Case below,
843 F.2d
183.
The application for stay of execution of the sentence of death
presented to Justice WHITE and by him referred to the Court is
denied.
Justice BRENNAN, with whom Justice MARSHALL joins,
dissenting.
Petitioner Leslie Lowenfield has been sentenced to death. The
law of the State that is about to execute him entitles him to
"rais[e] at any time" the issue of his "mental incapacity to
proceed" with the execution. La.Code Crim.Proc.Ann., Art. 642 (West
1981). See State v. Perry,
502 So.
2d 543, 564 (La.1986). If there is a "reasonable ground to
doubt" petitioner's sanity, the court "shall order a mental
examination," La.Code Crim.Proc.Ann., Art. 643 (West 1981), and may
permit "no further steps" in his punishment until he "is found to
have the mental capacity to proceed," Art. 642. In any event, state
law affords petitioner the right to pre- execution review by a
sanity commission if he can "show by a preponderance of evidence
that he lacks the present capacity to undergo execution." Perry,
supra, at 564.
Petitioner moved for review by a sanity commission, presenting
evidence that he is currently insane. The evidence consisted of a
sworn affidavit by Dr. Marc L. Zimmerman, a duly licensed clinical
psychologist who interviewed and tested petitioner for five hours
on March 26, 1988, and concluded that "it is highly probable that
Mr. Lowenfield is suffering from paranoid schizophrenia. . . . A
study has found that 85% of persons who obtain the same profile as
Mr. Lowenfield . . . are diagnosed as paranoid schizophrenics."
App. to Pet. for Cert. 2 (citation omitted). Dr. Zimmerman
continued: "As a paranoid schizophrenic, Mr. Lowenfield's capacity
to understand the death penalty would be impaired. Indeed, my
Page 485 U.S.
995 , 996
clinical interview with Mr. Lowenfield indicated that he is
currently unable to understand the death penalty." Id., at 3
(emphasis added). The State presented no evidence either to refute
Dr. Zimmerman's conclusions or to question his credentials. In the
face of that unrefuted evidence, the Louisiana trial court, and
then the Louisiana Supreme Court, denied the motion without
explanation.
Petitioner thereafter filed an application for habeas relief
with the District Court. The District Court denied on the basis of
an "extended conversation" with Dr. Zimmerman. Civ. Action No.
88-1549, p. 3 (ED La., Apr. 12, 1988) 1988 WL 34935. From that
conversation, which the District Court conducted without any notice
to petitioner's counsel and apparently before petitioner's
application was filed, the District Court concluded that, contrary
to Dr. Zimmerman's affidavit, "petitioner has the capacity to
understand the realities of the pending execution. Petitioner,
though [ a] paranoid schizophrenic, is apparently able to
understand that the execution is going forward in accordance with
law." Ibid. A divided panel of the Court of Appeals affirmed in an
opinion that reached this chambers a mere 15 minutes before the
scheduled execution.
843 F.2d
183 ( CA5 1988).
Every court that has considered petitioner's insanity claim has
made a mockery of this Court's precedent and of the most
fundamental principles of ordered justice. In Ford v. Wainwright,
477 U.S.
399, 409, 2602 (1986), we held that "the Eighth Amendment
prohibits a State from carrying out a sentence of death upon a
prisoner who is insane." In the course of the opinion, we
characterized any such execution as " 'savage and inhuman' " id.,
at 406 (citation omitted): " 'a miserable spectacle, both against
Law, and of extreme inhumanity and cruelty,' " id., at 407
(citation omitted); " 'cruel and inhumane,' " id., at 408, n. 1, n.
1 (citation omitted); and "abhorren[t]," id., at 409.
A majority of this Court did not agree on the precise procedures
that the Constitution requires when the question is raised of a
prisoner's sanity for execution. A majority did, however, hold that
due process demands a hearing at least once the prisoner has made
some "threshold showing" that he has become insane since his trial.
Id., at 417, 106 S.Ct ., at 2605 (opinion of MARSHALL, J., joined
by BRENNAN, BLACKMUN, and STEVENS, JJ.); id., at 426 (Powell, J.,
concurring in part and concurring in judgment). Justice Powell,
pro-
Page 485 U.S.
995 , 997
viding a fifth vote for that proposition, stated that "[t]he
State . . . may properly presume that petitioner remains sane at
the time sentence is to be carried out, and may require a
substantial threshold showing of insanity merely to trigger the
hearing process." Ibid. (footnote omitted ). See also id., at
429-430-2612 (O'CONNOR, J., joined by WHITE, J., concurring in
result in part and dissenting in part) ( where state law prohibits
execution of the insane, the State must provide a hearing).
The Louisiana Legislature has set the requisite "threshold
showing" at that level of evidence that would constitute a
"reasonable ground to doubt" the prisoner's sanity. La.Code
Crim.Proc.Ann., Art. 643 (West 1981 ). It is beyond me why Dr.
Zimmerman's unrefuted affidavit did not meet that threshold. For
that matter, I am at a loss to explain why the affidavit, which was
the sole evidence before the courts, did not establish petitioner's
insanity by a preponderance of the evidence, entitling petitioner
not merely to a hearing but to the relief he seeks. Neither state
court furnished any explanation. In fact, neither court so much as
articulated the standard it was applying. For all we know, the
state courts defaulted entirely on their obligation to consider
petitioner's claim. The Louisiana courts, by declining to provide
any explanation for their denial of relief, as a practical matter
have required petitioner to meet not "a substantial threshold
showing of insanity" but an insurmountable one. The effect extends
far beyond this case, for the state courts have challenged all
death-row inmates to a harrowing game of Russian roulette, in which
each must take a wild guess at the "threshold" or suffer the
consequences. Where, as here, there is no way to discern whether
the state courts' "fact-finding procedure . . . was not adequate
for reaching reasonably correct results," Townsend v. Sain,
372 U.S.
293, 316, 757 (1963), their bare denial of relief is entitled
to no presumption of correctness. See 28 U.S.C. 2254(d).
Even more outrageous was the injustice perpetrated by the
federal courts to which petitioner resorted upon the state courts'
default of their constitutional responsibilities. The District
Court expressly adopted Dr. Zimmerman's conclusion that petitioner
was a "paranoid schizophrenic." Civ. Action No. 88-1549, supra, at
3. That conclusion should have compelled the District Court, at the
very least, to "receive evidence and argument from [petitioner's]
counsel" on whether petitioner is "aware that his death is
Page 485 U.S.
995 , 998
approaching" and "perceives the connection between his crime and
his punishment." Ford, supra, 477 U.S., at 427, 422, 2608 ( opinion
of POWELL, J.). Instead, the District Court excluded counsel
entirely and conducted its own ex parte investigation in which it
managed to extract from Dr. Zimmerman a concession ("Petitioner . .
. is apparently able to understand that the execution is going
forward in accordance with law," Civ. Action No. 88-1547, supra, at
3) that contradicted his sworn affidavit dated three days earlier
("[H]e is currently unable to understand the death penalty," App.
to Pet. for Cert. 3). The District Court's consideration of
petitioner's insanity claim fell far short of the de novo review
that it was obliged to provide upon the state courts' default. See
Ford, 477 U.S., at 418 . Instead, its review was functionally
equivalent to the " 'policy of excluding all advocacy on the part
of the condemned,' " which we have held unconstitutional. Id., at
412-413 (citations omitted).
Worse yet, petitioner alleges-and the State does not deny-that
the District Court conducted its ex parte investigation before it
even had jurisdiction over the case; as Judge Johnson, dissenting
from the Court of Appeals' judgment, observed, "the district court
failed to make any finding on the record." 843 F.2d, at 188.
"Procedural shortcuts are always dangerous. Greater-surely not
lesser-care should be taken to avoid the risk of error when its
consequences are irreversible." Autry v. Estelle,
464 U.S.
1, 6, 23 (1983) (footnote omitted).
The Court of Appeals, for its part, compounded the District
Court's abuse by ignoring it entirely and proceeding to address the
sufficiency of Dr. Zimmerman's affidavit as an original matter,
without a proper District Court predicate. Even that determination
hopelessly conflated the principles articulated in Ford. From
Justice Powell's observation that the "State . . . may require a
substantial threshold showing of insanity merely to trigger the
hearing process," Ford, supra, 477 U.S., at 426 (emphasis added),
the Court of Appeals supposed that the State must do so, see 843
F.2d, at 187 ("[P]etitioner has not made a substantial threshold
showing"), and overlooked the State's decision to require merely a
showing of a "reasonable ground to doubt" in order to trigger
further examination.
Page 485 U.S.
995 , 999
The abuses and mistakes in every court that has considered this
case are no doubt attributable, at least in part, to the haste with
which they proceeded:
1. On the afternoon of April 11, petitioner filed in Louisiana
state court a petition for postconviction relief raising the claims
that are now before us.
2. Later that afternoon, the state trial court denied
relief.
3. At 6 p.m. (eastern daylight time) the next day, April 12, the
Louisiana Supreme Court denied relief and petitioner applied to the
District Court for a writ of habeas corpus. 843 F.2d, at
184-185.
4. At 8:30 p.m. the District Court denied petitioner's
application. Id., at 185.
5. At 12:10 a.m. that same night the Court of Appeals
affirmed.
6. At 12:45 a.m. (15 minutes before the scheduled execution) the
Court of Appeals' opinions were circulated to this Court.
7. At 1:05 a.m., with petitioner already strapped in the
electric chair, this Court denied his application for a stay of
execution.
8. At 1:25 a.m. petitioner was pronounced dead. N.Y. Times, Apr.
14, 1988, p. A28, col. 1. Time ran out before we voted on the
certiorari petition that accompanied petitioner's stay
application.
The haste that attended disposition of this case is
reprehensible. It is hardly surprising that a case scudding through
the state courts in 24 hours should yield orders devoid of law or
logic-the ones in this case simply read, "DENIED"-for which the
description "terse" would be charitable. If the federal courts are
intent on accelerating the pace at any cost, as they were in this
case, their only choice is to take procedural shortcuts and give
short shrift to substance. And simple arithmetic suggests grave
injustice when the Court of last resort takes 15 minutes to read
and analyze 17 pages of opinions from the court below and cast a
vote on life or death.
Due process means little if it requires the courts to provide an
" opportunity to be heard," Grannis v. Ordean,
234 U.S.
385, 394, 783 (1914), without imposing on them a concomitant
duty to listen-and, at least when a life is at stake, to listen
very carefully. Pre-
Page 485 U.S.
995 , 1000
sumably, it was in recognition of the injustice that four of us
(one less than the requisite five) voted to stay petitioner's
execution, so as to consider his insanity claim in an atmosphere
that was not itself lunatic.
Regrettably, this case is not atypical. It is the natural
product of a penal system conducive to inaccurate factfinding and
shoddy analysis. And I doubt that any system could be devised to
cure the evil, so long as States continue to impose punishments so
severe as to be irrevocable. Even were I not convinced that the
death penalty is in all circumstances cruel and unusual punishment
prohibited by the Eighth Amendment, see Gregg v. Georgia,
428 U.S.
153, 227, 2950, 2973 ( 1976) (dissenting opinion), I would have
no part of a penal system that permits a State's interest in meting
out death on schedule to convert our constitutional duty to
dispense justice into a license to dispense with it.
I dissent.
Justice BLACKMUN and Justice STEVENS would grant the application
for stay.
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