when examined, and it was not one of the ordinary forms of psychosis.
The only recent evaluation of Sagastegui by any physician who has examined him is the report of Dr. Christian Hams on Sep-' tember 26, 1998, less than two weeks ago. Dr. Harris specifically examined Sagastegui to determine his “competency with regard to his continuing to represent himself as his own attorney.” Dr. Harris could “find no evidence that this man’s mentаl disorders are impacting his decision making in the legal processes involved in his pleading guilty and his decision not to appeal his death sentence.” His diagnosis was antisocial personality. He found no evidence of “any hallucinatory deficit or delusional thinking” and noted that “his mental disorders do not seem to be the basis for his decision to not appeal his upcoming execution.” Dr. Harris eon-
In a follow-up letter, Dr. Harris analyzed the reports of Dr. Grubb, Dr. Page, and Dr. Weber. Though he disagreed with some of their diagnostic impressions, what is more important is that Dr. Harris pointed out that none of their diagnostic impressions conflicted with the conclusion that Sagastegui was competent to make his own litigation decisions. Dr. Harris noted that the medical records showed no evidence that Sagastegui has “decompensated” or been “near psychosis.” Dr. Harris also disputed Dr. Grubb’s diagnosis of bipolar disоrder with depressive episodes, because there was no evidence of manic episodes. He concluded that Dr. Grubb’s impression of “explosive disorder, probably related to bipolar disorder” and post-traumatic stress disorder, was not supported by their observations and evaluations. Dr. Harris pointed out that antisocial personality disorder has “nothing to do with the issue of ‘competence’ to act as his own attorney.”
Dr. Harris is the only physician to have evaluated Sagastegui for legal competency since the “sanity commission” did so in 1996. Everything in Dr. Harris’ report is consistent with the commission’s earlier finding that Sagastegui was and is legally competent and that his mental disorders do not render him incompetent. I can find no evidence, “meaningful” in the restrictive sense of Demosthenes, Whitmore, Brewer, and Wells, to the contrary.
The majority suggest that we need another hearing, because the last one was 2 1/2 years ago. I do not see a basis for that in the authorities. Though Brewer mentioned that there had been a recent evidentiary hearing, it did not say that such a hearing was necessary. In this case, the district court gave careful consideration to all the medical reports, new and old, submitted by Sagastegui, and there is no apparеnt reason why an evidentiary hearing would differ from the argument and consideration of extensive written evidence in this case.
Appellant argues that because Sagastegui does not wish to avoid the death penalty, he must be incompetent. The conclusion does not follow. Sagastegui repeatedly told his doctors that his reason for wanting to allow the execution to proceed was to get out of prison. He showed an understanding of the significance, and fearsomeness, of execution. The manager of the correctional housing unit where Sagastegui is kept filed an affidavit that said when Sagastegui had learned of the Washington Supreme Court’s decision affirming his death sentence, Sagastegui “shook, his lip was quivering, and he commented about only having 120 days to live.” This shows that he understands and fears death. Sagastegui faces a choice between death and life imprisonment, and it is not evidence of craziness to the point of incompetence that a, 27 year old man facing this choice thinks death to be the less miserable alternative. His behavior reinforces the pri- or state court findings of competency. Dr. Cressy of the “sanity commission” testified that “I would dо the same thing.”
This is not to say we should let Sagastegui die because he wants to. He forfeited his right to do what he wants when he murdered three people. His death will not be suicide. It will be punishment for the anal rape, stabbing and drowning of a three year old boy for whom he was babysitting, the murder of the boy’s mother, and the murder of her friend. The state is entitled to execute him for these horrible crimes, and he is entitled to control his defense or the lack of it unless he is incompetent to do so.
. As I revise my draft, at 10:27 A.M. Alaska time Sunday October 11 (I wrote the rough draft yesterday afternoon), I have not been able to read the majority opinion, because it has not yet been received in my chambers. This case, like all eve of execution death penalty cases, suffers from the defects of deliberation caused by last-minuteness. We received faxes of the several reams of papers Thursday afternoon, read the record and precedents as best we could Friday, and heard oral argument and conferred Saturday morning. I indicated a tentative inclination to dissent, but said I might (as I have been before) be persuaded by the majority opinion and choose not to dissent. But the possibility of reading each others' views, articulated more carefully and extensively than is possible in conference, does not exist, because of last-minuteness. This morning when I came into chambers a fax was waiting for me from Judge Reinhardt, presiding, with a date line saying that it had been sent at 1:56 A.M., and that the majority opinion, with which he concurred, would be filed at noon Pacific time (11:00 A.M. my time). This requires me to dissent in ignorance of what the majority says, though I hope to receive and be able to skim the majority opinion before sending this dissent for filing. My dissent may therefore be unresponsive to whatever turns out to be in the majority opinion (which I have not yet seen), and deprives me of the opportunity to read the majority opinion carefully before deciding whether to dissent. It also deprives the majority of the opportunity to read my dissent before committing itself.
This failure of the deliberative process is a necessary consequence of the fact that the proposed next friend participation was not initiated at the end of 1995, when Sagastegui announced his intentions, but instead during the days immediately preceeding his execution.
The Supreme Court has held that "A court may consider the last-minute naturе of an application to stay execution in deciding whether to grant equitable relief.” Gomez v. United States District Court,
This case is a striking illustration of Zeno's Paradox in operation. The state trial court did everything right. So did the state supreme court. The process of doing everything right took time. Because it necessarily took time, there was an interval of time between the mental examinations the state courts considered and the scheduled execution. That opened the door, as it necessarily does in any death penalty case, to an affidavit from an expert witness that something had occurred, or might have occurred, in the time interval. There is no logical end to the process.