William J. Pawlyk v. Tana Wood

Basin, by we find that the district court BEAM, Circuit Judge, concurring. erred in determining that Basin over- I concur in only. the result charged WAPA more than the million $2.4 prior it refunded litigation. this We

also find that the district court erred

determining that Basin submitted the $2.4 in overcharges

million with the intent nec- essary for a False Claims Act violation. PAWLYK, William J. Petitioner- We therefore reverse the district court’s Appellant, judgment for Norbeck under the False Second, Claims Act. appeal Basin’s issue, amortization we find that 10/20 WOOD, Respondent-Appellee. Tana the district court erred when it found that No. 98-35026. Basin breached its contract with WAPA choosing ten-year period. amortization United States Court of Appeals, In view of our holding that Basin did not Ninth Circuit.

breach its contract with WAPA choos- Argued and Submitted Jan. ing year a ten period, amortization Nor- issue, beck’s claim of fraud on this which Filed Jan. dismissed, the district court no longer 2,May Amended

viable claim and is ordered dismissed.

Third, on the imputed issue of interest Norbeck,

cross-appealed by we affirm the

district court’s dismissal of this claim. Fi- producing reason, sin’s power, cost of WAPA's provi- variable. For this the contract basis, calculated on an annual which would sion relied on Government does not monthly have rendered adjust- the contract’s support" argument. its provision meaningless

ment in terms of that Filipovic,

Michael Assistant Federal Defender; Ellis, Public Jeff Seattle King County Assoc., Public Seattle, Defender Washington, for the petitioner-appellant. Thomas Young, J. Attorney Assistant General, Olympia, Washington, for the re- spondent-appellee. GRABER,

Before: CANBY and Circuit GEORGE,1 Judges, and Judge. District Opinion GEORGE; by Judge Dissent Judge CANBY ORDER AND AMENDED OPINION GEORGE, District Judge: ORDER Opinion The and Dissent January filed op. slip at 237 appearing are amended as follows: 1. At slip op. line 2: delete “at state expense”; second paragraph, 7: line “at change expense” state to “at the defendant’s expense”; replace the third paragraph with following: later, months Several Dr. retained Emanuel Tanay expense. defendant’s Tanay Dr. conducted videotaped interviews Pawlyk and reviewed the materials from the discovered reports of defense interviews with witnesses. Dr. Harris’ report was not furnished Dr. Tanay. Pawlyk personal When exhausted funds, requested and was granted public funds to continue se- curing Tanay’s psychiatric as- sistance. The defense listed Dr. Nevada, Lloyd 1. The George, Honorable D. sitting by designation. Senior Judge United States District for District of op. change At line 9: “nei- slip witness when it Tanay as a defense to “did not process” notice that ther violated due provided 10-12: process”; de- violate due lines delete assert an Pawlyk would required Washington provide “nor Rev.Code fense. See Wash. 4.2(c). 10.77.030; psy- R. funds to to retain a second § Wash. Cr. Nevertheless, Pawlyk re- chiatrist. “indi- change line 5: slip op. 2. At quested granted and was funds to retain defendants”; to “all gent defendants” psychiatrist.” second an effective “building line after full slip op. para- 6. At second defense,” following insert footnote: “In graph, change first sentence: of ac- development request for funds to granting Pawlyk’s largely to a has cess Tanay, Washing- continue to retain Dr. the context of occurred within right to receive Pawlyk’s ton met basic government has violat- whether of a to aid in the assistance indigent of an ed the defen- viability the determination of the of de- note, however, all dant. We fenses.” enjoy a constitutional defendants 842, slip op. 7. line 1: insert “State At of access to a re- that”; trial” before “court’s orders fine indigence. of wealth or gardless 2: continue” “funds” insert “to between upon are called to decide We and “to retain” and delete “either Dr. Pawlyk’s whether the State violated or”; Harris by unconstitutionally inter- rights full slip op. paragraph, 8. At first with either his or his coun- fering replace the last two sentences with the ability sel’s to access assistance following: psychiatrist. Accordingly, rely though upon we cases involv- however, argument, brought The is defendants, indigent we do so ing limitation, into doubt set they because are relevant Ake, forth in that a defendant has a proper question resolution of the constitutional to obtain the as- Pawlyk’s whether the State violated only single, indepen- sistance of not because rights, constitutional psychiatrist. dent that a Given Pawlyk eventually upon relied state does not violate due pay expenses State to by denying indigent defendant he re- second whom access a funds to second tained. trist, action that has the a state inhibiting effect of defense counsel slip op. paragraph, 3. At first full seeking the assistance of a line 2: insert “the” before “assistance.” second does not neces- 4. full slip op. para- At second sarily process right the due violate graph, change 2: “an appointed fine psychiatrist. to the assistance of psychiatrist” psychiatrist”; to “a line 9: slip op. paragraph, 9. At last line expense”; delete “at lines 9-12: state change 1: “also” to “then”. change granting sentence to: “In Paw- lyk securing slip funds to continue the ser- 10. At lines 6-9: delete op. Tanay “Pawlyk’s right vices of Dr. after his initial eval- to have the assistance of uation, Harris, any "the did impose court Dr. before ceased seek- assistance, could upon ing limitations evaluations of ei- Dr. Harris’ and Tanay Tanay.” ther Dr. Harris or Dr. obtain the assistance of throughout litigation” replace and slip 13. At op. first full paragraph, ability “defense counsel’s to make fine 2: change “counsel selected” to independent regarding decisions “counsel retained.” defense”; conduct of the insert the fol- slipAt op. last carryover para- lowing paragraph new before the first graph, sentence, first three change to: full paragraph: majority opinion emphasizes Our answer does not depend upon that the requires Constitution a criminal whether defendant one defense psychiatrist ap- to be indigent. or wealthy The result is pointed Ake, expense, state see the same whether the psychiatrists

or paid are at state or that, if Dr. Harris alone had been personal expense. Whether a de- so appointed, Pawlyk might well indigent fendant is wealthy, Es- have forced been to introduce Dr. established, telle and Buchanan testimony Harris’s or abandon his notice, placed counsel on that when insanity defense. argument That a defendant places his mental status assumes that insanity de- at issue presents favorable evi- fense could not have based been psychiatric dence from a evidence, other point that has he confidentiality waives as to eval- explored. event, never been any In uations unfavorable to his defense. the majority’s hypothetical misses point. op. 11. At slip insert the following slip new 15. At paragraph op. after the first full para- footnote fine 4: insert “of’ graph: before “reports.” 16. At slip op. change fine 6: “cho- Our comports result also with the help” sen to to “retained help”; sec- See, of decisions other e.g., circuits. ond full paragraph, fine change 5: “se- Lange v. Young, 869 F.2d lected to aid” to “retained to aid.” (7th Cir.1989); Noggle v. Mar shall, Cir. amendments, With these Judges Graber 1983); Granviel, supra; Edney; George and have voted to deny petition supra. cases, In each of these for rehearing. Judge Graber has voted to courts have acknowledged that a deny petition banc, rehearing for en rights defendant’s not violated are and Judge George has so recommended. by prosecution’s offer into evi Judge Canby grant has voted to peti- dence, in rebuttal to a mental status for rehearing tion and has recommended defense, psychiatric of unfavorable granting petition for rehearing en resulting evidence from the defen banc.

dant’s investigation viability of the The full court has been advised of that defense. petition rehearing for en A judge banc. Dissent, the court op. requested slip amended as vote on whether to follows: rehear the matter en banc. The en banc request failed majority to receive a 12. At slip op. first paragraph, line votes of the nonrecused judges active 6: delete “made by available the State” favor of en banc consideration. “retained”;

and replace with footnote “, last two fines: delete public The petition for rehearing petition and funds,”. for rehearing banc are en DENIED. later, the defense re- months Several

OPINION at the defen- Tanay Dr. Emanuel tained prisoner state William Washington Tanay Dr. conducted expense. dant’s court’s deni the district Pawlyk appeals J. re- Pawlyk and videotaped interviews corpus § 2254 habeas al his 28 U.S.C. materials discovered from viewed the his 1991 convictions challenging petition of defense in- reports and the prosecution murder aggravated two counts of for witnesses. Dr. Harris’ re- terviews with degree.2 first Tanay. Dr. not furnished to port was arrest, Pawlyk retained his Following funds, Pawlyk personal exhausted When one and then first and was examined public requested granted and was counsel Pawlyk as- When psychiatrist. a second Tanay’s Dr. securing to continue funds defense, he identified insanity serted an The defense listed psychiatric assistance. as a defense psychiatrists only one of a defense witness when it Tanay as that his constitu- Pawlyk argues witness. notice provided and rights tional defense. See insanity would assert compelled state when the were violated 10.77.030; § R. Wash. Cr. Wash. Rev.Code disclosure, jury, 4.2(c). performed the evaluation Meanwhile, King County Prosecutor as a wit- he had not identified trist whom In penalty. seek the death elected Pawlyk’s rights conclude ness. We notice of an response were not violated.3 moved to discover the the State all tests any psychological results of History Background and Procedural by anyone the defendant performed on Larry killed Pawlyk stabbed and Stu- copies appointing for of all court orders Sweiger July 1989. rholm and Debra experts public to examine the defendant at scene, attempted suicide on the Pawlyk Dr. Har- expense. The State also served medical assistance and police but secured testify subpoena ris with a and a sub- Washington The State of he recovered. reports. tecum The poena duces for his two charged Pawlyk aggra- with counts of quash subpoenas. moved to defense murder, potentially capi- first-degree vated arraign- Washington trial court denied the tal One week after offenses. ment, quash granted counsel retained Dr. G. motions to and State’s discovery request, at the ex- but did not allow discov- Christian Harris defendant’s ery “any written Pawlyk Dr. Harris interviewed as to letters between pense. Harris, and Dr. and Dr. county jail days some eleven after the defense counsel concerning not be interviewed stabbings reported findings his Harris shall any communications between Dr. Harris defense. appeal grant regard Pawlyk's filed after the the certificate with notice of was and Effec appeal, effective date of Antiterrorism Pawlyk on this con- issues raised (AEDPA). Penalty tive Death Act of 1996 A cluding regard that with to those issues he appealability is therefore re certificate of showing has made a “substantial of the denial quired for consideration of the issues he rais right,” 28 U.S.C. constitutional McDaniel, appeal. es on See Slack v. 529 2253(c)(2). § 146 L.Ed.2d 120 (2000). Pawlyk's ap 542 We treat notice of argu- all 3. We have considered peal application as an for a certificate of ments and conclude that the ones not dis- id.; Witek, appealability, see Schell opinion unpersuasive. in this are cussed (en banc), (9th Cir.2000) 1021 n. 4 ty and defense counsel.” The order directed of his actions on the date of the stab- the “State shall have access to the bings. In final argument, prosecutor discovery ... [Dr. Harris] materials used that, pointed out ninety percent of the in order to form basis for opinion.” his time, Dr. Harris is hired the defense The trial court ordered that “all informa- and “he looked hard for evidence of some provided pursuant tion to the State to this kind of mental illness that yield would order be utilized at trial the event result of insanity. hard, Dr. Harris looked testimony that expert there, why that’s he went and he found jury admitted before the in support of the nothing.” insanity defense at trial.” The case was jury submitted to the Pawlyk discretionary, filed a motion for (1) only three issues contested: insanity; interlocutory discovery review of the or- (2) (3) premeditation; and whether the two der. The granted by motion was killings part were of a common scheme or Washington Appeals Court of and the case plan, making “aggravated” them murders. Washington transferred to the Su- Pawlyk was convicted of both counts of preme Relying heavily Court. on its deci- aggravated first-degree murder and was Bonds, sion State v. 98 Wash.2d imprisonment sentenced to for his natural (1982), P.2d 1024 the Washington Supreme life. The Washington Appeals Court of Court affirmed the trial discovery court’s affirmed, and Washington order and remanded the case for trial. Court denied his petition for discretionary State v. Pawlyk, 115 Wash.2d review. (1990). P.2d trial, At Tanay testified for the On April Pawlyk a peti filed defense that Pawlyk had committed the tion for a corpus writ of habeas in federal stabbings while undergoing psychotic ep- pursuant § court to 28 U.S.C. 2254.4 The isode, during which he was unable dis- moved for summary judgment, State tinguish right wrong. The prosecu- granted district court the' motion and Harris, tion called Dr. who testified that petition. Pawlyk dismissed the ap now he had request examined at the of peals. We review de novo district that, the defense. Dr. Harris testified petition, court’s denial of the see Eslami killings, Pawlyk time of the understood White, nia v. the nature of his acts and was able to tell Cir.1998), and affirm. right from wrong. The State also called Dunner, Dr. David who had not examined Discussion testified,

Pawlyk, but who on the basis of a begin by looking review of the We to the videotapes Tanay’s princi of Dr. materials, ples purposes underlying interviews and of other and right that the to Pawlyk suffered from no mental the assistance of a psychiatrist, disease as that and could understand the nature and quali- right was secured the Supreme Court.5 Pawlyk petition 4. Because argue filed his before the 5. The State did not in district court or AEDPA, appeal provisions disposition effective date of in its brief on that the a of Pawlyk imper- favor of would requiring higher constitute an that Act standards of defer- application missible aof "new rule” in viola- ence to the State courts’ decisions do not Lane, 310, Teague tion of v. 489 U.S. 109 apply Pawlyk’s petition appeal. to or See (1989). S.Ct. 103 L.Ed.2d 334 320, 326, Murphy, Lindh v. 521 117 S.Ct. however, belatedly attempted, State to raise (1997). 138 481 L.Ed.2d argument by submitting issue before 822 elsewhere, will with the they that share right constitutional defendant’s

A criminal psychiatrist jury; they analyze arises the informa- judge or to the assistance and is process, of due concept plausible it draw gathered tion and from principle pro that upon founded the defendant’s mental conclusions about fundamental fairness. See guarantees cess condition, any and about the effects of 68, 76, Oklahoma, n. 470 U.S. Ake v. behavior; they offer disorder on (1985).6 1087, L.Ed.2d 53 As about how the defendant’s men- opinions defendants, fair fundamental to all applied have affected his be- might tal condition to they have “access ensures ness They question. at the time in havior integral building materials raw to probative questions ask of know Id. at 77. As noted defense.”7 effective psychiatrists opposing party’s Court, principle this Supreme interpret how to their answers. by “identifying the implemented fairness this obser- 105 S.Ct. 1087. From Id. adequate ap of an ‘basic tools ” that a of the essential functions vation be “requir[ing] that such tools peal’ and might upon per- be called to those defendants who cannot provided to drew litigation, Supreme Court form (quoting them.” Id. Britt pay for afford to its Carolina, 404 U.S. v. North (1971)). 30 L.Ed.2d that, without assistance of conclusion professional to conduct scope of the and nature Determinative examination on issues relevant psychia- the assistance of a right help determine whether the functions that trist are the basic viable, tes- defense is upon perform in a may be called trists timony, preparing and to assist places sanity or men- psychiat- a defendant at issue. As cross-examination of a State’s tal status of Court, witnesses, noted an inaccurate ric the risk of extremely facts, sanity resolution of issues is psychiatrists gather through pro- assistance, examination, interviews, the defen- high. With such fessional relies, citation, similarly supplemental pursuant derived from Ake and to Federal analysis. 28(j), upon a due Appellate Rule Procedure of Smith v. relied Moore, Cir.1998) (4th (in 137 F.3d late; voking Teague). That is too the issue is development right of access to a 7. The See, Bunnell, e.g., waived. Crandell v. largely has occurred within the (9th Cir.1998); 1215 n. 2 Duckett government context of whether the has violat- Godinez, 746 n. 6 Cir. indigent ed the of an defendant. We 1995). note, however, enjoy that all defendants to a constitutional access Although Pawlyk generally regardless indigence. We are ascribes the of wealth or upon whether the State vio- to assistance of a as a Sixth called to decide tool, right Supreme Pawlyk's rights by unconstitutionally and lated in- Amendment terfering opinion in Ake with either his or his counsel’s abili- Court’s establishes that psychiatrist. right process guarantee ty derives from the due to access assistance Accordingly, though rely upon in- Having fairness. concluded we cases of fundamental defendants, volving indigent we do so because that the defendant had and was denied his right psychiatrist's they proper process due to a assis- are relevant to the resolution tance, question Paw- Supreme Court it unneces- whether the State violated found lyk's rights, sary application constitutional not because to consider Sixth 87, upon pay eventually relied the State to Amendment. Id. at 105 S.Ct. 1087. Our McCormick, expenses he Smith v. of the second whom decision in 914 Cir.1990), (9th upon which retained. 1158-59

823 fairly present pert at least who would reach a dant is able conclusion favor- defendant). in jury, information to the able to the As enough suggested manner, Circuit, it to the Fourth in meaningful permit as “the decision Ake primarily reflects with ensuring make a sensible determination. concern a defendant access to a or Accordingly, an Id. at 105 S.Ct. 1087. psychologist, not with guaranteeing par- provided defendant must be indigent ticular substantive result.” Wilson v. competent psychiatrist “a who will conduct (4th Greene, Cir.1998); 155 F.3d 401 appropriate an examination and assist (“Under Harris, accord F.2d at 949 1516 evaluation, preparation, presentation Ake, the must provide indigent state an Id. of the defense.” 105 S.Ct. 1087. psychiatric defendant with access to assis- ensuring that defendants While ” guilt phase tance at the of a trial .... psychia have a to the assistance of (emphasis original)). trists, Supreme expressly Court has That guarantees a defen- right. limitations to that Per identified dant access to a single, competent psychia- significant the most limitation is that haps trist, guarantee but does not a favorable ensure to a defen state is inexorably leads the conclu- only “provision competent dant of one psychiatrist’s sion that a evaluation or Id. at 105 1087. psychiatrist.” S.Ct. adverse, may an opinion have but constitu- Further, indigent defendants do not have tionally effect on permissible, particular psychia “a constitutional to choose a mental that status defenses a defendant personal liking trist of his or to receive might present. wish to 83, 105 funds to hire his own.” Id. at S.Ct. If only psychiatrist provided makes Rather, process requires “due damaging an evaluation which is for a provide the defendant with the State particular indigent, unlike a independent psychiatrist.” of an assistance defendant, wealthy lacks the financial Tuggle v. Netherlands capacity psychiatrists. to retain other (1995). 283, 133 S.Ct. L.Ed.2d 251 Competent counsel would want to re- single, independent The limitation to a introducing frain from harmful testimo- given “[plsychi- is critical factfinder, still ny to the but could ask science, atry psy is not ... an exact court-appointed psychiatrist to con- disagree widely frequently chiatrists analysis help sider other lines of and to illness, on what constitutes mental on the prepare other forms of defense. Coun- appropriate diagnosis to be attached to might the use of the sel restrict given symptoms, behavior and on [and] evi- refuting trist to assistance other Ake, cure and treatment.” 470 U.S. at bearing capacity; dence mental previously 1087. As we have testimony might choose not to noted, guarantee “Ake does not access to a impairment mental on certain forms of will ‘who reach biased or all. ” v. favorable conclusions.’ Harris Vas McCormick, v. 914 F.2d Smith (9th Cir.1990) 1497, 1516-17 quez, 949 F.2d (9th Cir.1990). (quoting Lynaugh, 881 F.2d Granviel Cir.1989)); Although Court rec see also ognized psychiatrists that a function of Dugger, Henderson v. (11th Cir.1991) testify, to access (rejecting exercising & n. 23 the no testimony, the process appointed psychiatrist’s tion that Ake or the due the either consider whether requires appointment indigent clause the of an ex- defendant must in testimony helpful pro will be harmful or While the defendant has a due the right indepen cess to the assistance of an Due light psychiatrist’s the evaluation. of psychiatrist, Tuggle, dent appointed when the process is not violated “by evaluation ‘neutral’ testimony will be harmful to psychiatrist’s court psychiatrist satisfy does due defendant, process due re- because Smith, process.” 914 F.2d at 1158-59. appointed psychiatrist that the quires By in psychi “neutral” we meant Smith a defendant to be available to the offer his merely atrist that was not court-appoint as due does not testimony. Just ed, who but was to disclose his evaluation, guarantee pro- a favorable sitting evaluation to the court as fact-find appointed that the guarantee cess does not Further, Smith, er. in the trial court testimony will be favorable. psychiatrist’s rather than the defendant determined the Further, right as defendant lacks scope psychiatrist’s duties. In so of a appointment second the trial doing, court denied the defendant trist, the defendant’s recourse such situ- psychiatrist perform access to the to may asserting ations be to refrain from psychiatrist core functions for which a defenses that will result in the introduction must be made available to the defendant. testimony psychiatrist of harmful from the First, as the trial court determined the to the fact-finder. evaluation, scope of psychiatrist’s defendant precluded obtaining Similarly, psychiatrists provide also the assistance of the in evalu determining aid “in whether a defense Second, ating other mental status issues. based on mental condition is warranted the defendant and his counsel were denied particular the defendant’s circumstances.” any opportunity the viability to discuss Fazzini, United States particular appointed defenses with the (7th Cir.1989). In exercising opportu light In his evaluation. nity consult with appointed psychia to deed, the disclosure of the psychi neutral trist, a defendant must consider and take report precluded atrist’s the court psychiatrist’s into account the evaluation. defense from deciding particular whether Smith, recognized As we if psychia claims, along with the underlying evi unfavorable, trist’s evaluation is permis dence, presented should be fact- decide, sible may result be “to Third, finder. duties the neutral assistance, psychiatrist’s not to court, psychiatrist, as defined the trial particular the court claims of mental im did not include assistance to the defendant pairment.” 914 F.2d at 1157. That the Fourth, in preparing a defense. the de appointed psychiatrist may opin be of the deprived fendant was aid of the ion particular that a defense is not viable appointed rebutting the process. does not violate due state’s evidence. The defendant did not the defendant is to have access to the have the benefit of a to assist psychiatrist’s opinion, rather than to have in interpreting psychiatrist’s the neutral opinion. access to a favorable Significant preparing or an examination of ly, given the defendant’s limited providing the neutral testi a single psychiatrist, access he lacks the defendant, mony if appropriate. To the appointment of a psychia second appointment the result of the of the “neu trist when the originally appointed psychi tral psychiatrist” was not the constitution atrist against viability advises ally psychiatrist. mandated access to a particular Rather, defense. consequence the functional was to

825 receiving report psychia the defendant’s communication to a defendant to limit the report regarding a was also trist his mental status is often that fact-finder, only meaningful ultimate while the evidence available to disclosed to the or receiving prosecution defendant from either the the defendant precluding the n regarding mental A inter- the defendant’s state. assistance the by may defendant acting upon report. deprive or the “his silence the preting State of the effective means it has funda- underlying principle the With controverting proof his on an issue that he right scope mental fairness and the Estelle, interjected into the case.” single, competent to the assistance of a 465, Thus, at 1866. “if a S.Ct. mind, we turn to other requests such an defendant evaluation pro- has guidance Supreme that the Court evidence, then, presents psychiatric at issues sur- regarding vided constitutional least, very this prosecution may rebut status defenses. We note rounding mental presentation with evidence from the re Ake, that, relied Supreme Court ports of examination that defen principle of fundamental fairness upon Buchanan, requested.” dant at 483 U.S. could, if ap- that the defendant assure 422-23, 107 2906. S.Ct. present evidence to propriate, obtain and In jury sanity. relevant to the issue of Further, Buchanan and Estelle es matter, however, Pawlyk seeks present tablish that the Sixth Amendment is not interpret to the assistance of a violated the introduction of evidence withholding to facilitate evi- regarding psychiatrist’s a evaluation re jury dence from the relevant to the insani- quested by the defendant. inAs Buchan ty placed defense he at issue. Rather than an, requests psychiatric when counsel a jury enabling “the to make its most accu- can “[i]t examination be assumed-and on the rate determination of truth allegations contrary- there are no Ake, them,” issue before 470 U.S. at that with peti consulted a Pawlyk requests resolu- S.Ct. tioner about the nature of this examina tion that increase the risk that the would tion.” Id. at 107 S.Ct. At the 2906. Dr., jury will reach an inaccurate determination requested time counsel Harris to ex insanity issues. This increased risk of both and Buchanan Pawlyk, amine Estelle decision, certainly placed an not counsel on notice that the although inaccurate deter- us, minative of the issue now before evaluation could be used against holding to a mental status defense. Es factor counsels rebuttal telle, 1866; Bu the disclosure of Dr. Harris’ evaluation 451 U.S. S.Ct. chanan, 425, 107 process guarantee the due of fun- 483 U.S. at violated damental fairness. matter, In we cannot recog also conclude that the State violated Court has a'psychiatrist by compel of access to nized that a defendant who asserts men of Dr. Harris’ evalua ling tal status defense lacks a Fifth Amend disclosure Dr. Harris’ evalua remain silent tion. The disclosure of regarding ment having preclude Pawlyk tion did not placed mental status that he has issue. independent psychiatrist perform an Kentucky, Buchanan v. 483 U.S. See 422-23, scope and nature of which 107 S.Ct. 97 L.Ed.2d 336 (1987); Smith, In solely by the defense. Estelle v. 451 U.S. was determined (1981). Ake, deed, Paw- although L.Ed.2d obtaining sepa- lyk the nature of an had the two Given benefit independent Pawlyk’s from two ton met to right rate basic receive the evaluations granting Pawlyk In funds assistance of a psychiatrists. to aid the securing viability the services of Dr. determination of the of defenses. to continue discussing particular initial the court In defenses with Dr. Tanay after his any upon Tanay, Pawlyk’s limitations the counsel had the impose did not benefit of Dr. having opposing of either Harris or Dr. received an viewpoint evaluations ability scope psychiatrist, notwithstanding The to determine the from another Tanay. guaranteed by and nature of the evaluations remained that this benefit is not the addition, In Pawlyk process right with and his counsel. to the assistance of Pawlyk psychiatrist. at the retained and was eval- time he Tanay, enjoy uated Dr. continued to that, Smith We im- recognized “[t]o any the to decide whether to assert such a full pose condition as disclosure require defense that would the disclosure away efficacy” takes of the basic tool of of the psychiatrists. of the evaluations access to a single, competent psychiatrist. Pawlyk 914 F.2d at 1159. does not identi- The record also establishes that record, fy, any in the part of the State trial infringe upon Pawlyk’s did not State court’s orders that can be construed as ability gain to access to a for imposing, as a condition the State’s determining viability assistance in granting of funds to continue Dr. to retain mental subsequent status defenses Tanay, a full condition of disclosure of Dr. compelled of Dr. disclosure Harris’ evalua Further, Harris’ evaluation. the com- Pawlyk tion. the opportunity had to con pelled disclosure of Dr. Harris’ evaluation independent psychiatrists sult with two re was not tantamount appointing psychi- garding potential Although defenses. Dr. disclosure, upon atrist full condition of have held an may opinion Harris adverse consequence but was the later regarding viability insanity de insanity decision to assert an defense. As preferred ultimately presented fense noted, in Bu- Court instructs by Pawlyk, this did not violate due pro chanan both that a defendant’s assertion Further, cess. in compelling the disclo of an insanity defense waives his sure of Dr. Harris’ evaluation after Paw remain regarding silent his mental state lyk’s defense, assertion of an can compel disclo- court expressly excluded the disclosure of of a defense-requested psychiatric sure ex- any communications between defense amination. Thus, counsel and Dr. Harris. enjoyed both a full to discuss the We also cannot conclude that

viability particular defenses with Dr. compelled disclosure of Harris’ Harris, and continued enjoy the full impermissibly evaluation diminished the confidentiality of all communications be efficacy Pawlyk’s use of the basic tool of tween Dr. Harris and defense counsel re a psychiatrist. access to Pawlyk argues garding viability of defenses even after compelled disclosure of a former asserting insanity defense. The com defense-retained when anoth pelled regarded only disclosure Dr. Harris’ testifies, er defense-retained Pawlyk, evaluation of resulting from impermissibly attorney’s interferes with an communication between Pawlyk and Dr. ability to independent make An decisions. Harris. attorney, Pawlyk suggests, will be discour

In granting Pawlyk’s request aged for funds procuring psychiatrists to continue to retain Dr. Tanay, Washing- contrasting views if one of matter, testify the defendant Buchanan sub- for compelled trists can be however, is argument, prosecution. psychological reports mitted some limitation, set into doubt brought his mental status jury support Ake, that a defendant has consti- forth report did not submit the that the but to obtain the assistance tutional prosecution held the could Supreme Court psychiatrist. single, independent a only jury the in That place before rebuttal. violate due that a state does not Given Pawlyk requested counsel for Dr. Harris’ defendant by denying indigent viability examination to evaluate the of the a funds to access second insanity subsequently pre- defense that he inhibiting that has the effect of state action jury sented to the reinforces the conclu- the seeking counsel from assis- anticipate that he would have to its sion not of a second does tance in possible by prosecutor use the rebuttal. to necessarily process right violate the due psychiatrist. of a the assistance Dr. As Harris’ evaluation was not is then Pawlyk’s argument foreclosed disclosed until after assertion of Buchanan, Supreme in which the Court defense, compelled disclo his prosecutor’s disclosure to the upheld sure could not have his in inhibited counsel jury report defense-requested8 of a of a consulting psychiatrists obtaining two examination, though examination even their regarding viability par advice purpose for the of es requested was not ticular mental status defenses. Counsel a mental status The tablishing defense. that, anticipate, at the time it in Es held after its decision Court telle, anticipate defense counsel must Dr. requested Harris’ that the jury can disclose to the prosecution Dr. prosecution might be able to disclose psychiatric examinations re reports of in rebuttal to an Harris’ evaluation insani in quested by the defendant rebuttal to a ty compelled The disclosure defense. did Buchanan, defense. mental status efficacy limit of Paw impinge not or footnote, By U.S. at 107 S.Ct. 2906. lyk’s access to to assist that, recognized Court when trial, presenta or the preparation sta place a defendant does not his mental evidence, or of a gov tion of the rebuttal issue, request competen tus at he could Tanay only ernment witness. Dr. not re cy examination and exercise his Pawlyk, but mained available regarding his mental status remain silent Tanay his and used Dr. exercised by submitting to the examination on condi recognize these functions. We perform applied tion that the results would be sole that the disclosure of Harris’ evalua ly purpose determining compe for the testimony and his in rebuttal weak tion tency. Id. at n. 107 S.Ct. 2906. Pawlyk’s insanity ened but Nevertheless, places when “a defendant regarding Pawlyk’s strength of the facts mental status at issue and thus relies his At is mental status is not issue. issue upon reports psychological examina unconstitutionally in whether the State tions, that the results of expect he should ability to fringed upon defense counsel’s reports may prosecu such be used independent regarding make decisions present tor rebuttal.” Id. Similar to the Buchanan, disagree Pawlyk’s suggestion as in Smith and 8. We critical issue case, distinguishable pros- was the disclosure to Buchanan is because the examination, psychiatric report requested the ultimate fact-finder ecutor also report. copy requested the defendant. thus had received a holding the defense. We conclude that of Edney, parenthetical conduct of our Smith, the answer is “no.” and the Washington court’s limita- tion that the prosecution could use Dr. answer does depend upon Our Harris expert testimony rebut sub- wealthy a criminal defendant is or whether by Pawlyk mitted are consistent with Bu- is the indigent. The result same whether explanation chanan’s that the psychiatrists paid or are may introduce the testimony of a former expense. state or personal Whether de defense-retained in rebuttal. indigent wealthy, fendant Estelle and comports Our result also with the deci established, placed Buchanan See, sions of other circuits. e.g., Lange v. notice, that when a places defendant his Cir.1989); Young, 869 F.2d 1013 mental at and presents status issue favor Marshall, Noggle v. 1414 psychiatric evidence a able evalua (6th Cir.1983); Granviel, supra; Edney; tion, confidentiality he waives as to evalua supra. cases, In each of these the courts tions unfavorable to his defense. acknowledged have that a defendant’s Pawlyk argues also that the dis rights are not prosecution’s violated closure of Dr. Harris’ evaluation violated evidence, offer into in rebuttal to a mental our statement in Smith that “a defendant’s defense, status psychiatric unfavorable psychiatrist communication with her is resulting evidence from the defendant’s in protected up point to the of testimonial use vestigation of the viability of that defense. of that communication.” 914 F.2d at 1160. conclude, therefore, We that the judg- Again, argument ignores the limitation ment of the district court is Ake, created in and fundamental to our Smith, AFFIRMED. decision in that a defendant has the right to a only single, independent psychia CANBY, Judge, Circuit dissenting: trist. in making Even our statement Smith, signaled govern we that it a did With all respect due to majority defendant’s regarding opinion, communications his I dissent I because believe that mental to formerly psy Pawlyk’s status retained due rights were violated chiatrist, Harris, by such as Dr. citing when introduced the testi- Smith, United States ex rel Edney Harris, v. 425 mony of Dr. whom the defense had F.Supp. (E.D.N.Y.1976), 1054-55 selected as a defense psychiatrist but (2d Cir.1977) aff'd, (table). 556 F.2d 556 chose not to offer as a my witness. In As we noted parenthetically, Edney view, a psychiatrist retained to assist the “defendant protection against waived pros defense is not to be treated as a run-of- ecution’s witness; use in rebuttal of one-time de the-mill process requires rec- fense expert when defendant ognition introduced position his or her as a member testimony on mental state from different of the defense team.1 Defense counsel Smith, expert.” 1160. The should be able employ the services of 1. The psychiatrist role of the defense report may is to be constitutionally be made avail- neutral, distinguished sharply from that of a prosecution. able to the See Buchanan v. court-appointed psychiatrist. In cases where 402, 423-24, Kentucky, 483 U.S. 107 S.Ct. asserted, insanity an Washington defense is (1987). 97 L.Ed.2d prosecu- The provides appointment law for the court of two not, however, tion did follow that route in qualified experts, ap- one of whom must be Instead, Pawlyk’s subpoenaed case. it proved by prosecuting attorney, to exam- psychiatrist that had retained to assist ine the report defendant and to the court. in his defense. 10.77.060(l)(a). § See Wash. Rev.Code Such doubt, therefore, an There can be little that preparing insani- psychiatrist such a Supreme in Ake the psy- Court viewed running the risk of defense without ty integral part chiatrist as an of the defense involuntarily creating evidence for then-justice Indeed, team. Rehnquist dis- prosecution. ground on the partly psy- sented “[a] clearly portrayed Court attorney, job chiatrist is not an it whose is psychiatrist in Ake the role of defense advocate.” Id. 105 S.Ct. 1087 Oklahoma, v. J., (Rehnquist, dissenting). (1985), which held L.Ed.2d 53 against background It was this that our sanity likely whose indigent defendant McCormick, court decided Smith significant factor at trial was entitled be (9th Cir.1990), F.2d 1153 the rationale of at state Ake expense. to a Smith, which controls In case. said: requested the defendant a state-appointed in pre- assist the defense [Wjithout the assistance of a a case senting mitigation penalty professional to conduct a examination phase penalty of a death case. Instead of help relevant issues appointing to aid the de- whether the determine fense, appointed the state court a neutral viable, testimony, to and to present is to to psychiatrist report directly the court. preparing assist the cross-examina- procedure pro- We held that this failed to witnesses, tion psychiatric of State’s vide with due of law.2 See Smith the risk of an inaccurate resolution of reasoning id. at 1158-59. of our is Some sanity extremely high. issues is highly Pawlyk’s case. relevant to We ob- Ake, 82, 105 1087. Need 470 U.S. at S.Ct. psychiatrist, served that a defense rather say, less to several of these functions are than a neutral was essential In often essential to an effective defense. would want “[competent because counsel deed, furnishing the Court considered the introducing harmful testi- to refrain in the psychiatrist step of a as one more factfinder, mony still ask to the but could providing the defendant with process of court-appointed psychiatrist to consid- “ adequate an defense or the ‘basic tools of analysis help pre- of to er other lines ” 77, (quoting at 105 1087 appeal,’ id. S.Ct. Id. at 1159. pare other forms of defense.” Carolina, 404 Britt v. North U.S. Indeed, “might pres- choose not to (1971)), 92 S.Ct. 30 L.Ed.2d 400 testimony ent on certain forms mental —a furnishing process that included the important at all.” Id. Most impairment defendants, see at indigent counsel to id. we stated: present purposes, for v. (citing 105 1087 Wainw Gideon coun- We further note that since defense 792, 9 right, 372 U.S. 83 S.Ct. psy- predict sel cannot the outcome (1963)). psychiatrist L.Ed.2d 799 Thus a court-ap- grant chiatric to because must be furnished to the defense pointed psychiatric assistance “may be crucial his or her assistance well condition automatic disclosure full compro- ability impermissibly to the defendant’s to marshal his the fact finder 80, 105 an de- presentation mises defense.” Id. at S.Ct. 1087. effective See, e.g., v. Blackb similarly contrary conclusion. Glass 2. The Tenth Circuit has concluded urn, (5th Cir.1986); partisan 791 F.2d 1169 that Ake establishes See, Crews, Dugger, 1315-16 expert. e.g., Henderson United States v. Cir.1991), (10th Cir.1986). modified, 968 F.2d 1070 The Fifth and Circuits, however, (11th Cir.1992). Eleventh have reached him fense, by depriving “adequate of an Third Circuit that a defendant’s communi- fairly protected up [his] claims cation with her opportunity [Ake, adversary system.” point to the of testimonial use of that within the (internal added).3 (emphasis communication.” Id. quo U.S. at 105 S.Ct. omitted).] tation marks and citation pronouncements apply These all to Paw- Competent psychiatric pre assistance lyk’s case. Defense counsel retained Dr. paring the defense is a “basic tool” that Harris as a but elect- provided must to the defense. Id. To be ed not to have him testify. The effect of impose such a full condition as disclo compelling testify the State’s Dr. Harris to away efficacy sure tool. takes as a witness was to impose upon Pawlyk’s very counsel the condition added). (emphasis Id. at 1159 We went on that Alvarez and held to Smith be quote length at from the decision of the impermissible with prepa- interference Alvarez, Third Circuit United States v. ration of a defense. Part of the defense (3d Cir.1975), 519 F.2d 1036 which held team compelled part become communications to a defense prosecution team. precedent Our to be privileged: permit procedure. Smith does not The issue here is whether a defense majority opinion involving potential emphasizes counsel in a case requires only Constitution defense of must run the risk one defense appointed to be psychiatric expert that a he state ex- whom hires Ake, pense, him see respect to advise defen- that, if Dr. may dant’s mental condition Harris alone had be forced to appointed, been so involuntary government Pawlyk might be an well have witness. would, been forced to The effect of such a rule introduce Dr. Harris’s testi- we think, mony insanity have the or abandon his inevitable effect of de- defense. argument That priving defendants of the effective assumes that in- assis- sanity tance of in such defense could not have counsel cases.... Dis- been based evidence, on other attorney point closures made to the a that cannot be has never explored. event, been In proof any majori- used to furnish in govern- ty’s hypothetical ment’s point. case. Disclosures made misses the I to the As just attorney’s explained, have expert equally should be un- the constitutional evil available, that Smith and Alvarez placed at least until he is labored to avoid was the the witness interference with attorney stand. The must defense counsel’s representation be free an effective by to make informed caused judgment with threat that respect might unwillingly to the best pro- course for the duce prosecution. defense without the inhibition of evidence for the That creat- ing potential government interference witness. occurred here.

Smith, Alvarez, 914 F.2d at 1160 (quoting majority opinion takes the view 1046-47). 519 F.2d at Having quoted this necessarily the defense Dr. made Alvarez, passages other we then Harris prosecution available to the when it flatly in agree said Smith: “We put with the on an insanity presented defense and suggests quoted The State that this state- ions. all-or-nothing Rather than an announce disagree. rule, ment is dictum. I Our court in adopted limiting principle Smith out- Smith was to decide the extent to lined in integral The limitation is Alvarez. prosecution which the compel could disclo- the Smith decision. defense-selected, sure of a A/ce-expert’sopin- in meeting its burden of Tanay support government testimony of Dr. Alvarez, Kentucky, (empha- that Buchanan v. at 1047 proof.” it. It states added). in using 483 U.S. The State’s action sis Smith, (1987), and Estelle v. L.Ed.2d 336 cre- prosecution Dr. Harris as witness 454, 465, 101 451 U.S. ef- precisely impermissible ates such an (1981), Pawlyk’s coun- placed L.Ed.2d fect; it ruling under our Smith denied Pawlyk submitted notice that when sel on of law. due Dr. Har- examination psychiatric to a I have recognize that some other circuits ris, prose- could be used the results insanity ruled that assertion of defense insanity defense. in rebuttal of an cution opens prosecutorial the door to use of however, Smith, and Estelle v. Buchanan Lange expert’s report. defense See with the to remain respectively dealt (7th Young, 869 F.2d 1012-14 Cir. by a neu- questioning in the face of silent 1989); Marshall, Noggle v. 706 F.2d tral, court-appointed (6th Cir.1983); 1415-17 Granviel v. Es counsel to be with the of defendant’s Cir.1981). telle, The fact at such an interview. 682-83 out, can make use of such prosecution sug that the points As the State these cases insanity once an de- psychiatrists, neutral gest scope psychiatrist- asserted, says nothing regard with fense is is not a constitutional is patient privilege to use non- prosecution’s to the circuits, however, we Unlike those sue. when such a testifying subject precedential effect of are Moreover, our deci- defense is asserted.4 decision, clearly which did view our Smith states that a defendant’s sion Smith it in the issue as constitutional and decided with a defense communication Moreover, all of the defendant. favor until the from the protected is circuits, to these other I find respect use of that defense makes “testimonial I am position persuasive. more Smith’s Permitting the communication.” State Marshall, in this supported view Justice testimony merely because use Dr. Harris’s Ake, who dissented from the the author of defense raised the issue deci denial of review of the Sixth Circuit’s Tanay utterly inconsistent called sion Granviel: Smith, and of Alva- with the rationale provision Ake mandates the It the de- upon puts rez which it relies. part will be of the defense trist who creating prosecution fense risk interests the defendant’s team and serve it Dr. Harris employs witness when system. adversarial in the context of our As Alvarez of the defense. preparation To allow the to enlist stated, inhib- attorney should not be “[t]he help efforts to secure psychiatrist’s experts, consulting from one or more ited deprive conviction would views, defendant’s by the fear possibly conflicting with protections indigent defendant of may assisting be doing that in so he ion). implicit Although agree hold- Pawlyk’s I problematic to hold that It is also Washington majority that the ing of the here placed notice that Dr. Har counsel was ruling majority testimony might prosecu Court's be used ris’s pro- tion, surprising due as to violate discovery rules seemed was not so when the State’s sufficiently independently, unex- it was require witnesses the cess disclosure Pawlyk's cannot be reports pected that that it defense intended to call or charged that Dr. Harris’s testimo- with notice to introduce into evidence. See intended 457, 481-87, not called ny could be used if he was Pawlyk, v. 115 Wash.2d State 338, (1990) (dissenting opin- defense. 351-55 800 P.2d State, adversarial affords time, that our all within a reasonable initi- Pawlyk.5 defendants. ates a retrial of other Texas, 963, 963, Granviel v. 495 U.S. (1990) 2577, (Mar 109 L.Ed.2d 758

S.Ct.

shall, J., dissenting denial of certiora

ri). conclude, therefore, that,

I under Alee Smith,

and our decision in violat- State process rights ed when the I, Doe, John DOE Jane and John Doe prosecution compelled the rebuttal testi- II, Plaintiffs-Appellants, Harris, mony of Dr. a psychiatrist who had help been retained to prepare v. but who had not testified or Ronald O. OTTE and Bruce M. supplied otherwise evidence at the trial. Botelho, Defendants- Appellees.

The error was not harmless. Dr. Harris only prosecution was the expert who had No. 99-35845. Pawlyk, examined and his rebuttal testi mony bywas far the most forceful on the United States Appeals, Court of disputed crucial Ninth Pawlyk’s mental Circuit. issue— state at the time he committed the of Argued Aug. Submitted fenses, The fact Harris orig inally retained to aid Filed April defense was ex ploited by the State in argument. In my

view, Dr. Harris’s testimony “‘had sub injurious

stantial and effect or influence in

determining jury’s verdict.’” Brecht Abrahamson,

v. 507 U.S. (1993) 123 L.Ed.2d (quot

ing States, Kotteakos v. United 328 U.S. 66 S.Ct. 90 L.Ed. 1557

(1946)). least, At very we should be

left “grave with a doubt as to harmless

ness,” requiring us to overturn the convic

tion. McAninch, O’Neal 513 U.S. (1995). 130 L.Ed.2d 947 reasons,

For these I dissent from the of majority,

decision and would reverse

the district court’s judgment and remand

with instructions to issue the writ unless agree I majority oth- aggravating factor of a "common scheme er claims lack merit. The plan” law; trial court's permitted by insani- slate it did not ty whole, jury, instructions to the taken as a relieve the proof beyond State of its burden of incorrect, were misleading doubt, neither nor con- pre- reasonable nor did it create a tradictory. The trial court’s sumption guilt. definition

Case Details

Case Name: William J. Pawlyk v. Tana Wood

Court Name: Court of Appeals for the Ninth Circuit

Date Published: May 2, 2001

Citation: 248 F.3d 815

Docket Number: 98-35026

Court Abbreviation: 9th Cir.