Volume One Masthead
Maria Sole Palma
LIKE OIL AND WATER:
Medical and Legal Competency in Capital Appeal Waivers
(cite as “1 CALIF.CRIM.L.REV. 2”; pincite using paragraph numbers)
by Michelle C. Goldbach*
I. Introduction: Like Oil and Water
¶1 They called him the Volunteer, because he was exactly that. He was a murderer, and he wanted the State of Ohio to execute him for his crime. He told the jury that sentenced him that prison would do him no good, and that if he were given a prison term which would allow him to be released eventually, he would kill again. He asked that jury to sentence him to death. He conditioned his cooperation with police on their agreement to push for the death sentence in his case.
¶2 Doctors, mental health professionals, social workers, and people who had known him for years confirmed that he was severely mentally ill. They described him as having been sexually and emotionally abused, subject to hallucinations, prone to extreme isolationism and withdrawal, troubled, and disturbed. He had been suicidal since childhood. He was diagnosed as a schizophrenic, as schizotypal, as having mixed personality disorder with borderline and antisocial features. He was found legally competent to waive his discretionary appeals and was executed by the State of Ohio on February 19, 1999, the first capital defendant to be executed in that state since 1963. His name was Wilford Berry.
¶3 The Berry case displays capital punishment in a light that reveals many of the problems associated with executing the mentally ill1. Even more striking are the systemic flaws that appear when, as here, a mentally ill capital defendant volunteers for his own execution. The legal system is ill-equipped to deal with a capital defendant who, appearing legally competent to waive his or her appeals, volunteers to be executed. The law does not contain a definition of legal competency2 that can be reconciled with the reality of mental illness. Legal determinations of competency inquire only whether the person has the capacity to appreciate his or her position and whether his or her choice to abandon further appeals is rational. While medical science has long recognized that the mentally ill do not relate to the world nor do they reason in the same way that “normal” people do, the law is blind to such distinctions. Like a mixture of oil and water, medical knowledge and legal reasoning remain separate entities in a criminal justice system that necessarily deals with both.
¶4 The law does not concern itself with the practical meaning of mental illness as applied to a capital defendant’s legal competency, even in the face of medical evidence suggesting that such considerations are of great importance in understanding a mentally ill person’s capacity for rational thought. Legal and medical assessments of competency are based on different concerns. The legal assessment determines whether a defendant has professed to know and understand his decision, while the medical assessment determines whether the person is capable of making a “knowing and intelligent” decision at all. In effect, the two determinations are entirely separate. The law does not examine the effect of mental illness on decision-making. Medicine requires a more thorough inspection into the consequences of mental illness on a person’s decision-making capabilities. There is, then, a gap between legal competency and medical competency3 that has not been bridged.
¶5 This gap is widening as greater numbers of capital defendants, like Berry, are found legally competent to waive their appeals and volunteer for execution. Although the statistics are not clear on how many voluntary executions involve mentally ill capital defendants, the numbers indicate that there has been a steady increase in voluntary executions since executions resumed in the United States after the Furman decision. Between 1977 and 1989, there were 115 executions in the United States, fourteen of which involved defendants who were resisting attempts to prevent their executions at the time they were put to death.4 Between 1990 and 1995, 23 of the 187 inmates executed in the United States gave up their appeals.5 The number of voluntary executions in the five years between 1990 and 1995 was nearly twice the number in the 12 years prior to 1989. In addition, as of March 26, 1999, out of 40 scheduled executions for 1999, five of the 40 capital defendants were listed as volunteers on an unofficial list of pending executions.6 Although statistics are unavailable of the number of mentally ill volunteers, as the number of volunteers increases, so does the possibility that some of those volunteers are mentally ill.
¶6 There is a strong need for reliability in the adjudication of capital cases. “Reliability,” throughout this article, is defined as confidence that the death sentence was rightly and justly imposed. In the U.S., appeals in the criminal justice system are not constitutionally mandated, and in most criminal cases there is no required appeal. However, in capital cases, a statutory direct appeal process is automatic and non-waivable in all but one U.S. state. The mandatory status of these direct appeals supports the conclusion that a capital case is in a category all its own. In a capital case, at least in part because of the irrevocable consequences of the imposition of a death sentence, the State has an important enough interest in the reliability of the conviction that defendants must go through at least one round of appeals. The reliability of both the conviction and appeal of a “normal” capital defendant depends upon strict attention to the required direct appeal procedure.
¶7 If a capital case is of such grave importance that even a “normal” capital defendant must have his death sentence upheld through a round of mandatory appeals in order to be executed, there is a much greater need for reliability where a mentally ill capital defendant is concerned. The mandatory direct appeals are required for the purpose of establishing confidence in the verdict and in the sentence.
¶8 Due to the nature of mental illness, the convictions of mentally ill capital defendants are inherently less reliable than those of defendants who are not mentally ill. The reliability of such a conviction is reduced because there is no way to be entirely certain that the mentally ill capital defendant understands the entire proceeding against him in the way that a “normal” capital defendant would. In short, the manner in which mental illness affects the thought processes of a mentally ill person can alter their understanding and decision-making skills to the point where a waiver obtained from that person could not be “knowing,” “intelligent,” or “voluntary,” as the rest of the world understands those words. The reduced reliability of the capital conviction argues for increased, rather than decreased, attention to procedural safeguards in cases which involve mentally ill capital defendants. Where mentally ill capital defendants are concerned, there is a need for a more extensive safeguard than that provided by the direct appeal process. This is especially true in light of the considerable chances of reversal or commutation on appeal, chances that disappear entirely if discretionary appeals are waived.
¶9 The question of whether the death penalty should exist at all, or whether it should ever be applied to mentally ill capital defendants, is beyond the scope of this article. The focus here is on capital appeal waivers and the procedural protections they afford for all capital defendants, especially those who are mentally ill. The conviction of a mentally ill capital defendant is, due to the nature of mental illness, less reliable than the conviction of a capital defendant in good mental health. The process by which courts make a determination of legal competency to waive discretionary capital appeals does nothing to increase confidence in the verdict or sentence of a mentally ill capital defendant because it does not take the effects of the mental illness into account at all.
¶10 While it is possible that the mandatory appeal process may allow the State to attain the necessary degree of reliability for a capital defendant in good mental health, this process is insufficient to dispel the lack of reliability surrounding the conviction of a mentally ill capital defendant. Too much of the reality of mental illness and its effects on the mentally ill are simply ignored by the law, regardless of the possible consequences that the mental illness has on the defendant’s ability to execute a legally competent waiver.
¶11 To attain that degree of reliability, there should be a strong presumption against allowing all capital defendants to waive their discretionary appeals. The presumption should be rebuttable by a showing, with clear and convincing evidence, that the defendant is not mentally ill. The rebuttal should be made by the defendant as part of the appeal waiver process, and only if the clear and convincing evidence standard is met should a capital defendant be allowed to waive his or her discretionary appeals.
¶12 Section II sets out a brief history of the death penalty in the United States. It also summarizes the trial and appellate procedure for capital cases, both in general and in the Berry case, for illustrative purposes. Section III details the standards for legal and mental competency and details the two approaches to competency as taken in the Berry case. Section IV argues for the existence of a presumption against the waiver of discretionary capital appeals, and Section V sets out the conclusions reached.
II. Death Penalty Litigation: Something to Contain the Mixture
¶13 In order to discuss proposed changes to the current capital scheme, it is necessary to set out the scheme, briefly, as it exists today. The death penalty has always existed in some form in America, from colonial times to the present. In the past several decades, the amount of capital litigation has grown as defendants began to challenge the constitutionality of the death penalty. The increased amount of death penalty litigation resulted in the setting of legal standards governing the imposition of the death penalty, including standards treating legal competency to waive discretionary appeals. Requirements, both statutory and constitutional, were created for capital trials and appeals, and the appellate process became more complex. A basic understanding of the history and the law governing the prosecution of capital cases is a necessary framework for a discussion of the waiver of appeals in capital cases.
¶14 The death penalty in America has existed since colonial times, although it did not exist in all of the colonies, and the number of capital crimes varied by colony.7 From the colonial period through the 1960’s, capital punishment was imposed in America. The constitutionality of the death penalty was never legally questioned, until a dissenting opinion by Justice Goldberg from the Supreme Court’s holding in Rudolph v. Alabama, a 1963 rape case where the defendant had been sentenced to death.8 After Rudolph, in the late 1960’s, a large number of cases challenging the constitutionality of capital punishment were filed, leading to an implied moratorium on the imposition of the death penalty.9
¶15 Later, in Furman v. Georgia, the Supreme Court struck down the manner of imposition of the death penalty as unconstitutional.10 In his concurring opinion, Justice Douglas noted that "[f]inally there is evidence that the imposition of the death sentence and the exercise of dispensing power by the courts and the executive follow discriminatory patterns. The death sentence is disproportionately imposed and carried out on the poor, the Negro, and the members of unpopular groups."11 Because of the arbitrary and discriminatory manner in which the death penalty was applied, in the cases before the Court, the application of the death penalty was determined to be cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution.12 After Furman, the Supreme Court began to refine the constitutionality of different aspects of the death penalty,13 such as striking down both statutes which mandated a sentence of death for certain crimes14 and statutes which left juries without sufficient guidance to choose between a death sentence and life without parole.15
¶16 The effect of the Court’s decisions was to make death sentences rationally reviewable by the appellate courts.16 Although rational review of the sentence was the goal of the death penalty decisions, rational review did not extend to the waiver of discretionary appeals, as evidenced by the 1977 case of Gilmore v. Utah. Gilmore was the first capital defendant to be executed in the post-Furman era; he was also a volunteer.17
¶17 In mentioning Gary Gilmore, it is necessary to speak to the development of standard for legal competency to waive appeals in capital cases. The initial standard was set forth in Rees v. Peyton. In determining whether Rees was legally competent to waive his appeals, the Supreme Court held that the determinative factors were threefold: "[h]e [must] have capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand…[he must not be] suffering from a mental disease, disorder or defect which may substantially affect his capacity in the premises."18 In other words, defendants who wish to be found legally competent to waive their appeals in capital cases must be able to understand their position and to choose rationally to forego their appeals. They must not be suffering from a mental disease, defect, or disorder that would prevent them from understanding their position or rationally choosing to abandon their appeals.
¶18 Gilmore’s case altered the standard for legal competency to waive discretionary appeals in capital cases. In Gilmore, the Supreme Court stated that Gilmore had “knowingly and intelligently”19 waived his rights to any appeal after the mandatory direct appeal process. The significance of the “mental disease or defect” portion of the Rees standard was thereby diminished. The resultant standard for legal competency to waive appeals was equivalent of the standard for waiver of other legal rights such as the waiver of Miranda rights and the waiver of jury trial rights.20
¶19 While legal standards for capital cases were generally heightened as a result of the increased amount of capital litigation after Rudolph, the standard for legal competency to waive discretionary capital appeals did not receive the same attention. From a standard set in Rees which was at least nominally more demanding, the standard for legal competency to waive discretionary capital appeals was, after Gilmore, whether the waiver was knowing and intelligently made.
¶20 Just as the Court laid down the federal constitutional rules for capital trials and appeals, state courts and legislatures have passed state statutory and constitutional requirements for capital trials and appeals. Following is a brief discussion of the basic elements of capital trials in the United States.
B. Requirements of Capital Trials in the United States
¶21 Capital trials in the United States are generally state court trials. As such, they are governed by a variety of state laws and constitutional provisions. While these laws differ, there are certain minimum requirements that must be met for a state (or the federal government) to prosecute a capital case against a defendant.
¶22 Initially, the trial must be bifurcated, divided into both guilt and penalty phases.21 The guilt phase is a trial on the merits, in which the jury determines whether the crime has been committed. Like any other criminal trial, the State must prove all of the elements of the crime beyond a reasonable doubt. The defense must either attempt to prevent the State from attaining that burden of proof, or present an affirmative defense that, while not negating the proof of the elements of the crime, excuses the defendant’s behavior and results in an acquittal.
¶23 In the event of a conviction during the guilt phase of the trial, the jury or the judge considers aggravating and mitigating factors, and must return a verdict of life without parole, or death.22 Although this is a general rule, not all states require an aggravation-vs.-mitigation analysis. In the aggravation-vs.-mitigation analysis, the death sentence may only be pronounced if it is found that aggravating factors outweigh mitigating factors.23 Where juries make this determination, most states, but not all, require unanimity.24
¶24 Capital trials are complex proceedings, governed by many laws and constitutional provisions. The procedures are perhaps best illustrated by reference to a particular case. The complexity of a capital trial is obvious in an examination of the Berry case.
C. The Capital Trial of Wilford Berry
¶25 Wilford Berry was tried for aggravated murder, a capital offense. His trial provides an excellent example of the types of issues associated with capital cases both generally and specifically with regard to mentally ill capital defendants. Berry was not willing to help save himself from the death penalty. The problems that his unwillingness created for his defense counsel were compounded by the effects of mental illness on his behavior.
¶26 The trial of Wilford Berry was held in the Cuyahoga County, Ohio, Court of Common Pleas and, as required by Ohio law, bifurcated into guilt and mitigation (penalty) phases. Berry was examined by the defense’s court-appointed clinical psychologist and found to have been sane at the time of the killing and legally competent to stand trial.25 Prior to trial, due to this finding, counsel never raised the issue of legal competency or of the defense of not guilty by reason of insanity.26 During the guilt phase it was established that the victim, Charles Mitroff, died as a result of gunshot wounds to his head and chest.27 Testimony from police and correctional officers established that Berry was initially stopped while driving a newly spray-painted black van and after his arrest began to brag about having committed a murder to other inmates.28 Other evidence was presented connecting Berry to the commission of the crime, and he was found guilty by a jury of aggravated murder with firearm and death penalty specifications, as well as being found guilty of aggravated robbery and aggravated burglary.29
¶27 On the morning of the mitigation phase, Berry’s attorney moved for a new trial, on the basis of newly discovered evidence, to pursue a plea of not guilty by reason of insanity.30 That morning, the attorney learned that Berry’s sister and her child had nearly been hit by the victim’s delivery truck, and that this incident had occurred sometime before Berry began his employment at the victim’s bakery.31 Apparently, Berry had originally withheld this information from his attorney because the attorney “didn’t ask the right questions,”32 and was, on the morning of the mitigation phase, presenting this as his motivation for killing the victim.33
¶28 Berry’s conduct in withholding this information from his attorney exemplifies the problems that mental illness can pose in a “volunteer” situation. Because he wanted the death penalty, and had in fact been asking for the death penalty since a few days after his arrest,34 Berry had no incentive to assist his attorney in any way. He did not cooperate with his attorney, he had been suicidal since childhood, and he was asking the State to execute him. All of these factors serve to highlight the uncertainty created at trial whether Berry’s conviction was a reliable adjudication of his guilt. The legal competency issues brought out later in Berry’s case merely exacerbate the reliability issue, and highlight the importance of having some safeguard to protect the reliability of the adjudication. Berry’s failure to cooperate in the face of the death penalty led his attorney to raise the issue of competence.
¶29 Counsel claimed that Berry’s withholding of information about his motive constituted evidence of his incompetence, and possible evidence of insanity, and so moved for a new trial.35 The trial court rejected the defense motion for a new trial.36 On appeal, the denial of the motion was affirmed because the new information could reasonably have been seen as a “last-minute attempt by the defendant to somehow justify his actions.”37 Further, the appellate court noted that Berry had been examined twice by a psychiatrist and found legally competent to stand trial,38 in spite of evidence tending to show that he was mentally ill.
¶30 In the mitigation phase of the trial, Berry’s mother and sister testified to his long history of physical, emotional, and mental problems. A psychologist who had known Berry when he was younger testified that Berry had schizoid symptoms, was “seriously severely unstable,” and elaborated that Berry’s condition was somewhere between a normal thought process and schizophrenia when the psychologist had evaluated Berry in 1978,39 eleven years before the murder. Other witnesses testified about Berry’s troubled youth and the abuse he had allegedly suffered in his childhood.40 There was testimony that Berry’s father had been mentally ill, and that Berry’s problems probably had a genetic component.41
¶31 The significant amount of information regarding Berry’s mental illness that was before the jury in the mitigation phase lessens the reliability of the adjudication. The failure of the trial court to grant a hearing on Berry’s legal competency affected not only the verdict and sentence but also the subsequent appeals process. With the propounding of the question of Berry’s mental condition, a question that was never answered at the trial stage, a decrease in the reliability of the verdict and sentence is automatic. In view of Berry’s unwillingness to assist his attorney in his defense, the failure to examine his questionable mental state more closely prevented the legal system from arriving at the most reliable verdict possible. With the failure of the trial court to grant a legal competency hearing mid-trial, the possibility of full consideration by the jury of the issue of Berry’s mental state as anything but an excuse for his crime was permanently foreclosed.
¶32 It is also important to note that during the mitigation phase of his trial, Berry gave an unsworn statement before the jury.42 In his statement, Berry discussed childhood beatings he had received from his mother.43 He also related incidents in which other boys beat him and burnt him with a cigarette on one occasion. He told of his nightmares, sexual molestations he had been the victim of, and his health problems.44 He told the jury that he had been raped in a Texas prison, and that he had cut his arms there when he had learned that a friend was dying.45 Finally, he told the jury to vote for the death penalty because he would not receive any help for his mental problems while in jail,46 and because he would kill again if he were released from prison.47
¶33 At the end of the mitigation phase, the jury recommended the death penalty. The trial court accepted the recommendation and sentenced Wilford Berry to death.48
¶34 Berry’s trial was illustrative of the problems that arise when volunteers for execution are on trial, especially when there is a question of legal competency. The reliability of the verdict and sentence are dangerously compromised when legal competency issues are not explored in detail at trial, particularly when the capital defendant has chosen to volunteer for execution.
D. The Capital Appeals Process
¶35 In capital cases, appeals are one device to ensure reliability in the verdict and sentence. Notably, the direct appeal process is mandatory in most states. Direct appeals function to interpose at least one chance at appellate review between the trial and the execution. Discretionary appeals, both state and federal, follow the direct appeal process, and are, as the term implies, waivable by capital defendants. With each appellate review of the sentence, the degree of reliability of that particular conviction and sentence increases as a greater number of courts review the sentence for error and affirm.
¶36 After the conviction and death sentence, a capital case moves into the courts of appeals. As in any other criminal case, the appeals in capital cases are not mandated by the federal constitution. A strong public policy in favor of attaining reliability in the convictions of capital defendants has led states to create a statutory direct appeal process in capital cases which, in all but one state, is mandatory.49 In most cases, direct appeals in capital cases are not waivable.50 Two states do allow capital defendants to waive appeal of their conviction but not of their sentence, some states require review of the sentence but not of the conviction, and others require automatic review of both sentence and conviction.51
¶37 Direct state appeals are the initial appellate procedure. Capital defendants are, on direct appeal, entitled to the appointment of counsel.52 These appeals involve challenges to trial court findings, and are also called sentence reviews. They are limited to the trial record. That is, only issues which are raised and preserved in the trial court are eligible to be addressed on direct appeal. In some states, there is an automatic appeal to the highest state court; in other states, the direct appeal first moves to an intermediate appellate court, and from there on to the highest state court. In most states, these appeals cannot be waived by defendants.
¶38 The importance of reliability, protected by the appellate process in capital cases, is underscored by the substantial chances of reversal on appeal. Of the 5678 capital defendants who have entered prison under a sentence of death since 1977, in the modern era of capital punishment in America, 231353, or 40%, were removed from their death sentences by appellate court decisions and reviews, commutations, or death by other causes. It is unclear how many of these individuals were re-tried or re-sentenced to death, but the large percentage of commutations and reversals on appeal is significant when viewed in the context of voluntary executions. Volunteers waive more than mere appeals; they waive a substantial opportunity to block their execution. In so doing, they also waive their right to test the reliability of their verdict and sentence after direct appeal.
¶39 The mandatory direct appeal process is but the first stage of the appellate safeguard for reliability. Once the direct appeals process is exhausted, capital appeals enter the discretionary appeals stage.
¶40 One type of discretionary appeal is the postconviction, or state habeas corpus, proceeding. Generally, these appeals involve constitutional challenges under state or federal law, and are prosecuted in the state courts, with possible discretionary review to the U.S. Supreme Court.54 In these appeals, the defendant has the opportunity to appeal issues not treated on direct appeal, such as ineffective assistance of counsel and prosecutorial misconduct. Postconviction proceedings require a certain amount of evidence dehors the trial record in order for the capital defendant to obtain a hearing in the trial court. In these appeals, however, because they are discretionary, the capital defendant is not entitled to appointed counsel. Once a hearing is granted, the trial court will allow the capital defendant to offer evidence in support of his or her constitutional claims. As with any other appeal, the result of the postconviction proceeding in the trial court may be appealed to both the intermediate and ultimate appellate courts of the state.
¶41 The third type of capital appeal is a federal habeas corpus proceeding. A federal habeas case can only be brought once all state appeals are exhausted.55 These appeals are brought in federal district court, and, as with postconviction relief, a capital defendant is not entitled to appointed counsel in filing a federal habeas claim. Often in “volunteer cases,” federal habeas proceedings are brought by a “next friend”—that is, by someone who brings a claim on behalf of the capital defendant, when that defendant cannot or will not bring the claim him- or herself. In the case of a next friend petition, the defendant, who is still in custody, remains the real party in interest.56 Habeas claims can be appealed to federal Courts of Appeals and to the U.S. Supreme Court. Federal court review of state capital cases result in a high reversal percentage; between 1976 and 1990, between 40% and 60% of capital cases were reversed by federal courts.57 Again, these numbers must be considered in light of the fact that the eventual outcomes of the cases which were reversed is not known; however, the percentages are significant of the rights that may be given up by capital defendants who waive their discretionary appeals.
¶42 The capital appeal process is more than a formality; it represents a significant chance for a capital defendant to have his conviction reversed on appeal. Just as importantly, the appeal process helps to safeguard the reliability of the conviction and sentence, which is crucial in capital cases. The Berry case highlights the importance of appellate review, especially in view of the legal competency issues involved.
E. The Capital Appeals Process in the Berry Case
¶43 The appeals in the Berry case showcase the importance of the appellate process for a capital defendant, both overall and for the determination of legal competency issues. Berry’s own actions in volunteering for execution undermined efforts to ensure that his conviction and sentence were reliable. While in state courts, on direct appeal, Berry’s conviction was affirmed, the federal habeas claim brought by Berry’s mother and sister resulted in a stay of execution. The federal district court felt that Berry’s legal competency had been determined according to an incorrect application of the legal competency standard, and ordered a stay of execution while the state Supreme Court reconsidered the issue. Without the next friend habeas claim filed on his behalf, Berry might have been executed without a correct determination of his legal competency to waive his discretionary appeals.
¶44 There is some question whether Berry attempted to waive his direct appeals. Although no court record indicates an official request by Berry to waive his direct appeals, it is widely agreed that Berry repeatedly asked for the death penalty from just after his arrest until his actual execution.58 In any event, Berry’s case went through the direct appeal stage according to Ohio law. As discussed above, the appellate process in capital cases is designed to ensure some minimum level of reliability in capital adjudications. The state interest in this reliability is important enough for states to pursue the mandatory direct appeals even though a capital defendant wishes to waive appeals from the outset.
¶45 In Wilford Berry’s case, his conviction and sentence were appealed first to the Cuyahoga County, Ohio, Court of Appeals for Ohio’s 8th Appellate District. In that appeal, Berry’s lawyers raised thirty-two assignments of error challenging a large number of trial court findings of fact and conclusions of law.59 The Court of Appeals held that the aggravating circumstances in Berry's case outweighed the mitigating circumstances; that the death sentence was neither excessive nor disproportionate to the penalty imposed in similar cases; that the evidence supported the findings of the judge and jury; and that the trial judge properly weighed the aggravating circumstances against the mitigating circumstances.60
¶46 As far as Berry’s legal competency was concerned, the Court of Appeals rejected the defense contention that Berry’s legal competency should have been examined before the mitigation phase, when the evidence as to motive was discovered.61 According to the Court of Appeals, since Berry had twice been determined to be legally competent to stand trial, the trial court’s denial of yet another legal competency evaluation was not an abuse of discretion.62
¶47 Berry’s case was, as part of the mandatory direct appeal process, next appealed to the Supreme Court of Ohio.63 That Court noted that “mental illness is not the equivalent of legal incompetency.”64 Berry’s attorney claimed that the trial court’s failure to hold a mid-trial legal competency hearing violated Berry’s constitutional rights.65 The Court held that the motive evidence discovered just before the mitigation phase of the trial began was insufficient to require the trial court to hold a legal competency hearing at that time. The Court so held in spite of the fact that this evidence led the defense psychiatrist to suggest that Berry might not be sane enough to proceed with the trial.66
¶48 According to the Supreme Court of Ohio, there were not “sufficient indicia of [legal] incompetency” to entitle Berry to a mid-trial [legal] competency hearing.67 The Court also held that Berry had failed to show ineffective assistance of counsel merely because counsel had failed to raise the issue of legal competency before trial. That Court went on to hold that Berry’s death sentence was appropriate and proportional to his crime. At the end of the mandatory appeal process, both levels of Ohio appellate courts affirmed Berry’s death sentence.
¶49 Berry’s verdict was, at some minimum level, reliable in that it survived the direct appeal process. However, Berry’s decision to waive further appeals foreclosed the ability of those conducting his defense to challenge the determinations of the courts on direct appeal, to give further reliability to the adjudication. Berry’s mental state, as well as his status as a volunteer, made the level of reliability achieved in the direct appeal process insufficient.
¶50 Wilford Berry waived his discretionary appeals. On receiving notice of the waiver, the State filed a motion with the Supreme Court of Ohio to determine Berry’s legal competency to waive his further appeals, and to have a psychiatric expert appointed for purposes of the hearing.68 When the State filed the motion to schedule the legal competency hearing, Berry filed a motion to uphold his death sentence, a motion to strike, and a motion to dismiss the Ohio Public Defender’s Office pro se.69
¶51 The Supreme Court of Ohio granted the motions to appoint a psychiatric expert and to schedule a legal competency hearing in the trial court, and denied all other motions.70 The case was remanded to the trial court for the appointment of the expert and the scheduling of the hearing.71 The expert was appointed and told what standard he was to apply in order to determine Berry’s legal competency. The Court of Common Pleas was directed to hold an evidentiary hearing to establish Berry’s legal competency and the validity of his waiver of appeals.72
¶52 At the legal competency hearing, the trial court considered the testimony of three psychiatric experts in finding that Berry was legally competent to waive his discretionary appeals, and that his waiver was valid. The decision was appealed to the Ohio Supreme Court, which affirmed the trial court’s findings based upon the reports of the court-appointed psychiatrists.73 Despite the fact that Berry had previously been diagnosed with “schizophrenia,” “a psychotic disorder not otherwise specified,” a “schizotypal disorder,” and testimony that he may have been subject to brief psychotic reactions under stress, the Ohio Supreme court held that Berry was indeed legally competent to waive his appeals.74 Berry, according to the Court, was legally competent “in that he has the capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation,” and could not be forced to prosecute a collateral postconviction review.75
¶53 A federal habeas claim was brought on behalf of Wilford Berry by his mother and sister as “next friends” that moved the United States District Court for the Southern District of Ohio, Eastern Division for a stay of execution and evidentiary hearing on the issue of legal competency to waive federal postconviction relief.76 The habeas action was filed approximately one week before Berry’s scheduled execution date of March 3, 1998.77 The District Court held that it was not bound by the state courts’ determinations of legal competency, as the Supreme Court of Ohio had interpreted the Rees v. Peyton legal competency standard contrarily, and unreasonably applied that standard in Berry’s case.78
¶54 In Rees, the United States Supreme Court set a standard for legal competency that is two-pronged. First, a defendant must have capacity to appreciate his position and make a rational choice with respect to abandoning further litigation.79 Second, if the defendant has a mental disease, disorder, or defect that may substantially affect his capacity in the premises, he will be adjudged legally incompetent.80 The District Court found that the court-appointed psychiatrists’ testimony was improperly restricted to the first prong of Rees v. Peyton and that the doctors’ determinations that Berry was legally competent were made solely within the erroneous guidelines which the Supreme Court of Ohio had laid out for them.81 According to the District Court, the next friends had established enough meaningful evidence of legal incompetency to justify an evidentiary hearing on the issue of whether Berry was legally competent to abandon all further appeals.82
¶55 This Court finds that Petitioners have established enough evidence of incompetency to justify an evidentiary hearing to determine whether Berry is in fact [legally]competent under Rees to abandon any further litigation of his Constitutional claims. This Court also finds that it is not bound under 28 U.S.C. §2254 by the state court’s finding of a [legally] competent waiver due to that court’s contrary interpretation, incorrect modification, and unreasonable application of clearly established Federal law as determined…in Rees.83
¶56 The opinion went on to add that “because of the obviously irreversible nature of the death penalty…this Court has resolved all doubts as to legal issues in favor of a stay,”84 the District Court ordered an evidentiary hearing and stayed Berry’s execution.
¶57 The State appealed the District Court decision to the United States Court of Appeals, Sixth Circuit.85 The Sixth Circuit held that the relevant inquiry in the habeas claim was whether the inmate, Berry, had the capacity to litigate his own interests—that is, whether Berry’s waiver was "knowing, intelligent, and voluntary."86 The Sixth circuit also held that, because the Ohio Supreme Court had not misapplied the Rees standard, the findings of the state courts regarding Berry’s legal competency were binding on the federal courts.87
¶58 After the Sixth Circuit upheld the legal competency determination made by the Ohio state courts, Berry’s mother and sister appealed the Sixth Circuit decision to the United States Supreme Court, which denied certiorari on November 11, 1998.88 An additional appeal requesting a stay of execution was submitted to the Ohio Supreme Court, the District Court for the Southern District of Ohio, and the Sixth Circuit Court of Appeals, all of which denied the stay.89 The stay was then submitted to Justice Stevens and was denied on February 19, 1999.90 A clemency appeal to the governor of Ohio was denied on February 19, 1999, the same day that Wilford Berry was ultimately executed. His execution occurred less than one year after the Sixth Circuit lifted his stay of execution, after Berry voluntarily waived his rights to further postconviction review.
¶59 In the Berry case, as is typical for capital appeals, the capital defendant’s desire to waive appeals was outweighed by the state interest in ensuring reliability through the direct appeal process. For a time, Berry’s interest in waiving his discretionary appeals was also outweighed by the interest of the “next friends”—his mother and sister—due to their attack on the state court legal competency determination. In the end, Berry’s desire to be executed won out, but not before the reliability of his verdict and sentence had been increased through appellate review.
III. Standards of Competency: Oil and Water
¶60 As in the Berry case, legal competency to waive appeals is often an issue with regard to execution volunteers. In fact, legal competency is a concept that permeates the criminal justice system overall. Legal competency is a determination that focuses on whether a defendant can meet a certain legal standard, such as “knowing and intelligent decision” or “ability to assist in his own defense,” without inquiring whether the defendant is incapable, due to some mental disorder or defect, of truly meeting that standard. Medical competency, in comparison, takes into consideration a defendant’s mental status and assesses the effect any disorder or disease may have on the defendant’s decision-making process.
A. Legal Competency: Pouring in the Oil
¶61 In criminal cases generally, and specifically in capital cases, legal competency is a framework for the conduct of both trial and appeals. Legal competency determinations are a device to ensure the reliability of the verdict and sentence. Perhaps obviously, allowing a legally incompetent defendant to stand trial or plead guilty would not resolve questions whether that defendant’s inability to understand prevented him or her from assisting in the conduct of a defense, or from accurately waiving his or her right to a jury trial. In such a situation, the correctness and “justness” of the final determination would be in serious doubt. The Berry case is an excellent example of the manner in which legal competency can become a factor vital to the disposition of a capital case.
1. Legal Competency in Criminal Cases Generally
¶62 In criminal cases, legal competency is a recurring theme. The gravity of the consequences of a criminal prosecution requires reliability, both in the conviction and in the sentence received. Since legal competency, or lack thereof, can substantially affect the degree of reliability achieved from a criminal prosecution, it is an important part of a criminal case from beginning to end. Initially, a criminal defendant must be legally competent to commit a crime.91 Criminal defendants must also be legally competent to stand trial,92 to plead guilty93, to be sentenced94, and to waive post-sentencing review in a capital case95. Finally, in capital cases, a defendant must be legally competent to be executed.96
¶63 Finding a defendant legally competent to commit a crime is the first step in the long trail that is a criminal case. For a defendant to be considered legally competent to commit a crime, the defendant must be able to form the requisite mental intent, or mens rea, to have performed a criminal act. Since the mens rea is an element of the crime, if the defendant is not legally competent to form the mens rea, that element cannot be proven beyond a reasonable doubt, and the defendant cannot be convicted of the crime.97 If the defendant cannot be convicted of the crime, there is questionable value in trying the defendant.
¶64 Similarly, if a defendant cannot participate in his or her own defense, that person is not legally competent to stand trial. The U.S. Supreme Court has said, in Dusky v. United States, that a defendant’s legal competency to stand trial is judged by “whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and whether he has a rational as well as factual understanding of the proceedings against him.”98 In Godinez v. Moran, the Court held that where a psychiatrist found a defendant had certain basic abilities, the defendant was legally competent to stand trial. Specifically, the defendant was able to understand what he had done and what would occur at trial. His mental state was such that he
[was legally] competent in that he knew the nature and quality of his acts, had the capacity to determine right from wrong; that he understands the nature of the criminal charges against him and is able to assist in his defense of such charges, or against the pronouncement of the judgment thereafter; that he knows the consequences of entering a plea of guilty to the charges; and that he can intelligently and knowingly waive his constitutional right to assistance of an attorney99
¶65 There are, therefore, certain minimum requirements for a defendant to be considered legally competent to stand trial. If a defendant has no understanding of the proceedings against him or her, and cannot assist his or her attorney in effecting his or her defense, it would be unfair to prosecute that person; the odds would be stacked too strongly against the defendant from the start. There are obvious reasons an attorney would need a defendant to participate in his or her defense; witnesses must be called, the defense theory of the case must be developed. If a defendant cannot assist his or her attorney in those basic functions, then, arguably, a major element of the adversarial criminal justice system has been taken away. Without the potential for an effective defense, the prosecution of a criminal case is simply unfair.
¶66 A defendant must also be legally competent to plead guilty, and the standard for pleading guilty is the same as the standard for defendants who plead not guilty—that is, for defendants who stand trial.100 The defendant must have a rational understanding of the proceedings against him. The Court found no reason for drawing a distinction between standing trial and pleading guilty, because
even assuming that there is some meaningful distinction between the capacity for “reasoned choice” and a “rational understanding” of the proceedings, we reject the notion that competence to plead guilty to or to waive the right to counsel must be measured by a standard that is higher (or even different from) the Dusky standard.101
¶67 As far as legal competency is concerned, then, there is absolutely no difference between competency to stand trial, and competency not to stand trial. These two determinations apply throughout all criminal cases.
¶68 Obviously, the standard for legal competency to stand trial or plead guilty is not a difficult one to meet. In fact, these standards may be low enough to create questions of whether a verdict is reliable (that is, just and correct) where a defendant nominally meets the standard but is not truly able to appreciate his or her circumstances. The question of nominal versus actual competency is not contemplated by the legal standard, and will be addressed in the medical competency section, below.
2. Legal Competency in Capital Cases
¶69 Although legal competency is generally important in any criminal case, it takes on special significance in capital cases. Because being a capital defendant means that a person is in peril of his or her life, the need for reliability in the final outcome of the case is compelling. Legal competency determinations in this setting are crucial to a just and correct verdict and sentence. The finality of a death sentence mandates a reliable conviction and sentence.
¶70 Once a conviction is handed down, a defendant must be found legally competent to waive postconviction review in a capital case.102 The Rees Court appeared to set a higher standard for legal competency to waive appeals than the standard applied in subsequent Supreme Court decisions. In Rees, the Court held that a capital defendant must have capacity to appreciate his position and make a rational choice with respect to abandoning further litigation, and must not have a mental disease, disorder, or defect which may substantially affect his capacity.103 In order to determine Rees’ legal competency, the Court directed the trial court to have psychiatric and medical examinations. In practice, however, the standard is largely the same as that for other waivers: the waiver of appeal must be knowing, intelligent, and voluntary, and there must be evidence that the decision to waive appeals was rational.104 As discussed above, this standard of knowing, intelligent, and voluntary waiver also applies to the waiver of Miranda rights, the right to jury trial, and the cluster of rights surrounding the jury trial, such as confrontation rights and the right to be convicted by proof beyond a reasonable doubt.
¶71 Lastly, a capital defendant must be found legally competent to be executed.105 Like the analysis in other legal competency determinations, the mere presence of a mental illness or defect is not enough to prevent a capital defendant from being executed, unless the defendant was legally incompetent to stand trial in the first instance. In Ford v. Wainwright, the Supreme Court stated that a question of legal competency for execution hinged on whether the defendant was sane and whether the defendant appreciated that he was about to be executed and why. The determination of legal competency to be executed, because it could lead directly to the defendant’s execution, required careful consideration. In fact,
the ascertainment of a prisoner's sanity as a predicate to lawful execution calls for no less stringent standards than those demanded in any other aspect of a capital proceeding …That need is greater still because the ultimate decision will turn on the finding of a single fact, not on a range of equitable considerations.106
¶72 In the event that a capital defendant who is about to be executed is found to be legally incompetent, his or her execution is constitutionally barred: “The Eighth Amendment prohibits the State from inflicting the penalty of death upon a prisoner who is insane.”107
¶73 Viewed within the framework of a capital case, where appeals are necessary to produce a reliable determination, legal competency to waive discretionary appeals takes on a new significance. The waiver of discretionary appeals is equivalent to the forfeiture of a significant chance for reversal or commutation of a death sentence, and as such must be considered seriously. The Supreme Court, the first time it discussed legal competency in regard to a voluntary execution, held that the legal competence of the capital defendant was the “most important factor” to be considered relative to the waiver of discretionary appeals. However, the Court did not specifically name any other factors for consideration.108 In Rees v. Peyton, the Supreme Court established the two-pronged standard discussed above.109
¶74 Subsequently, in Gilmore v. Utah, the Supreme Court extended its legal competency determination to third party, or “next friend,” habeas claims. If a defendant has been held to have knowingly, intelligently, and voluntarily waived his discretionary appeals, no other party has the right to challenge the constitutionality of the conviction or sentence.110 Gilmore, who had been found legally competent to waive his appeals in state court and had appeared on his own behalf to challenge the third-party appeals, was successful in opposing the right of the next friend, his mother, to challenge his conviction and sentence.
¶75 In Gilmore, then, the Supreme Court lessened the legal competency standard applicable to discretionary appeal waivers. The second element of the Rees test, which involved consideration of whether the defendant had a “mental disease, disorder, or defect which would affect his [legal] competency”111 became less significant, decreasing the value of the procedural safeguards available to mentally ill capital defendants. In fact, the “mental disease” element was not even mentioned by the Court in Gilmore. In view of the potentially significant consequences of the waiver, the elimination of the mental disease component of the legal competency test substantially reduces the procedural safeguards available to mentally ill capital defendants. The current legal competency standard for appeal waivers is whether the waiver was knowingly, intelligently, and voluntarily made. For mentally ill capital defendants, this standard does not ensure reliability in the verdict and sentence because it does not take into account the effect their mental illnesses may have on their decision-making capabilities.
¶76 The Gilmore decision stripped away the consideration of whether a capital defendant had a mental disease, disorder, or defect that would affect his capacity to make a rational decision regarding waiver. Legal competency became the only factor to be considered in appeal waivers. Rather than concerning itself with the reliability of the defendant’s decision to waive appeals, the Supreme Court in Gilmore chose to focus merely on the legal competency of the defendant to make the decision to waive appeals. Nominally, at least, the Rees Court was concerned with more. However, the announcement of the legal competency standard in Rees was not accompanied by a legal competency determination in that case, because the Court was not presented with enough evidence at the time to actually apply the standard it had announced. This approach takes something essential away from the appeal waiver analysis, and diminishes the reliability and accuracy of the waiver determination by failing to consider the capital defendant’s ability to make the decision to waive.
¶77 The Gilmore standard considers whether a waiver was “knowing and intelligent,” and forecloses discussion of whether mental illness affects a defendant’s decision-making capabilities by decreasing the importance of the second Rees element. Though Rees is still quoted in opinions today, any added reliability it may have provided through the existence of its second element has largely disappeared through the use of the “knowing and intelligent” standard. The absence of this protection is well illustrated by the Berry case.
3. Legal Competency in the Berry Case
¶78 The Berry case involves multiple determinations of legal competency and a substantial amount of litigation on the issue of legal competency. The case highlights the dilemma presented by the use of the Gilmore standard in the case of a mentally ill capital defendant, and underlines the differences between legal and medical competency determinations.
¶79 In the Berry case, two psychiatrists examined Berry and found him legally competent to waive his discretionary appeals.112 The two doctors, Drs. Resnick and Alcorn, examined Berry and formed their conclusions based upon the legal standard delivered to them by the Ohio Supreme Court. Resnick spent 2-3/4 hours with Berry, Alcorn spent 1-1/2 hours with him.113 Both doctors found that Berry suffered from “a diagnosable mental disorder—a mixed personality disorder with schizotypal, borderline and antisocial features.”114 However, neither doctor made any inquiry into how that disorder might have affected Berry’s decision-making capacity.115 Under the standard elicited by the Ohio Supreme Court and eventually upheld by the Sixth Circuit,116 no such inquiry was necessary. Although he was mentally ill, the effect of Berry’s mental illness on his reasoning capacity was not examined. The legal competency standard does not contemplate this possibility.
¶80 The criminal justice system asks whether the person understands, not to what degree he/she understands. This standard, as discussed below, cannot adequately protect mentally ill capital defendants because it does not consider whether their illness affects their ability to meet that standard. The legal competency117 standard focuses on the abstract: does the person understand that they are waiving their discretionary capital appeals, and that the consequence of that waiver is that they will be executed for that crime? There are no measurements that will tell a court how much the mentally ill capital defendant understands, or how the mentally ill capital defendant’s reasoning compares to that of an individual who is not mentally ill. The current legal competency standard leaves no room to determine whether the mentally ill capital defendant can understand those issues in the way that individuals in good mental health understand them.
¶81 In contrast to the legal competency determination, medical competency determinations assess the effect that mental illness has on a defendant’s reasoning. The medical competency standard is therefore a better safeguard of reliability since it deals with the defendant not in the abstract but as the defendant truly is.
B. Medical Competency: Adding the Water
¶82 Mental illness is a vague concept, misunderstood by many and often misused. Since this discussion relies heavily on mental illness as it affects capital appeal waivers, a brief history and definition of mental illness is necessary for purposes of clarity. The effects of mental illness on medical competency will then be discussed, and the issue of medical competency illustrated by the Berry case.
1. Mental Illness
¶83 Mental illness has long been misunderstood in American society. Defined as “any psychiatric illness or disease, whether functional or of organic origin,”118 mental illness is a vague concept for the layperson to understand. More readily recognizable are the signs of mental illness, abnormal behavior that deviates from the behavior exhibited by the rest of society.119 What has been considered abnormal has changed as the centuries have passed.120 Even as science has evolved, the development of any true method of diagnosis or treatment of mental illness has been slow to occur; the “very nature of the problems caused by abnormal behavior has made it a ‘thing apart,’ arousing fear, shame, and guilt.”121 Throughout history, interpretations of mental illness have rested on superstition, religious beliefs, speculation, and, increasingly in the modern era, on common sense and compassion.122 Perhaps obviously, societal reaction to abnormal behavior has, until relatively recently, made that behavior more difficult to study.
¶84 With advances in science and psychiatry, the study, diagnosis, and treatment of mental illness have come to the fore.123 Mental illness is no longer considered a punishment, or the fault of the mentally ill person; mental illness is a treatable mental disease, a symptom of which is abnormal behavior. As the National Alliance for the Mentally Ill has pointed out,
[p]revailing scientific judgment [holds] that severe mental illnesses are brain diseases, which at the present time are neither preventable nor curable, but are treatable and manageable with combinations of medication, supportive counseling, and community support services…The causes of severe mental illnesses are complex, and they are not understood thoroughly. There is a genetic predisposition to some mental illnesses. Although stress or drug and alcohol abuse can precipitate or aggravate episodes of an illness, these are not primary causes.124
¶85 The type of abnormal behavior associated with mental illness can be manifested in acts which society considers criminal. However, the approach of psychiatry to mental illness differs radically from the approach of the criminal justice system.
¶86 The approach of psychiatry to mental illness is reflected in the medical assessment of competency. A determination of medical competency necessarily incorporates the effect of mental illness on a defendant’s ability to make decisions. The determination, then, is an assessment of “true” competency rather than legal competency.
2. Medical Competency
¶87 Medical competency determinations involve thorough assessments of a person’s mental capabilities, taking into account the effect that mental illness has on those capabilities. Medical competency is a far more individualized determination than legal competency, and gives a much more accurate picture of a defendant’s capability of making a rational choice.
¶88 Psychiatry approaches the problem of how mental illness transforms an affected person’s capacity to understand in a much different way. The focus of psychiatry is not on the system, not on the particular act committed, but on the individual and how the individual’s thought processes have been affected by the illness.125 In order to treat a mentally ill patient, a psychiatrist performs an assessment, which is a “scientific process that observes and describes significant aspects of a client’s behavior.”126 The assessment is a basis for predictions about the patient’s future behavior, which provides the information necessary for the psychiatrist to make treatment decisions.127
¶89 Psychiatry, then, focuses on the individual. During the assessment, a physical examination, a client interview, clinical observation of the individual’s behavior, and psychological testing is performed, in order to give the psychiatrist as much information as possible about the person.128 Legal determinations of competency focus on what a person can “know,” or “rationally decide,” or “understand,” all of which are vaguely defined concepts. In contrast, psychiatric determinations of mental illness center on how the person “knows” or “rationally decides” or “understands” by using diagnostic tools and tests which give the psychiatrist a more complete picture of the actual mental processes of the person.
3. Medical Competency in the Berry Case
¶90 In the Berry case, Doctor Pearson, a psychiatrist for the defense, also examined Berry. Her examination took approximately 12 hours over a span of 3 visits.129 She determined that Berry was legally incompetent to waive his discretionary appeals.130 Further, Pearson diagnosed Berry with “schizotypal disorder, a rigid thought process, a tendency toward extreme isolation and withdrawal, and a tendency to have psychotic episodes under stress.”131 She found Berry legally incompetent because
[his] mental disorder, which is common among first degree relatives of schizophrenics caused him to suffer from “rigid thought process.” The effect of this result from his schizotypal disorder…was to render Berry psychologically incapable of absorbing information from his attorneys if such information conflicted with any preconceptions [that Berry had]. Thus…because Berry was unable to take in necessary and pertinent information, he was unable to make a knowing waiver of his rights.132
¶91 Pearson’s psychiatric evaluation of Berry is an excellent example of a medical competency determination. Unlike the legal competency determination, Pearson’s assessment explored the consequences of Berry’s mental illness in terms of his ability to make a legally competent waiver. By way of contrast, a legal competency determination would have focused on Berry’s ability, separate from his mental illness, to waive further discretionary appeals.
¶92 Two other doctors examined Berry to determine whether he was legally competent. Although they agreed with Dr. Pearson that Berry was mentally ill, and in fact potentially severely mentally ill,133 both of the other doctors found Berry to be [legally] competent.134 The conflict in the Berry case, then, was not a medical or diagnostic one. The differences in the doctors’ conclusions came only when they were asked to fit their diagnoses into a legal framework. The framework of legal competency simply does not allow for consideration of factors crucial to the determination of medical competency; this lack in the legal competency analysis created the divergence between the three psychiatrists’ ultimate competency determinations.
¶93 The psychiatric competency determination allows for individualization of the determination relative to the particular mental disorder of the particular defendant, rather than, for practical purposes, ignoring the mental illness, as the current legal standard does. Further, it permits consideration of the effect a mental illness may have on a defendant’s cognitive processes, which is at the heart of determining whether a defendant's waiver is competent, not just legally competent.
IV. Argument: Mixing Oil and Water
¶94 The current legal standard for determining legal competency to waive discretionary appeals is insufficient to guarantee that mentally ill capital defendants are in fact competent to waive those appeals. First, after Gilmore, the current legal standard for competent appeal waivers downplays the effects of mental illness on the ability of a capital defendant to make an appeal waiver, in favor of a finding that a defendant has made a “knowing and intelligent” waiver. The original Rees standard has been altered to forego consideration of any mental disease, disorder, or defect a capital defendant may have. Without this consideration, there can be no accurate determination of whether a capital defendant is able to waive his discretionary appeals.
¶95 The current legal standard also fails to protect the societal interest in “getting it done right.” The heightened need for accuracy and reliability in the determination of capital cases, mandated by the Eight Amendment,135 argues for a safeguard for mentally ill capital defendants which takes into account their actual capability to make decisions.
¶96 Third, constitutional due process concerns support the existence of additional safeguards for capital defendants who choose to waive their appeals. One of the “hallmarks of due process in our adversary system”136 is that a defendant must be able to meet the state’s case against him.137 In other words, defendants’ participation in their case must be such that they do not disadvantage themselves by their inability to act as an adversary to the prosecution’s case. In terms of appeal waivers, this means that in order to waive appeals reliably and accurately, a capital defendant must make the waiver in such a way that it is clear that waiver is the defendant’s rational, understanding, and intelligent choice. Mentally ill capital defendants, as discussed above, are disadvantaged in this process due to the nature of their disorders. Adequate safeguards must be in place to ensure that such defendants are not prevented, by virtue of their mental illness, from making reliable waivers of their discretionary appeals.
¶97 In order to correct for these glaring deficiencies in the capital appeal waiver process, a strong presumption against capital appeal waivers must be created. The presumption should be rebuttable, if a defendant can present clear and convincing evidence showing an absence of mental illness. Mentally ill capital defendants should never be allowed to waive their capital appeals.
¶98 The presumption against capital appeal waivers should be created by the courts in order to guarantee that the procedural safeguards available for capital defendants have the same value when applied to mentally ill capital defendants as those safeguards do when applied to capital defendants who are in good mental health.
A. A Presumption Against The Waiver of Discretionary Capital Appeals Is Necessary To Safeguard Effectively The Rights Of All Capital Defendants.
¶99 The standard enumerated by the U.S. Supreme Court in Rees v. Peyton and Gilmore v. Utah is insufficient to function as the minimum procedural safeguard for any capital defendant.
¶100 Legal competency as a meaningful gauge of a capital defendant’s decision to waive further discretionary appeals has been weakened to a point where it no longer functions to safeguard reliability and the societal interest in correct adjudications of capital matters. For the purposes of this argument, then, the term “competency” will not be used when dealing with appeal waivers. In its place will be the phrase “meaningful appreciation,” which when used here will encompass the original meaning of competency held by the Rees court. Due process concerns also support the need for a more effective safeguard. The Gilmore standard is simply incapable of ensuring a reliable outcome when dealing with the waiver of discretionary capital appeals.
1. Reliability of Conviction and Sentence
¶101 The current Gilmore standard, that a waiver must be “knowing and intelligent” and voluntarily made, was intended, as was the standard in Rees, to increase the reliability of capital convictions and sentences. Capital defendants who wished to waive the important reliability safeguard of the discretionary appeals process were required to undergo a legal competency determination that was in effect a substitute reliability safeguard.
¶102 The Supreme Court, in handing down the Gilmore decision, obviously was of the opinion that the Gilmore standard was sufficient to safeguard the reliability of the defendant’s decision to waive his appeals. However, an analysis of the practical effect of a waiver for a capital defendant is noticeably absent from the Gilmore opinion. An examination of the practical consequences inherent in making a waiver of discretionary appeals begs the conclusion that capital defendants are not sufficiently protected by the Gilmore standard for legally competent appeal waivers.
¶103 The chances of reversal on appeal, as discussed above, are substantial. A capital defendant who chooses to waive his appeals is giving up those significant chances of reversal. Consequently, a defendant who volunteers for execution is also forfeiting a substantial interest in having a conviction and sentence that is reliable.
¶104 While a capital defendant’s decision to waive discretionary appeals is largely a function of personal autonomy,138 other concerns must be balanced against this autonomy when an exercise of personal autonomy puts a capital defendant in immediate peril of his life. Personal autonomy is admittedly a very important consideration throughout the capital proceeding.
¶105 Autonomy guarantees capital defendants with even a minimal level of rationality and understanding, among other rights, a constitutional right to represent themselves,139 however ill-advised that may be. “To deny an accused a choice of procedure in circumstances in which he, though a layman, is as capable as any lawyer of making an intelligent choice, is to impair the worth of great Constitutional safeguards by treating them as empty verbalisms.”140 Capital defendants also have a right to plead guilty to capital charges.141 Thus, capital defendants are allowed to waive their rights to the appointment of counsel and to a jury trial. If capital defendants are allowed to waive constitutional rights to counsel and to a jury trial, personal autonomy is clearly an important factor in the balancing process.
¶106 Countering the factor of personal autonomy, however, is another extremely important factor, reliability. This factor in the conviction and sentence in a capital case is of great importance, because in order to impose the most final of all sentences, there must be a correct and just determination that a defendant was guilty as charged and that the defendant truly deserves the death penalty. A defendant whose conviction is not reliable has not been executed according to the rule of law, and not only does the defendant suffer, but society as a whole suffers if executions are not carried out justly. An execution can only be carried out justly if the defendant, in waiving discretionary capital appeals, has a “meaningful appreciation” of the decision to waive.
¶107 Related to this balancing of personal autonomy and the need for reliability in capital adjudications is a concern that the Gilmore standard for legal competency for appeal waivers is roughly the same test as that for competency to stand trial.142 However, the two situations are vastly different; when deciding competency to stand trial, the court must ascertain that the defendant knows the nature of the charges and is able to communicate with his or her attorney effectively.143 However, allowing capital defendants to waive discretionary capital appeals, however, is essentially a choice between life and death.144 More than the ability to communicate or the ability to understand the charges, the decision between life and death is tied into a defendant’s mental state, which the Gilmore standard does not assess. There is no way, in applying the Gilmore standard, to ensure that a defendant has a meaningful appreciation of his appeal waiver.
¶108 In short, the procedural protection provided by the Gilmore standard does not make enough allowance for the significant rights given up as the consequence of a waiver of discretionary capital appeals. The chances of reversal on appeal are so great, and the decision to waive has such profound effect on both the reliability of the adjudication and on the decision between life and death, that Gilmore cannot be sufficient to protect capital defendants’ rights. A standard requiring “knowing and intelligent” waiver simply cannot take into consideration the multiple complex issues necessary to guarantee reliability in the final outcome of a waiver of discretionary capital appeals. The only way to guarantee the reliability of the final outcome when dealing with appeal waivers is to determine that a capital defendant has a meaningful appreciation of his choice to waive further appeals.
2. Societal Interest in “Getting It Done Right”
¶109 Viewed within the context of society’s compelling interest in the correct adjudication of capital cases, legal competency to waive appeals, as defined by the Supreme Court, cannot protect that compelling interest. A “meaningful appreciation of the decision to waive further appeals” should mean that the waiver decision was rational, that the capital defendant was able to appreciate his position and the consequences of the decision to waive, and that the decision to waive was not impaired by a mental disease, disorder, or defect. The issue of reliability is inextricably tied up with the societal interest in “getting it done right,” since a conviction and death sentence imposed according to the governing law will always be required to be reliable.
¶110 The Gilmore determination, especially in the context of capital appeal waivers, is required because it was thought to serve important societal functions. A reliable waiver of appeals would help to ensure that death sentences are only carried out “in accordance with a rule of law.”145 Determining the legal competency of a capital defendant before allowing a waiver of appeals would improve the accuracy of the final disposition, ensuring that capital defendants understand the rights that they waive, and protecting against duress in the capital process. Also, and perhaps most importantly, Gilmore was intended to protect a capital defendant’s significant opportunity to attempt to change the outcome of his or her case through the appeals process.
¶111 Gilmore determinations of legal competency to waive appeals, however, do not function as intended. The Gilmore standard is, put simply, too basic to allow for a true understanding of whether a capital defendant is aware of the consequences of his waiver. Without full consideration of the practical consequences of his waiver, a capital defendant cannot be said to have a meaningful appreciation of what his waiver means. Under such circumstances, society’s interest in a correct and just determination cannot be fulfilled, since the final outcome is not reliable.
3. Due Process Requirements
¶112 Due process requirements imposed by the U.S. Constitution also argue for the creation of a stronger procedural safeguard for capital defendants in their appeal waivers. As discussed above, the constitutional mandate that defendants be able to meet the case against them is one of the “hallmarks of due process in our adversary system.”146 A Gilmore determination of legal competency does not allow that defendant to meet the case against him, specifically because the standard does not take into account whether the defendant has a meaningful appreciation of his situation.
¶113 Without stronger procedural safeguards preventing waivers by defendants without a meaningful appreciation of their situation and the consequences of their appeal waivers, those defendants are being deprived of their lives without due process of law. No more compelling argument for a stronger safeguard can be found; in the capital appeal waiver context, defendants are not merely being deprived of liberty or property. Lives are at stake, and, procedurally speaking, more is therefore necessary in order to guarantee that capital defendants are not unfairly deprived of their lives.
¶114 For all capital defendants, there is a pressing need for a procedural safeguard with more “teeth” than can be found in Gilmore. The practical consequences of waiving appeals and forfeiting a more extensive test of the reliability of the conviction and sentence in a capital case requires a more effective protection than a mere “knowing and intelligent” standard for waiver.
B. A Presumption Against The Waiver of Discretionary Capital Appeals Is Necessary To Safeguard The Rights Of Mentally Ill Capital Defendants In Particular.
¶115 In addition to the problems with the Gilmore standard for legal competency for capital appeal waivers, mentally ill capital defendants face problems specific to their illnesses. These problems serve to exacerbate the inappropriateness of the Gilmore standard when applied to mentally ill capital defendants. Due to the nature of their illnesses, capital defendants do not think and understand the way “normal” people do. The effect their illness has on their thought processes should be incorporated into the creation of a presumption so that mentally ill capital defendants can never waive their discretionary appeals. Such a bar would operate to give capital adjudications involving mentally ill defendants the necessary reliability to allow for the imposition of their sentence.
¶116 The current Gilmore standard does not take into account the effect a capital defendant’s mental illness will have on his waiver of discretionary appeals. Even were a meaningful appreciation standard adopted, an appeal waiver by a mentally ill capital defendant would achieve less reliability than would be achieved in a mentally healthy capital defendant’s waiver. This is the nature of mental illness and its affect on the thought processes of those it afflicts. Therefore, it is necessary to bar mentally ill capital defendants from ever waiving their discretionary appeals. Only mentally healthy capital defendants who can show their mental health by clear and convincing evidence should be permitted to waive their discretionary appeals and so volunteer for execution.
¶117 Mentally ill capital defendants who waive their discretionary capital appeals under Gilmore pose even greater concerns in terms of the reliability of the final adjudications. For mentally ill capital defendants, personal autonomy does not carry the same weight as it does for mentally healthy defendants. The fact that the mentally ill are affected by disorders which alter their thinking and decision-making processes means that autonomy, in their collective case, must be balanced with a determination of “meaningful appreciation” that involves a true assessment of how their illness affects their thought processes.
¶118 In terms of mentally ill capital defendants, the determination of whether a meaningful appreciation of waiver exists is impossible to make unless a court is willing to explore what effects the mental illness has on the defendant’s thought processes. By its nature, mental illness alters the way an affected defendant thinks, and unless this is taken into consideration in determining whether the defendant has a meaningful appreciation of his waiver of appeals, mentally ill capital defendants’ waivers cannot truly be assessed. Thus, a waiver under Gilmore by a mentally ill capital defendant presents serious reliability problems, since a defendant’s meaningful appreciation of his waiver never comes into play.
¶119 For instance, unlike mentally healthy defendants, mentally ill capital defendants are disadvantaged from the start of the process because their illnesses alter the way they think and understand. For example, in Berry’s case, the psychiatrist, Pearson, found that Berry was “incompetent” because his mental disorder affected his thought process in a way that destroyed the possibility that his waiver was knowing.147 In other words, Berry’s mental disorder prevented him from having a “meaningful appreciation” of the meaning of his waiver of appeals. However, the possibility that this was indeed the case was deemed irrelevant by the Sixth Circuit, which held that no inquiry into how Berry’s mental disorder affected his cognition was necessary.148
¶120 The Fifth and Fourteenth Amendment Due Process clauses guarantee that no person shall be deprived of life, liberty, or property without due process of law.149 While due process of law is not a phrase that is easily defined in terms of the ramifications of prosecuting capital defendants, it is clear that the current legal standard ignores crucial differences between mentally healthy and mentally ill capital defendants. If due process problems exist in relation to the application of Gilmore to mentally healthy defendants, those problems are only increased with the application of Gilmore to mentally ill capital defendants.
¶121 While the Gilmore standard is insufficient to protect the right of capital defendants in general, the inadequacy of the standard is far greater when considering mentally ill capital defendants’ waivers. There is a crucial need for a strong presumption against appeal waivers that would bar mentally ill defendants from waiving their discretionary capital appeals.
C. The Presumption Against Waiver if Discretionary Capital Appeals Should Be Rebuttable By Clear And Convincing Evidence That A Defendant Is Not Mentally Ill.
¶122 The current Gilmore standard for determining the validity of waivers of capital appeals is, in the case of mentally ill capital defendants, an insufficient procedural safeguard. Because of the important role that “competency” plays throughout the capital appeals process, a new mechanism is needed in order to allow mentally healthy capital defendants to waive their appeals while ensuring that mentally ill defendants receive adequate protection of their rights.
¶123 A presumption against capital appeal waivers would allow the interests of mentally healthy capital defendants, mentally ill capital defendants, and society to be represented in the context of capital appeal waiver litigation. As a procedural safeguard, the presumption would be strongly against allowing waivers of capital discretionary appeals. However, a capital defendant who desired to waive his or her appeals would be able to rebut the presumption if he or she could show, by clear and convincing evidence, an absence of mental illness. In this way, although the standard would be changed from “competency to waive” to “meaningful appreciation of the waiver,” the personal autonomy of mentally healthy capital defendants is preserved and respected. The additional safeguard added by returning to the Rees test and requiring the establishment of mental health by clear and convincing evidence would not unduly burden a capital defendant who was mentally healthy. Therefore the presumption would not stand in the way of an appeal waiver by a capital defendant who is mentally healthy. Because compelling reasons prevent the personal autonomy of mentally ill capital defendants from being as highly regarded as that of mentally healthy capital defendants, and because mentally healthy defendants can overcome the presumption, the autonomy issue is not an obstacle to the creation of a presumption.
¶124 The failure to recognize the affect Berry’s mental disorder had on his ability to waive was possible because the Rees standard had been partially eviscerated by the Supreme Court. Essentially, because of the use of the legal standard Berry’s mental illness was deemed to have had no effect on his decision-making capabilities. The nature of mental illness strongly suggests otherwise, as demonstrated by the psychiatrist who went beyond the Gilmore standard to inquire how Berry’s illness affected his thinking process. In the end, Berry’s waiver was determined to have been “competent,” despite medical diagnoses to the contrary. Given the substantial possibility that a mental disorder truly does affect the manner in which a mentally ill person thinks and relates to the world, the current legal competency standard fails to protect mentally ill capital defendants from making incompetent waivers of their discretionary appeals.
¶125 A defendant with mental problems may not see the life and death choice that is made in a capital appeal waiver; that person may not believe that he or she will actually be executed. This situation is not one that could be uncovered by simply asking the defendant whether he or she knowingly, intelligently, and voluntarily waives his or her rights to appeal. There is an important link missing between what goes on in the mentally ill defendant’s mind, and what the court has to determine. For mentally ill capital defendants, the appropriate question is not what is thought, but how it is thought. How is not a question that the legal system is willing to ask; consequently, “competency” determinations under Gilmore, when made with respect to mentally ill capital defendants, are incomplete at best.
¶126 For mentally ill capital defendants, the Gilmore standard does not offer the same protection of societal interests. Because this standard does not explore in enough detail the manner in which the mentally ill defendant relates to the world, thinks, and understands concepts, the reliability of the final outcome is substantially decreased.
¶127 There is no way for a court, or for society, to know whether the desire to waive appeals, while understanding the meaning and consequences of the right to appeal, is genuine. Currently, a court has no gauge for whether the defendant had a meaningful appreciation of his waiver. The waiver may have been an extension of suicidal impulses that had existed for a long period of time. It may be a death wish. There is simply no way to discern the answers to these questions according to the current legal standard. The current legal standard does not envision these problems, and has not been interpreted to resolve them.
¶128 Because a meaningful appreciation of their waiver is not considered under the current legal standard, capital defendants who are determined under Gilmore to be legally competent to waive appeals are not sufficiently protected by the criminal justice system. As evidenced by the three different psychiatrists who came to different conclusions in the Berry case, legal concepts and medical concepts cannot truly coexist in the current capital scheme. The two psychiatrists who found Berry competent to waive his appeals were operating under the legal standard of “competency” laid out by the Ohio Supreme Court.150 Within the confines of that standard, they both found Berry to be mentally ill but “competent,” because he showed evidence of having made a rational decision to waive his appeals, and because he understood what the consequences of his waiver were--execution.151 However, the psychiatrist who found Berry “incompetent” came to her conclusion on the basis of determining how Berry’s mental illness affected his thought processes and therefore necessarily affected his decision.152
¶129 The legal standard, followed by the two psychiatrists who found Berry competent, and the medical standard, followed by the doctor who found him incompetent, are diametrically opposed. They cannot be reconciled, because they concentrate on different factors, and so lead to different conclusions.
¶130 The creation of a presumption against capital appeal waivers would address both the medical and legal issues involved in these waivers. For a mentally healthy defendant, competency is a standard that is fairly easily met. If an examination by a court-appointed psychiatrist revealed no evidence of mental illness, by a clear and convincing evidence standard, the capital defendant would be eligible to waive his or her further discretionary appeals. However, for a mentally ill defendant who cannot establish by clear and convincing evidence that he or she is not mentally ill, the presumption operates to protect the rights to appeal left to that defendant.
¶131 If a defendant is mentally ill and therefore, because of the illness cannot meaningfully appreciate a waiver of his or her capital appeal rights, then the criminal justice system must ensure that defendant is prevented from doing so. By the creation of the presumption and by its application to capital cases, the interests of society are served in the increased reliability of the final outcome, and therefore the increased propriety of appeal waiver determinations.
¶132 Due to the serious reliability concerns raised by the waiver of capital discretionary appeals by capital defendants who are mentally ill, a general presumption against appeal waivers should be instituted in the United States. This presumption is constitutionally required, not only for due process reasons but also because the Eighth Amendment mandates a higher degree of reliability in the adjudication of capital cases. Only by presenting clear and convincing evidence of an absence of mental illness should a mentally healthy capital defendant be allowed to waive his appeals and volunteer to be executed.
*.The author graduated from Ohio State University College of Law in May 1999, earning a J.D. and certificate as a Public Service Fellow. She is currently practicing law in Washington, D.C.
1. In this paper, the terms “mental illness,’ “mental disorder,” “mental defect,” and “mental disease” are used interchangeably; “mentally ill” is used to describe a person with any of the above conditions. “Mentally healthy” is the opposite of “mentally ill.” Although the author would prefer to use gender-neutral terms, the lack of any female volunteers at the time of writing makes this proposition not only a potential source of confusion but also inaccurate.
2. “Legal competency” is defined as the current competency standard set forth in Gilmore v. Utah, 429 U.S. 1012, 1013 (1976), the “knowing, intelligent and voluntary” waiver standard.
3. “Medical competency” is defined, relative to “legal competency,” as a deeper inquiry into how the mind is really working; an inquiry into how mental illness affects the decision-making capacity of those afflicted with mental illness.
4. NAACP LEGAL DEFENSE FUND, DEATH ROW U.S.A. July, 1989 at 1-8.
5. See Christy Chandler, Voluntary Executions, 50 STAN. L. REV. 1897, 1902 (1998).
6. Information taken from Rick Halperin, Death Penalty Page, compiled largely from the Supreme Court Clerk’s list of pending executions. Rick Halperin is a history professor and execution scholar at Southern Methodist University, Dallas, Texas. The author can make no representations concerning the accuracy of these statistics, however, they are confirmed to some degree by information published by the National Coalition to Abolish the Death Penalty.
7. See PUNISHMENT AND THE DEATH PENALTY: THE CURRENT DEBATE 103 (Robert M. Baird & Stuart E. Rosenbaum eds., Prometheus Books 1995) [hereinafter PUNISHMENT].
8. See id. at 106.
9. See id.
10. Furman v. Georgia , 408 U.S. 238, 240 (1972) (per curiam).
11. Id. at 249-50.
12. See Id.. at 240.
13. See PUNISHMENT, supra note 7, at 106.
14. Woodson v. North Carolina, 428 U.S. 280, 292-93 (1976).
15. Godfrey v. Georgia, 446 U.S. 420, 422 (1980).
16. See id. at 428.
17. See Gilmore v. Utah, 429 U.S. 1012, 1012 (1976).
18. Rees v. Peyton, 384 U.S. 312, 314 91966).
19. Gilmore, 429 U.S. at 1013.
20. See Miranda v. Arizona, 384 U.S. 436 (1966); Colorado v. Spring, 479 U.S. 564, 573 (1987) (Miranda rights must be voluntarily, intelligently, and knowingly waived); Neely v. Pennsylvania, 411 U.S. 954 (1973) (waiver of jury trial, right to remain silent, right to be convicted by proof beyond a reasonable doubt, right to confront witnesses must be voluntarily, intelligently, and knowingly waived).
21. See Chandler, supra note 5, at 1907.
22. See id.
23. See id.
24. See id.
25. State v. Berry, 72 Ohio St.3d 354, 358, 650 N.E.2d 435, 438 (1995).
26. See id.
27. State v. Berry, No. 60531, 1993 WL 425370, at *1 (Ohio App. 8 Dist.).
28. See id. at 1-2.
29. See id. at 3.
30. See Berry , 72 Ohio St.3d at 358, 650 N.E.2d at 438.
31. See Berry, 1993 WL 425370, at 8.
32. Id. Berry’s response to his attorney’s inquiry as to why Berry had not told him about the motive earlier is indicative of a deeper problem between Berry and the attorney. Counsel also made the trial court aware that Berry might have intentionally withheld the information, that Berry wanted to die, and that as a result of his desire to die Berry had not cooperated in his defense; see Berry, 72 Ohio St.3d at 360, 650 N.E.2d at 438.
33. See Berry, 1993 WL 425370, at 8.
34. See Mary Beth Lane, The Life He Wants To Leave, THE CLEVELAND PLAIN DEALER, March 1, 1998, available in 1998 WL 4122966.
35. See Berry 72 Ohio St.3d at 358, 650 N.E.2d at 440.
36. See id. at 359.
37. Berry supra note 27 at 8.
38. See id.
39. Id. at 3.
40. See id. at 3-4.
41. See id. at 4.
42. See id.
43. See id.
44. See id.
45. See id.
46. See id.
47. See Franklin v. Francis, 997 F. Supp. 916, 919 (S.D. Ohio 1998).
48. See Berry, supra note 27 at 4.
49. See Chandler, supra note 5, at 1907.
50. See id.
51. See Julie Levinsohn Milner, Dignity or Death Row, Are Death Row Rights to Die Diminished? A Comparison of the Right to Die for the Terminally Ill and the Terminally Sentenced, 24 New Eng. J. on L. & Civ. Confinement 279, 285 (1998).
52. See Chandler, supra note 5, at 1907-08.
53. See id. at 1904.
54. See id. at 1908.
55. See id.
56. See Franklin v. Francis, 997 F.Supp. 916, 922 (1998).
57. See Sr. HELEN PREJEAN, C.S.J., DEAD MAN WALKING: An Eyewitness Account of the Death Penalty in the United States 14 (Vintage Books 1993) (quoting James S. Liebman, More than ‘Slightly Retro’: the Rehnquist Court’s Rout of Habeas Corpus Jurisdiction in Teague v. Lane, 18 N. Y. U. REV. L. & SOC. CHANGE 537, 541 (1990/1991)).
58. See Lane, supra note 34; Michael Hawthorne, Execution Nears For Volunteer, THE CINCINNATI ENQUIRER, February 14, 1999, available in 1999 WL 9422057.
59. See Berry, 1993 WL 425370, at 4-29. (challenging the search of the van Berry was driving; the search of the gun case in the back of the van; the determination that Berry had no standing to challenge the searches; the trial court’s decision to hold certain trial proceedings in Berry’s absence; the trial court’s decision to allow Berry to ask for the death penalty in the mitigation phase of his trial; the admission of Berry’s statements to his jailers as violative of his Miranda rights; the admission of physical evidence obtained after Berry had indicated that he did not wish to be interrogated; the admission of statements and evidence obtained from Berry after he invoked his right to counsel at arraignment; the admission of statements made by Berry while he was illegally held in custody as well as evidence obtained using those statements; the admission of statements and physical evidence obtained as a result of the illegal arrest of Berry; the admission of inflammatory and gruesome photographs, videotape, and testimony; the admission of irrelevant and inflammatory testimony about the victim’s character; the failure of the trial court to require unanimity as to the independent elements of the crime; the trial court’s permission for the jury to consider duplicative aggravating circumstances at the penalty phase; the failure of the trial court to merge the two aggravated murder convictions prior to the penalty phase; the failure of the trial court to dismiss Berry’s capital indictment; the trial court’s instructions to the jury on unraised statutory mitigating factors, which turned the absence of those factors into nonstatutory aggravating circumstances; the trial court’s instructions to the jury before Berry’s unsworn statement as to the credibility of such a statement; the imposition of the death penalty in view of Ohio’s inadequate review process; the trial court’s instructions to the jury that the jury’s sentencing verdict was only a recommendation; the trial court’s refusal to consider and give effect to relevant mitigating evidence; the clearly erroneous, conflicting and/or confusing instructions of the trial court at trial and in mitigation; prosecutorial misconduct; the constitutionality of the Ohio capital statutory scheme; the reliability and appropriateness of Berry’s death sentence; and claiming ineffective assistance of counsel both generally and for failure to have Berry’s competence evaluated).
60. See id. at 1.
61. See id. at 8.
62. See id.
63. See State v. Berry, 72 Ohio St.3d 354, 354, 650 N.E.2d 435, 435 (1995). It is noteworthy that, several years after this, the direct appeal process in Ohio was changed to eliminate the appeal to the intermediate appellate court. Appeals now go directly to the Ohio Supreme Court, eliminating one stage of the direct appeal and thereby “saving” 1-2 years of the appellate process. See Ohio Const. art. IV, § 2(B)(2)(e) (amended November 8, 1994).
64. See Berry, 72 Ohio St.3d at 354, 650 N.E.2d at 435.
65. See id. at 359.
66. See id. at 358-59, 438-39.
67. See id. at 360, 439.
68. See State v. Berry, 74 Ohio St.3d 1460, 1460, 656 N.E.2d 1296, 1296 (1995).
69. See id.
70. See id.
71. See State v. Berry, 74 Ohio St.3d 1470, 1470, 657 N.E.2d 511, 511 (1995).
72. See State v. Berry, 74 Ohio St.3d 1492, 1492, 658 N.E.2d 1062, 1062 (1996); State v. Berry 74 Ohio St.3d 1504, 1504, 659 N.E.2d 796, 796 (1996); State v. Berry, 77 Ohio St.3d 1439 1439, 671 N.E.2d 1279, 1279 (1996).
73. See State v. Berry, 80 Ohio St.3d 371, 373, 686 N.E.2d 1097, 1100 (1997).
74. See id. at 377-78, 1102-03.
75. Id. at 385, 1108.
76. See Franklin v. Francis, 997 F.Supp. 916, 922 (1998).
77. See id. at 919.
78. See id. at 925-29.
79. See Rees v. Peyton, 384 U.S. 312, 314 (1966).
80. See id. at 314.
81. See Franklin, 997 F.Supp. at 929-30.
82. See id. at 933.
85. Franklin v. Francis, 144 F.3d 429, 429 (6th Circ. 1998).
86. See id. at 433.
87. See id.
88. Franklin v. Francis, 119 S.Ct. 451, 451 (1998).
89. See Roger K. Lowe, Darrel Rowland, and Joe Hallett, Berry’s Legal Battle Ended Hours Before His Death, THE COLUMBUS DISPATCH, February 20, 1999, available in 1999 WL 7175892.
90. See Franklin v. Francis, 119 S.Ct. 1022, 1022 (1999).
91. See Barbara A. Ward, Competency for Execution: Problems in Law and Psychiatry, 14 FLA. ST. U. L. REV. 35, 49, 101 n.81 (1986).
92. See Dusky v. United States , 362 U.S. 402 (1960).
93. See Godinez v. Moran, 509 U.S. 389, 399 (1993).
94. See Ward, supra note 91, at 49, 101 n.84.
95. See Gilmore v. Utah, 429 U.S. 1012, 1013 (1976).
96. See Ford v. Wainwright, 477 U.S. 399, 410 (1986).
97. See Ward, supra note 91, at 49, 101 n.81.
98. See Dusky, 362 U.S. at 402.
99. Godinez, 509 U.S. at 392.
100. See id. at 399.
101. Id. at 398.
102. See Rees v. Peyton , 384 U.S. 312, 314 (1966).
103. See id.
104. See, e.g., Gilmore v. Utah, 429 U.S. 1012, 1013-14 (1976).
105. See Ford v. Wainwright, 477 U.S. 399, 409-10 (1986).
106. Id. at 411-12 (Cf. Woodson v. North Carolina, 428 U.S. 280, 304 (1976)).
107. Id . at 410 .
108. See Rees v. Peyton, 384 U.S. 312, 313-14 (1966).
109. Id. at 314.
110. Gilmore, 429 U.S. at 1017. (Stevens, J., concurring).
111. Rees, 384 U.S. at 314.
112. See Franklin v. Francis, 997 F.Supp. 916, 920 (1998).
113. See id.
114. Id. at 929.
115. See id. at 930.
116. Franklin v. Francis, 144 F.3d 429, 433 (1998).
117. “Legal competency” is defined as in note 2, supra.
118. RICHARD SLOANE, THE SLOANE-DORLAND ANNOTATED MEDICAL-LEGAL DICTIONARY 221 (West Publishing Company 1987).
119. See TIMOTHY W. COSTELLO & JOSEPH T. COSTELLO, ABNORMAL PSYCHOLOGY 2-3 (HarperCollins Publishers, Inc. 1992).
120. See id. at 12.
121. Id. at 12.
122. See id. at 23.
123. See id.
124. National Alliance for the Mentally Ill, Public Policy Platform (Dec. 1992).
125. See Costello, supra note 119, at 59-75.
126. Id. at 59.
127. See id.
128. See id. at 62-71.
129. See Franklin v. Francis, 997 F.Supp. 916,920-21 (1998).
130. See id. at 921.
131. Id. at 920.
132. Id. at 921.
133. See id. at 920.
134. See id.
135. See Caldwell v. Mississippi, 472 U.S. 320, 320 (1985).
136. Cf. Crane v. Kentucky, 476 U.S. 683, 690 (1986).
137. See id.
138. See Welsh S.White, Defendants Who Elect Execution, 48 U. Pitt. L. Rev. 853, 864 (1987).
139. See, e.g., Faretta v. California, 422 U.S. 806, 806 (1975).
140. Id. at 815 (quoting Adams v. U.S. ex rel. McCann, 317 U.S. 269, 279-80 (1942)).
141. See North Carolina v. Alford, 400 U.S. 25, 38 (1970); F.R.Crim.P. 11(f).
142. See White, supra note 138, at 867.
143. See id.
144. See id.
145. Id. at 865.
146. Cf. Crane v. Kentucky, 476 U.S. 683, 690 (1986).
147. See Franklin v. Francis, 997 F. Supp. 916, 920-21 (1998).
148. See Franklin v. Francis, 144 F.3d 42, 433 (1998).
149. U.S. Const. amend. V; U.S. Const. amend. XIV.
150. See Franklin, 144 F.3d at 433.
151. See id.
152. See Franklin, 997 F.Supp. at 920-21.
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