Petitioner's unopposed motion to withdraw petition for
certiorari filed by his attorney seeking review of petitioner's
murder conviction and death sentence is granted under this Court's
Rule 60, where there is no issue as to petitioner's competence.
Such withdrawal does not foreclose an application for collateral
relief. Motion granted. Reported below:
578
S.W.2d 699.
PER CURIAM.
William Jack Hammett, the petitioner in this case, has been
convicted of murder and sentenced to death. The conviction and
sentence were affirmed by the Texas Court of Criminal Appeals,
578
S.W.2d 699 (1979). The petitioner states, and his attorney does
not deny, that he informed his counsel that he did not wish to
pursue any further appeals in his case. Nevertheless, counsel filed
a petition requesting review by this Court.
Petitioner now moves for dismissal of the petition, stating
under oath that he
"made this decision voluntarily and with full knowledge of the
consequences, only after due consideration of all facts and
circumstances regarding the case."
Affidavit of June 3, 1980. Under Rule 60 of the Rules of the
Supreme Court (1970), a petitioner or appellant may withdraw a
petition or appeal. In response to this motion, petitioner's
counsel does not question petitioner's competence. The State of
Texas does not oppose petitioner's motion. In the absence of any
issue as to petitioner's competence to withdraw the petition filed
against his will, there is no basis under Rule 60 for denying this
motion.
See Gilmore v. Utah, 429 U.S. 1012, 1014 (1976)
(BURGER, C.J., concurring). Moreover, withdrawal of the petition
will not foreclose an appropriate
Page 448 U. S. 726
application for collateral relief. Accordingly, the motion to
withdraw the petition is granted.
It is so ordered.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins,
dissenting.
The Court today permits petitioner, a prisoner acting
pro
se, to take the first step towards enforcement of his death
sentence by withdrawing the petition for writ of certiorari filed
on his behalf by his appointed counsel. I continue to adhere to my
view that the death penalty is unconstitutional under all
circumstances, and, accordingly, I dissent. In addition, however,
the present decision is indefensible even under the more
restrictive view of the Eighth Amendment taken by a majority of my
Brethren.
The Court takes its action today despite the fact that we have
already granted certiorari in a similar case to determine whether
the Constitution is violated by the manner in which the State of
Texas acquires psychiatric testimony introduced at the punishment
phase of the trial to obtain a jury verdict setting the punishment
at death.
Estelle v. Smith, 445 U.S. 926 (1980). The
United States Court of Appeals for the Fifth Circuit has already
held that the established pattern of conduct by which the State of
Texas obtains the testimony necessary to send a defendant to his
death violates the Fifth, Sixth, and Fourteenth Amendments.
Smith v. Estelle, 602 F.2d 694 (1979). Thus, the Court
today acquiesces in the petitioner's apparent decision to be
executed despite the fact that we may hold next Term that the death
penalty cannot be enforced in cases such as this one. I do not
believe that a defendant may, by his consent, permit a State to
impose a punishment forbidden by the Constitution; "the procedure
the Court approves today amounts to nothing less than
state-administered suicide."
Lenhard v. Wolff,
444 U. S. 807, 815
(1979) (MARSHALL, J., dissenting).
Page 448 U. S. 727
I
A few facts about this case must be briefly stated in order to
place the present motion in its proper context. Petitioner was
originally tried for capital murder in the spring of 1977. Although
the jury found the defendant guilty of capital murder, a mistrial
was declared after the jury was unable to agree on the punishment
during the sentencing phase of the trial.
See 578
S.W.2d 699, 706 (Tex.Crim.App. 1979). The second trial was held
in the fall of 1977, and petitioner was again found guilty of
capital murder. The jury answered the requisite questions in the
affirmative, and the punishment was therefore assessed at death.
[
Footnote 1]
The Texas Court of Criminal Appeals initially reversed the
judgment of the trial court.
See App. to Pet. for Cert.,
Exhibit A. The Court of Criminal Appeals concluded that it was
error to deny petitioner's motion for appointment of a psychologist
to examine petitioner for the purpose of testifying on his behalf
concerning the probability that petitioner would commit future
criminal acts of violence. [
Footnote 2] On the
Page 448 U. S. 728
State's motion for rehearing, however, that opinion was
withdrawn, and the court affirmed the conviction and sentence. 578
S.W.2d 99 (1979). The court concluded that petitioner's motion for
appointment of a defense psychologist had been made too late.
The central issue raised by the petition for certiorari in this
case concerns the use of psychiatric testimony during the
punishment stage of a Texas capital case. [
Footnote 3] Prior to the first trial, the court
appointed Dr. Bill W. Henry, a psychiatrist, to examine petitioner
to determine his mental competency to stand trial. Dr. Henry filed
two written reports with the court, based on two interviews with
petitioner, concluding that the defendant was competent to stand
trial. Counsel apparently was not present at either interview.
Cf. id. at
Page 448 U. S. 729
705. No issue of competency was raised during the guilt phase of
either of petitioner's trials.
At the punishment stage of each trial, however, the State was
permitted to call Dr. Henry as an expert witness. The State
examined Dr. Henry on whether there was a probability that the
petitioner would commit criminal acts of violence in the future
that would constitute a continuing threat to society. That issue
is, of course, one of the statutorily required questions which must
be presented to the jury in the sentencing phase of a Texas capital
case; if the jury finds beyond a reasonable doubt that such a
probability of future violent crime exists, in addition to the
other statutorily mandated findings, then the death penalty must be
imposed. [
Footnote 4] Based on
the pretrial psychiatric examinations which were supposedly limited
to the question whether the petitioner was legally competent to
stand trial, Dr. Henry testified that the defendant was a "person
suffering of an antisocial personality,"
id. at 706, and
that petitioner would probably commit criminal acts of violence in
the future.
II
It has become clear that the scenario just described constitutes
a customary pattern of conduct by the authorities in Texas capital
cases. This is by no means the first time that a pretrial
examination allegedly sought only to ascertain the defendant's
competence to stand trial has been used as the basis for
punishment-stage testimony by the court-appointed psychiatrist that
the defendant has an antisocial personality, and is likely to
commit future violent crimes. The cases in the Texas Court of
Criminal Appeals reflecting this pattern of official conduct are
legion.
See. e.g., Wilder v. State, 583
S.W.2d 349 (1979),
cert. pending, No. 79-5002;
Armor v. State, 583
S.W.2d 349 (1979),
cert. pending, No. 79-5007;
Bell v. State, 582
S.W.2d 800 (1979),
cert. pending,
Page 448 U. S. 730
No. 79-5199;
Garcia v. State, 581
S.W.2d 168 (1979),
cert. pending, No. 79-5464;
Woods v. State, 569
S.W.2d 901 (1978),
cert. pending, No. 79-721;
Livingston v. State, 542
S.W.2d 655 (1976),
cert. denied, 431 U.
S. 93 (1979);
Gholson v. State, 542
S.W.2d 395 (1976),
cert. denied, 432 U.S. 911 (1977);
Smith v. State, 540
S.W.2d 693 (1976),
cert. denied, 430 U.S. 922 (1977),
death penalty vacated, Smith v. Estelle, 445 F.
Supp. 647 (ND Tex.1977),
aff'd, 602 F.2d 694 (CA5
1979),
cert. granted, 445 U.S. 926 (1980);
Hurd v.
State, 513
S.W.2d 936 (1974);
Armstrong v. State, 502
S.W.2d 731 (1973). The use at the punishment stage of testimony
by the psychiatrist appointed by the court to establish the
defendant's competency to stand trial has the official sanction of
the Texas Court of Criminal Appeals.
See Armour v. State,
supra; Livingston v. State, supra; Gholson v. State,
supra.
The United States Court of Appeals for the Fifth Circuit has
concluded that this practice violates the Fifth and Sixth
Amendments as made applicable to the States through the Due Process
Clause of the Fourteenth Amendment.
See Smith v. Estelle,
602 F.2d 694 (1979),
aff'g 445 F.
Supp. 647 (ND Tex.1977). The Court of Appeals held that
"a defendant may not be compelled to speak to a psychiatrist who
can use his statements against him at the sentencing phase of a
capital trial,"
602 F.2d at 708, that the defendant must be warned that he has
the right to remain silent, and that, if a defendant indicates that
he wishes to remain silent, he may not be questioned by the
psychiatrist to determine future dangerousness,
ibid.
[
Footnote 5] That court also
found that
Page 448 U. S. 731
whether to submit to a pretrial psychiatric examination in a
Texas capital case "is a vitally important decision literally a
life or death matter,"
ibid. The examination is therefore
a critical stage in the prosecution, and the defendant is entitled
to the assistance of counsel under the Sixth Amendment.
Id. at 708-709.
Because of the seriousness of the issues raised and the conflict
between the Texas Court of Criminal Appeals and the United States
Court of Appeals for the Fifth Circuit, we have already granted
certiorari in
Estelle v. Smith, 445 U.S. 926 (1980).
Should this Court agree with the federal court, the death penalty
imposed on petitioner in the instant case would have to be
reconsidered because of the manner in which the crucial psychiatric
testimony against him was obtained.
Nevertheless, the Court today permits petitioner, acting
pro
se, to withdraw his petition for certiorari, thereby setting
in motion the steps by which the defendant may be put to death by
the State of Texas. [
Footnote
6] It appears that petitioner does not intend to prosecute any
challenge to his conviction and sentence; [
Footnote 7] petitioner asks this Court to permit
Page 448 U. S. 732
him to withdraw his petition for certiorari "so that the [death]
sentence may be carried out." Motion to Dismiss 2. Petitioner, in
effect, seeks to waive a challenge to his execution, [
Footnote 8] despite the fact that the issue
of the constitutionality of the practice by which he was sentenced
to die is presently pending before this Court. In my judgment.
there can be no such waiver.
See Lenhard v. Wolff, 444
U.S. at 810 (MARSHALL, J., dissenting);
Gilmore v. Utah,
429 U.S. 1012, 1019 (1976) (MARSHALL, J., dissenting).
In
Gilmore, MR. JUSTICE WHITE, joined by MR. JUSTICE
BRENNAN and myself, asserted that
"the consent of a convicted defendant in a criminal case does
not privilege a State to impose a punishment otherwise forbidden by
the Eighth Amendment."
Id. at 1018 (dissenting opinion). In a separate
dissenting opinion, I expressed the view that
"the Eighth Amendment not only protects the rights of
individuals not to be victims of cruel and unusual punishment, but
that it also expresses a fundamental interest of society in
ensuring that state authority is not used to administer barbaric
punishments."
Id. at 1019 (MARSHALL, J., dissenting). "Society is not
powerless . . . to resist a defendant's effort to prompt the
exercise of capital force,"
Lenhard v. Wolff, supra at 812
(MARSHALL, J., dissenting). The defendant has no right to
"state-administered suicide." 444 U.S. at 815.
Page 448 U. S. 733
These observations have no less force because, here, the
imposition of the death penalty under these circumstances may be
held by a majority of my Brethren to violate he Fifth and Sixth
Amendments, rather than the Eighth Amendment. Indeed, these views
have added force in this case, because the procedure employed by
the State has been successfully challenged on constitutional
grounds in federal court, and the issue of the constitutionality of
the manner in which the State obtains the psychiatric testimony
necessary to convince the jury that the defendant will probably
commit acts of criminal violence in the future is presently pending
before this Court.
Cf. Gilmore v. Utah, 429 U.S. at 1018
(WHITE, J., dissenting);
id. at 1019 (MARSHALL, J.,
dissenting);
Lenhard v. Wolff, supra, at 811-812, n. 3
(MARSHALL, J., dissenting) .
If this Court agrees with the Court of Appeals in
Estelle v.
Smith, then the death penalty imposed on petitioner in the
present case must be reconsidered. Under these circumstances, I
cannot accept the Court's decision to permit the petitioner to
withdraw his petition for certiorari, and thereby run the risk that
the State of Texas will take a life which it is constitutionally
prohibited from taking. I dissent.
[
Footnote 1]
By state statute, the jury in a capital case in Texas must
decide three questions:
"(1) whether the conduct of the defendant that caused the death
of the deceased was committed deliberately and with the reasonable
expectation that the death of the deceased or another would
result;"
"(2) whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a continuing
threat to society; and"
"(3) if raised by the evidence, whether the conduct of the
defendant in killing the deceased was unreasonable in response to
the provocation, if any, by the deceased."
Tex.Code Crim.Proc.Ann., Art. 37.071(b) (Vernon Supp. 1979). An
affirmative answer to each question must be unanimous, and, if all
three questions are answered affirmatively, then the death penalty
"shall" be imposed. Tex.Code Crim.Proc.Ann., Arts. 37.071(d)(1) and
(e) (Vernon Supp. 1979).
[
Footnote 2]
The Texas Court of Criminal Appeals reasoned:
"Those who face an accusation of being likely to commit criminal
acts of violence that will constitute a continuing threat to
society face a peculiarly unique charge with ominous consequences.
In this jurisdiction, the use of the expert opinion testimony of
those in the behavioral sciences has frequently been resorted to by
the prosecution, and this Court has consistently approved such use,
often basing the sufficiency of the evidence to support a
death-producing verdict on that evidence. . . . Given the role such
evidence has come to play, the unique character of the issue, the
extreme consequences that rest on resolution of the issue, and the
tremendous diversity of opinions on such matters within the field
of experts that may qualify to give such evidence on the issue, it
cannot be denied that, for accused persons facing the possibility
of death, expert behavioral witnesses for the defense are
necessities, not luxuries."
App. to Pet. for Cert., Exhibit A, pp. 3-4.
See
also 578
S.W.2d 699, 720-721 (Tex.Crim.App. 1979) (Odom, J.,
concurring).
[
Footnote 3]
In the Texas Court of Criminal Appeals, petitioner argued,
inter alia, that
"the trial court erred in allowing a psychiatrist who was
appointed to examine the [defendant] with respect to his competency
to stand trial to testify at the punishment phase of the
trial."
Id. at 705. A similar argument is made in the petition
for certiorari.
See, e.g., Pet. for Cert. 6-7:
"[T]he circumstances surrounding the State's .presentation of
Dr. Henry's testimony at the punishment stage of trial was grossly
unfair, and the defendant was thus denied due process of law,"
citing
Smith v. Estelle, 445 F.
Supp. 647 (ND Tex.1977).
See also Pet. for Cert.
14-16, 17-18.
[
Footnote 4]
See n 1,
supra.
[
Footnote 5]
In the instant case, there is evidence that, in fact, petitioner
did not want to cooperate with Dr. Henry during the interview.
See 578 S.W.2d at 705; Brief in Opposition 4.
The State's response to the petition for certiorari alleges that
Dr. Henry informed petitioner of his right not to participate, and
that the psychiatrist terminated the first interview after
petitioner chose not to continue.
Ibid. Even if that was
the case, it does not necessarily mean that the procedure used in
this case complies with the constitutional requirements discussed
by the Court of Appeals in
Smith v. Estelle, and, of
course, when this Court reviews that decision, we may conclude that
the Court of Appeals took an overly narrow view of the
constitutional requirements. If this Court affirms the judgment of
the Court of Appeals in
Estelle v. Smith, cert. granted,
445 U.S. 926 (1980), at the very least, the procedure by which Dr.
Henry obtained the information from petitioner from which the
psychiatrist derived his testimony would have to be closely
scrutinized to see if it satisfied constitutional demands.
[
Footnote 6]
According to the State of Texas, if the petition for writ of
certiorari is dismissed by this Court, the mandate would then issue
from the Texas Court of Criminal Appeals to the trial court.
Petitioner would then be formally sentenced to be executed on a
date 30 days or more from the date of sentencing. Response to
Motion to Dismiss 3.
See also Tex.Code Crim.Proc.Ann.,
Art. 43.14 (Vernon 1979).
[
Footnote 7]
Petitioner states that "I no longer wish to appeal (or
challenge) my conviction in this case." Motion to Dismiss 1. He
also asks this Court "to set aside this writ and issue an order so
stating to the state court so that the sentence may be carried
out."
Id. at 2.
[
Footnote 8]
It is questionable whether petitioner fully understands what he
is seeking to waive. In his papers, petitioner "moves the Court to
dismiss the Appal [
sic] or Habeas Corpus Application,"
id. at 1. He does not appear to know whether his appointed
attorney filed a petition for certiorari, an appeal, or a habeas
corpus application.
Ibid. I t is certainly possible that
petitioner has reached his present decision without full knowledge
or understanding of the Court of Appeals' decision in
Smith v.
Estelle, our grant of certiorari to review that decision, or
the effect that
Estelle v. Smith may have on his sentence
of death.
Cf. Gilmore v. Utah, 429 U.S. 1012, 1019 (1976)
(MARSHALL, J., dissenting).
MR. JUSTICE BLACKMUN, dissenting.
I would not grant this
pro se application summarily,
but would set it for plenary consideration upon briefs and
arguments submitted by petitioner's appointed counsel and the
State.
See Gilmore v. Utah, 429 U.S. 1012, 1020 (1976)
(dissenting opinion).
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