Gerald Smith v. William Armontrout , 865 F.2d 1502 ( 1988 )

ARNOLD, Circuit Judge.

This is a habeas corpus case initially brought by Gerald Smith, a Missouri state prisoner under sentence of death. On September 29, 1988, a panel of this Court denied a certificate of probable cause, thus effectively dismissing the appeal from the judgment of the District Court, which had dismissed the habeas petition on its merits. Smith v. Armontrout, 692 F.Supp. 1079 (W.D.Mo.1988) (Wright, C.J.). Our panel took this action because Smith himself had asked for it, and the panel was convinced of his legal capacity to make that decision. Smith v. Armontrout, 857 F.2d 1228 (8th Cir.1988) (per curiam).

The Missouri Public Defender Commission and Terry Brummer, Director of the Office of the State Public Defender, who had been acting as next friends to try to prevent Smith’s execution, then filed a petition for rehearing by the panel, with suggestions for rehearing en banc. This petition was filed on September 30, 1988. Smith’s execution had been set by the Supreme Court of Missouri for October 4, 1988, and no stay of execution was in effect. While the petition for rehearing was pending, and before we had ruled on it, three Members of this Court, acting as individual circuit judges, granted an emergency temporary stay of the execution. They did so to afford themselves time to study the record in order to determine how to cast their votes on the petition for rehearing en banc. Smith v. Armontrout, No. 88-2359 (order of Lay, C.J., Heaney and McMillian, JJ., filed October 3, 1988). A motion of the respondent to vacate this stay was denied by the Court en banc, two judges (Fagg and Magill, JJ.) dissenting, and the Supreme Court also declined to set aside the three-judge stay. Armontrout v. Smith, — U.S. -, 109 S.Ct. 200, 102 L.Ed.2d 170 (1988). Thus, the execution did not take place on October 4, and the stay remained in effect pending our decision on the petition for rehearing. A supplement to the petition has also been filed and considered by the Court.

We now deny the petition for rehearing en banc. A brief summary of the history of this case will suffice to explain our reasons.

The murder of Karen Roberts took place in 1980. Smith was convicted of this crime and sentenced to death in 1981. The conviction was upheld on direct appeal and on collateral review in the state courts. From time to time, Smith changed his mind about pursuing efforts to have his conviction set aside. By the time the habeas corpus petition now before us was filed in the District Court, Smith had decided he did not want to pursue his remedies. A series of next friends attempted to press them on his behalf, however, claiming that Smith was not competent, and that his decision to accept the death sentence was not voluntary. Accordingly, the District Court held an extensive and searching evidentiary hearing, including testimony from psychiatric experts on both sides of the issues. After this hearing, at which the burden of proof was placed on the State to show that Smith’s decision was both competent and voluntary, the District Court found as a fact that Smith had the capacity to make his own decision, and that he had made it voluntarily. Smith v. Armontrout, 632 F.Supp. 503 (W.D.Mo.1986).

On appeal by the next friends, we affirmed. 812 F.2d 1050 (8th Cir.1987). After carefully studying¹ the entire record, we held that the District Court’s findings were not clearly erroneous.² The next friends filed a petition for rehearing, with suggestions for rehearing en banc. The petition was denied. Not a single judge voted to grant it. In fact, no Member of the Court even requested a poll on the petition.³ The Supreme Court denied cer-tiorari. — U.S. -, 107 S.Ct. 3277, 97 L.Ed.2d 781 (1987). No Member of that Court indicated a desire to review the case.

In the meantime, Smith had changed his mind, apparently, in part at least, because he had gotten married. He decided to prosecute his habeas petition, and the District Court proceeded to hear and determine the merits of the petition. As we have noted, the District Court dismissed the petition on the merits. Smith then reverted to a determination to acquiesce in his sentence, and asked that the case be dropped. His court-appointed counsel, acting out of a commendable abundance of caution, filed a notice of appeal anyway, which we treated, in accordance with Fed.R.App.P. 22(b), as an application for a certificate of probable cause. Smith then wrote the Clerk of this Court to ask that the appeal be dismissed. Since we had previously affirmed his competence to make such a decision, we knew of no reason why his wish should not be granted, but, because life was at stake, we did not simply deny the application out of hand, but instead entered a show-cause order indicating our intention to do so if no good reason to the contrary could be shown. Smith v. Armontrout, 858 F.2d 1303 (8th Cir.1988) (per curiam).

As a result of this order, the current set of next friends entered their appearance, alleging certain facts that, they contended, required a new evidentiary hearing on Smith’s competence. The following facts were alleged:

The Commission and Brummer are aware of several events in Smith’s life which need to be examined at a new competency hearing to determine their effect on Smith’s present “waiver” decision. The events are:

A. Gerald Smith’s marriage to Lyn [sic] Smith.

B. Gerald Smith’s decision to change his mind about waiving his appeals reflected in his filing of a federal habeas corpus petition in the federal District Court which is the subject of this appeal.

C. The litigation concerning Smith’s federal habeas corpus petition in the District Court.

D. After the District Court’s decision to deny Smith’s federal habeas corpus petition, Smith’s apparent decision, reflected in his September 23, 1988 letter, to change his mind again, abandon his appeals, and acquiesce in his execution.

5. Lyn [sic] Smith’s recent decision to encourage her husband to abandon his appeals and acquiesce in his execution.

In the panel opinion which gave rise to the present en banc proceedings, we held these allegations legally insufficient. The Court en banc now adopts the panel opinion. We repeat, for the reasons given in that opinion, that the facts alleged by the next friends, even if fully established by evidence, do not amount, in law, to a sufficient reason to reexamine the previous finding, which is now the law of this case. Conspicuously absent are any allegations of new psychiatric examinations or new conduct by Smith, other than the facts of his marriage and his changes of mind. As we said in the panel opinion:

We think these allegations, assuming their truth for present purposes, are legally insufficient to create a genuine issue of material fact as to Smith’s present mental capacity. Subparagraph C is simply a factual recitation that habeas litigation has occurred in the District Court. Subparagraphs B and D accurately state that Smith has changed his mind in the past ..., but competent people do change their minds, even about very important matters, and past changes of mind were among the arguments that we considered and rejected when we considered the question of Smith’s capacity last year. Subparagraphs A and E merely recount Smith’s marriage and his wife’s decision to encourage him to abandon his appeals. We have not heard from Mrs. Smith,[⁴] but we assume that the motion is accurate in this respect. Even so, no genuine issue of her husband’s capacity is raised. It is not at all unnatural for someone to consult with his or her spouse about important matters and to be influenced by the spouse’s advice. Nor do we have any reason to suppose that Mrs. Smith is exercising any undue influence, or that she is acting for any reason other than her own sincere belief as to her husband’s best interests.

857 F.2d at 1229-30.

In their petition for rehearing, the next friends make the same arguments that were before the panel. In addition, they have submitted the affidavits of three psychiatrists, none of whom has ever examined Smith, but all of whom think we should order a new evidentiary hearing.⁵ The affidavits are substantially similar. They opine that the new facts alleged by the next friends, allegations we have set out above, show that “a medical presumption exists that Smith has experienced a chronicity of stress factors which could provide marked psychic disorganization in Mr. Smith.” Affidavit of Moisy Shopper, M.D., if 7(A). In addition, Smith’s marriage is said to be “a very significant psychological event” and “not an ordinary marriage” (Smith being on death row). Id. if 7(B).

These opinions are insufficient to require a new mental examination. In the first place, they are carefully hedged and tentative. It is not said, for example, that Smith is exhibiting “marked psychic disorganization,” but only that “a medical presumption exists ... which could” create such a condition. In the second place, the issue is more one of common sense and good moral judgment (fields in which the competence of judges should equal that of psychiatrists) than of medical expertise. In expressing these views we mean no disrespect or deprecation of the three physicians who have come forward to express their views. They have done so in all good faith to be of assistance to us and to the public interest in fair adjudication. We simply do not believe that their opinions come up to the required legal threshold.

It is important to remember that the issue of legal decisionmaking capacity that the next friends now urge is not before us now for the first time. We are not writing, as the phrase goes, on a clean slate. Rather, we must take the prior determination of competence as a given, a sort of benchmark, the correctness of which we are entitled to presume unless some substantial reason to the contrary appears. Any other approach would make meaningless prior determinations of mental condition, because it is always possible for a next friend, acting at the last minute, to request a new evidentiary hearing on a prisoner’s competence to waive his remedies, just as it is possible for a prisoner himself, at the last minute, to request a new evidentiary hearing with respect to his own sanity for purposes of Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), which holds that the Eighth Amendment does not permit the execution of a prisoner who is “insane.”

In this regard, we take our cue from the concurring opinion of Justice Powell in Ford. Once a finding as to mental condition has been fairly and properly made, “[t]he State ... may properly presume that petitioner remains sane at the time sentence is to be carried out, and may require a substantial threshold showing of insanity merely to trigger the hearing process.” Ford v. Wainwright, supra, 477 U.S. at 426, 106 S.Ct. at 2611 (opinion of Powell, J., concurring in part and concurring in the judgment) (footnote omitted). This remark, made in the context of the Ford insanity-at-the-time-of-execution issue, is just as valid in the present context, in which the issue is a prisoner’s present capacity to waive his remedies. See also Johnson v. Cabana, 818 F.2d 333, 339-40 (5th Cir.) (per curiam), cert. denied, 481 U.S. 1061, 107 S.Ct. 2207, 95 L.Ed.2d 861 (1987); Evans v. McCotter, 805 F.2d 1210, 1213-14 (5th Cir.1986). Language in Johnson is particularly apposite in the present situation. There, a psychologist concluded that the prisoner’s present condition “may” impair his relations with his counsel, and the Court remarked that such a showing did “not come close to establishing that Johnson lacks a sufficient understanding to know what facts might help his case or the requisite intelligence to discuss them with his counsel.” Johnson, 818 F.2d at 340.

It may well be that Smith suffers from one or more mental disorders. Such a showing, without more, is wholly insufficient to meet the legal standard that the Supreme Court has laid down for this kind of case. The rule of that Court is that defendants may waive their remedies if they have the capacity to appreciate their position and make a rational decision, and if they do not suffer from a mental disease, disorder, or defect that may substantially affect this capacity. See Rees v. Peyton, 384 U.S. 312, 314, 86 S.Ct. 1505, 1506, 16 L.Ed.2d 583 (1966) (per curiam). The statement in one of the dissenting opinions, post, p. 1513, that “[i]t is ... fundamental that a person ... who manifests a state of mental disorder or disease demonstrating mental instability should not be allowed to waive their legal rights” is not consistent with this standard. More than mental disorder must be shown. The disorder must be one that substantially affects the prisoner’s capacity.

Both of the dissenting opinions emphasize Smith’s history of mental disorder and family instability. In addition, large and selective excerpts from the testimony at the evidentiary hearing on Smith’s competence are quoted. The controlling point for legal purposes, though, is this: all of this testimony was considered by the trier of fact more than two years ago, and a finding in favor of competence was made. When the three-judge stay was entered on October 3, the stay order was careful to emphasize that “[w]e do not suggest a collateral attack may be made on” the prior findings affirmed by this Court. Order of Lay, C.J., Heaney and McMillian, JJ., p. 2. It seems to us that the dissenting opinions fail to live up to this statement.

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In sum, for the reasons stated, we hold that the new allegations of fact made by the next friends, even when supplemented by the three new psychiatric affidavits, are not sufficient to raise a genuine issue of material fact requiring a new evidentiary hearing. The prior finding of competence therefore remains in effect.

The whole presupposition of the criminal law is that most people, most of the time, have free will within broad limits. They are capable of conforming their actions to the requirements of the law, and of appreciating the consequences of failing to do so. Without this fundamental moral and legal assumption, punishment, one of the principal purposes of the criminal law, would be an irrational exercise. The watchword of the law is individual responsibility. By the same token, individuals who are responsible for their acts continue to be responsible for their decisions and continue to be in charge of their own fate, to the extent permitted by law. If someone decides that he or she prefers to acquiesce in a presumptively lawful judgment of a court, this decision should be respected, unless that person’s mental condition is so abnormal that it does not meet accepted legal requirements. Mr. Smith decided to commit murder in the first place. He has now decided to suffer the consequences of this action. We believe the law allows him to make this decision.

Accordingly, the petition for rehearing en banc is denied, and the petition for rehearing by the panel is also denied. The stay of execution previously entered by three individual circuit judges is hereby dissolved. We direct that our mandate issue forthwith.

It is so ordered.⁶

1 . The case was under advisement for five months.

2 . The State argued that the District Court had wrongly placed the burden of proof on it. We found it unnecessary to decide this question. See 812 F.2d at 1058 & n. 8.

3 . Under our practice, if no judge requests a poll on a petition for rehearing en banc, an order denying the petition is routinely entered.

4 . As the dissenting opinion of Lay, C.J., notes, post, p. 1512, Mrs. Smith, in an informal communication with our Clerk’s office, disputes these allegations. If we thought they were legally material, we would agree that an evidentiary hearing should be held, but we do not. A claim that someone has “encouraged” another to make a decision does not even begin to raise a genuine issue of undue influence or overreaching. We note, in addition, that Mrs. Smith has now filed her own next-friend petition, attacking another death sentence imposed on her husband for another murder. Smith v. Armontrout, 865 F.2d 1501 (8th Cir., notice of appeal filed November 17, 1988).

5 . The submission in a rehearing petition of material — especially factual material — that was not before the panel is extraordinary. Normally we would not consider it. In this case, however, because life is at stake and because the next friends had only a few days to prepare their presentation to the panel, we have considered the new material. We have also considered the next friends’ supplemental suggestions, with exhibits, filed on November 15, 1988.

6 . The possibility always exists that Mr. Smith may change his mind again. We direct the respondent Armontrout to deliver to Mr. Smith in person a copy of this opinion. If Mr. Smith changes his mind again, we direct the respondent Armontrout to inform the Clerk of this Court at once. The writer of this opinion be-Heves that Smith’s petition for habeas corpus, considered on its merits, is not frivolous. If Smith changes his mind about pursuing his remedies, it is my intention to grant a certificate of probable cause and issue a stay of execution, pending determination by this Court of the appeal on its merits.