BREYER, J., DISSENTING
BELL V. THOMPSON
545 U. S. ____ (2005)
SUPREME COURT OF THE UNITED STATES
NO. 04-514
RICKY BELL, WARDEN, PETITIONER
v. GREGORY
THOMPSON
on writ of certiorari to the united states court of
appeals for the sixth circuit
[June 27, 2005]
Justice Breyer, with whom Justice
Stevens, Justice Souter, and Justice Ginsburg join, dissenting.
This capital case arises out of
unusual circumstances—circumstances of a kind that I have not
previously experienced in the 25 years I have served on the federal
bench. After an appellate court writes and releases an opinion, but
before it issues its mandate, the writing judge, through
happenstance, comes across a document that (he reasonably believes)
shows not only that the court’s initial decision is wrong but that
the decision will lead to a serious miscarriage of justice. What is
the judge to do?
What the judge did here was to spend
time—hundreds of hours (while a petition for certiorari was pending
before this Court and during the five months following our denial
of the petition for rehearing)—reviewing the contents of the vast
record with its many affidavits, reports, transcripts, and other
documents accumulated in the course of numerous state and federal
proceedings during the preceding 20 years. The judge ultimately
concluded that his initial instinct about the document was correct.
The document was critically important. It could affect the outcome
of what is, and has always been, the major issue in the case. To
consider the case without reference to it could mean a miscarriage
of justice.
The judge consequently wrote a lengthy opinion
(almost 30,000 words) explaining what had happened. The other
members of the panel did not agree with everything in that opinion,
but they did agree that their initial decision must be vacated.
The Court commendably describes what occurred
as follows: A “dedicated judge discovered what he believed to have
been an error, and we are respectful of the Court of Appeals’
willingness to correct a decision that it perceived to have been
mistaken.”
Ante, at 18. The Court, however, does not
decide this case in a manner consistent with that observation. A
somewhat more comprehensive account of the nature of the “error”—of
the matter at stake, of the importance of the document, of the
mystery of its late appearance, of the potential for a miscarriage
of justice—should help make apparent the difficult circumstance the
panel believed it faced. It will also explain why there was no
“abuse” of discretion in the panel’s effort to “correct a decision
that it perceived to have been mistaken.”
I
Judge Suhrheinrich, the panel
member who investigated the record, is an experienced federal
judge, serving since 1984 as a federal trial court judge and since
1990 as a federal appellate judge. He wrote a lengthy account of
the circumstances present here. To understand this case, one must
read that full account and then compare it with the Court’s
truncated version. I provide a rough summary of the matter based
upon my own reading of his opinion. 373 F. 3d 688, 692–742
(CA6 2004).
A
The panel’s initial decision,
issued on January 9, 2003, focused upon an issue often raised when
federal habeas courts review state proceedings in a capital case,
namely, the effectiveness of counsel at the original trial. 315
F. 3d 566, 587–594 (CA6 2003). See
Strickland v.
Washington,
466 U. S. 668 (1984). In
this instance, the federal ineffective-assistance claim was that
state trial counsel had not sufficiently investigated the
background of the defendant, Gregory Thompson. Thompson claimed
that an adequate investigation would have shown, to the
satisfaction of testifying experts, that he suffered from episodes
of schizophrenia at the time of the crime. The schizophrenia—though
episodic—would have proved a mitigating circumstance at the penalty
phase. 373 F. 3d, at 697–698, and n. 4.
Thompson’s trial took place in a
Tennessee state court, where he was found guilty of murder and
sentenced to death. His state-appointed counsel put on no defense
at trial. At sentencing, however, counsel sought to show that
Thompson was schizophrenic. State forensic psychologists examined
Thompson and concluded that Thompson, probably “malingering,” did
not show genuine and significant symptoms of schizophrenia at that
time and was not mentally ill. A clinical psychologist hired by
Thompson’s counsel examined Thompson for eight hours and reached
approximately the same conclusion: he said that Thompson was not
then mentally ill.
Id., at 692, 694–695.
Thompson raised the issue of his mental
condition in state postconviction proceedings, which he initiated
in 1990. His expert witness, Dr. Gillian Blair, testified (with
much supportive material) that Thompson was by that time clearly
displaying serious schizophrenic symptoms—voice illusions, attempts
at physical self-mutilation, and the like. Indeed, the State
conceded that he was under a regime of major antipsychotic
medication. But Dr. Blair said that she could not determine whether
Thompson had been similarly afflicted (
i.e., suffering
from episodes of schizophrenia) at the time of the crime without a
thorough background investigation—funds for which the state court
declined to make available. The state court then ruled in the
State’s favor.
Id., at 694–695.
Thompson filed a habeas petition in Federal
District Court about eight months after the state court’s denial of
postconviction relief became final. As I said above, see
supra, at 3, he claimed ineffective assistance of counsel.
The Federal District Court appointed counsel, an assistant federal
public defender. Counsel then obtained the services of two experts,
Dr. Barry Crown and Dr. Faye Sultan. Both examined Thompson, and
the latter, Dr. Sultan, conducted the more thorough background
investigation that Dr. Blair had earlier sought. The State, after
deposing Dr. Sultan, moved for summary judgment. 373 F. 3d, at
696, 700–704, 711.
The District Court granted that motion on the
ground that “Thompson has not provided this Court with anything
other than factually unsupported allegations that he was
incompetent at the time he committed the crime,” nor “has Thompson
provided this Court with any significant probative evidence that
[he] was suffering from a significant mental disease that should
have been presented to the jury during the punishment phase as
mitigation evidence.”
Id., at 712–713 (quoting District
Court’s memorandum opinion (emphasis and internal quotation marks
omitted)).
Thompson (now with a new public defender as
counsel) appealed the District Court’s grant of summary judgment in
the State’s favor. (A little over a year later, while the appeal
was still pending, Thompson’s new counsel, apparently having
discovered that Dr. Sultan’s deposition and report had not been
included in the record before the District Court, filed a motion in
that court for relief from judgment under Federal Rule of Civil
Procedure 60(b), seeking to supplement the record with those
documents. Counsel also filed a motion in the appellate court, with
the Sultan deposition attached, requesting that the appeal be held
in abeyance while the District Court considered the Rule 60(b)
motion. Both motions were denied, and Thompson’s counsel did not
take an appeal from the District Court’s denial of the Rule 60(b)
motion.) 373 F. 3d, at 714–715, and n. 10, 724–725.
The Court of Appeals reviewed the District
Court’s grant of summary judgment. In doing so, the appellate panel
examined the record before that court. It noted that Thompson’s
federal habeas counsel had hired two experts (Crown and Sultan),
and had told the court (in an offer of proof) that they would
provide evidence that Thompson suffered from mental illness
at
the time of the crime. But the appellate panel found that
neither expert had done so. Indeed, said the panel, Thompson had
“never submitted to any court
any proof that he suffered
from severe mental illness at the time of the crime.” 315
F. 3d, at 590 (emphasis altered). Though Thompson’s several
attorneys had made the same allegation for many years in several
different courts (said the panel), “at each opportunity, counsel
fail[ed] to secure an answer to the critical issue of whether
Thompson was mentally ill at the time of the crime.”
Ibid.
That fact, concluded the panel (over a dissent), was fatal to
Thompson’s basic ineffective-assistance-of-counsel claim. Obviously
“trial counsel cannot be deemed ineffective for failing to discover
something that does not appear to exist.”
Ibid.; see also
id., at 595 (Moore, J., concurring in result) (“Thompson
has presented no evidence that his [trial] counsel knew or should
have known either that Thompson was mentally ill or that his mental
condition was deteriorating at the time of his trial or at the time
of his crime”). The dissenting judge thought Thompson had made out
an ineffective-assistance claim by showing that his trial counsel
had relied on an inadequate expert, that is, an expert without the
necessary qualifications to counter the State’s experts’
conclusions.
Id., at 599–605 (opinion of Clay, J.).
The appeals court issued its opinion on
January 9, 2003. Thompson’s appointed federal appeals counsel filed
a rehearing petition, which the court denied on March 10, 2003. See
App. to Pet. for Cert. 346 (Order in No. 00–5516 (CA6)). Thompson’s
counsel then sought Supreme Court review. This Court denied review
(and rehearing) about one year later.
540 U. S. 1051 (2003)
(denying certiorari);
540 U. S. 1158 (2004)
(denying rehearing).
B
The Court of Appeals, following
ordinary appellate-court practice, withheld issuance of its mandate
while the case was under review here, namely during calendar year
2003. During that time and in the months that followed, something
unusual happened. Judge Suhrheinrich realized that the panel, in
reaching its decision, seemed to have overlooked documents provided
by Dr. Sultan that likely were relevant. In September 2003, the
appellate court called for the entire certified record. Upon
reviewing that record, Judge Suhrheinrich found Dr. Sultan’s
deposition and accompanying report. 373 F. 3d, at 692–693;
App. to Pet. for Cert. 347–348; see also Appendix,
infra.
The Sultan documents filled the evidentiary
gap that underlay the District Court’s and the appellate panel’s
determinations. These documents made clear that Dr. Sultan had
investigated Thompson’s background in depth and that in her
(well-supported) opinion, Thompson
had suffered from
serious episodic bouts of schizophrenia
at the time the crime
was committed. Clearly the documents contained evidence
supporting Thompson’s claim regarding his mental state at the time
of the offense. Why had the District Court denied the existence of
any such evidence? Why had Judge Suhrheinrich, and the
other members of the panel (and the State, which took Dr. Sultan’s
deposition) done the same?
Judge Suhrheinrich then drafted
an opinion that sought to answer three questions:
Question One: Do these documents actually
provide strong evidence that Thompson was schizophrenic (and
seriously so) at the time of the crime?
Question Two: If so, given the many previous
opportunities that Thompson has had to raise the issue of his
mental health, to what extent would these documents be likely to
matter in respect to the legal question raised in Thompson’s
federal proceedings,
i.e., would they likely lead a
federal habeas court to hold that Thompson’s trial counsel was
ineffective for failing to undertake a background investigation
akin to that performed by Dr. Sultan?
Question Three: How did these documents
previously escape our attention?
1
The panel answered the first
question—regarding the importance of the documents—unanimously.
Sultan’s report and deposition were critically important. As Judge
Suhrheinrich’s opinion explains, these documents detail Thompson’s
horrendous childhood, his family history of mental illness, his
self-destructive schizophrenic behavior (including auditory
hallucinations) as a child, his mood swings and bizarre behavior as
a young adult, and a worsening of that behavior after a serious
beating to his head that he suffered while in the Navy. For
example, Dr. Sultan’s examination of Thompson and her interviews
with Thompson’s family members and others revealed that as a child
Thompson would repeatedly bang his head against the wall to “knock
the Devil out” after his grandmother yelled at him, “You have the
Devil in you.” 373 F. 3d, at 716 (internal quotation marks
omitted). These documents explain how Thompson, as a young adult,
would talk to himself and scream and cry for no apparent reason.
They suggest that he had bouts of paranoia.
The documents provide strong support for the
conclusion that Thompson suffered from episodes of schizophrenia at
the time of the offense. And they thereby offer significant support
for the conclusion that, had earlier testifying experts had this
information, they could have countered the State’s experts’
conclusion that Thompson was malingering at the time of trial.
Thus, the Sultan materials seriously undermined the foundation of
the State’s position in respect to Thompson’s mental condition.
The Sultan materials also
revealed that trial counsel failed to discover other mitigating
evidence of importance. Interviews with family members revealed
repeated incidents of violence in the family, including an episode
in which, as a young boy, Thompson witnessed his father brutally
beat and rape his mother. His grandmother, with whom Thompson and
his siblings lived after their mother died, subjected them to abuse
and neglect. She would forget to feed the children, leaving them to
steal money from under her bed to buy food. These and other
circumstances are detailed in sections of the Sultan report and
deposition reproduced in the Appendix,
infra.
2
The panel also responded
unanimously and affirmatively to the second question: Would
federal-court access to the Sultan documents likely have made a
significant difference in respect to the federal legal question at
issue in Thompson’s habeas petition, namely, the failure of
Thompson’s trial counsel to investigate his background? Trial
counsel had had important indications that something was wrong.
Indeed, counsel himself had sought an evaluation of Thompson’s
mental condition. He also was aware of Thompson’s violent behavior
in the military, and knew that Thompson had said he had had
auditory hallucinations all his life. He was aware, too, of the
changes in Thompson’s behavior. Should counsel not then have
investigated further?
The Sultan documents make clear
that, had he done so, he would have had a strong answer to the
State’s experts. Thus the documents were relevant to the outcome of
the federal habeas proceedings. The Federal District Court based
its grant of summary judgment on the premise that there was
no evidence supporting Thompson’s claim. The documents
showed that precisely such evidence was then available.
3
The panel (while disagreeing
about how to allocate blame) agreed in part about the answer to the
third question: how these documents previously had escaped the
panel’s attention. The judges agreed that the Sultan documents were
not in the initial record on appeal. The panel’s original opinion,
while mentioning both Dr. Sultan and Dr. Crown, assumed that
neither expert had addressed Thompson’s mental condition at the
time of the crime. 315 F. 3d, at 583, n. 13 (“Sultan’s
affidavit does not discuss Thompson’s mental state
at the time
of the offense” (emphasis added));
ibid. (explaining
that Thompson filed a Rule 60(b) motion to supplement the record
with Dr. Sultan’s report, but not mentioning that the report
addressed Thompson’s mental condition at the time of the offense);
see also
supra, at 5.
How had the panel overlooked the
copies of the Sultan deposition attached to (1) the rehearing
petition and (2) the (Rule 60(b)-related) motion to hold the appeal
in abeyance? As for the rehearing petition, the reason could well
lie in the petition’s (incorrect) suggestion that the panel had
already considered the appended document as part of the original
record. See Pet. for Rehearing and Suggestion for Rehearing En Banc
in No. 2:00–5516 (CA6), p. 1 (“A majority of this panel
overlooked other proof in the record, including but not limited to,
the expert opinion of Dr. Faye E. Sultan”); see also
id.,
at 28–32. While the petition explains the importance of the
documents, it does not explain the circumstances, namely, that the
panel previously had not seen these documents. Instead, it gives
the impression that counsel was simply reemphasizing a matter the
panel had already considered. To that extent, the petition reduced
the likelihood that the panel would make the connection it later
made and fatally weakened its argument for
re-hearing.
As for the motion to hold the appeal in
abeyance, the panel’s failure to recognize the significance of the
appended Sultan materials is also understandable. The motion gives
the impression that the appellate court would have been able to
handle any problem arising from the exclusion of these materials in
an appeal taken from the District Court’s Rule 60(b) decision. The
appellate court, however, never had any such opportunity because
counsel did not appeal the District Court’s denial of the Rule
60(b) motion.
C
Once the panel understood the
significance of the Sultan report, it had to decide what to do. An
appellate court exists to correct legal errors made in the trial
court. What legal error had the District Court committed? The
appeal concerned its grant of summary judgment in the State’s
favor. The District Court made that decision on the basis of the
record before it, and that record apparently lacked the relevant
documents. How then could an appeals court say that the District
Court was wrong to grant the summary judgment motion?
The panel answered this question
by
not holding that the District Court had erred. Finding
that the Sultan documents had been “apparently negligently omitted”
from the record, it exercised its equitable powers to supplement
the record with the deposition. 373 F. 3d, at 691. It also
found that, since the State itself had helped to create that
document (because the State had taken Sultan’s deposition), the
District Court’s reconsideration of the matter would not unfairly
prejudice the State. And it noted that this case is a death case.
Then, relying on its “inherent power to reconsider” an opinion
“prior to the issuance of the mandate,” the court issued a new
opinion, vacating the District Court’s grant of summary judgment to
the State and remanding the case to the District Court for further
proceedings on the matter.
Ibid.
II
The question before us is not
whether we, as judges, would have come to the same conclusions as
did the panel of the Court of Appeals. It is whether the three
members of the appellate panel abused their discretion in
reconsidering the matter and, after agreeing unanimously that they
would have reached a different result had they considered the
overlooked evidence, vacating the District Court’s judgment and
remanding the case.
The Court concludes that the
panel’s reconsideration of the matter and decision to vacate the
District Court’s judgment amounted to an “abuse of discretion.”
Ante, at 1. It therefore reverses the panel’s unanimous
interlocutory judgment remanding a capital case to the District
Court for an evidentiary hearing. The Court lists five reasons why
the Court of Appeals “abused its discretion.” None of these
reasons, whether taken separately or considered together, stands up
to examination.
Reason One. During the 5-month period
after this Court denied rehearing of Thompson’s certiorari
petition, during which time the Court of Appeals was reconsidering
the matter, it gave “no indication that it might be revisiting its
earlier decision.” Had it “notified” the parties, the court “could
have spared the parties and the state judicial system considerable
time and resources.” Ante, at 10.
If this consideration favors the Court’s
conclusion, it does so to a very modest degree. For one thing, the
Federal Rules themselves neither set an unchangeable deadline for
issuance of a mandate nor require notice when the court enlarges
the time for issuance. Compare Fed. Rule App. Proc. 41(b) (2005)
(“The court may shorten or extend the time”), with Rule 41(b)
(1968) (mandate “shall” issue “unless the time is shortened or
extended
by order” (emphasis added)). The Advisory
Committee Notes to Rule 41 expressly contemplate that the parties
will themselves check the docket to determine whether the mandate
has issued. See Advisory Committee’s 1998 Note on subd. (c) of Rule
41 (“[T]he parties can easily calculate the anticipated date of
issuance and verify issuance of the mandate[;] the entry of the
order on the docket alerts the parties to that fact”). And Sixth
Circuit Rules require the Circuit Clerk to provide all parties with
copies of the mandate. See Internal Operating Procedure 41(a) (CA6
2005) (“Copies of the mandate are distributed to all parties and
the district court clerk’s office”). Thus, the State’s attorneys
knew, or certainly should have known, that the mandate had not
issued, and, as experienced practitioners, they also knew, or
certainly should have known, that a proceeding is not technically
over until the court has issued its mandate. And if concerned by
the delay (and some delay in such matters is not uncommon), they
could have asked the Circuit Clerk why the mandate had not issued.
If necessary, they could have filed a motion seeking that
information or seeking the mandate’s immediate issuance.
For another thing, since notification is a
clerical duty, the panel may have thought the parties
had
been notified. One of the judges on the panel could well have
instructed the Circuit Clerk not to issue the mandate, and then
simply have assumed that the Clerk would notify the parties of that
fact (though the Clerk, perhaps inadvertently, did not do so). Why
would the court want to hide what it was doing from the parties?
Once we apply a presumption of regularity to the panel’s actions,
we must assume that the failure to notify the parties was likely
due to a simple clerical error.
Further, the prejudice to the State that
troubles the Court was likely small or nonexistent. The need to
reset an execution date is not uncommon, and the state court’s
execution order explicitly foresaw that possibility. See 373
F. 3d, at 692 (Tennessee Supreme Court order set Thompson’s
execution date for August 19, 2004, “unless otherwise ordered by
this Court or other appropriate authority” (internal quotation
marks omitted)). Moreover, the State has not even argued—despite
ample opportunity to do so—that the further proceedings ordered by
the panel would actually have required it to set a new date.
Finally, the State did not, by way of a
petition for rehearing, make any of its “failure to notify”
arguments to the Court of Appeals. Although the law does not
require the State to seek rehearing, such a petition would have
permitted the panel to explain why the State was not notified and
possibly to explore the matter of prejudice. There is no reason to
reward the State for not filing a petition by assuming prejudice
where none appears to exist.
Given the State’s likely knowledge that the
mandate had not issued, the existence of avenues for resolving any
uncertainty, and the small likelihood of prejudice, the lack of
notice does not significantly advance the Court’s “abuse of
discretion” finding. Indeed, if the Court believes that the Court
of Appeals could have issued a revised opinion correcting its
earlier judgment
if only it had given notice to the
parties, the sanction it now imposes—outright reversal—is far
out of proportion to the crime.
Reason Two. The court’s “opportunity to
consider” the Sultan evidence “at the rehearing stage is yet
another factor supporting” the abuse-of-discretion
“determination.” Ante, at 12. I agree that it is
unfortunate that, upon review of the rehearing petition, the panel
failed to make the connection that would have allowed it, at that
time, to reach the same conclusion it reached later. Still, the
petition wrongly implied that the Sultan documents were part of the
original appeal. Because it did not request rehearing on the ground
that the documents were
not in the record, it did not
offer a genuine “opportunity to consider” the Sultan evidence.
Under these circumstances, I cannot agree that
the court’s opportunity to consider these documents at the
rehearing stage should militate in favor of finding an abuse of
discretion. To the contrary, I believe we should encourage, rather
than discourage, an appellate panel, when it learns that it has
made a serious mistake, to take advantage of an opportunity to
correct it, rather than to ignore the problem.
Reason Three. The “Sultan evidence … is
not of such a character as to warrant [a] … departure from standard
appellate procedures” because “the evidence was unlikely to have
altered the District Court’s resolution of Thompson’s
ineffective-assistance-of-counsel claim.” Ante, at
14.
That is to say, given the expert testimony in the trial
court, the Sultan evidence is unlikely meaningfully to have
strengthened Thompson’s claim before the Federal District Court.
Ante, at 14–15.
This conclusion is wrong.
The Court argues the following: (1) Dr. Sultan’s
conclusion rests in significant part upon interviews with three
witnesses, Thompson’s grandmother and sister (with whom Dr. Sultan
spoke directly) and his girlfriend (whose interview with a defense
investigator Dr. Sultan reviewed); (2) since all three of these
witnesses testified at sentencing, Thompson’s counsel must have
consulted them at the time; and (3) “[c]onsultation with these
witnesses, when combined with the opinions of [the State’s expert]
and [Thompson’s expert], provided an adequate basis for Thompson’s
attorneys to conclude that focusing on Thompson’s mental health was
not the best strategy.”
Ante, at 16. The Court then says
that trial counsel’s “strategy” may have been “a mistake,”
ante, at 17, but apparently not enough of a mistake to
amount to inadequate assistance of counsel.
But how do the Court’s conclusions follow
from the premises? Dr. Sultan’s interview of the three witnesses
apparently turned up new information, indeed, crucial information.
Why does that fact not tend show that trial counsel’s own
“consultation” with those witnesses was inadequate? Or, if trial
counsel was aware of the information, why does that not tend to
show that trial counsel hired an expert who was not qualified to
assess Thompson’s mental condition, or that counsel failed
adequately to convey the critical information to that expert? This
Court in
Wiggins v.
Smith,
539 U. S. 510, 523–525
(2003), found trial counsel inadequate for failing to conduct a
reasonable investigation, given notice that such an investigation
would likely turn up important mitigating evidence. See also
Rompilla v.
Beard,
ante, p. ___.
Why is the same not true here, where Thompson’s trial counsel was
fully aware of the need for a background investigation, and then
either did not ask the right questions, or did not hire the right
expert, or did not convey the right information to that expert? At
the least, is there not a good argument to this effect—an argument
that the Sultan documents significantly strengthened? All three
judges on the panel thought so: They concluded that they would have
reached a different result on Thompson’s
ineffective-assistance-of-counsel claim had they been aware of the
Sultan documents. The Court does not satisfactorily explain its
basis for second-guessing the panel on this point.
Reason Four. The Sultan evidence does “not
come close to satisfying the miscarriage of justice standard under
Calderon.” Ante, at 17 (referring to
Calderon v.
Thompson,
523 U. S. 538 (1998)).
As the Court apparently agrees, see
ante, at 8–9,
Calderon does not apply here. And
the panel’s basic conclusion—that consideration of Thompson’s
ineffective-assistance-of-counsel claim without the benefit of the
Sultan evidence would constitute a grave miscarriage of
justice—survives
any plausible standard of review. I can
find nothing in the Court’s opinion that explains why the panel’s
conclusion is wrong.
Reason Five. The Court of Appeals “did not
accord the appropriate level of respect” to the State’s “judgment.”
Ante, at 19. If by “judgment” the Court means to refer to the
state court’s original judgment of conviction, this reason simply
repeats Reason Four. The panel carefully examined the entire record
and determined that there is a significant likelihood the Sultan
evidence would demonstrate a violation of the Federal
Constitution.
If the Court means to refer to the state
court’s judgment not to set aside the conviction in state
postconviction proceedings, the Court is clearly wrong. The state
court on collateral review refused to authorize funds for a
background investigation, one for which Thompson’s expert then
showed a strong need, and which Thompson’s expert now shows could
well have demonstrated a significantly mitigating mental condition.
How is it disrespectful of the State for a federal habeas court to
identify a constitutional error that occurred in state-court
proceedings in a capital case, by taking account of a key piece of
evidence, mistakenly omitted from the record?
If the Court means to refer to the State’s
decision to proceed with the execution, I cannot possibly agree.
The Court could not mean that
any exercise by a federal
court to correct an inadvertent, and important, evidentiary error
is “disrespectful” of a State’s effort to proceed to execution. But
if it does not mean “any” exercise at all, then how can it say the
present exercise is disrespectful? The present exercise embodies as
thorough an examination of the record and as significant a piece of
evidence as one is likely to find. The process—the detail and care
with which the Court of Appeals combed the record—does not show
“disrespect.” It shows the contrary.
The upshot is that the Court’s five reasons
are unconvincing. The Court simply states those reasons as
conclusions. It fails to show how, or why, the unanimous panel
erred in reaching diametrically opposite conclusions, all supported
with detailed evidence set forth in Judge Suhrheinrich’s opinion.
It does not satisfactorily explain the evidentiary basis for its
own conclusions. And, in the process, it loses sight of the
question before us: again,
not whether we, as judges,
would have reached the same conclusion that the three judges on the
panel reached, but rather whether they, having unanimously agreed
that their earlier decision was wrong, abused their discretion in
setting it right.
III
Ultimately this case presents
three kinds of question. The first is a narrow legal question. Has
the Court of Appeals abused its discretion? For the reasons I have
set forth, the answer to that question, legally speaking, must be
“no.”
The second is an epistemological
question. How, in respect to matters involving the legal impact of
the Sultan report and deposition, can the Court replace the panel’s
judgment with its own? Judge Suhrheinrich’s opinion demonstrates
why any assessment of that legal impact must grow out of thorough
knowledge of the record. He spent hundreds of hours with its
numerous documents in order to make that assessment. Those of his
conclusions that were shared by the other members of the panel are
logical, rest upon record-based facts, and are nowhere refuted (in
respect to those facts) by anything before us or by anything in the
Court’s opinion. How can the Court know that the panel is
wrong?
The third question is about basic
jurisprudence. A legal system is based on rules; it also seeks
justice in the individual case. Sometimes these ends conflict. To
take account of such conflict, the system often grants judges a
degree of discretion, thereby providing oil for the rule-based
gears. When we tell the Court of Appeals that it cannot exercise
its discretion to correct the serious error it discovered here, we
tell courts they are not to act to cure serious injustice in
similar cases. The consequence is to divorce the rule-based result
from the just result. The American judicial system has long sought
to avoid that divorce. Today’s decision takes an unfortunate step
in the
wrong direction.
APPENDIX TO OPINION OF BREYER, J.
Excerpts from the Gregory Thompson Psychological Report prepared
by Dr. Faye E. Sultan at the Riverbend Maximum Security Institution
(RMSI) (July 22, 1999), App. 11–20.
“REFERRAL QUESTIONS:
“Mr. Gregory Thompson was referred for
psychological evaluation in July, 1998 by attorney Mr. Stephen M.
Kissinger of the Federal Defender Services of Eastern Tennessee
Incorporated. Mr. Thompson was convicted of murder in 1985. This
evaluation was requested to address the following questions:
“1. Mr. Thompson’s current psychological
status[.]
“2. Mr. Thompson’s 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 be[en]
considered to be mitigating in nature at the time of his trial.
“PROCEDURE:
“Psychological evaluation of Mr. Thompson was
initiated on August 20, 1998. This first evaluation session
extended over a period of approximately four hours and consisted of
clinical interview and the administration of the Minnesota
Multiphasic Personality Inventory–2 (MMPI–2). Some review of prior
psychological evaluation records was conducted to establish what
formal psychological and neuropsychological testing had been
administered to Mr. Thompson. Levels of current intellectual and
neuropsychological functioning had been recently assessed by
neuropsychologist, Barry Crown, Ph.D., so no attempt was made to
replicate this type of assessment.
“Following the 8–20–98 initial evaluation session,
a very extensive review of legal, military, medical, prison and
psychiatric/psychological records was initiated. A list of the
documents examined is attached to this report.
.....
“… Two further interviews were conducted with Mr.
Thompson for [the] limited purpose [of determining Thompson’s
competence to participate in habeas proceedings], on 2–2–99 and
4–7–99, totaling approximately six hours of additional observation.
Voluminous Tennessee Department of Corrections mental health,
medical, and administrative records were reviewed at this time as
well.
.....
“[T]he extensive record review conducted, the ten
hours of clinical observations made of Mr. Thompson during the
preceding eleven months, the interviews conducted with collateral
informants, and the recent and past psychological testing which had
been administered provide enough data to make it possible to render
professional opinions about Mr. Thompson’s mental state at and
around the time of the 1985 offense.
“CLINICAL OBSERVATIONS:
“Mr. Gregory Thompson was cooperative with the
assessment procedure. He answered all questions posed to him and
appeared to be alert, watchful and interested in the interview
process. His speech was sometimes tangential and rambling. Although
motor behavior appeared controlled there was a manic quality to his
verbalizations. Mr. Thompson was oriented as to person, place and
time, but he repeatedly expressed his firm belief that he had
written each and every song which played on the radio.
“Mr. Thompson displayed symptoms of psychosis
during the two subsequent meetings. The details of these sessions
will not be reviewed here.
“FORMAL PSYCHOLOGICAL TESTING:
“The Minnesota Multiphasic Personality lnventory–2
(MMPI–2) was administered to Mr. Thompson on 8–20–98. It had been
determined in other examination settings that Mr. Thompson’s level
of reading competence exceeded the necessary level of 8th grade
ability required for proper administration of this test.
“The MMPI–2 profile produced by Mr. Thompson is
considered valid and appropriate for interpretation. Individuals
producing similar profiles are described as experiencing
significant psychological difficulties and chronic psychological
maladjustment. Such individuals are considered to be highly
suspicious of others, often displaying paranoid features. There is
indication in this profile of the presence of a thought disorder
and the inability to manage emotions. The world is perceived as a
threatening and dangerous place and fears are viewed as externally
generated and reality-based rather than as a product of an
internally generated state. The behavior of such individuals is
often described as hostile, aggressive, and rebellious against
authority. Poor impulse control, lack of trust in others, and low
frustration tolerance may result in such individuals displaying
rage in interpersonal relationships.
“Individuals producing this testing profile are also described
as experiencing depressed mood. There is the strong possibility
that such individuals have contemplated suicide and report
preoccupation with feeling guilty and unworthy. Testing items were
endorsed which suggest memory and concentration problems, and an
inability to make decisions.
“RELEVANT PSYCHOLOGICAL/PSYCHIATRIC DATA CONTAINED
IN RECORDS:
“The[re] 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 staff’s 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.
“INTERVIEWS WITH COLLATERAL WITNESSES:
“Five individuals were interviewed (either by
telephone or face-to-face) who provided significant supplemental
information about the life circumstances and past/present
psychological functioning of Mr. Gregory Thompson.
“Ms. Maybelle Lamar
“Ms. Lamar is Mr. Thompson’s maternal grandmother.
She was interviewed by telephone on July 21, 1999. Ms. Lamar
assumed total responsibility for the care and rearing of Mr.
Thompson and his two older siblings after his mother was killed
when Mr. Thompson was approximately five years old. Mr. Thompson
remained in her home until he entered the military as a young
adult.
“Ms. Lamar recalls the period following her
daughter’s fatal automobile accident as one of tremendous strain
and disruption for her. She was unable to describe the reaction of
the three young children to their mother’s death because she ‘took
to my bed’ for approximately five or six weeks following the
accident. Ms. Lamar was unable to attend to these children in any
way at that time. She did not recall how they obtained food or
clothing, or whether they were in any distress. Ms. Lamar reported
that she was drinking alcohol quite heavily during this period and
that she left her bed to resume household activities only because
the children contracted a serious medical illness.
“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 didn’t act the same’. Unlike
the ‘eager to please’, passive, sometimes funny, gentle boy who she
had reared, Mr. Thompson was ‘angry’, ‘sometimes sad’. ‘I don’t
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 behaviors. ‘He’d deny
it. He acted like he didn’t know what I was talking about.’ Ms.
Lamar recalls being quite concerned about her grandson’s mental
state during this time. She did not recall ever being asked these
questions at any time before or during Mr. Thompson’s trial.
“Ms. Nora Jean Hall Wharton
“Nora Jean Wharton is Mr. Thompson’s older sister.
A lengthy telephone interview was conducted with her on July 21,
1999. She grew up in the same home as Mr. Thompson and had
continuous contact with him throughout his childhood. Mr. Thompson
lived briefly in the home of his sister following his discharge
from the military.
“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 children’s 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 mother’s 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 grandmother’s
mattress to go and buy food. In the period following their mother’s
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.
“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 brother’s behalf. She
described Mr. Thompson’s response to this abuse as quite
passive.
“Of particular significance is Ms. Wharton’s 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.
“Following his discharge from military service, Ms. Wharton
described Mr. Thompson’s 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 len[g]thy period of
time, would appear as if he might or actually become quite
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 that her younger half-sister Kim has also suffered from
significant mental illness.
“CUSTODY OFFICERS AT RMSI
“Following the second interview conducted with Mr.
Thompson on 2–2–99, I informally interviewed two custody officers
who escorted Mr. Thompson back to his cell. These officers have not
as yet been identified by name. Both reported that they were aware
that Mr. Thompson was quite mentally ill and that they were
concerned about him. They further reported that they believed it
would be in his best interest to be housed in a prison facility
better equipped to deal with individuals experiencing severe mental
illness.
“MICHAEL CHAVIS
“Federal Defender Services of Eastern Tennessee
investigator, Mr. Michael Chavis, was interviewed about his July 29
through August 2, 1998 interview with Ms. Arlene Cajulao in
Honolulu, Hawaii. Ms. Cajulao and Mr. Thompson had an intimate
relationship and lived together for approximately four years, from
1980 to 1984.
“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
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. Thompson’s mental state.
“SUMMARY AND CONCLUSIONS:
“Mr. Gregory Thompson has experienced symptoms of
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. Thompson’s 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. Thompson’s 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. Thompson’s early mental illness and social history was
available at the time of his 1985 trial.
“[signed]
“Faye E. Sultan, Ph.D.”
***
Excerpts from the Deposition of Dr. Faye E. Sultan (July 22,
1999),
Id., at 71–73, 76–80.
“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......
“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. [His sister, Ms.
Wharton] 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 of it as very odd.
.....
“Q.Sort of a 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 hysterical 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. That’s reported in the trial transcript. She told me much
more detail about actually the extent of those kind[s] 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.
.....
“Q.Your diagnosis for Mr.
Thompson is schizoaffective disorder, comma, bipolar type. What
leads you to that diagnosis from what you’ve 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
grandeur—lots of different kinds of delusions actually—auditory
hallucinations that he sometimes admits to, sometimes suspected by
the doctors who are doing the examination.
“The psychological testing early on in Mr.
Thompson’s incarceration confirm[s] 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… [p]rior to his entry into the
military Mr. Thompson is described almost uniformly … as passive,
as compliant, as eager to please, as gentle, as timid, as eager to
run from attacks.
“At some point … 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 wasn’t 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 wasn’t 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.
.....
“Q.You state that the
schizoaffective disorder, bipolar type, would substantially impair
Mr. Thompson’s 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 don’t exist or that he perceives in extremely exaggerated or
different form. A person is not able to conform one’s 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 it’s 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 it’s 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 doesn’t understand or relate to very well. He’s told about
them later. Sometimes he remembers them, sometimes he doesn’t. He
is often embarrassed about his behavior afterwards, but there are
points at which I believe he’s not in control of what he’s
doing.
“Q.When you say ‘he’s not in control of what
he’s doing,’ are you saying that it’s impulsive behavior?
“A.If I am emotionally disregulated, if I’m
over-aroused and overreactive and I operate out of a faulty belief
system, so that not only do I have the impulse to do things that I
ordinarily wouldn’t, but I also think things are going on that
aren’t, I have a combination in which yes, I suppose you could call
it impulse, but you also have to take the notion into account that
it might be an impulse to do something that doesn’t make any
sense.
“Q.Does this disorder prevent Mr. Thompson
from planning his activities?
“A.Sometimes, yes, it does.
“Q.And so the inability to plan, would that be
a factor that would prevent him from conforming his conduct to the
requirements of the law?
“A.If that were in operation at some time. In
the history of the Department of Corrections’ mental health
records, when he’s properly medicated I don’t think that’s true
about him.
“Q.Is it your professional opinion, then, that
when he is medicated he has the ability to plan, but when he is not
medicated he does not always have the ability to plan?
“A.Those two things are true. It’s also true
that if he’s inadequately medicated or improperly medicated he
doesn’t have the ability to plan anything. I don’t know whether he
has impulses. I think he’s all impulse, so to have impulses implies
that there’s a part of you that’s not impulsive. For example, when
Mr. Chavis and I saw him during my second interview with him, he
could not have planned anything at all, not beyond the nanosecond
in which he was experiencing the world. But he was receiving
psychotropic medications at the time, so that’s why I have to put
that qualifier in there.”
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