June 23
TENNESSEE:
(the following is the 6th Circuit Court of Appeals' decision to stay the
impending execution of Gregory Thompson)
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0195P (6th Cir.)
File Name: 04a0195p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
Gregory Thompson,
Petitioner-Appellant,
v.
Ricky Bell, Warden,
Respondent-Appellee.
No. 00-5516
Appeal from the United States District Court
for the Eastern District of Tennessee at Chattanooga.
No. 98-00006R. Allan Edgar, Chief District Judge.
Decided and Filed: June 23, 2004
Before: SUHRHEINRICH, MOORE, and CLAY, Circuit Judges.
_________________
COUNSEL
ARGUED: Dana C. Hansen Chavis, FEDERAL DEFENDER SERVICES, Knoxville,
Tennessee, for Appellant. Jennifer L. Smith, OFFICE OF THE ATTORNEY
GENERAL, Nashville, Tennessee, for Appellee. ON BRIEF: Dana C. Hansen
Chavis, FEDERAL DEFENDER SERVICES, Knoxville, Tennessee, for Appellant.
Jennifer L. Smith, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee,
for Appellee.
MOORE, J., delivered the opinion of the court, in which CLAY, J.,
joined. SUHRHEINRICH, J. (pp. 7-105), delivered a separate opinion
concurring in part and dissenting in part.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Eighteen months ago, this panel in
a split decision producing three different opinions affirmed the decision
of the district court granting summary judgment to respondent in this
habeas corpus action. Judge Suhrheinrich later conducted sua sponte a
second, thorough review of the record and came to the conclusion that the
facts as adduced in deposition testimony not part of the district court
record supported the granting of the writ. See infra (Suhrheinrich, J.,
concurring). Upon reviewing the deposition of Dr. Faye Sultan, and
investigating the procedural complications of this case, it is clear that
this extremely probative testimony requires that we vacate the district
courts grant of summary judgment in favor of respondent.
Judge Suhrheinrich summarizes most effectively the Sultan deposition
and its value in assessing Gregory Thompsons mental state at the time of
the crime. Where his opinion goes too far is in its accusations of fraud
on the court; while his explanation for the omission of the Sultan
deposition from the official record before the court is possible in the
narrowest sense, the power of this court should not be used to make such
accusations without more definite proof than the factual record of this
case reveals.
Dr. Sultans deposition was taken by trial counsel for respondent, but
was not included with the evidence submitted as part of Bells motion for
summary judgment. Slightly more than one year later, contemporaneous with
the preparation of this appeal, appellate habeas counsel made a Rule 60(b)
motion in the district court asking to include the Sultan deposition as
part of the record. At the same time, Thompsons counsel submitted that
deposition to this court as part of his motion to hold this appeal in
abeyance during the pendency of the Rule 60(b) motion. Applying the
principle of Occams razor, we conclude that more than likely, a genuine
mistake was made, one which was not realized until a different attorney
looked at the case. To conclude otherwise is to disbelieve sworn testimony
by an officer of the court, and to assume that habeas counsel conspired to
conceal evidence beneficial to their client, for no discernible reason
evidence loses power, rather than gains it, by being revealed on the eve
of execution in a second habeas petition. Reading Judge Suhrheinrichs
opinion, one might conclude that this court had only recently unearthed
the Sultan deposition, when in fact it was submitted to the panel prior to
oral argument as part of the abeyance motion.
We did not consider it, however, in rendering our decision, believing
ourselves to be bound by the record created in the district court. Upon
reflection, and after reviewing Judge Suhrheinrichs forceful assessment of
the probity of the Sultan deposition, we believe it is appropriate to use
our inherent equitable powers to expand the record on appeal to consider
the deposition. Ordinarily, a court of appeals should only consider
evidence made part of the district court record. Where through error or
accident material matters are omitted or misstated, Federal Rule of
Appellate Procedure 10(e) allows correction of the appellate record to
include the corrected material. See Inland Bulk Transfer Co. v. Cummins
Engine Co., 332 F.3d 1007, 1012 (6th Cir. 2003). While some circuit courts
have held that Rule 10(e) allows the inclusion of material the district
court did not consider, see In re Capital Cities/ABC, Inc.s Appl. for
Access to Sealed Trs., 913 F.2d 89, 97 (3d Cir. 1990) (citing inconsistent
circuit precedent); United States v. Aulet, 618 F.2d 182, 187 (2d Cir.
1980), the rule in this circuit has consistently been that Rule 10(e) does
not allow such inclusion. See, e.g., Inland Bulk, 332 F.3d at 1012; S & E
Shipping Corp. v. Chesapeake & Ohio Ry. Co., 678 F.2d 636, 641 (6th Cir.
1982). We adhere to our previous interpretation that Rule 10(e) does not
allow inclusion in the appellate record of material that the district
court did not consider.
Although Rule 10(e) is thus unavailable, we recognize that a number
of our sister circuits have held that the courts of appeals have the
inherent equitable power to supplement the record on appeal, where the
interests of justice require. See United States v. Kennedy, 225 F.3d 1187,
1192 (10th Cir. 2000) ([U]nder some circumstances, we have an inherent
equitable power to supplement the record on appeal. However, we conclude
the present case does not present those circumstances.); Ross v. Kemp, 785
F.2d 1467, 1474 (11th Cir. 1986) (relying on Dickerson, infra, and
exploring circumstances under which exercise of that power is
appropriate); Gibson v. Blackburn, 744 F.2d 403, 405 n.3 (5th Cir. 1984)
(Although a court of appeals will not ordinarily enlarge the record to
include material not before the district court, it is clear that the
authority to do so exists.); Dickerson v. Alabama, 667 F.2d 1364, 1368
(11th Cir. 1982) (relying on courts inherent equitable powers to
supplement the record in habeas case); Turk v. United States, 429 F.2d
1327, 1329 (8th Cir. 1970) ([I]n the interest of justice, this court may
order the record enlarged.); Gatewood v. United States, 209 F.2d 789,
792-93 & n.5 (D.C. Cir. 1953) (sua sponte ordering preparation of
transcript for record in the interest of both parties, and of the due
administration of justice); see also Charles Alan Wright et al., Federal
Practice & Procedure 3956.4, at 349-51 (3d ed. 1999 & Supp. 2003) (In
special circumstances, however, a court of appeals may permit
supplementation of the record to add material not presented to the
district court.); 20 Moores Federal Practice, 310.10[5][f], at 310-19 (3d
ed. 2000) (In extraordinary situations, the circuit court may consider
material not presented to the district court when it believes the
interests of justice are at stake.). Although recent Sixth Circuit cases
indicate that we have not yet embraced the notion that the record can be
supplemented under an appellate courts equitable authority, see Inland
Bulk, 332 F.3d at 1012, in at least one earlier state habeas case we have
so supplemented the record, citing to Dickerson, 667 F.2d at 1367. See
Prather v. Rees, 822 F.2d 1418, 1420 n.1 (6th Cir. 1987) (Although the
parties did not provide the court with copies of the state court briefs,
this court may supplement the record when necessary.); see also Adams v.
Holland, 330 F.3d 398, 405-06 (6th Cir. 2003) (recognizing exception to
Rule 10(e) in habeas cases: where substantial portions of [the state trial
transcript] were omitted before the District Court, a habeas case should
be remanded to the District Court for consideration in light of the full
record.). Because the evidence here was apparently negligently omitted,
because the evidence is so probative of Thompsons mental state at the time
of the crime, because there is no surprise to respondent as it was his
counsel who took the deposition, and because this is a capital case, we
believe that the circumstances of this case merit consideration of the
Sultan deposition pursuant to our equitable power to supplement the record
on appeal, despite the omission of the deposition from the District Court
record. We therefore vacate the grant of summary judgment, and remand the
case to the District Court for a full evidentiary hearing.
It remains to be explained the source of our power to so reconsider
our earlier opinion, as we do not join in Judge Suhrheinrichs allegation
of fraud on the court. Instead, we rely on our inherent power to
reconsider our opinion prior to the issuance of the mandate, which has not
yet issued in this case. Although a court of appeals should withdraw an
already-issued mandate only to prevent a miscarriage of justice, see
Calderon v. Thompson, 523 U.S. 538 (1998), at least two of our sister
circuits have reconsidered opinions where the mandate has not yet issued.
See Wilson v. Ozmint, 357 F.3d 461, 464 (4th Cir. 2004) (The mandate of
the court has not yet issued in this case, and, therefore, we may, at our
discretion, amend what we previously decided . . . . (quoting Alphin v.
Henson, 552 F.2d 1033, 1035 (4th Cir. 1980)); First Gib. Bank v. Morales,
42 F.3d 895, 898 (5th Cir. 1995) (relying on Alphin, 552 F.2d at 1035, to
reconsider decision where mandate had not yet issued). We therefore rely
on our inherent power over a case until our mandate issues in
reconsidering our opinion in this case.
The judgment of the district court is therefore VACATED, and the case
is REMANDED for further proceedings not inconsistent with this opinion.
Thompsons execution is also STAYED for 180 days to permit the district
court to proceed.
______________________________________________
CONCURRING IN PART, DISSENTING IN PART
______________________________________________
SUHRHEINRICH, Circuit Judge, concurring in part and dissenting in
part.
I. Introduction
Petitioner-Appellant Gregory Thompson (Thompson or Petitioner) was
convicted of first degree murder and sentenced to death by the State of
Tennessee. In a previous decision, this Court affirmed the district courts
denial of his request for a writ of habeas corpus. See Thompson v. Bell,
315 F.3d 566 (6th Cir. 2003), cert. denied, 124 S. Ct. 804 (2003). The
Supreme Court denied Thompsons petition for writ of certiorari. On
February 25, 2004, the State of Tennessee granted the States motion to set
an execution date and has ordered that the Warden of the Riverbend Maximum
Security Institution or his designee execute the sentence of death on
August 19, 2004, unless otherwise ordered by this Court or other
appropriate authority. This matter is now before this Court on its own
motion.
Essential to our conclusion that Thompson was not denied effective
assistance of counsel due to counsels failure to introduce evidence that
he suffered from schizophrenia at the time of the offense was our finding
that Thompson has never submitted to any court any proof that he suffered
from severe mental illness at the time of the crime. Thompson, 315 F.3d at
590. Subsequent to the issuance of our decision on January 9, 2003,
information has come to the attention of the Court which requires us to
determine whether our decision to affirm the district courts denial of
Thompsons petition for writ of habeas corpus relief from his death
sentence was improvident.
While reviewing various Sixth Circuit death penalty cases in
preparation of a law review article on the subject, an intern in my
chambers, who also happens to be a board-certified psychiatrist, expressed
concern as to why Thompsons post-conviction expert, Gillian Blair, Ph.D.,
and Thompsons habeas experts, Barry Crown, Ph.D. and Faye Sultan, Ph.D.,
had not directly addressed the question as to whether Thompson did or did
not exhibit symptoms of a major mental illness at the time of the crime or
sentencing, and, if he did, whether the symptoms were sufficient at that
point to support a diagnosis of mental illness which should have been
presented as mitigating evidence at the sentencing hearing. I then
conducted my own review of the entire certified record, in addition to my
prior review of the joint appendix. As a result of my review of the entire
certified record, I feel that it is incumbent upon me, as a judicial
officer sworn to uphold the Constitution, and as authoring judge of the
initial opinion, to reverse that ruling and issue this opinion. Although I
am now merely a concurring/dissenting judge in this matter, I wish it to
be known that the initiative for this decision came from my chambers. The
majoritys ruling is based upon their review of my draft opinion, prepared
after my discovery, and the hundreds of hours of work that followed,
reviewing the entire record, researching the law, and drafting this
opinion.
The question thus is whether our prior ruling was mistaken, because
there is, and was, in fact available proof that Thompson was suffering
from a serious mental disease or defect at the time of the 1985 offense
which would have substantially impaired his ability to conform his conduct
to the requirements of law.(1) Also at issue, and integral to the primary
question, is whether the federal habeas counsel in this case committed
fraud on the court by intentionally or recklessly failing to present
critical evidence on the question, of which they had knowledge, to the
district court. For the reasons that follow, we vacate our prior ruling
and conditionally grant the writ.
II. Background
The facts are set forth in great detail in our prior opinion. See id.
However, because the present inquiry involves voluminous facts and
procedural history not presented to us on appeal as part of the joint
appendix, it is necessary to revisit much of the case, and to review and
present the new materials. To the extent possible, I have attempted to
present the relevant facts in chronological and procedural order.
A. State Court Proceedings
1. Trial Court
Brenda Lane was murdered on January 1, 1985. Thompson was apprehended
the next day. On January 29, 1985, the trial court appointed counsel. On
February 26, 1985, less than two months after the murder, counsel filed a
notice of insanity defense and also requested a mental or psychological
evaluation of Thompson to determine (1) whether Thompson was competent to
stand trial, and (2) his mental capacity at the time of the crime. On
March 25, 1985, less than three months after the murder, trial counsel
filed a supplementary motion for a psychiatric examination and a
neurological examination to determine (1) whether Thompson was competent
to stand trial and assist counsel with his defense, (2) whether Thompson
was suffering from a mental illness on the date of the offense, and (3)
whether Thompson was in need of hospitalization for further psychiatric
treatment and evaluation. The affidavit in support stated that Thompson
had previously suffered two concussions, one when he was sixteen years old
from a car accident, and the second while in the Navy, when he was beaten
in the head with a hammer by three fellow servicemen.
On March 28, 1985, less than three months from the date of the
offense, the trial court ordered that Thompson be referred to the
Multi-County Mental Health Center for a forensic evaluation to determine
(1) his competency to stand trial and to assist in his own defense, and
(2) his mental capacity at the time of the crime. On April 4, 1985, the
trial court entered another order directing Thompson to undergo a forensic
evaluation at a state facility, Middle Tennessee Mental Health Institute
(MTMHI), for a maximum of thirty days. A team of forensic psychologists at
MTMHI evaluated Thompson and found him to be competent.
Trial counsel questioned the state teams impartiality and requested
funds to secure further psychiatric evaluations. On July 29, 1985, the
trial court granted counsel funds to hire an independent psychiatrist.
Instead, counsel used the funds to hire Dr. Copple, a clinical
psychologist. Trial counsel stated that the effort to hire a psychiatrist
was not successful. Id. at 573. Also as part of their trial preparation,
counsel traveled to Thompsons home town where they interviewed various
family members and acquaintances of Thompson.
Thompson did not present a defense at trial, and the jury convicted
him of the first degree murder of Brenda Lane. At the sentencing phase,
Thompsons former girlfriend, Arlene Cajulao, testified that she knew
Thompson from 1980 until June 1984. She described Thompson as caring and
sensitive. On cross-examination, she testified to incidents concerning
Thompsons violent behavior while in the Navy. Thompsons sister, Nora Jean
Walton, testified about his activities in Georgia upon his return from
Hawaii after his discharge from the Navy. Dr. Copple also testified. He
stated that he spent roughly eight hours examining Thompson over several
sessions. Copple stated that during the first session, he was basically
looking at what things Thompson would be capable of doing in a prison
setting. Copple testified that, in his opinion, Thompson had an unusually
strong need to nurture other people that had impelled him to some unwise
actions. Copple felt that Thompson did not have an adult anti-social
personality disorder. On cross-examination Copple stated that he did not
think Thompson was suffering from any mental illness.
The State presented in rebuttal the deposition testimony of Dr.
Robert Glenn Watson, who had participated in the staff evaluation of
Thompson at MTMHI. Watson found no intellectual impairment. Watson also
testified that they found no real evidence of organicity or brain damage.
Watson also administered the Minnesota Multiphasic Inventory-II (MMPI),
but determined that the tests results reflected malingering. Watson
further stated that on May 24, 1985, at a staff conference, based on all
the data, the staff concluded that:
[Thompson] exhibited none of the signs of an affective illness. His
judgment and insight are rather poor. Psychological testing revealed him
to be functioning in the average range intellectually, to exhibit no signs
of organicity or brain damage on the Bender-Gestalt Test and the Bender
Interference Procedure. Personality profiles revealed no evidence of a
psychosis, but indicated malingering in the mental illness direction. (For
example, the schizophrenic score was at T 120, while clinical observations
revealed no evidence of a thought disorder.)
The staff at MTMHI diagnosed Thompson as Axis 1, Adult Antisocial
Behavior, 071.01. The forensic team therefore concluded that Thompson was
mentally competent to stand trial and was not suffering from a mental
disease or defect.
The jury imposed the death penalty at the conclusion of the penalty
phase, and the trial court entered judgment sentencing Thompson to death
by electrocution. Thompson thereafter pursued his direct appeals to no
avail.
2. Post-Conviction
On October 16, 1990, Thompson filed a petition for post-conviction
relief, claiming in relevant part that trial counsel failed to investigate
adequately Thompsons background and personal and medical history for the
existence of mitigating evidence. See Thompson, 315 F.3d at 576. On
February 1, 1991, post-conviction counsel filed an ex parte, sealed motion
seeking funds to hire a licensed psychologist or psychiatrist and an
investigator to assist in the preparation of his case for post-conviction
relief. Id. at 577. In support, counsel attached the affidavit of Dr.
Gillian Blair, a clinical psychologist. Blair noted that Thompsons
post-incarceration medical records indicated that Thompson had been
variously diagnosed as having bipolar affective disorder, schizo-affective
disorder, and schizophrenia, paranoid type, and was taking Lithium,
Haldol, and Cogentin. Id. Blair opined that [i]f Mr. Thompson is found to
be suffering from neurological or psychological impairment as described
above, it is likely that some degree of such impairment would have existed
at the time of the offense and would have been a significant factor in
determining whether or not Mr. Thompson was able to appreciate the
wrongfulness of his conduct or to conform his conduct to the requirements
of law when he committed the homicide of which he stands convicted. Id.
Blair indicated that Thompson needed a full psychological evaluation. Id.
The state trial post-conviction court held an evidentiary hearing on
March 27 and March 29, 1995. At the hearing Blair testified that she
reviewed Thompsons institutional records, beginning with the 1985 MTMHI
assessment. She also interviewed Thompson in March and April 1992, and at
that time administered a basic psychological battery of tests with some
additional . . . neuropsychological tests because of the history of head
injuries that Mr. Thompson had received and that were well documented in
his medical record. Id. at 578-79. Blair then articulated the following
opinion:
The Riverbend medical record indicated that since 1985, Mr. Thompson had
shown a deteriorating mental status. He had become psychotic. He had been
treated with anti-psychotic medication at that time. He was treated with
Haldol, Cogentin, and Lithium, and three different treating physicians at
that time: Dr. Dyner [sic], Dr. Deal, and Dr. Humble had all over the
years from 1985 to 1990 had diagnosed him as either having bipolar
disorder or a schizo affective disorder or schizophrenia. They described
his agitated behavior. They described his hostility. They described his
inappropriate affect, his experience of auditory hallucinations, his
delusions, his paranoia, his thoughts of persecution. He had attempted
suicide of a couple of occasions. He had set fire to his cell burning both
his hands and his face. They had certainlytwo of those psychiatrists and
maybe all three of them had considered the possibility that he was
malingering, that he was faking mental illness and throughout their
Riverbend records, it was clear that those psychiatrists had discounted
the possibility of malingering because they didnt feel that it accounted
for all of the psychotic symptoms they saw in him.
Id. at 579.
Blair was also asked what other facts would be necessary for her to
develop an opinion as to Thompsons condition at the time of the offense.
She stated that the most important thing that would be necessary would be
a full history and full medical records of Mr. Thompson prior to the
commission of the offense. Id. She added that:
>From the records I was able to review, it was clear that the social
history was very sketchy in terms of his remote history, his childhood and
his upbringing, and also family history of mental illness. There seemed to
be a [sic] strong evidence to suggest that there was mental illness in his
family, probably in his father who committed suicide and was known to be
extremely violent and possibly in his mother but none of those records
were available.
Id. Blair therefore stated that she did not have an opinion about
Thompsons diagnostic
status in 1985. Id.
On cross-examination, Blair stated that she had reviewed all of the
records included in the files from MTMHI. This included daily progress
notes, medication sheets, the report of psychological testing, the
discharge summary, the admission summary, the staff conference report, and
the social workers history. Id. When asked whether she thought MTMHIs
testing procedure was unreliable, she averred that it was not unreliable,
but simply not extensive enough. Id. Blair further testified that from her
own testing,(2) she did not believe that Thompson was faking or attempting
to fake mental illness.
On May 15, 1995, the post-conviction court denied Thompsons claims.
The court found that defense counsel had made an adequate investigation
into their clients background and prior medical history. The court stated
that state post-conviction counsel had presented no proof of mental
problems that would have provided Thompson with a defense or shielded him
from the death penalty. Id. at 580. The Tennessee Criminal Court of
Appeals held that Thompson had failed to establish that any type of
psychological impairment in general may have existed which would have been
mitigating evidence. Id. That court specifically noted that Dr. Blair
declined to give an opinion on these important issues, and the evidence
does not preponderate against the trial courts finding that the defense
attorneys were not ineffective. Id. (quoting Thompson v. State, 958 S.W.2d
156, 165 (Tenn. Crim. App. 1997)).
B. Federal Habeas Proceedings
1. District Court
On January 23, 1998, Thompson filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. 2254. (DCTR 1).(3) He also filed a motion
and application for appointment of counsel to investigate, prepare and
file the petition, pursuant to 21 U.S.C. 848(q)(4)(B). (DCTR 2). On
January 29, 1998, the court granted Thompsons motion for appointment of
counsel and designated the Federal Defender Services of Eastern Tennessee,
Inc., to provide Thompson with an attorney to prepare and file a petition
for a writ of habeas corpus and to prepare for and participate in all
proceedings in connection therewith. (DCTR 3).
On March 9, 1998, the district court held a scheduling conference.
Attorney Stephen M. Kissinger was present representing Thompson. Assistant
Tennessee Attorney General John H. Baker III was present on behalf of the
State. (DCTR 6). On March 11, 1998, the district court entered a
scheduling order. The court required, in relevant part, that disclosure of
anticipated use of any expert witness and disclosure of information
regarding the expert and the experts expected testimony was to be
completed by Thompson by October 30, 1998. The court directed the Warden
to disclose his expert witnesses by December 31, 1998. The scheduling
order also provided that the Wardens answer to the petition for writ of
habeas corpus was to be filed on or before July 17, 1998, and that the
parties file a joint schedule of needed discovery by July 24, 1998.
On May 26, 1998, Assistant Attorney General Glenn R. Pruden became
counsel of record for the Warden.
a. The Petition
As required by the scheduling order, Thompson filed his petition for
writ of habeas corpus on June 12, 1998. Thompson alleged in relevant part
that his trial counsel were ineffective for failing to: (1) perform a
reasonable investigation of his background and mental health history; (2)
secure adequate expert assistance regarding his mental health; (3)
discover available evidence of mental illness caused by two serious head
injuries; and (4) investigate and challenge Thompsons competency to stand
trial as well as his competency at the time of the offense.(4) He also
claimed that he was denied funding for mental health and investigative
experts during the state trial and post-conviction proceedings. The
petition was signed by Stephen M. Kissinger.
On August 25, 1998, the district court entered an order granting
Respondents motion for extension of time for filing a discovery schedule,
moving the deadline to September 2, 1998.
On October 22, 1998, Thompson filed an amended petition for writ of
habeas corpus. Thompson contended, in pertinent part, that the state
courts denied him funding for mental health and investigative experts at
trial and during state post-conviction proceedings, implicating his
fundamental rights to due process, equal protection, and effective
assistance of counsel. (DCTR 17). Thompson also complained that he was
denied expert funding, in violation of his Fifth, Sixth, Eighth and
Fourteenth Amendment rights. He alleged in relevant part:
a. Both trial and post-conviction counsel knew Petitioners mental
state was an important issue but without assistance from a competent
investigator and mental health expert, counsel was unable to explain and
overcome the state mental hospitals initial findings.
b. Attorney Parsons was aware of Petitioners history of head
injuries and the significant [sic] of those head injuries and what that
can do to somebody. P.C. Vol. I, p.38. Later, counsel also witnessed a
period when he [Petitioner] got sick mentally. P.C. Vol. I, p.83. Trial
counsel requested funds for a mental health expert but were denied.
Instead, Petitioner was sent to Middle Tennessee Mental Health Institute
(MTMHI) for a competency evaluation. Although MTMHI found Petitioner to be
competent, Mr. Parsons continued to believe further evaluation was needed.
. . .
c. Records from Riverbend Maximum Security Institution reflect that
several different treating psychiatrists have diagnosed Petitioner as
having either a bipolar affective disorder, cyclic mood disorder,
schizo-affective disorder or schizophrenia. All of the psychiatrists
described Petitioners agitated behavior, hostility, inappropriate affect,
auditory and visual hallucinations, delusions, paranoia, and thoughts of
persecution. Psychiatrists considered the possibility of Petitioners
malingering and all discounted that possibility. State examiners at
Riverbend ruled out malingering noting that it did not explain all
psychotic features. Test results indicating schizophrenia were found
consistent with Petitioners psychotic disorder even at his then current
stable level of functioning. Since his incarceration, Petitioner has been
heavily medicated. For example, Petitioner has taken Lithium and Klonopin,
both indicated for bipolar disorder; Depakene and Depakote indicated for
epileptic conditions and rapid cycling bipolar disorder due to brain
disease; the anti-psychotic drugs Haldol, Haloperidol, Mellaril, Navane,
Thioridazine, and Trilafon; Cogentin/Benztropine to minimize the effect of
such drugs; the sedative Vistaril; and, Ativan/Lorazepam and Valium to
reduce agitation.
d. Post-conviction counsel repeatedly requested funds for a mental
health expert. The prosecutor argued that post-conviction counsel were not
entitled to experts at state expense. P.C. Vol. 1, p.16. In support of the
motion for funding, counsel submitted the affidavit of Dr. Gillian Blair.
Dr. Blairs affidavit and post-conviction testimony reflected her need for
a complete social history, additional testing and interviews before she
could render an opinion on Petitioners mental status at the time of the
crime, at trial, and at the present time. See generally P.C. Vol. I, pp.
199-219. Dr. Blair opined that based on the Riverbend records, her test
results from 1992, and the brief social history available, further
investigation and examination of Petitioner was required. Dr. Blair
testified that since 1985 Petitioner had shown a deteriorating mental
status. P.C. Vol. II, p. 209. Petitioner had been diagnosed with bipolar
disorder, schizo affective disorder or schizophrenia. Id. She further
testified that schizophrenia and bipolar disorder, indeed all forms of
psychosis, generally begin in early adulthood, Id. at 215, which coincides
with the timing of the instant offense. Dr. Blair stated that Petitioners
troubles in the Navy, just prior to the crime, would suggest that he was
becoming mentally ill at that time. Id. at 216. However, further
information was needed to render an opinion and diagnosis of Petitioner at
that time. Dr. Blair also stated that further evaluation of Petitioner was
necessary to determine his present competency. Id. at 207.
e. The court denied funding for expert assistance at the
post-conviction hearing. The court reasoned that funds were unnecessary
because Petitioner had not shown a need, further funding would result in a
delay of the proceedings and the issue was a matter of record. . . .
f. Although the court found no need for further expert assistance,
the court later used the fact that Dr. Blair could not express an opinion
as to the issues of Petitioners mental health to limit Dr. Blairs
testimony and, subsequently, to deny Petitioner relief from his
unconstitutional conviction and sentence. For example, throughout Dr.
Blairs testimony, the prosecutor made repeated objections on the basis
that Dr. Blair did not have an ultimate opinion. See e.g. P.C. Vol. II,
pp. 208, 215, 216, 220, 259. Although the court allowed most of Dr. Blairs
answers, it did so remarking that the weight of the testimony was
specious. See id. The court, however, did not allow Dr. Blair to testify
about mitigating circumstances.
(Footnotes omitted.).
Thompson further alleged ineffective assistance of counsel, for the
following non-exclusive reasons:
1. Counsel at all critical stages failed to reasonably investigate
Mr. Thompsons background and mental health history. Had counsel done so,
they would have discovered that Petitioner had, in the years following his
graduation from high school, intermittently demonstrated bizarre and
delusional thought patterns. They would have also discovered that members
of Petitioners family, e.g., his father, had a long pervasive history of
severe mental illness. Trial counsel, however, failed to perform a
reasonable investigation, failed to find such evidence, and consequently
failed to present the following evidence to the jury, both during the
guilt phase and during the sentencing phase of the trial.
2. Counsel was ineffective for failing to fully investigate and
present relevant evidence of Mr. Thompsons mental health history, and to
secure adequate expert assistance to defend Mr. Thompson including
psychologists, neuropsychological, and/or neurological experts to
establish valid mitigating factors including, but not limited to, three
statutory mitigation factors under Tennessee law, i.e., that Mr. Thompson
suffered from substantial disorders and demonstrable physical brain damage
which made him unable to conform his behavior to the law; left him under
the influence of extreme mental or emotional disturbance, substantially
impaired his ability to appreciate the wrongfulness of his conduct at the
time of the offense, and non-statutory mitigation under both Tennessee and
federal law. As importantly, had counsel secured such mental health
history, the result of any professionally adequate pre-trial competency
and insanity examination (including, if indeed it was, or had been,
professionally adequate, the pre-trial competency examination actually
performed in Mr. Thompsons case) would have been different. Specifically,
but not exclusively:
i. Counsel failed to discover and interview pertinent, available
witnesses who could have testified and/or informed appropriate mental
health experts of Mr. Thompsons descent into intermittent and delusional
behavior following high school.
. . . .
. . . Had counsel been informed, they would have recognized that
witness accounts, of Petitioners bizarre change in behavior signaled the
onset of mental illness. The lingering question would have been answered.
The outcome of Petitioners capital conviction and sentence probably would
have been different.
(DCTR 17; footnotes omitted). The amended petition for writ of habeas
corpus was signed by Stephen M. Kissinger.
b. Discovery
On November 2, 1998, the magistrate judge held three telephone
conferences with Attorney Kissinger and Assistant Attorney General
Jennifer Smith regarding Thompsons request for discovery regarding those
matters alleged in the petition, to which Respondent objected. The courts
order states that, during the hearing, Kissinger advised that he needed to
obtain the depositions of three mental health expert personnel who had
seen and treated Thompson during his period of incarceration. Respondent
maintained his objection that the allegations before the court did not
establish good cause for discovery as required under Rule 6(a) of the
Rules Governing Section 2254 Cases in the United States District Court.
That same day the court entered an order allowing Thompson to take the
depositions of Dr. Michael Rutter, Dr. Robert Hoen, and Dr. John Pruett,
mental health experts. The order further allowed Respondent the right to
take the depositions of Thompsons two experts, neuropsychologist Barry
Crown, Ph.D, and psychologist Faye Sultan. (DCTR 18). The magistrate judge
noted that the execution of Thompson would violate the Eighth Amendment
due to Thompsons incompetence. The order also noted a Brady claim.(5)
Also on November 2, 1998, Thompson filed his initial witness list.
His [e]xpert witnesses and testimony included the following:
a. Dr. Barry Crown, Penthouse Ste 310, Red Road, South Miami, FL 33143,
will provide foundation testimony to establish himself as an expert in
neuropsychology. He will testify that he has been provided with background
information regarding Petitioners medical and social history, that he has
interviewed, and administered a battery of indicated neuropsycholgical
tests to the Petitioner. He will testify that the results of those tests
indicate that Petitioner suffers from organic brain damage. He will
testify that the brain damage observed, as well as Petitioners social and
medical history, is consistent with schizophrenia. He will testify that
Petitioners brain damage substantially impaired the ability of the
Petitioner to distinguish between right and wrong and/or to conform his
conduct to the requirements of the law and/or prevented Petitioner from
doing the same. He will testify that Petitioners brain damage prevented
Petitioner from meaningfully assisting in his own defense at trial and
during state post-conviction proceedings and/or from fully comprehending
the nature of those proceedings. He will further testify that arguments
regarding Petitioners mental state made by counsel for the State of
Tennessee during state post-conviction proceedings were both outside the
scope of a lay persons knowledge and that the prosecutors statements
misrepresented Petitioners prison medical records.
b. Dr. Faye Sultan, 8430 University Executive Park Drive, Suite 690,
Charlotte, NC 28262, will provide foundation testimony to establish
herself as an expert in clinical and forensic psychology. She will testify
that she has been provided with background information regarding
Petitioners medical and social history, that she has interviewed, and
administered a battery of indicated psychological tests to the Petitioner.
She will testify that, on the basis of her examination, it is her expert
opinion that Petitioner suffers from schizophrenia and did so at the time
of the offense and at the time of trial. She will testify that Petitioners
mental illness was severe and that it substantially impaired the ability
of the Petitioner to distinguish between right and wrong and/or to conform
his conduct to the requirements of the law and/or prevented Petitioner
from doing the same. She will testify that Petitioners mental illness
prevented Petitioner from meaningfully assisting in his own defense at
trial and during state post-conviction proceedings and/or from fully
comprehending the nature of those proceedings. She will further testify
that arguments regarding Petitioners mental state made by counsel for the
State of Tennessee during state post-conviction proceedings were both
outside the scope of a lay persons knowledge and that the prosecutors
statements misrepresented Petitioners prison medical records.
(DCTR 19) (emphases added).
On November 30, 1998, Respondent appealed the magistrate judges
discovery order. The district court affirmed the ruling. Significantly,
the district court stated the following:
Additionally, if the facts are developed to show that petitioners mental
health should have been introduced as mitigating evidence, petitioner may
be entitled to relief. The magistrate judge heard argument of counsel and
then ruled that certain specific discovery would be allowed. . . . Not
only has Thompson raised the issue of ineffective assistance of counsel
for failure to fully explore his mental health for mitigating purposes at
his sentencing, which trial counsel testified he should have explored
Thompsons mental health further . . . ; the record also includes factual
allegations that there was some mental health evidence that could have
been introduced as mitigating evidence. Furthermore, Thompson alleges he
did not receive a full and fair post-conviction hearing in state court
because he was denied funds to hire a mental health expert to prove his
incompetency/insanity at trial and at execution. If the fact are fully
developed, he may be able to demonstrate he is entitled to relief.
After a cursory review of the numerous volumes of state documents[]
involved in this case, it appears that Thompson has alleged a factual
basis for some of his claims and the magistrate judge so found. For
example, petitioner claims trial counsel failed to properly investigate
his mental health history and present mitigating evidence at trial and
sentencing. Petitioner contends he had two serious head injuries and
intermittent bizarre and delusional thought patterns and witnesses to
testify to such, and this mitigating evidence should have been introduced.
Furthermore, petitioner contends that his institutional records reveal a
diagnosis of schizophrenia with problems of auditory and visual
hallucinations and paranoid ideation. If petitioner proves these factual
allegations, he may be entitled to relief.
(Footnote omitted) (DCTR 22).
On December 24, 1998, Respondent filed his initial expert witness
list disclosure. It listed simply Dr. Theodore H. Blau, who would testify
as an expert in the area of forensic neuropsychology. Dr. Blau will be
called, if necessary, to rebut the testimony of petitioners expert
witnesses, Dr. Barry Crown and Dr. Faye Sultan, as disclosed in
petitioners initial witness list of October 30, 1998. (DCTR 24).
On December 29, 1998, Attorney Kissinger moved to appear pro hac
vice. (DCTR 25).
On February 3, 1999, the district court granted Thompsons request for
an extension of time to conduct discovery. The court set the discovery
date at June 11, 1999, and the dispositive motion cutoff at July 2, 1999.
(DCTR 32).
On February 12, 1999, Thompson filed an ex parte motion for a
temporary mandatory restraining order, for preliminary and permanent
injunctive relief, and for an order finding Thompson incompetent to
proceed, continuance, and to toll. (DCTR 34). In support, Thompson alleged
in part as follows:
1. Petitioner suffers from schizophrenia. During the vast majority
of his incarceration Respondent has medicated Petitioner in order to treat
his mental illness.
2. On or about September 1998, Respondent stopped providing
Petitioner with appropriate psychiatric medication.
3. Petitioners mental health thereafter radically declined.
Petitioner is now unable to meaningfully assist counsel or understand the
nature of the proceedings in which he is being required to participate.
Moreover, because of the severe nature of Petitioners mental illness,
Respondents refusal to provide appropriate psychiatric care is tantamount
to subjecting Petitioner to physical torture. See, Exhibit A, Declaration
of Faye Sultan PhD. attached.
. . . .
6. Petitioner has no remedy at law. . . . Given the Petitioners
incontrovertible right both to receive proper psychiatric care and to seek
federal habeas corpus relief the likelihood that he will prevail on the
merits of his motion are great. Should Respondent be allowed to continue
to deprive Petitioner of proper psychiatric care Petitioner will suffer
irreparable injury. Not only is he being rendered incompetent, he is, for
all intents and purposes, being tortured.
(Footnotes omitted.). The motion was signed by Attorney Kissinger (by
permission). (DCTR 34).
Attached to the February 1999 motion is the declaration of Faye
Sultan, Ph.D, a clinical psychologist. Sultan stated in relevant part that
At the request of attorneys at the Federal Defender Services of
Eastern Tennessee, I initiated a psychological evaluation of Mr. Gregory
Thompson in August, 1998. Formal psychological testing and extensive
clinical interview were conducted with Mr. Thompson at the Riverbend
Maximum Security Prison in Nashville, Tennessee on 8-20-98. This interview
was conducted as a Contact Visit, with no physical barrier between this
examiner and Mr. Thompson, and Mr. Thompson was not physically restrained
in any way.
In addition to the data gathered during this examination, I was asked
to review extensive documentation about Mr. Thompsons psychiatric,
military, and legal history. These data also serve as bases for the
opinions rendered here. These data include psychiatric records and
examinations regarding Mr. Thompson for approximately the past fifteen
years, administrative and medical records from the Tennessee Department of
Corrections, and legal and police documents relating to the original
offenses for which Mr. Thompson is currently incarcerated. In total,
hundreds of pages of records and documents have been reviewed for the
purpose of this evaluation.
(DCTR 34). Dr. Sultan also stated that in August 1998 Thompson met all of
the diagnostic criteria for the major mental illness schizophrenia,
episodic, with interepisode residual symptoms. She further indicated that
Thompsons condition had rapidly deteriorated between August 1998 and
February 1999. In Dr. Sultans opinion, Thompson was experiencing a severe
psychiatric crisis, making him unaware of his surroundings, and requiring
immediate emergency attention. (Id).
On April 7, 1999, Thompson moved to withdraw his ex parte motion for
injunctive relief and for an order finding him incompetent to proceed,
principally because on April 6, 1999, Dr. Sultan saw Thompson and
concluded that his condition had improved, due to an adjustment in his
medication. Thus, the factual basis for the motion no longer existed.
(DCTR 64). On April 29, 1999, the court granted the motion to withdraw the
ex parte motion. (DCTR 67).
On June 28, 1999, the district court entered an order extending the
discovery deadline to July 30, 1999. The court extended the deadline to
allow Respondent to depose Thompsons expert witnesses, Drs. Crown and
Sultan, and to allow Petitioner to depose Respondents expert witness, Dr.
Theodore Blau. On July 9, 1999, Respondent filed a motion for summary
judgment as to all claims raised in the amended petition for writ of
habeas corpus. (DCTR 81-82). On July 15, 1999, Thompson deposed
Respondents expert, Dr. Blau. On July 20, 1999, Respondent deposed
Petitioners expert. Dr. Crown.(6) On July 29, 1999, Thompson filed his
response to Respondents motion for summary judgment.
On August 2, 1999, Respondent filed a motion for reimbursement of
deposition expenses. (DCTR 87). Respondent claimed that Dr. Crowns
deposition testimony was considerably different than that represented in
Petitioners initial witness list. Specifically, Respondent alleged that,
based on Petitioners initial disclosure concerning Dr. Crowns testimony,
particularly as to Petitioners mental state at the time of the offense,
i.e., his ability to distinguish between right and wrong and/or to conform
his conduct to the requirements of law, competency at the time of trial,
counsel for Respondent traveled to Miami, Florida to depose Dr. Crown.
Respondent further claimed that, at the beginning of the deposition, he
was presented for the first time with an affidavit indicating Dr. Crowns
proposed testimony, which was significantly different from the October 30,
1998, initial witness list disclosure. The affidavit indicated no opinion
as to Thompsons mental state at the time of the offense or at trial, no
opinion indicating that brain damage substantially impaired Thompsons
ability to conform his conduct to the requirements of law and/or to
distinguish between right and wrong, and no opinion concerning Thompsons
ability to assist counsel in his defense at trial or comprehend the nature
of that proceeding.
Respondent alleged that, contrary to representations in Petitioners
initial expert disclosure, Dr. Crown testified in his deposition that he
had not rendered, nor had he been asked to render, an opinion concerning
Petitioners mental status at the time of the offense in this case. (DCTR
87). The motion stated that Dr. Crown testified that he was also not asked
to render an opinion concerning Petitioners competence at the time of
trial. The motion further alleged that Dr. Crown testified that he had
seen petitioner on one occasion, June 12, 1998, and was prepared to render
an opinion concerning petitioners competence and mental status on that
day. Thus, in Respondents view, Dr. Crown offered no testimony pertinent
to any claim presented in the amended petition for writ of habeas corpus.
Respondent therefore claimed that, had he been advised of the precise
nature of Dr. Crowns testimony, as required under Fed. R. Civ. P.
26(a)(2)(B) and by the district courts order of March 11, 1998, he likely
would not have deposed Dr. Crown. Respondent contended that, given the
clear representations in his October 1998 expert disclosure statement,
Petitioner had a duty to disclose the nature of Dr. Crowns testimony.
Respondent sought an order requiring Petitioner to reimburse Respondent in
the amount of $2,768.71 for expenses incurred in connection with the July
20, 1999, deposition of Dr. Crown.
On August 4, 1999, Petitioner filed a motion in limine, seeking to
exclude Dr. Blaus testimony on the grounds that Dr. Blau neither formed an
opinion nor was asked to form an opinion regarding any of the issues
raised in the petition: Despite all issues being clearly framed by the
allegations in the petition, Respondent never sought, nor did Dr. Blau
render, any opinion contrary to such allegations. (Footnote omitted.).
(DCTR 88). Also on August 4, Petitioner filed a motion for costs incurred
in deposing Dr. Blau. Petitioner alleged in pertinent part:
2. On July 15, 1999, undersigned counsel conducted the deposition of
Dr. Blau in order to discover the substance of his testimony at the
evidentiary hearing. At that time Dr. Blau testified that he had been
asked to render an opinion only in regard to Mr. Thompsons competency to
proceed in the instant action . . . ; that he had not reached any opinion
other than that reflected in his report on the competency to proceed . . .
; and that in order to render additional opinions he would require further
interviewing and testing of Mr. Thompson. . . .
3. It is clear that although Respondent was on notice of Petitioners
mental health claims which are detailed in his habeas petition and was on
notice regarding Petitioners anticipated experts testimony, Respondent
either instructed Dr. Blau not to render any opinion during deposition
regarding the issues in the petition or Dr. Blau failed to formulate such
opinions. It appears that Respondent made the strategic decision to limit
Dr. Blaus testimony to Mr. Thompsons competency to proceed given Dr. Blaus
sworn testimony that his opinion was limited to Mr. Thompsons competence
to proceed, the fact that Dr. Blau only evaluated Mr. Thompson on one
occasion for the specific purpose of competency to proceed, and that
Respondent did not provide a copy of Petitioners habeas petition to Dr.
Blau.
4. Undersigned counsel relied upon Respondents representation that Dr.
Blau would rebut Petitioners expert witnesses. Had undersigned known that
Dr. Blaus opinion was limited to Mr. Thompsons competency to proceed, an
issue which is no longer before this court, he would not have taken Dr.
Blaus deposition and incurred expenses totaling $4,097.01.
(DCTR 89) (emphasis added) (footnote omitted). Petitioner requested a
court order requiring Respondent to pay those costs. The motion for costs
is signed by Stephen M. Kissinger.
On August 5, 1999, Thompson filed a response opposing Respondents
motion for reimbursement of deposition expenses. In it he contended that
the opinions Dr. Crown expressed in his deposition were materially
consistent with Thompsons initial witness list. In response to Respondents
contention that Dr. Crown failed to provide an opinion at deposition
regarding Thompsons mental condition at the time of the offense, Thompson
stated that [t]his allegation is untrue or irrelevant for at least two
reasons. First,
5. Insofar as Respondents complaint relates to Dr. Crowns response to
the Assistant Attorney General Prudens very few questions which Respondent
elected to attach to his motion, Dr. Crown was not asked whether he had an
opinion regarding Petitioners mental condition at the time of the offense
or at trial. Instead Mr. Pruden chose to focus on the communication
between Dr. Crown and Respondents counsel.[(7)]
. . . .
7. Not one of these questions asked whether Dr. Crown had an opinion
on the issue of mental state at the time of the offense, at trial, or at
any other time for that matter. They queried only regarding the
communications between Dr. Crown and undersigned counsel. As a matter of
fact, only once in the excerpts attached to Respondents motion does Mr.
Pruden ask any question which could reasonably be interpreted as seeking
Dr. Crowns opinions on these issues.
8. On that occasion, Dr. Crown responded that he was unable to render
such an opinion because he could not be certain whether he had been
provided all relevant information. Crown deposition at Page 9, lines 4-15.
Rather than show that he had no opinion on a material issue, Dr. Crowns
answer demonstrated that he would not carelessly issue an opinion until
counsel for Respondent defined the facts upon which counsel wished Dr.
Crown to base that opinion. Despite Dr. Crowns qualified response, counsel
for Respondent never asked Dr. Crown whether, assuming that Dr. Crown had
all relevant information, he had an opinion regarding Mr. Thompsons mental
state at the time of the offense and/or at trial, nor did counsel provide
Dr. Crown with supplemental fact which Respondent deemed relevant and then
ask him whether, based upon the combined information, he held an opinion
on those regards.
9. The reasons Respondent failed to discover Dr. Crowns opinions in
these areas were not because Dr. Crown held no such opinions. Respondents
counsel either made a strategic decision to focus on the conduct of
counsel (or perhaps to attempt to create the illusion that Dr. Crowns
opinions regarding these areas will come as a complete surprise to the
Respondent when they are stated at hearing), or he simply neglected to ask
the relevant questions.
(DCTR 90).
Thompson articulated a second reason, namely that Dr. Crowns
deposition did substantially conform to the information contained in his
initial witness list because Crown stated during his deposition that
Petitioner suffers from bipolar disorder of a schizo-affective type and
that the onset of this affliction was prior to the alleged offense. Crown
deposition at Pages 32-34, in passim. Thompson added that [u]nless
Respondent can seriously maintain that it is material in this case whether
Dr. Crown found that Petitioner suffered from one severe schizotypal
mental illness at the time of the offense as well as his state court trial
rather than another severe schizotypal mental illness, Dr. Crowns
deposition testimony is clearly consistent with the information contained
in Petitioners Initial Witness List. Thompson also alleged that Respondent
was not in a position to complain that Dr. Crowns testimony did not make
the connection between Petitioners mental illness and competency at the
time of the offense, because Respondent with full knowledge that Dr. Crown
was of the opinion that Petitioner was severely mentally ill at the time
of the offense, either chose not to inquire regarding the afore-described
connection or forgot to do so. (DCTR 90) (emphasis added). Thompson
therefore claimed that he had demonstrated that the information in his
initial witness list was consistent with Dr. Crowns testimony. He further
claimed that even if it was materially inconsistent, Respondent could not
complain because he had previously made this allegation to the magistrate
judge, who granted Respondent the right to depose both Drs. Crown and
Sultan before Respondent ever contacted Dr. Blau. Thus, Thompson claimed
that Respondent had been granted the opportunity to determine the exact
opinions of Dr. Crown before Dr. Blau was ever contacted. (DCTR 90).
Next, Thompson asserted that Dr. Blau stated during his deposition
that he was contacted by Respondents counsel, Pruden, on November 2, 1998,
to retain him as a psychological expert and that he was asked simply to
review records in respect to competence to proceed regarding Mr. Thompson,
and possible questions were whether Mr. Thompson is competent to act as a
party participant in habeas corpus proceedings, and also whether he could
determine psychologically his mental condition and status with respect to
his capacity to understand his legal position and his options. (DCTR 90
(quoting Deposition of Theodore H. Blau, Ph.D., July 15, 1999, Page 5,
lines 8-19). Thompson further alleged that Dr. Blau was asked whether he
had been asked to examine Thompson regarding any area other than
competency and that [h]is response clearly demonstrated that not only had
he not examined and/or reached any opinions in any area other than
Petitioners present competency, the only neuropsychological examination he
had conducted was at best . . . a screening examination. (DCTR 90 6).
Thompson therefore moved for an order denying Respondents motion for
reimbursement of deposition expenses. (DCTR 90).
In his reply, Respondent stated simply that the documents attached to
its motion for reimbursement plainly demonstrated that Thompsons October
1998 disclosure was materially different from the testimony offered at Dr.
Crowns deposition and in his affidavit. (DCTR 91). Attached as an exhibit
was a complete copy of Dr. Crowns July 20, 1999, deposition. Much of it
bears repeating here:
Q: Specifically, what issues regarding Mr. Thompson and his case have
you been asked to review and render expert opinions on, sir?
A: At this point, I have been asked to consider his competency and
also his mental status.
Q: Okay. Lets take them one at a time, then. Competency, are you
talking strictly about his present competency in the habeas corpus
proceedings?
A: I am talking about his competency at the time that I saw him.
Q: Have you been asked to render any determination about whether or
not he was competent to stand trial at his criminal trial?
A: No.
Q: Has anything been said to you that would lead you to believe that
you might be asked at a future date prior to the evidentiary hearing to
render such an opinion?
A: It hasnt been suggested or asked of me.
Q: So if I understand you correctly then, you were only asked to make
a competency determination at the time you met Mr. Thompson?
A: That is correct.
Q: And when was that, sir?
A: June 12th of 1998.
Q: All right. His mental status. Please elaborate for me, what about
his mental status have you been asked to opine?
A: I have been asked to evaluate it.
Q: His mental status at present?
A: Well, it was his status as of the time that I saw him. I havent
seen him since June 12th of 1998.
Q: Have you been asked to render any opinions concerning Mr.
Thompsons mental status at the time of the murder of Brenda Lane?
A: Not specifically, no.
Q: Not specifically. Does that mean that you have not been asked that
specific question?
A: That is correct.
Q: Have you rendered an opinion, though, in that regard?
Q: No, not as of this time.
Q: So you have not rendered an opinion to Mr. Kissinger yet one way
or another regarding Mr. Thompsons ability to distinguish between right
and wrong or conform his conduct to the requirements of the law at the
time of Ms. Lanes murder?
A: That is correct.
Q: Has Mr. Kissinger, or anyone else representing Mr. Thompson,
represented to you that they would like you to render such an opinion
during the course of your employment?
A: No.
Q: Just so I am clear then, your mental status evaluation of Mr.
Thompson is only to evaluate his mental status at present?
A: I have only seen him on one occasion, June 12th of 1998. So what I
have to say would be related to that examination. I have looked at other
records, but I dont know they are necessarily complete, and I couldnt
render an opinion based on the lack of completeness, or what I assume is
the lack of completeness.
Q: So you dont feel that based on the materials that you have
reviewed to date that you could, based on your professional experience,
render an opinion about Mr. Thompsons mental state say back in 1985 at the
time of the murder?
A: As I sit here today, I could not.
Q: So you are not prepared to render any opinion in that regard
today?
A: That is correct.
Q: What materials have you been provided to review concerning Mr.
Thompson?
A: I have seen what I believe to be his Department of Corrections
file from its [sic] inception.
Q: And when you say his Department of Corrections file, do you mean
his medical/mental health file?
A: Its his medical file, as well as his general file, including
disciplinary reports, including adjustment reports.
Q: Have you reviewed any other records?
A: I have seen the depositions of three of the employees of Prison
Health Services. I have seen the reports of the mental health facility
that Mr. Thompson spent thirty days in prior to his original trial. I have
seen the testimony of the mental health professions at his trial, Dr.
Kogley.
Q: Cobley?
A: Cobley. I have seen the materials from Dr. Blaire.
Q: How about Dr. Watson?
A: Watson. I have seen Dr. Watson.
Q: When you say materials from Dr. Blaire, does that simply mean her
testimony, or have you seen other--
A: I have seen the raw data, or parts of raw data. Actually, the
entire raw data are not in the materials that were provided to me. And
then I have seen Dr. Blaus report and Dr. Blaus raw data.
Q: And you just received Dr. Blaus--
A: Correct.
(DCTR 91).
Dr. Crown also indicated that he had reviewed Thompsons medication
portfolio from his records at Riverbend Maximum Security Institution. When
asked, Dr. Crown stated that he had not read, and not been asked to read,
the trial transcript, but that he had asked Mr. Kissinger to provide me
with whatever materials he wished. (DCTR 91). Dr. Crown acknowledged that
he had not given Kissinger a specified list of items he wished to review,
but was relying on whatever it is Mr. Kissinger gave him.
Dr. Crown also stated that he met with Thompson on June 12, 1998, at
Riverbend for about two and one half hours. Dr. Crown indicated that, at
that time, he took a brief history, a standard basic demographic clinical
interview, and administered a group of tests.(8) Dr. Crown testified that
the only written record of his evaluation was his July 20 affidavit; that
he would only prepare a written report if Kissinger asked. He also
indicated that Kissinger had not at that time asked him to do so.
Dr. Crown opined that Thompson suffers from an auditory processing
deficit. He further indicated that Thompson has some sort of organic brain
damage, but that he did not pinpoint it to a specific portion of the
brain. Dr. Crown stated that he did not intend to make any further
evaluation of Thompsons organic brain damage unless asked. Dr. Crown
indicated that he knew that Thompson had suffered traumatic head injuries.
He testified that he had not seen Thompsons military medical records. Dr.
Crown testified that the organicity was secondary to other mental
impairments, namely schizo-affective disorder, bipolar subtype, with
organic components. Dr. Crown stated that he reached this conclusion
from looking at the reports of the treating physician, the psychiatrists,
and psychiatric nurses, and nurse practitioners that have had the
opportunity to monitor him over the last fourteen years, that I have
concluded that hes best treated with anti-psychotic medication, that
schizo-affective disorder is a disorder that affects thoughts related to
reality and results in distortions of reality.
It also results in distortions of affect, meaning, the way that
behavior is expressed. And I believe that his affect has been variable
from rather depressed to highly agitated and aggressive. And so, putting
that together, I believe he does have a schizo-affective disorder of the
bipolar type, meaning, there is a considerable spread in his
emotionalities, that there is a distortion in his perception of reality,
that he tends to fragment at times, and tends to be directed by
hallucinatory activity.
. . . [I]n Mr. Thompsons case, there are notations throughout his medical
records that he has auditory hallucinations. He also related to me that at
the time I saw him he was auditory hallucination free, but that he
frequently got command hallucinations that there were voices coming from
within him that were telling him what to do, which is what happens in an
auditory hallucination state.
(DCTR 91). The following colloquy between counsel for Respondent and Dr.
Crown, then took place:
Q: Based on your review of Mr. Thompsons records or the records that
were provided to you, what do you conclude, or when did you conclude, was
the onset of these auditory hallucinations?
A: I have no real pinpoint. For that, most typically, people with
schizo-affective disorder tends to develop in late adolescence to early
adulthood.
Q: From the materials you have reviewed, do you see anything in those
materials that show that this is when it occurred in Mr. Thompson?
A: I believe he began to have a more difficult time with life in
hisin the last stages of his military service. So I believe that the
beginnings of it would be tracked to that. I havent seen the records, but
I believe that thats probably when I would anticipate that it would have
begun.
(Emphases added.)
Counsel for Respondent also asked Dr. Crown whether he had talked
with any of Thompsons family members to gain insight into his background
while growing up. Dr. Crown stated that he had not, nor had he spoken with
school teachers, counselors, or ministers. Dr. Crown also indicated that
he had not spoken with Joanne McNamara, or Arlene Cajulao.
Next, counsel asked Dr. Crown:
Q: And if I understood your answers earlier correctly, you do not
have an opinion at this time as to the exact nature of this brain damage
for which you have seen some indicia?
. . . .
A: I dont specifically know the causation. I believe it may be
secondary to his thought disorder since we know that in people who do have
chronic thought disorders that the thought disorder itself may either be
caused by or may result in some damage to the brain. For example,
schizophrenics very often have enlarged ventricles of the brain.
Q: I notice that you did not attempt to administer an MMPI to Mr.
Thompson. The reason for that, sir?
A: In the regular course of my neuropsychological evaluations, I tend
not to administer a personality questionnaire. I leave that for, or the
assessment of personality, specifically to a clinical psychologist or a
psychiatrist.
Q: In this case, this would be something that you would defer
basically to Dr. Sultan?
A: I would defer in terms of administering or interpreting of the
personality testing. Yes.
Q: Would an MMPI-2 be useful in terms of assessing organic brain
damage?
A: No, not necessarily. No.
. . . .
A: No. If I thought it was necessary to form a neuropsychological
opinion, I would have given it.
Q: And in this case you didnt?
A: That is correct.
Q: And part of that is because you are not interested in determining
whether or not he can distinguish between right and wrong?
A: I was asked to assess his neuropsychological status, and that to
[sic] extent, I wasnt asked to consider issues of determining right or
wrong, sanity, and I wasnt asked specifically to consider personality. But
when I looked at him, it was clear to me that Mr. Thompson also had
personality problems. He had a thought disturbance.
I assumed that someone else would be looking at him in terms of those
thought disturbances, the personality difficulties, and I just recently
learned that Dr. Sultan had looked at him.
(Emphasis added.) Dr. Crown stated that he had worked with Dr. Sultan on
several capital cases.
Counsel for Respondent recapped:
Q: My understanding then is you were solely asked to talk about Mr.
Thompsons current competency. Thats what you have been asked to render an
opinion aboutor competency at the time you saw him?
A: Competency and mental status.
Q: In terms of competency, did you evaluate him as being competent?
A: At the time that I saw him, its my opinion he was competent.
(DCTR 91).
In response to Thompsons motion for costs, Respondent reiterated that
in his October 30, 1998, initial witness list, Thompson stated that he
intended to call two expert witnesses, Dr. Barry Crown and Dr. Faye
Sultan. Respondent stated that with regard to the substance of the expert
testimony, Petitioner indicated that each would testify in pertinent part
that Petitioners mental condition substantially impaired his ability to
distinguish between right and wrong and/or to conform his conduct to the
requirements of law. Respondent contended that on December 24, 1998,
Respondent notified Petitioner that he intended to call Dr. Theodore Blau
as an expert in the area of forensic neuropsychology to rebut the
testimony of Drs. Crown and Sultan. Respondent further claimed that,
pursuant to the November 2, 1998 order of the magistrate judge, Respondent
conducted the depositions of Dr. Crown and Dr. Sultan on July 20, 1999,
and July 22, 1999, respectively.(9) Respondent further contended that,
prior to those depositions, Respondent received no information from
Petitioner other than that contained in the initial witness list, nor had
Respondent been provided with any information concerning the data or other
information considered by the witnesses in forming their opinions, as
required by Fed. R. Civ. P. 26(a)(2)(B). Finally, Respondent asserted
that, although it was clear from Respondents notice of expert witnesses
that Dr. Blau would be called to rebut the testimony of Petitioners
experts, Petitioner chose to schedule the deposition of Dr. Blau on July
15, 1999, before the previously-scheduled depositions of Drs. Crown and
Sultan.
c. The District Courts Ruling on the Rule 56 Motion
On February 17, 2000, the district court issued a Memorandum granting
Respondents summary judgment motion as to all claims and dismissing his
2254 motion. The district court stated in relevant part:
Petitioner claims experts recently obtained by him have revealed that
he was incompetent under Tennessee law at the time of the crime and
throughout his court proceedings. Petitioner has failed to state the name
of the expert and failed to provide the proof of these revelations. The
Court has read the deposition of Dr. Crown, (Court File No. 119, Exhibit
1) but was unable to located [sic] his opinion that Thompson was
incompetent at the time of the crime and throughout his court proceedings.
As a matter of fact, Dr. Crown stated he was not asked to render any
determination about whether or not Thompson was competent during his state
jury trial. (Court File No. 91, Exhibit 1, pp. 7-9). Dr. Crown stated he
was only asked to make a competency determination at the time he met Mr.
Thompson on June 12, 1998. After meeting with Thompson for two and a half
to three hours, which consisted of taking a brief history for twenty-five
to thirty minutes and the remainder of the time was spent administering
tests, it was his opinion that Thompson was competent on June 12, 1998.
(Court File No. 91, Exhibit 1, p. 7-47).
Dr. Crown did testify Thompson had a significant auditory processing
deficit which means he is easily distracted by external auditory stimuli.
(Court File No. 91, Exhibit 1, p. 20). He further testified that some of
the test results led him to conclude that there was some sort of organic
brain damage. However, he is not able to make any assessment of the
severity of the damage nor does he intend to make such an evaluation.
(Court File No. 91, Exhibit 1, pp. 24-28). Dr. Crown believes this
organicity is secondary to a thought disorder which he refers to as a
schizo-affective disorder-bipolar subtype with organic components. Dr.
Crown bases his conclusion on the reports of the people who have treated
Thompson for the last fourteen years. (Court File 91, Exhibit 1, p. 35).
Respondent hired Dr. Blau to rebut Dr. Crowns testimony. Portions of
Dr. Blaus testimony have been filed with the Court. Dr. Blau testified he
did not observe or see any indications of organic brain damage on the test
he administered. Dr. Blau found Thompsons responses during testing were
rational and appropriate. (Court File No. 89, Attachment C, pp. 31,
47-48).
Thompson has failed to provide any significant probative evidence
which would make it necessary for this Court to resolve a factual dispute.
. . . Thompson has not provided this Court with anything other than
factually unsupported allegations that he was incompetent at the time he
committed the crime and at the time of his jury trial. Nor has Thompson
provided this Court with any significant probative evidence that Thompson
was suffering from a significant mental disease that should have been
presented to the jury during the punishment phase as mitigation evidence.
Petitioner had two different psychological evaluations and both
resulted in findings of competency at the time of the crime and at the
time of trial. Additionally, the record shows that trial counsel did
reasonably investigate Thompsons background and mental health history.
Memorandum dated February 17, 2000 at 53-55 (emphases added) (DCTR 124).
d. The Motion to Alter or Amend
On March 2, 2000, Petitioner filed a motion to alter or amend the
judgment pursuant to Fed. R. Civ. P. 59. By way of introduction, the
motion states:
As an initial point, undersigned counsel apologizes for any lack of
clarity which may exist in Petitioners pleadings.1 Though counsel
disagrees with the Courts criticism of those pleadings, the fact that the
Courts Decision is contrary to controlling authority and sound legal
reasoning provides empirical evidence that undersigned counsel has somehow
failed to bring that authority and reasoning to the Courts attention. Mr.
Thompson should not suffer because of counsels shortcomings. Furthermore,
this Court should not face almost certain reversal simply because counsel
phrased otherwise irrefutable arguments in such a way that the Court
remained unaware of the proper resolution of Respondents Motion for
Summary Judgment. In an effort to fulfill his duty to both his client and
the Court, counsel now attempts to phrase those arguments in such a way
that the Court is fully aware of their nature and asks this Court to alter
or amend the judgment entered herein to fully address such arguments and
thereafter deny Respondents Motion for Summary Judgement.2
____________________
1The Courts Decision contains several negative comments regarding
perceived deficiencies in undersigned counsels pleadings.
2Though Mr. Thompson does not waive or concede any of the issues
and/or arguments raised by the pleadings which were not expressly or
previously waived or conceded, and the same are reasserted herein,
Petitioners Motion to Alter or Amend centers on two primary issues: (1)
whether the procedural bar which was, or would be, applied to claims
arising from facts not heretofore presented to the state courts of
Tennessee is independent of federal law; and (2) whether the State of
Tennessees interference with Mr. Thompsons attempts to present claims
arising from his unquestionably severe mental illness either deprived Mr.
Thompson of a full and fair opportunity to present the facts supporting
those claims to the state courts of Tennessee or provided cause for not
presenting the facts supporting those claims to the state courts of
Tennessee.
(DCTR 126, at 1-2). Thompson then presented argument on two issues,
namely, that The Tennessee Courts Will Not Apply the Tennessee State
Post-Conviction Statute of Limitations to Petitioners Later-arising Claims
in a Manner that is Independent of Federal Law, and that The Tennessee
Courts Refusal To Afford Petitioner Mental Health Services During State
Post-conviction Proceedings Constituted a State Obstacle to the
Presentation of Facts And/Or Claims Arising From Mr. Thompsons Mental
Illness. In conclusion, Thompson reiterated that although the motion to
alter or amend did not specifically address every error in the district
courts decision, which he specifically reasserted, [t]he errors addressed
herein, however, go to the very integrity of the judicial process. (DCTR
126 at 10). The motion was signed by Stephen M. Kissinger.
e. The District Courts Ruling on the Motion to Amend
On March 31, 2000, the district court denied the motion, holding that
Thompson had failed to present any additional information which justified
reconsideration and an order altering or amending judgment. (DCTR 128).
On April 21, 2000, Thompson filed his notice of appeal to this Court.
f. The Rule 60(b) Motion
On March 2, 2001, Thompson, through undersigned appellate habeas
counsel, Dana C. Hansen, also of the Federal Defenders Office of Eastern
Tennessee, filed a motion under Fed. R. Civ. P. 60(b).(10) In that motion,
Thompson respectfully request[ed] the Court to relieve Mr. Thompson from
the final order entered on February 17, 2000, for the purpose of entering
an order to supplement the record with Respondents deposition of Dr. Faye
E. Sultan, Ph.D, and the accompanying report of Dr. Sultan. (DCTR 133, at
1). Thompson claimed that the petition was timely. The order entered in
Mr. Thompsons case granting summary dismissal of his amended petition for
writ of habeas corpus was entered on February 17, 2000. Therefore this
motion, being filed within one year of the order, is timely. (Id.)
Thompson explained Dr. Sultans Involvement in this Case:
Earlier in Mr. Thompsons District Court proceedings, Respondent took
the deposition of Dr. Sultan. The district court record presently contains
a summary of her conclusions in an expert disclosures pleading (R. 19) and
an affidavit detailing her opinion regarding Mr. Thompsons mental health
status in February 1999 (R. 34). Having examined Mr. Thompson and viewed
his social and medical history, Dr. Sultan executed a report in addition
to her testimony at Respondents deposition. (Attachments A & B).
Although this Court denied Mr. Thompsons mental health related claims
partially on procedural grounds, Dr. Sultans deposition and report are
important to the merits of the claims. With regards to the merits of Mr.
Thompsons mental health related claims, he maintains that he made a
sufficient showing of a genuine issue of material fact to overcome
Respondents summary judgment motion notwithstanding Dr. Sultans opinions.
However, Dr. Sultans opinions certainly are directly relevant to the
mental health related claims and should be considered by the Court.
Counsel for Mr. Thompson engaged in [sic] Dr. Sultans services for the
sole purpose of offering her opinions to support his constitutional
claims. The failure of counsel to ensure that Dr. Sultans opinions were
filed in the record is a result of excusable neglect.
(Id. at 2) (emphasis added).
In support of his claim that Dr. Sultans deposition and report were
not included in the record because of mistake, inadvertence, surprise, or
excusable neglect, Thompson stated the following:
District Court counsel for Mr. Thompson, Stephen M. Kissinger, was under
the mistaken belief that the evidence was in the record.1 To the extent
that counsel should have nonetheless known that Respondent had not placed
Dr. Sultans deposition and report in the record, counsels failure to
ascertain that fact and file the same himself was the result of excusable
neglect. During the time period in question, counsels office was in a
state of turmoil and his caseload was excessively burdensome.
As described fully in the attached affidavit of counsel, Stephen M.
Kissinger, this state of disorder contributed to counsels excusably
negligent failure to realize that Dr. Sultans deposition and report were
not filed in the record. (Attachment C).
__________________
1. Respondents deposition of Dr. Crown and the accompanying report were
placed in the record by Respondent. (R. 91). Because Respondent had moved
for costs incurred in, inter alia, hiring its own mental health expert,
Dr. Blau, on the grounds that Dr. Blaus services were unnecessary because
Petitioner had no expert opinions to support the mental health related
allegations contained in the petition, counsel for Mr. Thompson was under
the mistaken belief that Respondent had placed his deposition of Dr.
Sultan and the report which Dr. Sultan had supplied to Respondent in the
record.
(Id. at 3) (emphasis added). Thompson therefore asked the Court to order
the record supplemented with the deposition and report of Dr. Faye E.
Sultan, PhD, and that the district court revisit its previous summary
denial of Thompsons petition. (Id.)
(i). Dr. Sultans Report
Attached to the motion are three exhibits. The first is a
psychological report prepared by Dr. Sultan, dated July 22, 1999. Dr.
Sultan states the referral questions as follows:
1. Mr. Thompsons current psychological status[.]
2. Mr. Thompsons likely psychological status and mental state before
and surrounding the time of the 1985 offense.
3. Social, environmental, psychological, and economic factors in the
life of Mr. Thompson which might have [to] be considered to be mitigating
in nature at the time of his trial.
(DCTR 133, Attachment A; emphasis added).
Dr. Sultans report indicated that she began psychological evaluation
of Thompson on August 20, 1998. At the first session, which lasted four
hours, Dr. Sultan conducted a clinical interview and administered the
MMPI-2. Dr. Sultan also noted that she did not assess Thompsons levels of
current intellectual and neuropsychological functioning because they had
recently been assessed by Dr. Crown.
Thereafter, Dr. Sultan initiated a very extensive review of legal,
military, medical, prison and psychiatric/psychological records. Regarding
Relevant Psychological/Psychiatric Data Contained in Records, Dr. Sultan
stated:
The [sic] is substantial documentation throughout the Tennessee
Department of Corrections records that Mr. Greg Thompson has suffered from
significant mental illness since at least the time of his incarceration in
1985. He has been treated almost continuously with some combination of
major tranquilizer and/or anti-depressant and/or anti-anxiety medications.
He has received a variety of diagnostic labels including Psychosis,
Psychosis Not Otherwise Specified, Paranoid Schizophrenia, Mania, Mixed
Substance Abuse, Schizophrenia, BiPolar Affective Disorder,
Schizoaffective Disorder, Malingering, and Adult Antisocial Behavior. This
is clearly indicative of the Tennessee DOC mental health staffs view that
Mr. Thompson has experienced major mental illness throughout at least most
of his period of incarceration. Further, there is extensive documentation
contained in these records of many episodes of bizarre aggressive and/or
self destructive behavior.
(Id.)
Next, Dr. Sultan stated that she interviewed five individuals who
provided significant supplemental information about the life circumstances
and past/present psychological functioning of Mr. Gregory Thompson. Dr.
Sultan interviewed Ms. Maybelle Lamar, Thompsons maternal grandmother. Dr.
Sultan reported that Lamar assumed complete responsibility for Thompson
and his two older siblings after Thompsons mother was killed when Thompson
was five years old. Dr. Sultan reported Lamars description of Thompson as
follows:
Ms. Lamar described Mr. Thompson as displaying significantly
different behavior when he returned to visit her following his discharge
from the U.S. Navy. Greg didnt act the same. Unlike the eager to please,
passive, sometimes funny gentle boy who she had reared, Mr. Thompson was
angry, sometimes sad. I dont think he wanted me to know what was going on
with him. He mostly just stayed away from me. Ms. Lamar reported that she
noticed Mr. Thompson sometimes staring off into space or talking to
himself. She would ask him about these behavior. [sic] Hed deny it. He
acted like he didnt know what I was talking about. Ms. Lamar recalls being
quite concerned about her grandsons mental state during this time. She did
not recall ever being asked questions at any time before or during Mr.
Thompsons trial.
(DCTR 133 Attachment A).
Dr. Sultan also interviewed Ms. Nora Jean Hall Wharton, Thompsons
older sister. Dr. Sultan reported:
Ms. Wharton described Mr. Greg Thompson as a highly sensitive,
passive, timid, emotionally vulnerable child. She described a childhood of
great hardship. According to her report, their grandmother, Ms. Maybelle
Lamar was verbally abusive, neglectful of the childrens basic daily needs,
highly critical, and unable to care properly for the children. Ms. Wharton
described many instances of such abuse and neglect. She described the
period following their mothers death as particularly chaotic and
neglectful, recalling that often there was no food in the home and that
the children would take money from under their grandmothers mattress to go
and buy food. In the period following their mothers death, Ms. Wharton
reported that her grandmother was continuously drunk and unable to care
for her grandchildren. According to Ms. Wharton, Greg Thompson frequently
witnessed his sister Nora being beaten by their grandmother.
Ms. Wharton further recalled that she and her younger brother had
witnessed the brutal beating and rape of their mother by their biological
father. She recalls Greg standing in the scene screaming and sobbing
uncontrollably.
Of particular relevance is Ms. Whartons recollections about Mr. Thompson
repeatedly banging his head against the wall of their home on many
occasions during their early childhood. This behavior frequently followed
their grandmother yelling at Greg You have the Devil in you. Mr. Thompson
would tell his sister that he was attempting to knock the Devil out of his
head in this way. Ms. Wharton recalls believing that this behavior was
quite odd.
Ms. Wharton reported that Greg would frequently cry at school during
the early school years, and as a result, was often the victim of intense
mockery from his classmates. Because Ms. Wharton was in the same classroom
as her brother she observed these behaviors and often intervened on her
brothers behalf. She described Mr. Thompsons response to this abuse as
quite passive.
Following his discharge from military service, Ms. Wharton described
Mr. Thompsons behavior as significantly different than his prior conduct
and attitude. She reported several episodes of bizarre behavior which
included a sudden intense emotional reaction without obvious external
provocation. Mr. Thompson would become extremely angry, would cry and
scream for a lengthy period of time, would appear as if he might or
actually become physically violent or aggressive, and then would suddenly
retreat. Ms. Thompson reported this behavior and her concerns about it to
her grandmother. Ms. Lamar suggested that Ms. Wharton take her brother to
the psychiatric unit of the local hospital for treatment. Ms. Wharton did
not attempt to get any treatment for Mr. Thompson and reports feeling
quite guilty about this.
Nora Jean Wharton described her own struggles with mental illness
throughout the past fifteen years. She has received counseling to assist
her in coping with the effects of her abusive childhood and she has been
treated with a combination of a major tranquilizer (Stellazine) and
anti-depressant medications. She reported her younger half-sister Kim has
also suffered from significant mental illness.
(DCTR 133 Attachment A).
Dr. Sultan also relayed the report of Michael Chavis, an investigator
for the Federal Defenders Office of Eastern Tennessee, from his interview
of Ms. Cajulao in summer of 1998.
Mr. Chavis reported that Ms. Cajulao described Mr. Thompson as displaying
increasingly bizarre behavior during the latter part of their
relationship. Similar to descriptions proved [sic] by Ms. Nora Wharton, Ms
Cajulao reported several episodes of paranoid and aggressive behavior
which had no apparent external antecedent. She reported that Mr. Thompson
sometimes thought that people were after him. He would close all the
curtains in the house because he did not want the person who was looking
for him to see him through the curtains. She remembers being quite
concerned about Mr. Thompsons mental state.
Dr. Sultan next reported her Summary and Conclusions, which we quote
here in full:
Mr. Gregory Thompson has experienced symptoms of a major mental illness
throughout his adult life. Indeed, there is information available which
suggests that Mr. Thompson was displaying significant signs of mental
illness from the time he was a small child. Self-injurious behavior is
reported as early as six years old. There is extensive documentation
contained within the records reviewed for this evaluation that Mr.
Thompson has experienced a thought disorder and/or an affective disorder
of some type for many years.
It is my opinion that Mr. Gregory Thompson is most appropriately
diagnosed, according to the Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition, as having Schizoaffective Disorder, Bipolar
Type. As is typical of this illness, symptoms became apparent in early
adulthood. Mr. Thompson was suffering serious mental illness at the time
of the 1985 offense for which he has been convicted and sentenced. This
mental illness would have substantially impaired Mr. Thompsons ability to
conform his conduct to the requirements of the law.
Further, Mr. Thompson was the victim of severe childhood emotional abuse
and physical neglect. His family background is best described as highly
neglectful and economically deprived. Mr. Thompson repeatedly witnessed
episodes of violence during his childhood in which one family member
assaulted or brutalized another. There are significant aspects of Mr.
Thompsons social history that have been recognized as mitigating in other
capital cases.
It is important to note that all of the information related to Mr.
Thompsons early mental illness and social history was available at the
time of his 1985 trial.
Id. (emphases added). Again, this report is dated July 22, 1999.(11)
(ii.) Dr. Sultans Deposition Testimony
The second attachment is Dr. Sultans deposition. Pruden, counsel for
Respondent, took Dr. Sultans deposition on July 22, 1999. Appearing on
behalf of Thompson was Stephen Kissinger. Michael Chavis was also present.
Dr. Sultan told Respondent that she was first contacted by Chavis on
behalf of Kissinger in July or August of 1998. Dr. Sultan testified that
A. Mr. Chavis asked me about my availability and asked if I would be
willing to perform a psychological evaluation to assess what Mr. Thompsons
psychological condition might have been like at the time of the offense in
1985, to assess whether it was possible to make such an appraisal, to see
whether there were factors in his personal background that might have been
investigated at the time of trial that would have had bearing on his
psychological status at the time of the offense, and Mr. Chavis also
suggested that they wanted to know something about Mr. Thompsons current
psychological state, his level of functioning at the present time.
Q: Were you also asked if you would be able to determine his
competency at the time of his criminal trial in 1985?
A: That was not an initial question, no.
. . . .
Q: Did Mr. Chavis express to you any opinion as to what he thought
Mr. Thompsons psychological condition was, his mental status was, at the
time of the offense?
A: The only opinion that he expressed to me was that he thought that
he was not in good shape, that he had deteriorated. He didnt label it in
any particular way. Said he didnt think that he was doing as well.
(Emphasis added.) (DCTR 133 Attachment B).
Dr. Sultan also stated that she had consulted with Dr. Crown. She
stated that Chavis told her
Dr. Crown would be conducting the neuropsychological and intellectual
assessment. Dr. Sultan testified that she needed to check Dr. Crowns test
results so that she could include them in her opinion, but that she did
not provide Dr. Crown with any of her diagnostic information.
When asked whether she had prepared a social history on Thompson, Dr.
Sultan indicated that she had not yet but that it had been provided as
part of the prison records. Dr. Sultan testified that she had spoken with
Thompsons grandmother and sister, and had attempted to speak with his
brother Curtis. She further stated that, although she had not spoken with
any of Thompsons school teachers, school administrators, or neighbors, she
had reviewed testimony from them. Dr. Sultan was not sure whether she had
reviewed the actual transcript from Thompsons court martial, but stated
that, at a minimum, she had reviewed the testimony of at least some of the
witnesses. She had not contacted any of Thompsons supervisors in the
military.
Although Dr. Sultan also had not spoken with Cajulao, she interviewed
Chavis, who spent several days with Cajulao in 1998. Dr. Sultan stated
that she found Cajulaos observations beneficial in reaching her diagnosis.
Specifically,
A: Ms. Cajulao described to Mr. Chavis that during the course of the
four-year relationship she had with Mr. Thompson, Mr. Thompson became
increasingly bizarre in behavior that he exhibited. There were a number of
occasions in which there were incidents that took place in the military
that he described to her as him having been attacked. The facts of the
situation may in fact not be that, but that was his description to her,
that he was being picked on, that he was being bullied, that he was being
attacked.
He became depressed, according to her, over time and increasingly
paranoid. At some point she would come home from work, and he would be in
their home with the curtains drawn, standing by himself in the dark
telling her that people were after him and that he didnt want people to be
able to look at him through the windows. She remembers being quite
concerned about his behavior.
There are a couple of situations that she described to Mr. Chavis in
which, with no external provocation that she could identify, Mr. Thompson
became quite violent with her, and she saw those behaviors as very unusual
for him and reported to Mr. Chavis that Mr. Thompson seemed unaware of
what had provoked it and didnt even seem after the fact to remember what
had taken place, would simply, after a period of time, calm himself down
and return to normal behavior. I found all of that quite significant.
(Id. at 55-56).
Shortly thereafter, Pruden called for a break, and took that
opportunity to take a look at Dr. Sultans report. Upon return, Pruden
asked Dr. Sultan:
Q: What indicates to you or what indicia are there for you that
suggest Mr. Thompson was displaying significant signs of mental illness
from the time he was a small child? How do you arrive at that conclusion?
A: During my interview with Mr. Thompsons sisterand let me say all of
her namesMs. Nora Jean Hall Wharton, Ms. Wharton spontaneously began to
talk to me about Mr. Thompsons behavior in the time period immediately
following their mothers death.
By the time of the first grade, Mr. Thompson, when he was being yelled at
by his grandmother, she was reportedly verbally abusive in the following
fashion: She would yell at him-- you have the devil in you, boy. She would
then observe Mr. Thompson standing or sitting beside a wall repeatedly
banging his head into the wall. She, in her role as protector of him,
would ask him what was going on, and he would tell her he was trying to
knock the devil out of his head. She recalls at the time, although she was
quite young herself, being worried about his behavior and thinking it as
was very odd.
One of things that we know about people who develop thought disorders is
that frequently in childhood youll see one or more peculiarities in
behavior. This would certainly fit in that category. She recalls other
instances.
Q: Sort of self-punishment or a self-exorcism type thing?
A: A self-injurious behavior is what we would call it I think. Mr.
Thompson, when he was Greg, in the first and second and third grade had
rather frequent crying episodes in classrooms that Ms. Wharton recalls
also as very unusual in the context of his schoolroom situation. She
describes him as being the subject of torment on the part of the students
because he behaved in an odd fashion. Sometimes he would simply begin to
cry and wail and scream and apparently made a sound like a fire engine
when he was sobbing and developed the nickname Fire Engine. Thats reported
in the trial transcript. She told me much more detail about actually the
extent of those kind of emotional outbursts.
At home it was rather common for Mr. Thompson to begin to cry and scream
during times when Ms. Wharton herself was being beaten by their
grandmother. Ms. Wharton was the victim of physical abuse on the part of
the grandmother. Mr. Thompson observed much of this since they were
together virtually all of the time, and Nora Wharton was not really
permitted much interaction outside of their home.
(Id. at 60).
Dr. Sultan further testified that:
She [Ms. Wharton] recalled another episode during which her biological
father was brutally beating and raping their mother on the floor in front
of them when the children were quite small, perhaps Mr. Thompson was
himself three or four. She was maybe four or five. Mr. Thompsons reaction
to that was to stand and scream and scream and scream and scream during
the entire episode.
Any of thetaking the self-injury aside, setting that aside, any one of
those behaviors in isolation might not be particularly significant.
Putting them together, we begin to see a pattern of intense emotional
reactivity.
Q: So basically, if I understand it, its the self-injurious behavior
and the crying and the way you see him reacting to these physical abuses
of others?
A: Yes.
Q: And that is indicative of a sign of mental illness to you? I just
want to make sure that Im understanding what youre telling me. If Im not,
please explain it to me.
A: I think I understand your question. It is an early indicator of a
problem thats likely to develop. With the benefit of hindsight, it takes
on the significance of a precursor, because then we see the escalating
pattern of dysfunction and abnormality.
Q: Sort of a causal relationship is what youre seeing developing?
A: Im not sure what causes what. There are often early indices of
later mental illnesses that you dont know exactly what its going to look
like later, but you realize in looking at the child that theres a high
likelihood that something is not going to be right when that person
achieves maturity.
Q: Because of the environment, for example, in which hes growing up?
A: Perhaps. Perhaps because of the genetics involved. Perhaps because
of the situations hes exposed to, as you said, the environment. Perhaps
because of whatever factors there are. Perhaps nutrition plays a role in
this. These children were without food for significant periods of time as
well. I dont know all of the reasons, but what I know is that if you look
back in the childhood of this man, the beginnings of mental illness are
apparent.
Q: Besides Ms. Whartons report of lack of food, have you seen any
evidence that the children were taken away because of malnutrition?
A: No. Ms. Wharton did tell me, however, that there was a neighbor
who had planned to make a report to Social Services, so perhaps Ill have
the opportunity to interview that neighbor as well.
Q: . . . You dont know to what degree the children were malnourished
then?
A: No. I dont know. I do know thatand this is confirmed by the
grandmotherin the six weeks approximately following their mothers death,
the children were left alone virtually all of the time because Ms. Lamar
was drunk and in bed, and so we have a five, a six, and a seven-year-old
child in a house with no food. They would occasionally steal money from
underneath her mattress while she was sleeping, and one of them would go
to the store to try to find some food. Occasionally a neighbor would
provide them with a meal or a can of food. I dont know whether they were
malnourished over an extended period of time. I do know that there is,
from Ms. Whartons perspective, rather serious psychological damage from
that time.
Q: You have no medical documentation showing any malnourished
condition or that its caused some problem with his brain, do you?
A: I dont. These children were never taken to the doctor, so there
wouldnt be any medical documentation. Theres probably documentation in the
school system. According to Ms. Wharton, Ms. Lamar was so drunk at the
beginning of the school year following their mothers death that she forgot
to sign the children up for lunches at school. They didnt have anything to
eat during the day, so they forged her signature on a permission slip so
that they could eat. They were discovered and punished by the school
superintendent people, and a form was sent home to Ms. Lamar. She then
signed it, and the children were able to eat lunch after that point. A
couple weeks passed for all of that to get straightened out.
Ms. Wharton has undergone a lot of therapy in recent years and says that
shes now able to describe situations that she wasnt very comfortable
acknowledging to herself, these being one of them.
Q: Your diagnosis of Mr. Thompson is schizoaffective disorder, comma,
bipolar type. What leads you to that diagnosis from what youve reviewed
and your testing results?
A: What leads me to the diagnosis is that there is a long history,
perhaps at this point almost a 20-year history, of simultaneous thought
disorder on the part of Mr. Thompson documented throughout all the
records, and affective disorder, emotional disorder, being unable to
regulate his emotions, sometimes falling into the pits of despair and
becoming suicidal, sometimes becoming highly agitated and manic and having
too much energy, too much exuberance, and grandiose thinking. The thought
disorder is manifested in persecutory ideas, delusions of grandeurlots of
different kinds of delusions actuallyauditory hallucinations that he
sometimes admits to, sometimes suspected by the doctors who are doing the
examination.
The psychological testing early on in Mr. Thompsons incarceration confirm
the presence of a psychotic process. There was an MMPI administered to him
by a prison psychologist in 1990 that is described as valid and indicative
of psychotic process, and throughout the prison record he receives a
variety of diagnoses that take into account both thought disorder and
affective illness.
The very best diagnosis to describe all of the complex of symptoms that I
just talked to you about is schizoaffective disorder, bipolar type.
Q: You note in your report Mr. Thompson was observed having a
significant change in behavior after he was discharged from the Navy. What
significance do you attach to that fact?
A: Well, its interesting, because the state Court of Appeals actually
notes this, that prior to his entry into the military Mr. Thompson is
described almost uniformlywell, in fact, uniformly according to their
opinionas passive, as compliant, as eager to please, as gentle, as timid,
as eager to run from attacks.
At some pointand we dont know, because I havent seen any psychiatric
records from the military at this point; I dont know if there are anywe
dont know whether or not the change in Mr. Thompson is perceived as other
than behavioral disruption, but, in fact, his description of that time is
that he began to notice that people were trying to hurt him all the time,
that officers and other people of his rank and slightly above his rank
attempted to provoke him, that they sometimes physically assaulted him,
that he thought he was being followed a lot, and that he sometimes struck
out in what he thought was defense and then later found out from other
people who he knew and trusted that there wasnt anything to defend against
or that there might not have been anything to defend against.
Q: This is what he related to you during your interview last August?
A: Right. The people who saw him after the military each were struck
by how very different he seemed. That was the word that kept being used,
different. Sometimes the people I was speaking to were not able to
describe what different meant, but, for example, the grandmother said that
he was different as in not right, that he wasnt himself. Ms. Wharton tells
me that the grandmother was very well aware that he was in deep
psychological distress, and, in fact, the grandmother suggested that he be
taken to the psychiatric unit at Grady Hospital in Atlanta, I believe, for
treatment. The grandmother observed him staring off into space for long
periods of time. She observed him mumbling to himself. When she asked him
what he was doing, he told her he had no idea what she was talking about.
She said that was very different from the boy who left her to go into
service.
The sister has even a better glimpse of him than that, because he actually
went to live with her for a while, and she said he was bizarre. She
described him as paranoid. She said that he would explode for no reason at
all, that she was afraid of him for the very first time in her life, that
they had always been terribly close, the sort of close where if there was
only one piece of bread to eat they would share it, that they always
looked out for one another, and that suddenly he was behaving in ways that
she simply could not identify. She described three very serious episodes
of aggression and emotional upset that she said are what led her to
approach her grandmother about what to do for treatment for him.
(Id. at 62).
Pruden then asked:
Q: You state that the schizoaffective disorder, bipolar type, would
substantially impair Mr. Thompsons ability to conform his conduct to the
requirements of the law. How so?
A: There are points in time when Mr. Thompson is out of contact with
reality. He is responding to situations that simply dont exist or that he
perceives in extremely exaggerated or different form. A person is not able
to conform ones conduct to the law if you are frankly delusional or
hallucinating in some way. Mr. Thompson over the years has had both of
those symptoms.
Q: So its this delusional aspect of this disorder that is the main
factor that would keep him from having the ability to conform his conduct
to the requirements of law, if I understand you correctly?
A: Is it the main factor? Let me say that I think its at least as
potent a factor if not more as the other aspect of his mental illness,
which is that he has emotional disregulation.
Q: Meaning?
A: Meaning Mr. Thompson often is not in control of his emotions. He
has episodes of rage, of aggression, that he doesnt understand or relate
to very well. Hes told about them later. Sometimes he remembers them,
sometimes he doesnt.
(Id. at 69).
The deposition concluded shortly thereafter.
(iii.) Kissingers Affidavit
The third attachment is Kissingers affidavit. In it, he explains in
relevant part the following:
2. I was appointed to represent the Appellant, Gregory Thompson, on
January 29, 1998, by the district court.
3. In approximately November of 1999, Ms. Leah Prewitt, the Federal
Defender for the Eastern District of Tennessee, was forced by illness to
cease activities on behalf of Federal Defender Services of Eastern
Tennessee, Inc. Ms. Prewitts duties were assumed by Ms. Elizabeth Ford, an
Assistant Federal Defender in the office. Because Ms. Prewitt had not
resigned, Federal Defender Services of Eastern Tennessee, Inc., was not
able to hire a permanent replacement for Ms. Prewitt. Because Ms. Ford
could not do both Ms. Prewitts job and her own, Federal Defender Services
of Eastern Tennessee, Inc. assigned a portion of Ms. Fords caseload to
affiant.
4. Affiant, however, already had an extremely heavy capital habeas
corpus caseload, including, but not limited to, Mr. Thompsons case. In
fact, his capital caseload was so heavy that Federal Defender Services of
Eastern Tennessee, Inc. was forced to hire a second attorney to handle
capital habeas corpus cases in July of 2000. When a portion of Ms. Fords
cases were assigned to affiant, that caseload became so great that affiant
made errors which, however understandable, were nonetheless errors.
5. Despite the affiants efforts, there were occasions when he made
assumptions, such as the assumption he made regarding Respondents filing
of the report and deposition of Dr. Sultan, which were, however
reasonable, incorrect. Counsels failure to verify this assumption
regarding these documents was neglect. Given the extraordinary pressure
under which counsel was operating at that time, such neglect was
excusable.
And further this affiant saith not.
(Id. Attachment C)(emphasis added). Kissingers affidavit is dated March 1,
2001.
g. The District Courts Ruling on the Rule 60(b) Motion
On April 17, 2001, the district court denied Thompsons motion to
reconsider the order denying his motion to alter or amend judgment
pursuant to Fed. R. Civ. P. 60(b). First, the district court held that it
had previously determined the Rule 60(b) motion was filed outside the one
year time period. The district court noted that, according to its
calculation the motion was required to be filed no later than February 16,
2001, to be considered timely. DCTR 139 (citing Fed. R. Civ. P. 6 and
60(b)). The district court then noted that:
Thompson now argues, without citing authority, that the calculation of the
Rule 60(b) one-year limitation period should not begin until March 31,
2000, the date this Court denied his Rule 59 motion to alter or amend the
judgment. Thompsons interpretation is contrary to the plain language of
the rule. Thompson has not cited, nor has the Court found, any authority
to support his position. The rule specifies that the motion should be made
within a reasonable time, and in this case not more than one year after
the judgment, order, or proceeding was entered or taken. Rule 60(b) of the
Federal Rules of Civil Procedure. In the case before this Court, the order
dismissing the habeas petition was entered on February 17, 2000. [Court
File No. 125].
(Id. at 3).
Next, the district court stated, and we quote in full, the following:
Moreover, the Court specifically noted in its memorandum opinion
dismissing the habeas petition, that Thompson procedurally defaulted his
claim that he was incompetent at the time of the crime and an the time of
trial. [Court File No. 124, at 35]. Furthermore, when addressing Thompsons
claim of ineffective assistance of counsel for failing to adequately
investigate his mental health, the Court placed Thompson on notice that he
failed to provide evidence of his allegations that he was incompetent at
the time of the crime and trial. [Court File No. 124, at 53].
Petitioner claims experts recently obtained by him have revealed that he
was incompetent under Tennessee law at the time of the crime and
throughout his court proceedings. Petitioner has failed to state the name
of the expert and failed to provide proof of these revelations. The Court
has read the deposition of Dr. Crown, (Court File No. 119, Exhibit 1) but
was unable to located [sic] his opinion that Thompson was incompetent at
the time of the crime and throughout his court proceedings. As a matter of
fact, Dr. Crown stated he was not asked to render any determination about
whether or not Thompson was competent during his state trial.
Id. Thus, the filing of this request more than one year after Thompson was
placed on notice that such information was not in the record is
unreasonable and not excusable neglect.
(Id. at 3-4) (bold and underlining added).
2. Appeal to this Court
Thompson did not appeal from the order of the district courts denying
his motion to alter or amend judgment. On appeal to this Court, Thompson
articulated the issues for review as follows:
I. Whether the district court erred when it reviewed Mr. Thompsons
claims under the all reasonable jurists standard denounced by the Supreme
Court in (Terry) Williams v. Taylor to summarily deny Mr. Thompsons
petition.
II. Whether the district court erred in denying Mr. Thompsons habeas
petition without a hearing where Mr. Thompson did not fail to develop the
factual basis of his claims in state court and whether the district court
erred by making factual findings without affording Mr. Thompson the
opportunity to present evidence with regards to those findings.
III. Whether Mr. Thompson received ineffective assistance of counsel
in both the guilt and sentencing phases of his capital trial where counsel
failed to investigate and present evidence regarding Mr. Thompsons mental
illness and social history and failed to present evidence in support of a
life sentence in violation of due process and the Sixth Amendment.
IV. Whether Mr. Thompsons Fifth, Sixth, Eight, and Fourteenth
Amendment rights were violated when the state withheld exculpatory
evidence which clearly supported Mr. Thompsons claim of serious mental
illness and its debilitating effects and presented false evidence
regarding Mr. Thompsons mental health during trial and post-conviction
proceedings.
Curiously, appellate habeas counsel Dana Hansen did not appeal the
denial of the Rule 60(b) motion, despite her apparent realization that Dr.
Sultans deposition testimony and report were never made part of the
district court record.
III. Discussion
A. Procedural Posture
This case is governed by the Anterrorism and Effective Death Penalty
Act of 1996, and we have already ruled on the initial habeas petition. See
Thompson v. Bell, 315 F.3d 566 (6th Cir. 2003), cert. denied, 124 S. Ct.
804 (2003). However, as alluded to above, this matter is before us in a
unique procedural posture, on our own motion, and prior to the issuance of
the mandate.(12) Thus, we are not obliged to satisfy the requirements for
the filing of a second or successive petition outlined in 28 U.S.C. 2244.
See Workman v. Bell, 227 F.3d 331, 334 (6th Cir. 2000) (en banc; equally
divided court) (stating that [a]s a general rule, when a mandate is
recalled with respect to a petition for writ of habeas corpus, the
petitioner first must satisfy the requirements for the filing of a second
or successive petition as outlined in 2244(b)).
However, even if this matter were before us as a second habeas
petition, it would not matter, because the AEDPA does not bar a second or
successive petition premised upon fraud upon the court. See Workman v.
Bell, 245 F.3d 849, 852 (6th Cir. 2001) (In our equally divided opinion
denying further relief for the petitioner . . ., all of the judges agreed
that the court can reconsider the petition if there was a fraud upon the
court.) Cf. Calderon v. Thompson, 523 U.S. 538, 556-57 (1998) (holding
that the principles of the AEDPA apply in general to a recall of the
mandate because a States interests in finality are compelling when a
federal court of appeals issues a mandate denying federal habeas relief;
exempting claims of fraud upon the court, calling into question the very
legitimacy of the judgment); Workman, 227 F.3d at 334 (stating that [o]ne
of the reasons which would justify recalling a mandate is the potential
existence of a fraud upon the court). Indeed, in Calderon, the Supreme
Court stated that a mandate may be recalled when it is necessary to
address new circumstances before the court which are grave and unforeseen
or which are, in other words, unforeseeable circumstances which implicate
the justice of the judgment previously rendered. Workman, 227 F.3d at 334
n.3 (citing Calderon, 523 U.S. at 549).
B. Ineffective Assistance of Trial Counsel at Mitigation
As the United States Supreme Court recognized in Strickland, the
Sixth Amendment right to counsel exists, and is needed, in order to
protect the fundamental right to a fair trial. Srickland v. Washington,
466 U.S. 668, 684 (1984). [T]he right to counsel is the right to effective
assistance of counsel, id. (quoting McMann v. Richardson, 397 U.S. 759,
771 n.14 (1970)), and a defendant can be deprived of that right by
counsels failure to render adequate legal assistance. Id. (quoting Cuyler
v. Sullivan, 446 U.S. 335, 344 (1980)).
In Strickland, the Supreme Court held that
[a] convicted defendants claim that counsels assistance was so defective
as to require reversal of a conviction or death sentence has two
components. First, the defendant must show that counsels performance was
deficient. This requires showing that counsel made errors so serious that
counsel was not functioning as the counsel guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsels
errors were so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.
Id. at 687.
When the duty at issue is the duty to investigate, counsel has a duty
to make reasonable investigations, or to make a reasonable decision that
makes particular investigations unnecessary. Id. at 690; see also id. at
688-89. Reasonableness is determined by considering all of the
circumstances. Id. at 688. However [p]revailing norms of practice as
reflected in American Bar Association standards and the like, are guides
to determining reasonableness. Id.; see also Hamblin v. Mitchell, 354 F.3d
482, 486-88 (6th Cir. 2003) (same).
Also relevant to the question of whether the scope of counsels
investigation was reasonable is what counsel actually knew. In assessing
the reasonableness of an attorneys investigation, . . . a court must
consider not only the quantum of evidence already known to counsel, but
also whether the known evidence would lead a reasonable attorney to
investigate further. Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 2538
(2003).
1. Deficient Performance
In our previous opinion we held that trial counsels investigation was
sufficient, principally because Thompson failed to present any evidence
indicated that he suffered from symptoms of mental illness at the time of
the offense. See Thompson, 315 F.3d at 589. In other words, we could not
have found ineffective assistance because there was no showing that trial
counsel missed available evidence, and we were mislead by incomplete
records.
According to Dr. Sultans July 1999 testimony, Thompson was suffering
from a serious mental illness at the time of the offense.(13) Moreover,
all of the information related to Mr. Thompsons early mental illness and
social history [and] was available at the time of his 1985 trial. Had
trial counsel adequately interviewed family members, counsel would have
found that Thompson exhibited troubling behaviors from an early age.
Thompson engaged in self-injurious behaviors as a young child. As a young
adult, and prior to the murder, Thompson had mood swings and episodes
during which he acted in a bizarre manner and appeared to lose contact
with reality. He talked to himself. At times he became agitated, crying
and screaming for no apparent reason. At other times, he appeared
paranoid, keeping the drapes closed, fearing that he was being followed.
As Dr. Sultan observed, although each instance taken alone might not be
sufficient, when combined with Thompsons abnormal responses, they are
indicative of an early psychopathology.
As Dr. Blair indicated at the state post-conviction hearing, a
complete social and family history is critical to the establishment of a
diagnosis of mental illness. See Thompson, 315 F.3d at 579. Yet, according
to Dr. Blair, MTMHIs records only contained sketchy information related to
Thompsons history before he committed the murder. Dr. Copples testimony
indicated that he did not take a thorough history: I did get a little bit
of general information, such as his age, his education. Dr. Copple did not
appear to be aware of Thompsons possible symptoms. When asked about
Thompsons report of mood swings, Copple indicated that he did not believe
Thompson ever had mood swings or reported them to Dr. Watson.
This readily available social and family history evidence, had trial
counsel obtained it, should have been reported to experts for psychiatric
evaluation. After all, it was counsel who traveled to Thompsons home town
to interview family members and friends and would have had access to the
information. Furthermore, the evidence was not subtle, counsel did not
need any expertise in psychiatry, as even Thompsons family members were
aware of Thompsons need for a psychiatric evaluation.
Trial counsel were also ineffective for failing to obtain and present
a comprehensive social history. Thompson was the victim of verbal abuse
and neglect of sufficient severity that by first grade Thompson was
exhibiting odd behaviors. He repeatedly banged his head in response to his
grandmother yelling at him. He wailed in the classroom and received the
nickname of Fire Engine due to the unusual sound of his sobs. At age three
or four, he observed his father brutally beat and rape his mother. His
mother died when he was five years old and he was left with his maternal
grandmother who was continuously drunk for the first six weeks and did not
even provide food for the children. All of this information was powerful
mitigating evidence that should have been presented to the trier of fact
at sentencing. See Wiggins v. Smith, 539 U.S. 510 (2003) (holding that the
scope of trial counsels investigation was unreasonable when counsel failed
to investigate the petitioners social history, including the fact that his
mother was a chronic alcoholic and that he was sent to various foster
homes, factors which would have led any reasonably competent attorney to
pursue); Williams v. Taylor, 529 U.S. 362, 395-98 (2000) (finding
ineffective assistance of counsel because counsel failed to investigate
and introduce readily available evidence of the petitioners nightmarish
childhood, including severe and repeated beatings by his father, and
available evidence showing that the petitioner was borderline mentally
retarded; also finding prejudice in that the evidence might well have
influenced the jurys appraisal of his moral culpability); Hamblin, 354
F.3d at 489-91 (holding that defense counsels representation of the
petitioner fell short of prevailing standards because had counsel
investigated, they would have found a large body of mitigating evidence of
an unstable and deprived childhood, characterized by extreme poverty,
neglect, and family violence, as well as signs of a mental disability or
disorder); Coleman v. Mitchell, 268 F.3d 417, 451-54 (6th Cir. 2001)
(finding ineffective assistance at mitigation where counsel failed to
present evidence of the petitioners horrific childhood, his mental and
emotional disorders, and low IQ); Carter v. Bell, 218 F.3d 581, 600 (6th
Cir. 2000) (finding ineffective assistance where counsel failed to present
evidence of a childhood in which abuse, neglect and hunger were normal).
Like trial counsel in Wiggins, trial counsel here had more than
sufficient leads to investigate further. Cf. Wiggins, 123 S. Ct. at
2536-37 (holding that trial counsels decision not to expand their
investigation beyond a presentence investigation report and department of
social services records which revealed facts concerning the petitioners
alcoholic mother and his problems in foster care, as well as his
self-report of a miserable childhood was unreasonable). Thompsons trial
counsel were aware that Thompson had exhibited possible symptoms of a
mental illness. Trial counsel filed a notice of insanity defense and
requested that Thompson undergo a mental evaluation. In a letter dated
March 29, 1985 to Dr. Taran of Multi-County Mental Health, counsel
explained that Thompson was experiencing extreme mood changes. Counsel
also knew of Thompsons violent behaviors in the military, which were in
stark contrast to Thompsons previous history. In addition, as described in
the report, Thompson described hearing auditory hallucinations all of his
life when admitted to MTMHI. As counsel testified at the post-conviction
evidentiary hearing, [t]he thing that struck me so strongly throughout
this whole case was really to do with that, and that was the difference in
the man when he lived in Georgia and grew up there and what kind of person
he was as opposed to someone who committedallegedly committed this act,
this murder and that was a tip off that there may have been some kind of
brain injury. Thompson, 315 F. 3d at 577. In short, trial counsels
investigation into Thompsons background did not reflect reasonable
professional judgment in light of what they knew and suspected. Cf.
Wiggins, 123 S. Ct. at 2542 (holding that trial counsels decision to end
their investigation when they did was unreasonable in light of the
evidence counsel uncovered in the social service records).
2. Prejudice
The failure to present this mitigating evidence was prejudicial. Cf.
Wggins, 123 S. Ct. at 2542 (holding that the petitioners evidence of
severe privation and abuse in his early life while in the custody of his
alcoholic mother and physical abuse in subsequent years in foster care
prejudiced his defense). As the Supreme Court stated in Wiggins,
Petitioner thus had the kind of troubled history we have declared relevant
to assessing a defendants moral culpability. Id. at 2542 (and cases cited
therein). Finally, as was true in Wiggins, [h]ad the jury been able to
place the petitioners excruciating life history on the mitigating side of
the scale, there is a reasonable probability that at least one juror would
have struck a different balance. Id. at 2543.
In sum, trial counsels conduct failed to render effective assistance
of counsel guaranteed by the Sixth Amendment by failing to conduct a
reasonable investigation of Thompsons social history and present powerful,
readily available mitigating evidence, and by failing to pursue known
leads that might have helped them to prepare their case in mitigation. In
light of Dr. Blairs post-conviction testimony that a full history was
needed to determine whether Thompson was schizophrenic at the time of the
offense, the state court postconviction courts denial of funds amounted to
an objectively unreasonable application of Strickland under 28 U.S.C.
2254(d)(1).
C. Misconduct of Habeas Counsel
The next issue is whether Kissinger may have intentionally, or at a
minimum recklessly, failed to timely and properly present critical
evidence to the district court and this Courtevidence which, in the words
of the district court, might have entitled Thompson to relief. Simply put,
the question is this: how and why did habeas counsel fail to timely and
properly present Dr. Sultans expert opinion testimony that Mr. Thompson
was suffering serious mental illness [Schizoaffective Disorder, Bipolar
Type] at the time of the 1985 offense for which he has been convicted and
sentenced. This mental illness would have substantially impaired Mr.
Thompsons ability to conform his conduct to the requirements of law.
Psychological Report prepared by Dr. Faye Sultan, dated July 22, 1999.
This matter is somewhat reminiscent of Demjanjuk v. Petrovsky, 10
F.3d 338 (6th Cir. 1993).(14) There, on its own motion, this Court vacated
the judgment of the district court denying the petitioners writ of habeas
corpus upon finding that the judgments in the underlying extradition
proceedings were wrongly procured as a result of prosecutorial misconduct
that constituted fraud on the court.(15) Id. at 356. As in Demjanjuk, we
must decide if the conduct outlined herein constitutes fraud on the court
or attorney misconduct sufficiently serious to require corrective action
on our part. Id. at 352.
As we observed in Demjanjuk, fraud upon the court is a somewhat
nebulous concept, defined as embracing
only that species of fraud which does or attempts to, subvert the
integrity of the court itself, or is a fraud perpetrated by officers of
the court so that the judicial machinery cannot perform in the usual
manner its impartial task of adjudging cases that are presented for
adjudication, and relief should be denied in the absence of such conduct.
Id. (quoting 7 Moores Federal Practice and Procedure, 60.33)). See also
Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 245 (1944)
(holding that fraud upon the court generally involves a deliberately
planned scheme to subvert the integrity of the judicial process). Cases
dealing with fraud on the court usually turn on whether the improper
actions involved the parties alone, or whether the attorneys in the case
were also involved. Demjanjuk, 10 Fd. 3d at 352. As we further observed in
Demjanjuk, [a]s an officer of the court, every attorney has a duty to be
completely honest in conducting litigation, and that
while an attorney should represent his client with singular loyalty, that
loyalty obviously does not demand that he act dishonestly or fraudulently;
on the contrary his loyalty to the court, as an officer thereof, demands
integrity and honest dealing with the court. And when he departs from that
standard in the conduct of a case he perpetrates fraud upon a court.
Id. at 352 (quoting 7 James Wm. et al., Moores Federal Practice 60.33).
Finally, we remarked that [a]lthough there are cases holding that a plan
or scheme must exist in order to find fraud on the court, we agree . . .
that a scheme, based on a subjective intent to commit fraud, is not
required in a case such as this. Reckless disregard for the truth is
sufficient. Id. at 352-53 (holding that Department of Justice Attorneys
committed fraud on the court by failing to disclose to the courts and to
the detainee exculpatory information in their possession).
Demjanjuk defined fraud on the court as consisting of (1) conduct by
an officer of the court, (2) directed towards the judicial machinery
itself, that is (3) intentionally false, wilfully blind to the truth or is
in reckless disregard for the truth, is (4) a positive averment or
concealment when one is under a duty to disclose, and that (5) deceives
the court. Id. at 348.
The first and second fraud on the court factors appear to be easily
met. Thompsons attorneys are clearly officers of the court, see generally
Hickman v. Taylor, 329 U.S. 495, 510 (1947) (noting that [h]istorically, a
lawyer is an officer of the court and is bound to work for the advancement
of justice while faithfully protecting the rightful interests of his
clients), and their representation of Thompson in these habeas proceedings
was and is clearly directed at the judicial machinery of the court.
The fourth and fifth factors also appear to be present. Habeas
counsel for Thompson had an obligation, as part of their duty to represent
zealously their client, to present to the court material, critical,
available evidence, which in this case would virtually have ensured the
relief Thompson requested in his federal habeas corpus petition. This
meant presenting, by affidavits or otherwise, proof of Thompsons mental
illness at the time of the offense in response to Respondents motion for
summary judgment. See Fed. R. Civ. P. 56(e) (stating that [w]hen a motion
for summary judgment is made and supported as provided in this rule, an
adverse party may not rest upon the mere allegations or denials of the
adverse partys pleading, but the adverse partys response, by affidavits or
as otherwise provided in this rule, must set forth specific facts showing
that there is a genuine issue for trial. If the adverse party does not so
respond, summary judgment, if appropriate, shall be entered against the
adverse party). See also Fed. R. Civ. P. 56(c) (stating that [t]he
judgment sought shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of
law). If counsel knew that it had positive, mitigating proof in the form
of an expert opinion that Thompson suffered from a mental illness at the
time of the offense such that it would have substantially impaired his
ability to conform his conduct to the requirements of the lawinformation
that the district court specifically indicated in its discovery order
might entitle Thompson to the relief he requestedthen that information
should have been presented in response to Respondents motion for summary
judgment so as to prevent the grant of summary judgment in Respondents
favor and against Thompson.
Here, both the district court and this Court were deceived. That is,
both courts assumed that probative evidence as to Thompsons mental illness
at the time of the crime did not exist because counsel failed to present
it.(16) Based on the natural assumption that such evidence did not exist
because it was not presented at the summary judgment stage, the district
court held that
Thompson has failed to provide any significant probative evidence
which would make it necessary for this Court to resolve a factual dispute.
. . . Thompson has not provided this Court with anything other than
factually unsupported allegations that he was incompetent at the time he
committed the crime and at the time of his jury trial. Nor has Thompson
provided this Court with any significant probative evidence that Thompson
was suffering from a significant mental disease that should have been
presented to the jury during the punishment phase as mitigation evidence.
Petitioner had two different psychological evaluations and both
resulted in findings of competency at the time of the crime and at the
time of trial.
Memorandum Opinion dated February 17, 2000, at 54-55.
This Court labored under the same misimpression that there was no
evidence to establish that Thompson suffered from a serious mental disease
or defect at the time of the offense:
Moreover, not one of Thompsons post-trial experts have opined that
Thompson suffered from organicity or mental illness at the time of the
crime or trial. Blair, Thompsons state post-conviction expert, also a
clinical psychologist with ties to Vanderbilt, declined to give an
opinion, stating simply that more information was needed. Significantly,
she did not fault the testing procedures used by MTMHI or Copple, but
merely stated that they were not extensive enough. Indeed, she performed
many of the same tests. Similarly, neither Crown nor Sultan ever expressed
an opinion that Thompson was mentally ill at the time of the crime. In
fact, Crown stated that he was not asked to render such an opinion. . . .
On the other hand, Crown found Thompson competent in June 1998, which is
consistent with Copples findings and the MTMHI evaluation in 1985.
Also, as the district court found, Thompson failed to submit any
medical records or proof to any court that he actually sustained the
alleged head injuries or that they resulted in any permanent damage.
Further, he has never submitted to any court any proof that he suffered
from severe mental illness at the time of the crime.
Thompson, 315 F.3d at 589-90 (emphases added). That is not all we said:
Counsel has now had numerous opportunities via expert testimony to
establish that Thompson suffered from organic brain disease or mental
illness at the time of the crime. And yet, at each opportunity, counsel
fails to secure an answer to the critical issue of whether Thompson was
mentally ill at the time of the crime. In essence, counsel is attempting
to rely on, as proof, two inferences: 1) because Thompson allegedly
suffered head injuries, he must have suffered brain damage, and 2) because
he is currently suffering from schizo-affective disorder, he must have
been suffering from mental illness at the time of the crime. But
inferences are not proof, as even Thompsons experts seem to recognize, for
each and every one fails to automatically take the leap from these
inferences to the conclusion that he was mentally incompetent at the time
of the murder. However, absent some evidence of organic brain damage or
mental illness at the time of the crime, trial counsel cannot be deemed
ineffective for failing to discover something that does not appear to
exist. As we held in Lorraine v. Coyle, 291 F.3d 416, 436 (6th Cir. 2002),
[i]t simply cannot be said that trial counsels conduct fell below an
objective standard of reasonableness under Strickland simply because the
leads [of possible brain damage] led nowhere.
. . . .
Thompson has not presented any evidence of incompetence at the time of the
crime or trial in either the state or federal proceedings. As previously
noted, none of Thompsons experts have stepped up to the plate on the key
issue of Thompsons competence at the time of trial.
Id. at 590-92 (emphases added).
In short, both the district court and this Court were mislead into
believing that significant mitigating evidence of Thompsons mental illness
at the time of offense did not exist. It quite clearly did exist, and that
evidence was in habeas counsels possession, via Dr. Sultans July 22, 1999
report and July 22, 1999, deposition, prior to the filing of Thompsons
response in opposition to Respondents motion for summary judgment, which
Thompson filed on July 29, 1999 (DCTR 86), and prior to Thompsons filing
of Supplemental Brief in Support of Response in Opposition to Respondents
Motion for Summary Judgment, on September 14, 1999.(17) (DCTR 104).
This leaves the third factor. Here the question is whether habeas
counsels conduct in failing to present available evidence of Thompsons
mental illness at the time of the crime was intentionally false, wilfully
blind to truth, or in reckless disregard for the truth. In his
affidavit attached to Thompsons Rule 60(b) motion, Kissinger states that
an extremely heavy capital habeas corpus caseload, including, but not
limited to, Mr. Thompsons case caused him to make errors, thereby
suggesting that his conduct in this matter was negligent and not
intentional or in reckless disregard for the truth.
Our incredulity over this explanation stems from a simple premise:
how could counsel possibly forget or overlook the critical piece of
evidencei.e., an expert opinion that Thompson suffered from a significant
mental disease or defect at the time of the offensethat both trial and
habeas counsel purportedly sought for over a decade in both the state and
federal courts, and which habeas counsel obtained at the very latest (but
obviously much sooner) seven days prior to the filing of Thompsons
response to Respondents dispositive motion?
Virtually every pleading in both the state and federal proceedings is
directed toward this end. Within two months of the murder, trial counsel
requested a mental evaluation of Thompson to determine his mental capacity
at the time of the crime. Within three months of the murder, trial counsel
filed a supplementary motion for a psychiatric examination and a
neurological examination to determine if Thompson was suffering from a
mental illness on the date of the offense. Less than three months after
the offense, Thompson was referred to the Multi-County Mental Health
Center for a forensic evaluation to make that determination, and a week
later the trial court entered another order directing Thompson to undergo
a forensic evaluation at MTMHI.
Trial counsel were not content with the states evaluation and
requested funds to hire an independent psychiatrist. They ultimately hired
Dr. Copple. Dr. Copple examined Thompson principally to see what he would
be capable of doing in a prison setting and did not perform a thorough
review of Thompson social history. Amazingly, habeas counsel faulted trial
counsels choice of Copple because he did not conduct a thorough review of
Thompsons family history and medical background.
In his petition for post-conviction relief in state court, Thompson
claimed that trial counsel failed to adequately investigate his background
for the existence of mitigating evidence, and sought to hire a licensed
psychologist or psychiatrist and an investigator. Attached to that request
was the affidavit of Dr. Gillian Blair, a clinical psychologist, who
specifically stated that if Thompson were suffering from a neurological or
psychological impairment bipolar affective disorder or schizoaffective
disorder, it was likely that some degree of that impairment would have
existed at the time of the offense and would have been a significant
factor in determining whether Thompson could have conformed his conduct to
the requirements of law. Dr. Blair stated that Thompson needed a full
psychological evaluation. She testified to the same effect at the state
post-conviction hearing. The state post-conviction court denied Thompson
funds, however.
On appeal to this Court, habeas counsel asserted that the state
post-conviction courts placed Thompson in a Catch-22 situation by denying
them the funds needed to obtain the requisite expert opinion and then
finding no ineffective assistance because there was no proof in the record
that counsel failed to present any available evidence of a mental disease
or defect. And habeas counsel went out and hired a neuropsychologist and a
clinical psychologist. Dr. Sultan conducted the very examination and
evaluation that Dr. Blair outlined was necessary but could not provide
because of lack of funds. Dr. Blair stated that the most important thing
that would be necessary would be a full history and full medical records
of Mr. Thompson prior to the commission of the offense. She further
indicated that from her limited review, Thompsons social history, his
childhood and upbringing were sketchy.
Dr. Sultan found the other facts Dr. Blair indicated would be
necessary to develop an opinion as to Thompsons condition at the time of
the offense. In her report, Dr. Sultan stated that she initiated a very
extensive review of legal, military, medical, prison, and
psychiatric/psychological records. Dr. Sultan also interviewed several
individuals who provided significant information about Thompsons childhood
and family background, including Thompsons grandmother, older sister, and
a girlfriend. These witnesses revealed an abusive, traumatic childhood and
clear signs of schizophrenia onset in early adulthood prior to the
offense. Based on that review, Dr. Sultan opined that Thompson displayed
significant signs of mental illness from the time he was a small child and
manifested symptoms of schizo-affective disorder in early adulthood, prior
to the 1985 offense.
The principal bases for Thompsons petition and amended petition for
writ of habeas corpus were his allegations that trial counsel were
ineffective for: (1) failing to perform a reasonable investigation of his
background and mental health history; (2) failing to secure adequate
expert assistance regarding his mental health; and (3) failing to
reasonably investigate and challenge Thompsons competency at the time of
the offense. Thompson also claimed he was denied funding for mental health
and investigative experts during the state trial and post-conviction
proceedings.
Thompsons initial witness list represented that Dr. Crown would
testify that Thompsons brain damage, as well as his medical and social
history, are consistent with schizophrenia. The initial witness list
further indicated that Dr. Sultan would testify that Thompson suffers from
schizophrenia and did so at the time of the offense. Moreover, from the
outset habeas counsel represented to the district court, through the
pleadings, that Thompson would establish that trial counsel failed to
present available mitigating evidence. Indeed, the district courts
November 1998 ruling affirming the magistrate judges November 2, 1998,
discovery order explicitly stated that if the facts were developed to show
that Thompsons mental health should have been introduced as mitigating
evidence, Thompson might be entitled to relief.
Despite the representations in his initial witness list, as
Respondent discerned on July 20, 1999, Dr. Crown had no opinion as to
Thompsons mental state at the time of the offense. In other words, at the
time of Dr. Crowns deposition, eight months after the initial witness list
was filed and several days before Thompsons response to the summary
judgment was due, Dr. Crown had not been asked to form an opinion on the
issue he was purportedly retained to evaluate and the key issue in the
case. Dr. Crowns deposition testimony verifies that habeas counsel never
asked him to render an opinion as to Thompsons mental state at the time of
the murder. Furthermore, even though Dr. Crown concluded that Thompson had
a schizo-affective disorder, which he acknowledged tends to develop in
late adolescence to early adulthood, and which he further acknowledged
appeared to have begun in the last stages of Thompsons military career,
Dr. Crown stated that he was not asked, and had not pinpointed, the onset
date.
In contrast, in the initial witness list, Petitioner stated that Dr.
Crown would testify that he had been provided with background information
regarding Petitioners medical and social history, and administered a
battery of indicated neuropsychological tests, which would indicate that
Petitioner suffers from organic brain damage. The witness list further
represents that Dr. Crown would testify that the brain damage observed, as
well as Petitioners social and medical history, is consistent with
schizophrenia, and that Petitioners brain damage substantially impaired
the ability of the Petitioner to distinguish between right and wrong
and/or to conform his conduct to the requirements of the law. The
disparity between Dr. Crowns actual deposition testimony and the witness
list is patent.
Less clear is why habeas counsel did not ask Dr. Crown for an
opinion on Thompsons mental status at the time of the offense. Habeas
counsels attempt, in response to Respondents motion for reimbursement of
deposition costs, to shift the burden of procuring such an opinion from
Dr. Crown to Respondent, is absolutely audacious. Habeas counsel actually
argued that Respondent had the burden of procuring that opinion from Dr.
Crown. How ironic that habeas counsel would suggest that procuring such
expert opinion testimony was somehow the Wardens burden, given that habeas
counsel equally faulted defense trial counsel for failing to procure and
present same. We have a hard time believing that, on the brink of summary
judgment, habeas counsel somehow got confused over who had the burden in
the habeas proceeding of proving ineffective assistance of trial counsel.
More outrageous is Kissingers representation on behalf of his client
in that same response that Dr. Crowns statement substantially conformed to
the information contained in the initial witness list because Dr. Crown
stated in passing in his deposition that Thompson suffers from a bipolar
disorder of a self-afflicted type and that the onset of this affliction
was prior to the alleged offense. As review of Dr. Crowns deposition
testimony makes clear, Dr. Crown stated Thompson has a schizo-affective
disorder, which typically occurs in early adulthood, but Dr. Crown also
made clear that he was not asked to opine whether Thompson actually
manifested symptoms prior to the offense and further stated that he had no
real pinpoint.
Again we cannot escape the irony of Kissingers assertions in that
motion that Respondent either made a strategic decision not to procure Dr.
Crowns opinion regarding Thompsons mental health at the time of the
offense, or that Respondent forgot to do so.(18)
Most troubling of all, of course, is the presence and substance of
Dr. Sultans testimony. Dr. Sultan conducted the background investigation,
interviewed Thompsons family members and provided the exact diagnosis that
habeas counsel claims trial counsel was under a constitutional obligation
to discover and present. And she provided the service at Kissingers
request. The record reflects that habeas counsel were in communication
with Dr. Sultan as early as August 1998. In an affidavit signed on
February 10, 1999, attached to Thompsons ex parte motion for a temporary
mandatory restraining order, Dr. Sultan alleged that she had reviewed
hundreds of pages of records and documents about Thompsons psychiatric,
military, and legal history, and had first met with Thompson on August 20,
1998. Kissinger, through Chavis, asked Dr. Sultan for that opinion,
received a report with that exact conclusion on July 22, 1999 and heard
Dr. Sultan testify to that effect on July 22, 1999. After all, Kissinger
was counsel of record for Thompson at Dr. Sultans deposition. How then
could counsel fail to include any mention of Dr. Sultans expert opinion in
Petitioners response brief to Respondents motion for summary judgment? It
is virtually inconceivable to think that counsel could overlook this
information as he was preparing the response to the summary judgment
motion. Dr. Sultans deposition testimony and accompanying report were
obtained a mere seven days before the brief was filed. How could counsel
possibly forget about its best evidence, and in such a short span of time?
Habeas counsels conduct following the district courts issuance of its
opinion granting summary judgment to Respondent seriously undercuts the
possibility that habeas counsels account is believable. On March 2, 2000,
two weeks after the district court granted summary judgment to Respondent
in an opinion which explicitly stated that Thompson had failed to provide
this Court with any significant probative evidence that Thompson was
suffering from a significant mental disease that should have been
presented to the jury during the punishment phase as mitigating evidence,
Thompson filed a motion to alter or amend judgment. Habeas counsel claimed
that it filed that motion [i]n an effort to fulfill his duty to both his
client and the Court. Yet the motion does not attempt to present the
forgotten evidence, Dr. Sultans opinion. Instead, it merely presented two
clarifying arguments. Ironically, habeas counsel stated that while not
waiving or conceding any of the other arguments previously raised, the
motion centered on these two issues because they went to the very
integrity of the judicial process. If counsels failure to remember Dr.
Sultans testimony, after a pointed reminder by the district court that
Petitioner had two different psychological evaluations and both resulted
in findings of competency at the time of the crime and at the time of
trial, is not reckless disregard for the truth, what is?
And habeas counsel apparently continued to forget about Dr. Sultans
opinion. Habeas counsel waited still another year to bring this
information forward. And it waited for a year from the district courts
denial of Thompsons motion to alter or amend judgment, not one year from
the date of the underlying judgment. As the district court pointed out,
this motion was untimely, because the plain language of Rule 60(b) sets an
absolute time limit on the motion of one year in addition to the
requirement that the motion be filed within a reasonable time. Fed. R.
Civ. P. 60(b). The district court therefore lacked the authority to grant
relief. See Ackerman v. United States, 340 U.S. 193, 197 (1950) (A motion
for excusable neglect as provided in Rule 60(b)(1) must, by the rules
terms, be made not more than one year after the judgment was entered.).
Again, we find it curious that habeas counsels remembrance of depositions
past came just a hair too late to fit within the parameters of Rule
60(b).(19)
Then, for the first time, counsel offered to supplement the record
with Dr. Sultans report and deposition testimony upon its enlightened view
that Dr. Sultans opinions certainly are directly relevant to the mental
health related claims, and further acknowledgment that [c]ounsel for Mr.
Thompson engaged in Dr. Sultans services for the sole purpose of offering
her opinion to support his constitutional claims. Habeas counsel argued
excusable neglect based on a heavy caseload and a disorderly office, and
further stated that Kissinger was under the mistaken belief that the
evidence was in the record. In a footnote, Kissinger further explained his
mistaken belief as follows: Because Respondent had placed Dr. Crowns
deposition testimony and accompanying report in the record, as part of its
motion for reimbursement costs, and because Respondent had moved for costs
in hiring its own mental health expert, Dr. Blau, on the grounds that
Blaus services were unnecessary as Petitioner had no experts to support
the mental health related issues, Kissinger apparently assumed that
Respondent would also have included the deposition testimony and report of
Thompsons only other mental health expert to bolster its request for
deposition costs.
This explanation makes little sense. In the first place, Dr. Sultans
deposition testimony and accompanying report, unlike Dr. Crowns, do
support the mental health related allegations and is consistent with the
witness list statement. More importantly, Kissingers explanation seeks to
obscure the fundamental fact that Thompsons habeas counsel had an
independent responsibility to both Thompson and the court to present Dr.
Sultans opinion in Thompsons opposition to Respondents motion for summary
judgment, and ultimately, to meet Thompsons burden of establishing that he
was entitled to the requested relief, a grant of the writ of habeas corpus
based on constitutional error. Kissingers attempt to shift the blame to
Respondent is inexcusable.
Furthermore, habeas counsels filing of an obviously untimely Rule
60(b) motion can be conceived of as a fraud perpetrated . . . so that
judicial machinery cannot perform in the usual manner. That is precisely
what happened in this case. The district court was prevented from
administering full justice because it lacked all of the vital information
necessary to afford the proper relief.
As exhaustively detailed above, the essence of Thompsons claim
throughout the entire course of the state and federal proceedings was that
he was suffering from a mental disease or defect at the time of the
offense. Habeas counsel criticized trial counsel for failing to procure
this evidence, and was aware from the outset how it needed to establish
ineffective assistance of trial counsel at mitigation, as reflected by its
early decision to retain Drs. Crown and Sultan. Habeas counsel then did
exactly what it faulted trial counsel for failing to do.(20) That is,
habeas counsel conducted the investigation that it alleged trial counsel
were constitutionally ineffective for failing to perform. That
investigation revealed that Thompson was suffering from a serious mental
illness at the time of Brenda Lanes murder. It also revealed significant
aspects of Thompsons social history long recognized as mitigating in other
capital cases. This Court simply cannot, at this juncture, accept counsels
explanation that it forgot to remember that critical evidence until
slightly one year after judgment. There appears to be no acceptable excuse
for habeas counsels behavior.(21)
IV. Response to Majority Opinion
The majority opinion agrees that Dr. Sultans opinion requires us to
vacate the district courts grant of summary judgment in favor of
respondent. However, it posits that my opinion goes too far in its
accusations of fraud on the court; on the grounds that while his [my]
explanation for the omission of the Sultan deposition from the official
record before the court is possible in the narrowest sense, the power of
this court should not be used to make such accusations without more
definite proof than the factual record of this case reveals. Rather, the
majority would find that the more plausible explanation is that a genuine
mistake was made, one which was not realized until a different attorney
looked at the case, and that [t]o conclude otherwise is to disbelieve
sworn testimony by an officer of the court.
The majority opinion correctly recognizes that, at this juncture, I
am inclined to disbelieve Kissingers representations of excusable neglect
because I find it utterly implausible that counsel could forget about his
most important piece of evidence, expert testimony assessing Thompsons
mental state at the time of the crime, given that his principal strategy
throughout the habeas proceedings was to claim Sixth Amendment ineffective
assistance of counsel based on trial counsels failure to obtain that very
evidence. From day one, habeas counsel knew that in order to make a
successful constitutional challenge, he had to acquire an expert opinion
to the effect that Thompson was suffering from schizophrenia at the time
of the offense, as reflected by the fact that counsel hired two experts
who would purportedly say that. Furthermore, even assuming short-term
memory loss due to a crushing workload, Kissinger sat through Dr. Sultans
deposition a mere seven days before he signed and filed the response to
the summary judgment motion. On the eve of its filing, how could he, how
did he, forget what Dr. Sultan said, and utterly fail to make the
slightest allusion to her expert opinionespecially since she provided
precisely what he needed to support his ineffective assistance claim?
Even assuming that Kissinger innocently suffered from virtual amnesia
during this critical phase of the federal district court proceedings, and
appellate habeas counsel Dana Hansen caught the error when she took over
the appeal and tried to correct it, why then did she fail to appeal the
district courts denial of the Rule 60(b) motion or otherwise seek to
supplement the record on appeal under Fed. R. App. 10(e) given the obvious
importance of that testimony and the gravity of the situation before
us?(22)
Kissingers and Hansens unusual performance is, and should be
criticized as, inadequate, and should not escape close judicial scrutiny.
Both of these attorneys are federal defenders, specializing in death
penalty cases. If their conduct was negligent, then perhaps they should
not perform this kind of work in the future. If their conduct was
something more than that, then appropriate disciplinary action should be
taken. Furthermore, my and the majority opinions disagreement over the
proper characterization of this conduct is precisely why there is a need
for the district court or a duly-appointed Special Master to conduct a
full evidentiary hearing on this issue to ascertain the truth.
The majority opinion correctly states that we could not consider Dr.
Sultans deposition testimony because it was not made a part of the record
before the district court, and beyond the scope of our appellate review.
See Lippi v. City Bank, 955 F.2d 599, 604 (9th Cir. 1992). See also United
States v. Barrow, 118 F.3d 482, 487 (6th Cir. 1997) (stating that, [i]n
general, the appellate court should have before it the record and facts
considered by the District Court); cf. Sovereign News Co. v. United
States, 690 F.2d 569, 571 (6th Cir. 1982) (stating that [a] party may not
by-pass the fact-finding process of the lower court and introduce new
facts in brief on appeal). Furthermore, appellate habeas counsel did not
file a Fed. R. App. P. 10(e) motion to supplement the record(23) nor make
any reference to Dr. Sultans July 1999 testimony in the appellate
brief.(24) Nor did appellate habeas counsel appeal the district courts
60(b) ruling. It is disingenuous for the majority opinion to suggest that
we had the deposition before us at the time of the initial review and
therefore had not just recently unearthed it. Indeed, had the deposition
had been properly placed before this Court, we could have exercised our
equitable powers at that time. Our previous decision was based on the
absence of the evidence. The only reason we have it now was because I
conducted an independent review of the record.
The majority opinion holds that we can exercise our inherent
equitable power to supplement the record on appeal. Here I agree, because
I feel that the special circumstances of this casea fortuitous discovery
that, if left unaddressed, will result in a grave miscarriage of
justicejustifies our invocation of this authority. Indeed, by reviewing
Dr. Sultans opinions on the merits and altering the opinion, that is what
I did in my capacity as a judicial officer. However, our inherent
equitable authority to review material that was never reviewed by the
district court to right a very grave wrong in this case should not
immunize Kissingers and Hansens professional performance from further
examination. Thus, although it provides a separate basis for jurisdiction,
those inherent equitable powers should not be used to cover up potentially
fraudulent conduct by counsel on the court by federal habeas counsel.
Again, though, this matter needs a thorough examination in the district
court.
Finally, if further investigation into the attorneys conduct here is
not pursued, this could create dangerous precedent. That is, it virtually
invites habeas counsel to save their best evidence for last, thereby
undermining principles of finality and the AEDPA. And, at the same time,
it potentially encourages counsel to engage in risky strategy, because
there is no guarantee that any given panel of the Sixth Circuit will
bypass the strict procedural and substantive requirements of the AEDPA
simply because the matter happens to involve the death penalty. Here, but
for the chance discovery of the Sultan affidavit, this matter could have
gone in a different direction, and Thompson might well have been executed
as scheduled on August 19, 2004.(25)
V. Conclusion
In the face of this record, Kissingers explanation is implausible,
and if not intentionally false, most certainly appears to be in reckless
disregard for the truth. Meanwhile, a mans life hangs in the balance. As
in Demjanjuk, we have acted pursuant to our inherent power to protect the
integrity of the judicial process within this Circuit. Demjanjuk, 10 F.3d
at 356. Cf. Hazel-Atlas Glass Co., 322 U.S. at 244 (recognizing a courts
inherent power to grant relief, for after-discovered fraud, from an
earlier judgment, regardless of the term of [its] entry). As part of the
order of remand, I would instruct the district court to conduct full
evidentiary hearings on both the issue of ineffective assistance of
counsel at mitigation and fraud upon the court.
Footnotes
1 The Tennessee Code Annotated, 39-13-204(j) lists as a mitigating
factor:
(8) The capacity of the defendant to appreciate the wrongfulness of the
defendants conduct or to conform the defendants conduct to the
requirements of the law was substantially impaired as a result of a mental
disease or defect or intoxication which was insufficient to establish a
defense to the crime but which substantially affect the defendants
judgment[.]
Tenn. Code Ann. 39-13-304(j)(8) (2003).
2 Blair stated that she administered the following tests:
The tests that I administered in 1992 that directly addressed whether
there was psychosis or not, I administered the PAI, I administered the
MMPI II which replaces the MMPI which was administered in 1985. I
administered the Rorschach, which was not administered in 1985. The PAI
was not administered in 1985. I administered the MCMI II and I
administered the Rorschach, which is a projective test of personality
which was notthe others are all objective. They are all tests in which
individual answers true or false and the Rorschach is very different.
Id. at 579-80.
3 District Court Record (DCTR).
4 In fact, the allegation, as stated in his traverse, reads as follows:
The petition alleges in relevant part that:
In violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments,
petitioner was denied the effective assistance of counsel at the guilt
phase of trial, the sentencing phase of trial, on appeal, and in
post-conviction proceedings. In particular, counsel failed to perform
reasonably, and there is a reasonable probability, sufficient to undermine
confidence in the outcome of trial, sentencing, appeal, and
post-conviction proceedings, that had counsel performed reasonably,
petitioner would not have been convicted or sentenced to death, and/or
would have received relief on appeal or in post-conviction proceedings.
Specifically, counsel was ineffective for the following non-exclusive list
of reasons:
a. Counsel at all critical stages failed to reasonably investigate
Mr. Thompsons background and mental health history. Had counsel done so,
they would have discovered that Petitioner had, in the years following his
graduation from high school, intermittently demonstrated bizarre and
delusional thought patterns, particularly during objectively stressful
situations. They would have also discovered that members of Petitioners
family, e.g., his father, had a long and pervasive history of severe
mental illness. There is a reasonable probability that such evidence, when
coupled with evidence presented during trial, would have convinced one or
more jurors that Mr. Thompsons confession was not the truth, but rather
the product of the interaction between his mental illness, his desire to
protect his co-defendant, Joanne McNamara, and illegal questioning by
police, as well as to provide relevant mitigating evidence at the
sentencing phase of trial. Trial counsel, however, failed to perform a
reasonable investigation, failed to find such evidence, and consequently
failed to present the following evidence to the jury, both during the
guilt phase and during the sentencing phase of the trial.
b. Counsel was ineffective for failing to fully investigate and
present relevant evidence of Mr. Thompsons mental health history, and to
secure adequate expert assistance to defend Mr. Thompson including
psychologists, neuropsychological, and/or neurological experts to
establish valid mitigating factors including, but not limited to, three
statutory mitigating factors under Tennessee law, i.e, that Mr. Thompson
suffered from substantial mental disorders and demonstrable physical brain
damage which made him unable to conform his behavior to the law; left him
under the influence of extreme mental or emotional disturbance,
substantially impaired his ability to appreciate the wrongfulness of his
conduct at the time of the offense, and non-statutory mitigation under
both Tennessee and federal law. As importantly, had counsel secured such
mental health history, the result of any professionally adequate pre-trial
competency and insanity examination (including, if indeed it was, or had
been, professionally adequate, the pre-trial competency examination
actually performed in Mr. Thompsons case) would have been different.
Specifically, but not exclusively:
i. Counsel failed to discover and interview pertinent, available
witnesses who could have testified and or informed appropriate mental
health experts of Mr. Thompsons descent into intermittent bizarre and
delusional behavior following high school;
ii. Counsel failed to discover available evidence of mental
illness caused by two serious head injuries.
iii. Counsel failed to obtain medical and other important records
for the purpose of presenting evidence in mitigation.
c. Counsel failed to obtain adequate expert assistance, including
confidential psychological, neuropsychological, and neurological experts.
d. Counsel failed to investigate and challenge Petitioners
competency to stand trial as well as his competency at the time of the
offense.
5 Although not fully articulated as such, the magistrate judge appears
to have based its conclusion on the following allegation in Thompsons
amended petition, which the court quoted in its order:
41.CLAIM 41- BRADY CLAIM
a. Throughout Petitioners court proceedings the prosecutor engaged in
false and/or misleading questioning and use of reports to argue that
Petitioner was competent and not mentally ill. The prosecutor misled
Petitioners judge and jury despite having evidence to the contrary, and
without revealing such evidence, thereby committing gross misconduct. For
example, during the Petitioners postconviction proceedings, the state
argued that Petitioner was not mentally ill, was competent at the time of
trial, was presently competent, and was competent to be executed, despite
ten years of records to the contrary. Institutional records clearly
illustrate Petitioners significant history of psychosis requiring multiple
medications. Petitioners mental health treatment plan contemporary to the
postconviction hearing reveals a diagnosis of schizophrenia with
presenting problems of auditory and visual hallucinations and paranoid
ideation. . . .
(DCTR 18).
6 As will be explained shortly, counsel for Respondent deposed
Thompsons other named expert, Dr. Faye Sultan, PhD. on July 22, 1999.
7 6. Respondent posed the following questions:
Have you been asked to render any determination about whether he was
competent to stand trial at his criminal trial?
(Crown deposition at Page 7, lines 11-13)
So if I understand you correctly, you were only asked [by Respondents
counsel] to make a competency determination at the time you met Mr.
Thompson?
(Id. at Page 7, lines 19-21)
Have you been asked to render any opinions concerning Mr. Thompsons mental
status at the time of the murder of Brenda Lane?
(Id. at Page 8, lines 7-9)
Not specifically. Does that mean that you have not been asked that
specific question?
(Id. at Page 8, lines 11-12[)]
So you have not been asked to render an opinion to Mr. Kissinger yet one
way or the other regarding Mr. Thompsons ability to distinguish between
right and wrong or conform his conduct to the requirements of the law at
the time of Ms. Lanes murder?
(Id. at 17-20).
8 Dr. Crown stated that he administered the following tests:
The Shipley Institute of Living Scale; the G-F-W Auditory Selective
Attention Test; the Category Test; the Kaufman Neuropsychological
Assessment Procedure; the Luria Memory Test; the Reitan-Indiana Aphasia
Screening Test; the Rey-Osterreith Complex Figure Test; the Trailmaking
Test; Word Generation, F/A/S; Finger Oscillation Test; and the Wisconsin
Card Sorting Test.
9 Kissinger defended both depositions.
10 On March 2, 2001, Hansen filed with this Court a motion to hold case
in abeyance pending Thompsons contemporaneous Rule 60(b) motion in the
district court. Dr. Sultans deposition is attached to that motion. We
denied that request by order dated March 21, 2001.
11 The documents to which Dr. Sultan refers are not actually attached
to the report. They are attached to her deposition testimony, Attachment
B, and marked as Exhibit 3 to that deposition.
12 On July 26, 2002, Respondent-Appellee, Ricky Bell, filed a motion
for reconsideration of our order filed July 26, 2002, granting Petitioners
ex parte motion for authorization to expand the appointment of counsel to
include state court proceedings. That motion has not yet been ruled on.
Furthermore, our docket sheet reflects that, on March 14, 2003, Dana C.
Hansen filed a motion to stay the mandate, and that we granted it on March
24, 2003. On December 2, 2003, Dana Hansen filed a motion to further stay
the mandate, which this Court granted on December 12, 2003.
13 Schizophrenia is a chronic disorder of thought, characterized by
delusions, hallucinations, disorganized speech or grossly disorganized
orientation or catatonic behaviors. See American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders pp. (rev. 4th ed.
2000) (DSM-IV). There is no definite laboratory or radiological test that
establishes the diagnosis of schizophrenia, rather, the diagnosis is based
on longitudinal historical information. As individuals with schizophrenia
may not disclose the full extent of their symptoms, an evaluation for the
presence or absence of schizophrenia or other psychotic disorders is not
complete without a thorough social history obtained from family members or
friends who have known the patient over time.
14 Although Demjanjuk involved misconduct by federal prosecutors, I see
no reason why defense attorneys should not be held to a similar standard
of integrity, especially when defense counsel are federal defenders
specializing in habeas and capital cases.
15 Specifically, we found that attorneys for the Department of Justice
Attorneys acted with reckless disregard for the truth and for the
governments obligation to take no steps that prevent an adversary from
presenting his case fully and fairly when they withheld exculpatory
materials from the petitioner. Demjanjuk v. Petrovsky, 10 F.3d 338, 354
(6th Cir. 1993).
16 This seems to be a pretty natural assumption, given counsels
obligation to zealously represent their client.
17 In his opposition to Respondents motion for summary judgment,
Thompson asked the court for an order allowing him to file a brief in
regard to the issues of exhaustion of state remedies. The district court
granted Thompsons request via written order on September 8, 1999,
directing Thompson to file his brief no later that Tuesday, September 14,
1999.
18 Also disturbing was habeas counsels parallel motion for
reimbursement costs for the deposition of Dr. Blau. Habeas counsel
scheduled that deposition prior to the depositions of Drs. Crown and
Sultan, knowing full well that all the information Respondent had was what
habeas counsel had stated in the initial witness list. Such gamesmanship,
on the eve of the due date of Thompsons response to Respondents motion for
summary judgment, is inexcusable.
19 As reflected in its order denying Petitioners motion to alter or
amend judgment, the district court obviously sensed that something was
amiss, but its hands were tied by counsels strategic choice to file an
untimely Rule 60(b)(1) motion.
20 Trial counsel cannot be faulted for relying on the evaluation of a
credentialed expert which was entirely consistent with the evaluation of
an inpatient psychiatric team specializing in forensics that also
concluded Thompson was not mentally ill. Nonetheless, as previously
discussed, trial counsels failure to investigate and present Thompsons
social history provides an independent basis for finding ineffective
assistance of counsel at mitigation under Wiggins.
21 We can only assume that habeas counsel planned to unveil Dr. Sultans
opinion on the eve of Thompsons execution. Judge Moore differs, concluding
that more than likely, a genuine mistake was made, one which was not
realized until a different attorney looked at the case. To conclude
otherwise is to disbelieve sworn testimony by an officer of the court, and
to assume that habeas counsel conspired to conceal evidence beneficial to
their client, for no discernible reason.
Once again, if one reminisces, the capital case of Byrd v. Collins, 209
F.3d 486 (6th Cir. 2000), cert. denied, 531 U.S. 1082 (2001) (first habeas
petition), and In re Byrd, 269 F.3d 544 (6th Cir. 2001) (successive
petition) comes quickly to mind. There, habeas counsel sat for twelve
years on an affidavit by a codefendant that allegedly would have
established petitioner Byrds actual innocence, and did not file their
second habeas petition introducing the evidence and actual innocence
argument until one week before the petitioners scheduled execution date.
On this basis, a majority of the judges in regular active service invoked
the inherent equitable powers of the court to stay the petitioners
execution and remand the matter for the development of a factual record.
See In re Byrd, 269 F.3d 585 (6th Cir. 2001). So there may be a rational,
strategic, calculated reason for habeas counsels purported negligence.
22 I am also troubled by the fact that in Thompsons petition for writ
of certiorari, signed by Dana C. Hansen Chavis, as counsel of record for
Petitioner, Hansen refers to Dr. Sultans opinion regarding Thompsons as if
it were properly presented to the district court and made part of the
record. In that brief, Hansen Chavis represents as follows:
Thompsons habeas corpus alleged ineffective assistance of trial counsel
via the failure to adequately investigate and obtain adequate expert
assistance regarding Thompsons mental health at the time of the offense
and failure to direct an expert inquiry into mental health mitigation and
to obtain adequate expert assistance regarding Thompsons mental health at
the time of the offense and failure to direct an expert inquiry into
mental health mitigation and to obtain rebuttal evidence against the
States psychiatrist. Respondent moved for summary judgment, asserting only
that the claims were either procedurally barred or the state court
decision was not contrary to or an unreasonable application of federal law
(Apx. 442) because Dr. Blair had not offered a final opinion on Thompsons
mental health at the time of the offense (which, of course, she was
prevented from doing by the post-conviction courts denial of funding).
Respondent further asserted Thompson was not entitled to present further
evidence in support of his claims in a federal court evidentiary hearing.
Thompson responded to the summary judgment motion by asserting that he had
not failed to develop the factual basis of his claim; instead, the state
court had, through the after-the fact application of procedural rules
governing the appointment of experts in state post-conviction cases,
prevented him from fully developing his claim in state court and that he
was therefore entitled to an evidentiary hearing to present further
evidence in support of his claims.
When the district court issued its decision granting Respondents motion
for summary judgment, however, it by-passed Respondents argument as well
as Thompsons response and instead held that the claim would be denied
because Thompson had failed to present affidavits or other evidence (Apx.
711). The district court never provided Thompson with notice of its
intention to rely on this ground nor did it provide him with an
opportunity to present such evidence prior to entering judgment against
him. Thompson had such evidence in his possession and, contrary to the
findings of the district court, most of it was in the record.
Habeas counsel had a neuropsychologist, Dr. Barry Crown, examine Thompson.
The result was a finding of organic brain damage, secondary to
schizo-affective disorder, bipolar subtype. (Apx. 711).
. . . .
Additionally, forensic psychologist Dr. Faye Sultan reported:
It is my opinion that Mr. Gregory Thompson is most appropriately
diagnosed, according to the Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition, as having Schizoaffective Disorder, Bipolar
Type. As is typical of this illness, symptoms became apparent in early
adulthood. Thompson was suffering serious mental illness at the time of
the 1985 offense for which he has been convicted and sentenced. This
mental illness would have substantially impaired Thompsons ability to
conform his conduct to the requirements of the law.
Further, Thompson was the victim of severe childhood emotional abuse and
physical neglect. His family background is best described as highly
neglectful and economically deprived. Thompson repeatedly witnessed
episodes of violence during his childhood in which one family member
assaulted or brutalized another. There are significant aspects of
Thompsons social history that have been recognized as mitigating in other
capital cases (R. 133, Attachment A, Sultan report, p. 6).
Despite this unrebutted expert testimony the district court noted from the
trial court record that [t]he team at Central State concluded there was no
organicity (brain damage) and Dr. Copple [the industrial psychologist]
found no indication of brain damage (Apx. 701) and ruled, due to a lack of
affidavits Thompson has failed to provide any significant probative
evidence which would make it necessary for this Court to resolve a factual
dispute (Apx. 711). The petition was dismissed.
Thompsons Petition for Certiorari, p.14-16 (emphasis added).
Hansen also represented that:
The district court engaged in fact finding to grant Respondents motion by
crediting the opinions of Respondents experts over Thompsons experts and
by disregarding the findings of Thompsons experts that he was psychotic
when he committed the offense (Apx. 657). The district court also did not
give Thompson an opportunity to correct certain fundamental misconceptions
upon which the district courts decision was based. The district court
erred further by making findings that were unsupported or contradicted by
other evidence, and drawing inferences adverse to Thompson, contrary to
well-settled summary judgment standards.
Id. at 24.
Further, Hansen asserted that:
The district court disregarded the rulings of Thompsons expertsin
particular Dr. Blairs opinion that Thompson likely was schizophrenic when
he committed the offense, Dr. Sultans opinion that Thompson suffers from
schizo-affective disorder and that his mental problems began while he was
in the militaryi.e. long before the offense. Instead the court cursorily
concluded Thompson had not provided any significant probative evidence
that Thompson was suffering from a significant mental disease that should
have been presented to the jury during the punishment phase as mitigation
evidence. Id.
Id. at 28.
In short, the brief before the United States Supreme Court accuses the
district court of ignoring probative evidence that it did not even have
before it in any form when it granted summary judgment to Respondent.
23 Federal Rule of Appellate Procedure 10(e) allows the appellate
record to be supplemented if anything material to either party is omitted
from or misstated in the record by error or accident. Fed. R. App. P.
10(e). It is clear from the rules wording [that] [t]he purpose of the
rule is to allow the [ ] court to correct omissions from or misstatements
in the record for appeal, not to introduce new evidence in the court of
appeals. Inland Bulk Transfer Co. v. Cummins Engine Co., 332 F.3d 1007,
1012 (6th Cir. 2003) (quoting S&E Shipping Corp. v. Chesapeake & O. Ry.
Co., 678 F.2d 636, 641 (6th Cir. 1982) (alteration in original). Dr.
Sultans July 29, 1999 testimony and accompanying report do not qualify as
omissions from the record because Kissinger never referenced her expert
opinion on the issue of Thompsons mental status at the time of the
offense; i.e., he did not rely on that evidence as part of meeting
Thompsons burden under Fed. R. Civ. P. 56.
24 Thompsons appellate brief, prepared by Dana C. Hansen, provides
merely that:
Mr. Thompson then filed a petition for writ of habeas corpus under 28
U.S.C.A. 2254 (West 2000), claiming inter alia ineffective assistance of
trial counsel via the failure to obtain adequate expert assistance
regarding Mr. Thompsons mental health at the time of the offense.
Respondent moved for summary judgment while conceding that this point was
properly cognizable on its merits (R. 82: Motion for Summary Judgment, p.
18-19; Apx. 442).
The defense then had another specialist, Dr. Crown, examine Mr. Thompson.
The result was a finding of organic brain damage, secondary to
schizo-affective disorder, bipolar subtype. (R.124: Memorandum, p. 54;
Apx. 711).
Final Brief of Appellant, Gregory Thompson, p. 14.
Later, Hansen asserted on behalf of Thompson that
[t]he district court clearly weighed the partial testimony of Drs. Crown
and Blair versus that of the state experts and made findings of fact in
favor of Respondent. (Id. at 53-54; Apx. 710). This is improper at the
summary judgment stage. Anderson, supra. The district court did not view
the facts in the light most favorable to Mr. Thompson to determine whether
any genuine issue of material fact appeared on which a reasonable
fact-finder could return a verdict for Mr. Thompson.
Id. at 42.
Hansen never mentions Dr. Sultans name or refers to her opinion in the
brief.
However, Hansen makes ample reference to Dr. Sultans testimony and
report in Thompsons petition for rehearing. See Gregory Thompsons Petition
for Rehearing and Suggestion for Rehearing En banc In a Capital Case, pp.
12-22. In fact, in support of the assertion that Thompson presented
evidence that he was mentally ill at the time of the crime and trial,
Hansen, presented, inter alia, ample quotations from and references to Dr.
Sultans testimony and report, attached to Thompsons Rule 60(b) motion. She
failed to indicate, however, that said evidence was not properly presented
to the district court, and therefore never part of the record for review
to this Court. She did not indicate that she failed to appeal the district
courts Rule 60(b) ruling. She did not invoke the inherent equitable powers
of the Court.
25 Meanwhile, Gregory Thompson has been facing the true specter of the
death penalty since at least January 9, 2003. For this fundamental reason,
I feel that habeas counsels performance was truly, horribly, ineffective.
