Ford v. Wainwright Motion for Leave to File and Brief Amici Curiae

    y

85-5542

In T he

§>i{rmnp (Enurt of Jljr lilmteii States
October Term, 1985

Alvin Bernard Ford, or Connie Ford, 
individually, and as next friend 

on behalf of Alvin Bernard Ford,
Petitioner,

Louie L. Wainwright, Secretary, 
Department of Corrections,

________ Respondent.

On Writ of Certiorari to the United States 
Court of Appeals for the Eleventh Circuit

MOTION FOR LEAVE TO FILE BRIEF AM ICI CU RIAE  
AND BRIEF OF AM ICI CURIAE  

AMERICAN PSYCHOLOGICAL ASSOCIATION
AND

FLORIDA PSYCHOLOGICAL ASSOCIATION 
IN SUPPORT OF PETITIONER

Laurel Pyke Malson 
Donald N. Bersoff 

(Counsel of Record)
Bruce J. E n n is , Jr.

E n n is , Friedman , Bersoff 
& E wing

1200 17th Street, N.W., 
Suite 400

Washington, D.C. 20036 
(202) 775-8100 

Attorneys for Amici Curiae
January 30,1986

W i l s o n  • E pks  P o i n t i n g  C o .. In c . - 7 8 9 -0 0 9 6  - W a s h i n g t o n . D C. 20001



In  The

S?uprrmr (Cmtrt nf tljr Huitpti g>tatps
October Term, 1985

85-5542

Alvin Bernard Ford, or Connie Ford, 
individually, and as next friend 

on behalf of Alvin Bernard Ford,
v Petitioner,

Louie L. Wainwright, Secretary, 
Department of Corrections,

________ Respondent.

On Writ of Certiorari to the United States 
Court of Appeals for the Eleventh Circuit

MOTION FOR LEAVE TO FILE BRIEF AM ICI CURIAE  
AMERICAN PSYCHOLOGICAL ASSOCIATION AND 

FLORIDA PSYCHOLOGICAL ASSOCIATION 
IN SUPPORT OF PETITIONER

Pursuant to Rule 36.3 of the Rules of this Court, the 
American Psychological Association (hereafter “APA” ) 
and the Florida Psychological Association (hereafter 
“FPA” ) move for leave to file the attached brief amici 
curiae. Although Petitioner consented to the filing of this 
brief, Respondent denied consent, thereby necessitating 
the filing of this Motion.

The APA, a nonprofit scientific and professional or­
ganization founded in 1892, is the major association of 
psychologists in the United States. APA has more than 
60,000 members, including the vast majority of psychol­
ogists holding doctoral degrees from accredited universi­

(i)



11

ties in the United States. The purpose of APA, as set 
forth in its bylaws, is to “advance psychology as a science 
and profession, and as a means of promoting human wel­
fare . . . A substantial number of APA’s members are 
concerned with clinical and forensic psychology, including 
the collection of data and the development of research, 
and engage regularly in the evaluation of the mental con­
dition of criminal offenders.

The FPA, with over 700 members, represents the ma­
jority of psychologists in Florida and is affiliated for­
mally with the APA. The work of FPA’s members en­
compasses basic and applied research, teaching, and a 
myriad of mental health services to hospitals, courts, 
clinics, schools, and the community at large. Many of 
Florida’s psychologists offer expert testimony in court 
proceedings in which an individual’s mental or emotional 
state is an issue. An even larger number are involved in 
the study, assessment, and treatment of mental and emo­
tional disorders and the effects of such disorders on hu­
man behavior and cognitive abilities. In this way, Florida 
psychologists, like psychologists nationally, bring unique 
qualifications to matters bearing on the case at hand. Be­
cause this case originated in Florida, and because Florida 
psychologists are committed to the promotion of public 
welfare, FPA, representing psychology in Florida, joins 
APA as co-amicus.

The APA has participated as amicus in many cases in 
this Court involving mental health issues, including 
Youngberg v. Romeo, 457 U.S. 307 (1982) (the rights of 
mentally retarded residents of state hospitals) ; Mills v. 
Rogers, 457 U.S. 291 (1982) (the right of a competent 
committed mental patient to refuse psychotropic drugs) ; 
City of Akron v. Akron Center for Reproductive Health, 
Inc., 4G2 U.S. 41G (1983) (abortion counseling by non­
physicians) ; and Akc v. Oklahoma, 105 S. Ct. 1087 (1985) 
(indigent defendant’s right to assistance from a mental 
health professional). So far this Term, the APA has filed



amicus briefs in Thornburgh v. American College of Ob­
stetricians and Gynecologists, No. 84-495; Lockhart v. 
McCree, No. 84-1865; and Smith v. Siclaff, No. 85-5487.

APA contributes amicus briefs to this Court only where 
the APA has special knowledge to share with the Court. 
APA regards this as one of those cases. In this instance, 
APA and FPA wish to inform the Court about the 
methodologies of psychological evaluations and the need 
for and use of expert testimony in post-sentencing com­
petency proceedings. APA and FPA believe this impor­
tant and relevant information will not be provided by the 
parties and will be of assistance to the Court in deciding 
this case.

Respectfully submitted,

iii

Laurel P yke Malson 
Donald N. Bersoff 

(Counsel of Record)
Bruce J. E n n is , J r.

E n n is , F riedman, Bersoff 
& E wing

1200 17th Street, N.W., 
Suite 400

Washington, D.C. 20036 
(202) 775-8100 

Attorneys  for Amici Curiae
January 30, 1986



Pape
TABLE OF CONTENTS

MOTION. FOR LEAVE TO FILE BRIEF AMICI 
CURIAE .............................................................................  i

TABLE OF AUTHORITIES..............................................  vi
INTEREST OF AMICI CURIAE ..........................................  1
INTRODUCTION AND SUMMARY OF ARGU­

MENT ......................................................................................  1
ARGUMENT..............................................................................  5

I. CONDEMNED PRISONERS OF QUESTION­
ABLE MENTAL COMPETENCY MAY NOT 
BE EXECUTED WITHOUT FIRST HAV­
ING THEIR COMPETENCY DETERMINED 
THROUGH AN ACCURATE AND RELIABLE
FACTFINDING PROCEEDING......................... 5
A. Accurate And Reliable Factfinding On The 

Issue Of Mental Competency Requires An 
Adversary Hearing Where The Issue Of Com­
petency Is Disputed........................................... 10

B. Accurate And Reliable Factfinding On The
Issue Of Mental Competency Requires The 
Assistance Of Mental Health Professionals 
In The Evaluation And Preparation Of All 
Issues Relevant To Determining Condemned 
Prisoners’ Competency .......... .......................... 13

C. Accurate And Reliable Factfinding On The
Issue Of Mental Competency Requires De­
cisionmakers To Specify Tn Writing The 
Factors Relied Upon In Making Competency 
Determinations ..........  .................  17

II. THE PROCEDURES FOLLOWED BY THE 
STATE OF FLORIDA IN EVALUATING PE­
TITIONER’S COMPETENCY TO BE EXE­
CUTED FAILED TO PROVIDE AN ACCU­
RATE AND RELIABLE DETERMINATION
ON THE ISSUE .....................................................  18

CONCLUSION ......................................................................  30

(v)



TABLE OF AUTHORITIES
CASES: Page

Addington v. Texas, 441 U.S. 418 (1979)...............2, 12, 13
Ake v. Oklahoma, 105 S.Ct. 1087 (1985) ................. passim
Arnett v. Kennedy, 416 U.S. 134 (1974)................. 8
Barefoot v. Estelle, 463 U.S. 880 (1983)................. 2
Blue Shield v. McCready, 457 U.S. 465 (1982) ... 2
Board of Regents v. Roth, 408 U.S. 564 (1972).. 10
California v. Ramos, 463 U.S. 992 (1983)..............  4, 6
Caritativo v. California, 357 U.S. 549 (1958)........  7
Drape v. Missouri, 420 U.S. 162 (1975)................... 4
Eddings v. Oklahoma, 455 U.S. 104 (1982)............  6
Estelle v. Smith, 451 U.S. 454 (1981)....................... 2
Ford v. Wainwright, 752 F.2d 526 (11th Cir. 1985), 

cert, granted, 54 U.S.L.W. 3420 (Dec. 9, 1985).. 7
Furman v. Georgia, 408 U.S. 238 (1972)..................6, 7, 17
Gardner v. Florida, 430 U.S. 349 (1977).................. passim
Goode v. Wainwright, 448 So.2d 999 (Fla. 1984).... 22
Goss v. Lopez, 419 U.S. 565 (1975) ........................  10
Greenwood v. United States, 350 U.S. 366 (1956) . 12
Gregg v. Georgia, 428 U.S. 153 (1976).....................passim
Hays v. Murphy, 663 F.2d 1004 (10th Cir. 1981).... 24
Hidden v. Mutual Life Insurance Co., 217 F.2d

818 (4th Cir. 1954) .................................................  1
Jenkins v. United States, 307 F.2d 637 (D.C. Cir.

1962) ..........................................................................  1
Lindsey v. State. 254 Ga. 444, 330 S.E. 2d 563

(1985) .........................................................................  2
Lockett v. Ohio, 438 U.S. 586 (1978) .......................passim
Logan v. Zimmerman Brush Co., 455 U.S. 422

(1982) ........................................................................  7,8
Mathews v. Eldridge, 424 U.S. 319 (1976).............. 8, 9, 10
O'Connor v. Donaldson, 422 U.S. 563 (1975) ........  12
Parham v. J.R., 442 U.S. 584 (1979)......................... 2
Pate v. Robinson, 383 U.S. 375 (1966).....................  4
People v. Hawthorne, 293 Mich. 15, 291 N.VV. 205

(1940) .....................................   1
Robinson v. California, 370 U.S. 660 (1962) .........  7
Solesbee v. Balkcom, 339 U.S. 9 (1950) ................  7, 12
Vitek v. Jones, 445 U.S. 480 (1980) ........................ passim

vi



TABLE OF AUTHORITIES—Continued
Page

Williams v. New York, 337 U.S. 241 (1949) 23
Wolff v. McDonnell, 418 U.S. 539 (1974) 8
Woodson v. North Carolina, 428 U.S. 280 (1976) passim 
Youngbcrg v. Romeo, 457 U.S. 307 (1982) ...........  2

STATU TES AND CONSTITUTIONAL PROVISIONS:

United States Constitution, Amendment VIII .......passim
United States Constitution. Amendment X IV ......... passim
Fla. Stat. § 922.07 (1983) (amended 1985) ......... passim

OTHER AUTHORITIES:

ABA Standards for Criminal Justice (1984) .......  3
American Bar Association Project on Standards 

for Criminal Justice, Sentencing Alternatives 
and Procedures, Commentary (App. Draft
1968) ...........................................................................  6

A PA, Specialty Guidelines for the Delivery of
Services bj/ Clinical Psychologists, 36 A m .
Psychol. 640 (1981) ............................................  25

APA, Standards for Providers of Psychological
Services, 32 A m . Psychol. 495 (1977) ...............  25

A. A nastasi, Psychological Testing (5th ed.
1982) ..................................................................................  28

L. Rellak & L. Loer. T he Schizophrenic S yn­
drome (1969) .................................................................  24

T. Blau. T he Psychologist as E xpert W itness
(1984) ............................................   1,26

Rluestone& McGahee, Reaction to Extreme Stress: 
Impending Death by Execution, 119 A m . J.
Psychiat. 393 (1962) ...............................................  16

Bonnie and Slobogin, The. Role, of Mental Health 
Professionals in the Criminal Process: The Case 
For Informed Specidation, 66 Va . L. Rev. 427
(1980) ....................................................................   1

Comment, The Psychologist as an Expert Witness,
15 Ka n . L. Rev. 88 (1 9 6 6 ) .........................................  2



V III

Page
Cooke, An Introduction to Basic Issues and Con­

cepts in Forensic Psychology, in T he Role op 
the F orensic Psychologist 5 (G. Cooke, ed.
1980) .................................................................... 28

Cooke, The Role of the Psychologist in Criminal 
Court Proceedings, in T he Role ok the  Foren­
sic Psychologist 91 (G. Cooke, ed. 1980)...........  28

L. Cronbach, Essentials of Psychological Test­
ing (4th ed. 1984) ...................................................... 28

H. Kaplan , A. Freedman, B. Saddock, A Compre­
hensive Textbook Of P sychiatry/III  (3d ed.
1980) .....................................................................  26

Lassen, The Psychologist as an Expert Witness in 
Assessing Mental Disease or Defect, 50 A.R.A. J.
239 (1 9 6 4 ) ........................................................................  1

Levitt, The Psychologist: A Neglected Legal Re­
source, 45 Ind . L. J. 82 (1969)...............................  1

Louisell. The Psychologist in Today’s Legal World,
39 Mi n n . L. Rev. 235 (1955) ...................................  1

Nash, Parameters and Distinctiveness of Psycho­
logical Testimony, 5 PROF. PSYCHOL. 239 (1974) 2

Note, Psychologist’s Diagnosis Regarding Mental 
Disease or Defect Admissible on Issue of In­
sanity, 8 V ill. L. Rev. 119 (1 9 6 2 ) ............................ 2

Pacht, Kuehn, Bassett & Nash, The Current Status 
of the Psychologist as an Expert. Witness, 4
Prof. Psychol. 409 (1 9 7 3 ) .............................................  2

Perlin, The Legal Status of the Psychologist in the 
Courtroom, in T he Role of the  Forensic Psy­
chologist 26 (G. Cooke, ed. 1980) ........................  2

SadolT, Working with the Forensic Psychologist, 
in T he Role of T he Forensic Psychologist 
106 (G. Cooke, ed. 1980) 28

D. S hapiro, Psychological Evaluation and E x­
pert Testimony (1984) 28

Wilson. Prison As An Environment in T he Role 
of T he F orensic Psychologist 279 (G. Cooke, 
ed. 1980) ......................................................   25

TABLE OF AUTHORITIES—Continued



IX

TABLE OF AUTHORITIES—Continued
Page

J. Zisk in , 2 Coping W ith Psychiatric and Psy­
chological Testimony , (3d ed. 1981)................. 24

Ziskin, Giving Expert Testimony: Pitfalls and  
Hazards for the Psychologist in Court, in THE 
Role Of T he Forensic Psychologist 98 (G.
Cooke, ed. 1980) ............. ..................  24,29



BRIEF OF AM ICI CURIAE  
AMERICAN PSYCHOLOGICAL ASSOCIATION

AND
FLORIDA PSYCHOLOGICAL ASSOCIATION 

IN SUPPORT OF PETITIONER

INTEREST OF AMICI CURIAE

The interest of amici curiae is set out in the attached 
Motion for Leave to File Brief Amici Curiae, a t pp. i-iii, 
supra.

INTRODUCTION AND SUMMARY OF ARGUMENT

This case raises two related issues regarding the extent 
to which the Eighth and Fourteenth Amendments pro­
hibit the execution of condemned prisoners who are pres­
ently mentally incompetent, and, assuming such a pro­
hibition, the minimum procedural safeguards that must 
be observed in determining such individuals’ competency 
to be executed. Determination of appropriate procedures 
for competency evaluations of condemned prisoners in­
volves recognition and understanding of the roles played 
by mental health professionals in this context.' Because

1 Throughout this brief, amici use the term “mental health pro­
fessional” to refer to professional psychologists, psychiatrists and 
other clinicians qualified by law to evaluate and present opinion 
testimony on the mental health issues relevant to capital cases. 
Expert testimony in this area by psychologists, for example, has 
been admissible in most jurisdictions since the 1940s, see Jenkins 
v. United States, 307 F.2d 637 (D.C. Cir. 1962) (en banc) ; Hidden 
v. Mutual Life Insurance Co., 217 F.2d 818 (4th Cir. 1954) ; and 
People v. Hawthorne, 293 Mich. 15, 291 N.W. 205 (1940) ; see 
generally T. Blau, T he P sychologist as E xpert W itness (1984); 
D. S hapiro, P sychological E valuation and E xpert T estimony 
(1984), and has met with almost unanimous endorsement by com­
mentators. See Bonnie and Slobogin, The Role of Mental Health 
Professionals in the Criminal Process: The Case For Informed Spec­
ulation, 66 Va. L. Rev. 427 (1980) ; Lassen, The Psychologist as an 
Expert Witness in Assessing Mental Disease or Defect, 50 A.B.A. J. 
239 (1964); Levitt, The Psychologist: A Neglected Legal Resource, 
45 IND. L. J. 82 (1969) ; Louisell, The Psychologist in Today's Legal



2

of amici’s strong interest and expertise in the various 
methodologies for cognitive assessment that are integral 
components of all competency evaluations, including those

World, 39 Min n . L. Rev. 235 (1955) ; Nash, Parameters and Distinc­
tiveness of Psychological Testimony, 5 P rok. PSYCHOL. 239 (1974) ; 
Pacht, Kuehn, Bassett & Nash, The Current Status of the Psycholo­
gist as an Expert Witness, 4 PROF. PSYCHOL. 409 (1973); Perlin, 
The Legal Status of the Psychologist in the Courtroom, in T he 
Role of the  F orensic P sychologist 26-36 (G. Cooke, ed. 1980); 
Note, Psychologist's Diagnosis Regarding Mental Disease or De­
fect Admissible on Issue of Insanity, 8 VlLL. L. Rev. 119 (1962) ; 
Comment, The Psychologist as an Expert Witness, 15 Ka n . L. Rev. 
88 (1966). For further discussion of this point, see Briefs for 
Amicus Curiae American Psychological Association in Smith v. 
Sielaff, No. 85-5487; and Ake v. Oklahoma, No. 83-5424.

Although some of the Court’s decisions in cases involving mental 
health issues have referred to psychiatrists and not psychologists 
or other appropriately trained and licensed mental health profes­
sionals, see, e.g., Ake v. Oklahoma, 105 S.Ct. 1087 (1985) ; Barefoot 
v. Estelle, 463 U.S. 880 (1983) ; Estelle v. Smith, 451 U.S. 454 
(1981) ; and Parham v. J.R., 442 U.S. 584 (1979), other decisions 
properly have recognized that psychologists stand on an equal foot­
ing with psychiatrists. See, e.g., Youngberg v. Romeo, 457 U.S. 
307, 323 n.30 (1982) (“professional decisionmaker’’ includes persons 
with “appropriate training” in “psychology”) ; Blue Shield v. 
McCready, 457 U.S. 465 (1982) (health plan subscriber denied 
reimbursement for psychologist’s fees has standing to sue for con­
spiracy to exclude psychologists from psychotherapy market); Vitek 
v. Jones, 445 U.S. 480, 491 (1980) (“ [the state]’s reliance on the 
opinion of a designated physician or psychologist . . . .”) ; and 
Addington v. Texas, 441 U.S. 418, 429 (1979) (". . . which must 
be interpreted by expert psychiatrists and psychologists”). Amici 
assume that holdings referring solely to psychiatrists were not in­
tended to imply that rules deemed appropriate in those cases 
for psychiatrists would be inappropriate for psychologists or other 
appropriately trained and licensed mental health professionals. 
However, these ambiguities have led lower courts to read Ake 
and analogous cases too narrowly. See, e.g., Lindsey v. State, 254 
Ga. 444, 330 S.E. 2d 563 (1985) (Ake not satisfied by providing 
defense with access to examination by a mental health expert other 
than a psychiatrist). To dispel any confusion that these ambiguities 
may have engendered among lawyers and judges on this point, 
amici urge the Court to use a more neutral and descriptive phrase 
such as “mental health professional.” This phrase has been adopted



3
provided under Florida law,'* * amici believe that their views 
regarding this latter issue will be useful to the Court’s 
deliberations.

Although amici do not address in this brief the question 
whether States are prohibited by the Eighth Amendment’s 
prohibition against cruel and unusual punishment, or by 
the Due Process Clause of the Fourteenth Amendment, 
from carrying out the death penalty against individuals 
who are presently incompetent, for the purpose of present­
ing their argument, amici will assume that, whether as a 
substantive constitutional right or as an interest entitled 
to federal due process protections, Florida constitutionally 
may not execute mentally incompetent individuals.'1

Under either the enhanced reliability standard for 
imposing capital punishment under the Eighth Amend­
ment or the procedural due process standards of the Four­
teenth Amendment, the procedures followed by the State 
of Florida in evaluating Petitioner’s competency to be

by the American Bar Association, on the recommendation of an 
interdisciplinary task force composed of lawyers, psychologists, psy­
chiatrists and other mental health professionals, including formal 
representatives of the American Psychological Association and the 
American Psychiatric Association, in its recently adopted Criminal 
Justice Mental Health Standards. See ARA Standards for Criminal 
Justice ( lSS-C), Standard 7-1.1 et seq.

- Fla. Stat. § 922.07(2') provides that a condemned prisoner is in­
competent to be executed upon a determination by the Governor, 
after professional examination of the prisoner, that the prisoner 
lacks “the mental capacity to understand the nature of the death 
penalty and the reasons why it was imposed upon him." This test 
requires the assessment of primarily cognitive abilities.

* Amici's decision not to address the question whether Petitioner 
has a constitutional right not to he executed while mentally incom­
petent reflects only their judgment that, in light of their special 
expertise, amici's views would be most useful to the Court’s de­
liberations on the issues addressed herein. Nevertheless, amici 
believe that the arguments presented to the Court by Petitioner’s 
counsel on the underlying constitutional issues are soundly based 
in the prior holdings of the Court.



4

executed were inadequate. Although Petitioner docs not 
now challenge the validity of his conviction and sentenc­
ing, because of the consistent recognition by this Court of 
the “qualitative difference” between the penalty of death 
and other punishments, California v. Ramos, 4(13 U.S. 
992, 998 (1983); Lockett v. Ohio, 438 U.S. .r)8(l. 004 
(1978) (opinion of Burger, C.J.) ; Woodson v. North 
Carolina, 428 U.S. 280, 305 (1976) (plurality opinion), 
the requirement that procedural safeguards be observed 
to ensure accuracy and reliability in the guilt and sen­
tencing phases of capital proceedings should be extended 
to proceedings in the post-sentencing phase in which com­
petency for execution is evaluated.4 5

Because of the critical role that adversarial debate 
plays in the “truth-seeking” process, Gardner v. Florida, 
430 U.S. 349, 360 (1977) (plurality opinion), amici urge 
this Court, whenever there is reasonable cause to believe 
that a condemned prisoner lacks the mental competency 
to be executed, and there is a factual dispute as to that 
issue, to require a full and fair adversarial hearing on the 
issue of his or her competency." Amici further urge the 
Court’s recognition, as a requirement of due process, of 
the effective assistance of mental health professionals, 
and the appointment of such professionals in the case of 
indigents, to conduct appropriate examinations of con­
demned prisoners and to assist them and their attorneys 
in evaluating and preparing all issues relevant to the 
accurate determination of their present competency to

4 See also Gardner r. Florida, 430 U.S. 349, 357 (1977) (plurality 
opinion) (and cases cited therein). See tjrnernlly Alee v. Oklahoma, 
105 S.Ct. 1087, 1099 (1985) (Burger, C. J., concurring).

5 Because the constitutional right not to be executed while in­
competent is no less important than the right not to be tried while 
incompetent, the threshold inquiry for requiring a hearing on a 
condemned prisoner’s competency to be executed should be whether 
there is “reasonable cause” to question, or “sufficient doubt” as to, 
the prisoner’s competency. See generally Drope v. Missouri, 420 
U.S. 162, 173, 180 (1975) ; Pate v. Robinson, 383 U.S. 375 (1966).



be executed. Finally, amici urge the Court to require 
written statements by decisionmakers specifying the facts 
relied upon in determining a condemned prisoner’s com­
petency to be executed, to ensure that proper procedural 
and substantive standards are observed by the State in 
competency proceedings. The procedures provided by Fla- 
Stat. S 922.07 for determining the competency of con­
demned prisoners failed in all of these respects to pro­
vide Petitioner adequate protection of his constitutional 
right not to be executed at this time.

Apart from the general right of condemned prisoners 
in Petitioner’s circumstances to the assistance of a men­
tal health professional, the mental status examination of 
Petitioner which was conducted by the psychiatrists ap­
pointed by the Governor pursuant to Fla. Stat. 5 922.07 
failed to meet the relevant professional standards of 
mental health professionals engaged in forensically-ori- 
ented clinical evaluations.

As a result of these procedural inadequacies and pro­
fessional deficiencies, the determination that Petitioner 
is competent to be executed fails the enhanced reliability 
and heightened procedural fairness standards of the 
Eighth and Fourteenth Amendments.

ARGUMENT

I. CONDEMNED PRISONERS OF QUESTIONABLE 
MENTAL COMPETENCY MAY NOT BE EXE­
CUTED WITHOUT FIRST HAVING THEIR COM­
PETENCY DETERMINED THROUGH AN ACCU­
RATE AND RELIABLE FACTFINDING PROCEED­
ING.

The question presented by this case is whether the 
constitutional requirement that adequate procedural safe­
guards be observed to ensure accurate and reliable deter­
minations in the guilt and sentencing phases of capital 
punishment should be extended to proceedings whore 
the State determines a condemned prisoner’s competency



6

to proceed with the execution. This Court has recognized 
consistently the special nature of capital cases and has 
construed the Constitution to require adherence to the 
highest standards of procedural fairness in imposing the 
death penalty. Because the death penalty is “unique in 
its severity and irrevocability,” and because of the fun­
damental nature of the individual interest that is at stake 
in death penalty proceedings, the Court has imposed pro­
cedural standards designed to minimize the possibility of 
erroneous determinations in such proceedings. Gregg v. 
Georgia, 428 U.S. 153, 187 (19761 (plurality opinion), 
citing Furman v. Georgia, 408 U.S. 238, 286-91, 306 
(19721 (concurring opinions of Brennan and Stewart, 
J J .l .  See, e.g., Ake v. Oklahoma, 105 S.Ct. 1087, 1099 
(19851 (Burger, C.J., concurring in judgmentl ; Lockett 
v. Ohio, 438 U.S. at 604; Gardner v. Florida, 430 U.S. 
at 357; Woodson v. North Carolina, 428 U.S. at 305.

These standards require individualized consideration of 
all factors relevant to the determination to impose capital 
punishment as a means of ensuring that “the death pen­
alty is not meted out arbitrarily or capriciously,” but 
rather in a consistent and reasoned manner. California 
v. Ramos, 463 U.S. at 992; Lockett v. Ohio, 438 U.S. at 
601; Gregg v. Georgia, 428 U.S. at 188-89." The Court 
has required further that adequate procedural safeguards 
be followed in capital proceedings to ensure the accuracy 6

6 Because “the imposition of death by public authority is so 
profoundly different from all other penalties, . . .” Lockett v. Ohio, 
438 U.S. at 605 (Burger. C. J.) (emphasis added), individuals sub­
ject to capital punishment must be permitted to present any mitigat­
ing evidence that is relevant to the decisionmaker’s determination of 
the appropriateness of capital punishment in their particular cases, 
and such evidence must be considered by the decisionmaker. Wood- 
son v. Worth Carolina, 428 U.S. at 304. Sie Eddings v. Oklahoma, 
455 U.S. 104 (1982). Without informed decisionmaking, “ ‘the sys­
tem cannot function in a consistent and rational manner.’ ’’ Gregg v. 
Georgia, 428 U.S. at 189, quoting the American Bar Association 
Project on Standards for Criminal Justice, Sentencing Alternatives 
and Procedures § 4.1(a), Commentary, p. 201 (App. Draft 1968).



7
of the information used by decisionmakers and the reli­
ability of the determination that “death is the appropri­
ate punishment in a specific case.” Woodson v. North 
Carolina, 428 U.S. at 304, 305.

Although the Court has not had occasion to address the 
specific applicability of these procedural requirements to 
post-sentencing competency proceedings in light of con­
temporary Eighth and Fourteenth Amendment stand­
ards, the constitutional values of consistent, reasoned 
determinations and enhanced reliability in imposing cap­
ital punishment are no less compelling in the context of 
post-sentencing competency determinations." Chief Jus- 7 8

7 The court of appeals’ reliance on Solesbee v. Balkcom, 330 U.S. 
9 (1950), and Caritativo v. California, 357 U.S. 549 (1958), is 
misplaced. See Ford v. Wainwright, 752 F.2d 526, 528 (11th Cir. 
1985). Because these decisions predate significant developments in 
Eighth and Fourteenth Amendment jurisprudence, their applica­
bility in the context of this case is severely limited. First, 
Solesbee and Caritativo did not purport to consider whether the 
Constitution imposed any substantive prohibitions on the execu­
tion by States of mentally incompetent prisoners because the Eighth 
Amendments prohibition against cruel and unusual punishment 
was not applicable to the State until 1962. See Robinson v. Cali­
fornia, 370 U.S. 660 (1962). Second, although Solesbee and 
Caritativo did address the procedural issue of what process was due 
in these circumstances, the requirements of enhanced reliability and 
consistent, reasoned decisionmaking in capital sentencing imposed 
by this Court in Furman in 1972 and its progeny has rendered im­
permissible under the Eighth and Fourteenth Amendments many 
sentencing practices that were approved previously under the Due 
Process Clause. See Lockett r. Ohio. 438 U.S. at 599; Gregg v. 
Georgia, 428 U.S. at 195-96 n.47. Third, Solesbee and Caritativo 
were decided before this Court accorded state-created “objective 
expectation [s'!” the procedural protections of the Due Process 
Clause. Vitek v. Jones, 445 U.S. 480, 489 (1980). See Logan v. 
Zimmerman Brush Co., 455 U.S. 422 (1982) (and cases cited 
therein).

8 In addition to the constitutional values underlying the right 
not to be executed while mentally incompetent, there are several 
bases, recognized historically at common law, for prohibiting the 
execution of mentally incompetent prisoners. Sec gent rail;/ Ford v. 
Wainu-right, 752 F.2d at 531 (Clark, dissenting).



tice Burger’s observation in Lockett v. Ohio regarding 
capital sentencing is even more apt with respect to post- 
sentencing capital determinations: “The nonavailability 
of corrective or modifying mechanisms with respect to an 
executed capital sentence underscores the need for indi­
vidualized consideration [and accurate factfinding | as a 
constitutional requirement [in these proceedings].” 438 
U.S. at 605 (emphasis added).

Assuming the Court recognizes in this case a constitu­
tional right not to be executed while incompetent, “ ‘the 
determination of [prisoners’ competency to be executed] 
is critical, and the minimum requirements of procedural 
due process appropriate for the circumstances must be 
observed.’ ” Vitek v. Jones, 445 U.S. 480, 491 (1980), 
quoting Wolff v. McDonnell, 418 U.S. 539, 558 (1974).' 
This Court consistently has recognized that “ ‘the ade­
quacy of statutory procedures for deprivation of a statu­
torily created (life, liberty or] property interest must 
be analyzed in [federal] constitutional terms.’ ” 445 
U.S. at 490-91, n.6, quoting Arnett v. Kennedy, 416 U.S. 
134. 167 11974) (Powell, J., concurring in part) (and 
cases cited therein). See also Logan v. Zimmerman Brush 
Co., 455 U.S. 422, 432 (1982). Balancing the factors set 
forth in Mathews v. Eld ridge, 424 U.S. 319, 335 (1976), 
as critical to the determination of what process is due, it 
is clear that federal due process demands as heightened *

0 Even where the entitlement is based on a state-ereated right 
rather than a substantive federal constitutional right, the minimum 
due process requirements are “a matter of federal law [and| are 
not diminished by the fact that the State may have specified its 
own procedures that it may deem adequate for determining the 
preconditions to adverse official action.” 115 U.S. at 491. Nor 
does the fact that certain determinations are primarily medical or 
psychological in nature, and that States rely ‘‘on the opinion f s | of 
. . . designated physician[s| or psychologist[s] for determining 
whether the conditions warranting [deprivation of a protected in­
terest] exist],] . . . remove]] the prisoner’s interest from due 
process protection] ] or answer]] the question of what process is 
due under the Constitution.” hi.

8



9

procedural protections in determining present eligibility 
for the death penalty as are required in the initial guilt 
and sentencing phases of capital proceedings.10

Those protections include the opportunity to review and 
challenge the accuracy of information upon which the 
sentencing authority relies in imposing capital punish­
ment, see Gardner v. Florida, 430 U.S. 349 (1977) ; the 
assistance of a competent mental health professional, and 
appointment of such a professional for indigents, “ in 
[the] evaluation, preparation, and presentation of” all 
issues relevant to the defense, Ake v. Oklahoma, 105 
U.S. at 1097; and a written statement by the sentencing 
authority of the evidence relied on and the reasons for 
the imposition of capital punishment, to ensure adherence 
to proper substantive and procedural standards. See 
Gregg v. Georgia, 428 U.S. at 195. These measures, 
which seek to ensure consistency and reliability in the 
imposition of capital punishment, are “a constitutionally 
indispensable part of the process of inflicting the penalty 
of death,” Woodson v. North Carolina, 428 U.S. at 304, 
including the actual execution of the death sentence. The 
absence of these safeguards in the State’s determination 
of competency to be executed creates a constitutionally 
intolerable risk of erroneous deprivation of life.

10 The three factors identified by the Court as relevant to the 
determination of what process is due before an individual may be 
deprived by governmental action of a protected life, liberty or 
property interest are: 1) the private interest that will be affected 
by the governmental action; 2) the governmental interest that will 
be affected if the proposed safeguard is provided; and 3) “the 
probable value of the additional . . . procedural safeguards that are 
sought, and the risk of an erroneous deprivation of the affected 
interest if those safeguards are not provided.” Ake i>. Oklahoma, 
105 S.Ct. at 1004. Sec Mathews v. L'ldriclye, 424 U.S. at 335.



10

A. Accurate And Reliable Factfinding On The Issue 
Of Mental Competency Requires An Adversary 
Hearing Where The Issue Of Competency Is Dis­
puted.

The Due Process Clause requires that before individ­
uals are finally deprived of a constitutionally protected 
interest, they must be provided “some form of hearing” 
in which to present their case and have its merits fairly 
judged. Board of Regents v. Roth, 408 U.S. a t 570-71, 
n.8. The nature of the required hearing, however, “will 
depend on appropriate accommodation of the competing 
interests involved.” Goss v. Lopez, 419 U.S. 565, 579 
(1975). Weighing, under Matheios, the private and gov­
ernmental interests at stake in light of the probable con­
tribution that adversary hearings will make to the con­
sistency and reliability of competency determinations, 
the balance tips overwhelmingly in favor of providing 
condemned prisoners a meaningful opportunity to review 
and challenge the factual bases of the State’s determina­
tions regarding their mental status.

It cannot reasonably be disputed that “ |t]he  private 
interest in the accuracy of a . . . proceeding that places 
an individual’s life . . .  at risk is almost uniquely com­
pelling.” Ake v. Oklahoma, 105 S. Ct. at 1094. Although 
condemned prisoners may have forfeited some constitu­
tional protections by virtue of having been duly convicted 
and sentenced to death, assuming the execution of incom­
petent prisoners is forbidden under federal or state law, 
such prisoners must be considered to possess a “residuum” 
of “life” interest so long as they are incompetent. Thus, 
condemned prisoners of questionable competency retain a 
powerful interest in the reasoned determination, based on 
reliable factfinding, of their competency to be executed.

Likewise, the State has a compelling interest in en­
suring the accuracy and reliability of competency pro­
ceedings. Indeed, the State’s interest in assuring that 
its “ultimate sanction” is not erroneously carried out is 
“profound.” Id. at 1097. The State has additional in­



11
terests in the deterrent and retributive values of enforc­
ing sanctions that have been lawfully imposed by its 
criminal process, unimpeded by delays and additional ad­
ministrative or financial burdens. However, unlike a pri­
vate adversary, the State must temper its interest in effi­
cient enforcement of the death penalty with its larger 
interest in preserving the constitutional integrity of its 
criminal justice system. Id. at 1095.

The safeguard of an adversary hearing, in which pris­
oners are permitted to review and challenge evidence of 
their competency that is adduced by the State, enhances 
substantially the likelihood of accurate determinations of 
competency. Sec, e.tj., Vitek v. Jones, 445 U.S. 480 
(1980); Gardner v. Florida, 430 U.S. 349 (1977). Al­
though providing condemned prisoners with such an op­
portunity may cause delays in the administration of their 
ultimate punishment, those costs are clearly outweighed 
by the benefits of allowing the adversary process to 
sharpen and refine the evidentiary bases on which de­
terminations are made to carry out “this most irrevocable 
of sanctions.” Grcytj v. Georgia, 428 U.S. at 182.

In Gardner v. Florida, the Court held that the Due 
Process Clause required an opportunity for adversarial 
debate on “confidential” presentence reports on which 
the State intended to rely in a capital sentencing pro­
ceeding. Regarding the State’s interest in avoiding de­
lay, the Court stated that delay could be avoided if the 
decisionmaker disregarded any material in the report 
which was contested by the defendant. If, however, the 
contested material was “of critical importance [and 
therefore would be used by the decisionmaker in sentenc­
ing the defendant], the time invested in ascertaining the 
truth would surely be well spent if it makes the differ­
ence between life and death.” Id. at 359-60.

Similarly, the Court cautioned that “consideration 
must be given to the quality, as well as the quantity, of 
the information on which the fdecisionmaker | may rely” 
in imposing the death penalty. Id. at 359. Information



12
that has not been subjected to the “truth-seeking func­
tion” of the adversary process is inherently less reliable 
than information that has been so tested. This is par­
ticularly true with mental health assessments. As the 
Court has noted, mental health professionals “disagree 
widely and frequently on what constitutes mental illness 
[and] on the appropriate diagnosis to be attached to 
given behavior symptoms. . . .” Ake v. Oklahoma, 105 
S.Ct. at 1096. The same uncertainties in mental health 
assessments that the Court has noted in the contexts of 
civil commitment, the insanity defense and incompetence 
to stand t r ia l11 are equally applicable in the context of 
determinations of competency to be executed. Indeed, 
because questions of competency in this context arise only 
after the individual has already been determined to have 
been competent to stand trial, and not insane at the time 
of the offense, the symptoms of mental disorder at this 
stage can be particularly “elusive and often deceptive,” 
and therefore difficult to assess. Solesbee v. Balkcom, 339 
U.S. 9, 12 (1950). Thus, allowing condemned prisoners 
whose competency is questionable to call witnesses, cross- 
examine the State’s mental health experts, and present 
arguments and mental health experts on their own behalf 
is especially necessary to reduce to a constitutionally 
tolerable level the risk of erroneous deprivation of life.

Even where the private interest at stake is less than 
life, the Court has rejected deprivation by the State of 
an individual’s constitutionally-protected interest in the 
absence of an adversary hearing. In Vitek v. Jones, 445 
U.S. 480 (1980), the Court held that a prisoner’s liberty 
interest was violated by his classification as mentally ill 
and involuntary transfer to a mental hospital for psy­
chiatric treatment without adequate procedural protec­
tions. Although recognizing the State’s “strong” interest

11 See generally, Addington v. Texas, 441 U.S. 418, 429-30 (107!)) ; 
O'Connor v. Donaldson, 422 U.S. 563 (1075) ; Crecnirood u. United 
States, 350 U.S. 366, 375-76 (1056) ; Solesbee v. Balkcom, 330 U.S. 
9 (1950).



in segregating and treating mentally ill patients, the 
Court found the prisoner's state-created interest in not 
being “arbitrarily classified as mentally ill and subjected 
to unwanted treatment . . . powerful.” Id. at 495. These 
and other considerations, including the substantial risk 
of error in making the required mental health assess­
ments under the statute, led the Court to require ade­
quate procedural safeguards in making these deter­
minations.12 Recognizing that the inquiry in Vitek was 
essentially medical . . . ‘turnfing] on the meaning of 

the facts which must be interpreted by expert psychia­
trists and psychologists,’ ” the Court stated that “ ft]he 
medical nature of the inquiry, however, [did] not justify 
dispensing with due process requirements.” 445 U.S. at 
495, quoting Addington v. Texas, 441 U.S. 418, 429 
(1979). Rather, “ [i]t is precisely [6ccazi.se ofj ‘[t]he 
subtleties and nuances of psychiatric diagnoses' that . . . 
adversary hearings [are required].” Id., quoting 441 
U.S. at 430 (emphasis added).

B. Accurate And Reliable Factfinding On The Issue 
Of Mental Competency Requires The Assistance Of 
Mental Health Professionals In The Evaluation And 
Preparation Of AH Issues Relevant To Determining 
Condemned Prisoners’ Competency.

A ruling that due process requires access to competent 
mental health professionals to examine and meaningfully 
assist prisoners during competency hearings is an appro­
priate accommodation of the competing interests of the 
State and condemned prisoners. This requirement nec­
essarily includes the appointment of mental health pro­
fessionals to assist indigent condemned prisoners of ques­
tionable competency. See Ake v. Oklahoma, 105 S.Ct.

‘-The procedural safeguards included, inter alia, a hearing at 
which: the State is required to disclose the evidence on which it 
intends to rely; prisoners are given an opportunity to be heard in 
person and to present contrary documentary evidence; and prisoners 
are provided an opportunity to present testimony by their own 
witnesses and to confront and cross-examine witnesses called by 
the State.

13



14

1087 (1985). Both the State ami condemned prisoners 
have a very substantial interest in the fair and accurate 
adjudication of condemned prisoners’ competency to be 
executed. The State has additional interests, however, in 
avoiding the financial and administrative burdens that 
providing condemned prisoners with the assistance of 
mental health professionals would impose on its crimi­
nal justice system. However, in light of the compelling 
interests of both the State and the individual in accurate 
dispositions, it is clear that those governmental interests 
are “not substantial.” Ake v. Oklahoma, 105 S.Ct. at 
1095.

Balancing these private and governmental interests in 
light of “the probable value of [the assistance of a men­
tal health professional], and the risk of erroneous depri­
vation of the [prisoner’s life] if [such a safeguard] is 
not provided,” the weight favors providing the assistance 
of independent mental health professionals to prisoners of 
questionable competency. Ake v. Oklahoma, 105 S.Ct. at 
1094. Providing such prisoners with independent mental 
health professionals who will conduct appropriate exami­
nations. challenge the findings of State experts, and pro­
vide other relevant assistance will contribute to the ad­
versarial debate and thereby enhance the decisionmaker's 
ability to make a reliable and informed determination.

In 4̂Are, the Court, recognizing the “pivotal role” that 
mental health professionals have come to play in criminal 
proceedings, acknowledged that when “the defendant’s 
mental condition [is] relevant to . . . the punishment he 
might suffer, the assistance of a [mental health profes­
sional] may well be crucial to the defendant’s ability to 
marshal his defense.” 105 S.Ct. at 1095. In such cases, 
because “the risk of inaccurate resolution of sanity issues 
[would be] extremely high” without such assistance, fail- 
adjudication at the guilt and sentencing phases of capi­
tal cases requires, “at a minimum, [that the State] as­
sure the defendant access to a competent [mental health 
professional] who will conduct an appropriate examina­



15

tion and assist in the evaluation, preparation, and pre­
sentation of the defense.” Id. a t 1097.

As in the guilt and sentencing phases of criminal pro­
ceedings, when a condemned prisoner’s mental condition 
is relevant to the determination whether to proceed with 
a death sentence, the assistance of a mental health pro­
fessional becomes critical to the fair and accurate deter­
mination of the prisoner’s competency to be executed. A 
mental health professional retained or appointed to assist 
the prisoner will be able to examine the prisoner and 
conduct relevant tests over the period of time necessary 
to produce an accurate mental assessment, will provide 
the trusting relationship necessary to evoke the candid 
and spontaneous disclosures upon which accurate assess­
ment depends, and will provide meaningful assistance to 
the prisoner and counsel in reviewing and responding to 
the reports of the State’s mental examiners.1'1

The client-clinician relationship is particularly impor­
tant in this context because the symptoms of psychological 
distress caused by the imminence of one’s execution may 
not always manifest themselves in obviously aberrational 
behavior. In addition, because the psychological stress 
that accompanies living under a sentence of death can 
cause condemned prisoners to develop defensive mecha­
nisms to cope with the stress, the mental health profes­
sional must be sensitive to the degrading nature of the 
forces—and their physical, psychological, and emotional 
impact—that uniquely press upon prisoners awaiting ex-

u Although Petitioner was evaluated by two mental health 
professionals, the reports of those evaluations were neither sub­
mitted to the Governor, nor referred to in the state-appointed 
psychiatrists’ reports to the Governor, for hi3 consideration in de­
termining Petitioner’s competency to be executed. Moreover, the 
absence of an adversarial proceeding precluded any meaningful 
assistance to Petitioner by these professionals, e.g., helping to pre­
pare the cross-examination of the State psychiatrists, giving testi­
mony on behalf of Petitioner.



edition.™ To assess fully the effects that these defensive 
mechanisms have on a condemned prisoner’s rational and 
factual understanding of his or her fate, i.e., competency 
to be executed, the mental health professional must pos­
sess the time and the skill essential to developing a re­
lationship with the prisoner that will provide the neces­
sary access to the prisoner’s psychological composition.

The provision of such assistance to prisoners of ques­
tionable competency will enhance significantly the likeli­
hood of an accurate determination of the prisoner’s com­
petency to be executed: “By organizing [the prisoner’s] 
mental history, examination results and behavior, and 
other information, interpreting it in light of their ex­
pertise, and then laying out their investigative and 
analytic process to the [decisionmaker], [mental health 
professionals] for each party enable the [decisionmaker] 
to make its most accurate determination of the truth of 
the issue before [it].” .4A:e v. Oklahoma, 105 S.Ct. at 
1096.* 13 * 15

Thus, a proper balancing of interests, “where the con­
sequence of error is so groat, the relevance of responsive 
psychiatric testimony so evident, and the burden on the 
State so slim, . . . requires access to a [mentall examina­
tion on relevant issues, to the testimony of the [mental 
health professional], and to assistance in preparation at 
the [post-sentencing competency evaluation] phase.” Id. 
at 1097.

16

14 For example, a common reaction to the extreme anxiety and 
stark terror that many prisoners experience when confronted with 
the imminence of their death is the suppression of that reality by a 
variety of psychological defense mechanisms, including denial by 
delusion formation, denial by minimizing their predicament, projec­
tion, and obsessive preoccupation with religious, intellectual or philo­
sophical matters. See generally Rluestone & McGahee, Reaction to 
Extreme Stress: Impending Death by Execution, 119 Am . J.
PsycHIAT. 393 (1962).

13 This is especially true given the frequency and breadth of
disagreement that may obtain in mental evaluations of the same
individual. See p. 12, supra.



C. Accurate And Reliable Factfinding On The Issue Of 
Mental Competency Requires Decisionmakers To 
Specify In Writing The Factors Relied Upon In 
Making Competency Determinations.

The requirement that decisionmakers in capital cases 
specify in writing the factors relied upon in reaching 
their decision to impose capital punishment has been 
recognized by the Court as necessary “to ensure that 
death sentences are not imposed capriciously or in a 
freakish manner.” Cretin v. Georgia, 428 U.S. at 195.1,1 
The l equii ement of written findings forces decision­
makers to focus more closely on the reasons underlying 
their decisions, and thereby enhances the likelihood of 
compliance with the required standards for imposing or 
proceeding with capital punishment.1' Written findings 
also provide an adequate basis for a collateral chal­
lenge to the constitutionality of competency proceedings, 
as well as for meaningful appellate review in those juris­
dictions where such review is provided. In this way, the 
requirement of a written record satisfies the require­
ments of reasoned, consistent decisionmaking and en­
hanced reliability which have been articulated by this 
Court as the touchstones of constitutionally adequate de­
cisionmaking in capital cases.

These protections are no less critical when the interests 
of condemned prisoners are balanced against those of the 16 17

16 Even in the noncapital context, the Court has recognized in 
certain circumstances that the proper balancing of individual inter­
ests and governmental interests demands a “written statement by 
the factfinder as to the evidence relied on and the reasons for [ the 
deprivation of the individual's protected interests 1 Vitek v. Jones, 
445 U.S. at 495.

17 See also Gardner v. Florida. 430 U.S. at 361 (“[ l i t  is important 
that the record . . . disclose . . . the considerations which motivated 
the death sentence in every case in which it is imposed. Without 
full disclosure of the basis for the death sentence, the Florida capital 
sentencing procedure would be subject to the defects which resulted 
in the holding of unconstitutionality in Furman v. Georgia.") 
(footnote omitted).

17



18

State. Both the State and the questionably competent 
prisoners whose lives are at stake have a “compelling 
interest” in the accurate and reliable assessment of the 
prisoners’ mental competency. Ake v. Oklahoma, 105 
S.Ct. a t 1095. The State’s additional interests in finan­
cial and administrative economy are taxed only incre­
mentally by requiring the decisionmaker to provide a 
written statement of the evidence relied on in deter­
mining the prisoner’s competency. Indeed, the absence 
of such a statement, should the prisoner challenge the 
constitutionality of the State’s determination in col­
lateral or appellate proceedings, could require the State 
to bear the expense of an additional fact-finding hear­
ing. Thus, on balance, due process requires that decision­
makers support their determinations that condemned 
prisoners of questionable competency are fully competent 
to be executed with written statements of their findings 
of fact.

II. THE PROCEDURES FOLLOWED HY THE STATE 
OF FLORIDA IN EVALUATING PETITIONER’S 
COMPETENCY TO BE EXECUTED FAILED TO 
PROVIDE AN ACCURATE AND RELIABLE DE­
TERMINATION ON THE ISSUE.

Pursuant to Fla. Stat. § 922.07, “ [wlhen the Governor 
is informed that a person under sentence of death may 
be insane, he shall stay execution of the sentence and 
appoint a commission of three psychiatrists to examine 
the convicted person.” $ 922.07(1). The Governor is re­
quired under the statute to instruct the examiners in 
writing “to determine whether [the condemned person] 
understands the nature and effect of the death penalty 
and why it is to be imposed upon him.” Id. If, after re­
ceiving the reports from the commission, the Governor 
determines that the convicted person “has the mental 
capacity to understand the nature of the death penalty 
and the reasons why it was imposed upon him, he shall 
issue a w’arrant to the warden directing him to execute 
the sentence at a time designated in the w arrant.” 
§ 922.07(2).



19

Following these procedures, on October 20, 1983, Peti­
tioner’s counsel advised the Governor that Petitioner’s 
mental condition had deteriorated to the point where his 
sanity was questionable, and sought the appointment of 
a commission of psychiatrists.18 Three psychiatrists were 
appointed and, on December 19, 1983, as provided by 
statute, they examined Petitioner “with all three psychi­
atrists present at the same time [along with Petitioner’s] 
[cjounsel . . . and the state attorney . . . $ 922.07(1).
The “examination” consisted of a one-half hour inter­
view with Petitioner in the prison courtroom,1” conversa­
tions with the prison’s medical and correctional staff, in­
spection of Petitioner’s cell, and, in some cases, review 
of materials provided by Petitioner’s counsel20 which con-

18 Petitioner had been examined by a psychiatrist in July, 1981 
in connection with unsuccessful clemency proceedings. Because of 
the deterioration of Petitioner’s mental state. Petitioner’s counsel 
arranged for Petitioner to continue seeing that psychiatrist on a 
therapeutic basis. Appendix to Petition for Certiorari (hereafter 
“App.”) at 94a. In August, 1982, Petitioner discontinued therapy 
because he believed the psychiatrist was conspiring against him in 
concert with the Ku Klux Klan. Id. In January, 198.'$, because 
Petitioner wanted to dismiss his appeals and submit to execution. 
Petitioner's counsel sought evaluation of Petitioner’s mental condi­
tion by a second psychiatrist in order to assess Petitioner’s com­
petency to make such a decision. Id. at 97a. Petitioner refused to 
see this psychiatrist—and anyone else, including family and coun­
sel—until November, 1983. Id.

19 Also present during the interview were “one or two correctional 
officers’’ and two paralegals. Petition for Writ of Certiorari at 37.

20 Although Petitioner’s counsel provided these materials to the 
commission psychiatrists as background information prior to their 
interview, whether, and to what extent, these materials were 
actually reviewed by the psychiatrists is unclear. Two of the three 
commission members stated in their reports that they had reviewed 
the materials, but their reports did not even address, much less 
account for, the pervasive evidence in those materials of Petitioner’s 
delusional processes. See App. 160a-l(iGa. The third psychiatrist 
refused to accept the materials until after the interview, and one day 
before he submitted his report to the Governor. He made no refer­
ence in his report to having reviewed the materials. See id. at 
160-62a.



tained portions of the trial transcript, copies of Petition­
er's correspondence, reports of two earlier psychiatric 
exams, and Petitioner’s medical history. Included in the 
reports of the two prior examiners, both of whom ex­
amined him over a significantly longer period than the 
commission psychiatrists and one of whom had been 
Petitioner’s treating therapist, were the following ob­
servations: “ [Petitioner’s] mental disorder is severe
enough to substantially affect [his] present ability to 
assist in the defense of his life[ ; ] ” “ [Petitioner’s] psy­
chotic disorder [is] so severe that it suicidally compels 
him to embrace his own death[ ; ] ” and “ [Petitioner] lacks 
the mental capacity to understand the reasons why [the 
death penalty] is being imposed on him.” App. at 155a, 
158a.-1

20

31 See n.18, supra. The first psychiatrist, Petitioner’s treating 
therapist, concluded, based on: 1) four in-person evaluations be­
tween July, 1981 and August, 1982; 2) taped conversations and 
letters between Petitioner and his family, friends and attorneys; 
3) interviews with other individuals having had direct observa­
tions of Petitioner’s behavior during that period; 4) psychological 
and psychiatric evaluations by the prison mental health stall; and 
5) prison medical records, that Petitioner suffers from:

a severe, uncontrollable, mental disease which closely re­
sembles “Paranoid Schizophrenia With Suicidal Potential”. 
This major mental disorder is severe enough to substantially 
affect Mr. Ford’s present ability to assist in the defense of his 
life.
It should be noted that Mr. Ford's ambivalence around whether 
to continue his legal fight is in and of itself an indication of a 
psychotic disorder so severe that it suicidally compels him to 
embrace his own death.

App. at 155a.
The second psychiatrist concluded after a three-hour interview 

that Petitioner suffers from “schizophrenia, undifferentiated type, 
acute and chronic,” as a result of which,

while he does understand the nature of the death penalty, he 
lacks the mental capacity to urulerstand the reasons why it is 
being imposed on him. His ability to reason is occluded, dis­
organized and confused when thinking about his possible execu­
tion. He can make no connection between the homicide he com-



21
After their examination, notwithstanding the prior 

evaluations of Petitioner, all three psychiatrists reported 
to the Governor that although Petitioner suffered from 
a “severe adaptational disorder,” -  “psychosis with para­
noia,” 23 or “serious emotional problems . . . [so] pro­
found [] . . .  it forces Tone] to put a ‘psychotic’ label 
on [Petitioner],” 24 he “ha[d] enough cognitive function­
ing” to satisfy Florida’s competency standard.25 On April 
30, 1984, without any further proceedings, the Governor 
signed Petitioner’s death warrant.

Measured against the constitutionally-mandated stand­
ard in capital cases of enhanced reliability and consist­
ent, reasoned determinations, the procedures by which 
Petitioner’s competency was evaluated were grossly inade­
quate. First, although § 922.07 (1) authorizes the ap­
pointment of counsel to “represent” condemned prisoners 
during competency evaluations, there is no provision in 
the statute for adversary participation by prisoners’

mittrd and the death penalty. Even when I pointed this con­
nection out to him he laughed derisively at me. He sincerely 
believes that he is not going to be executed because he owns 
the prisons, could send mind waves to the Governor and con­
trol him. President Reagan’s interference in the execution 
process, etc.

App. at 158a (emphases added).
~  App. at 161a. The “disorder,” however, “seem[edl contrived 

and recently learned” and, therefore, not a “natural insanity.” Id. 
at 162a. But see earlier report of non-commission psychiatrist:

[Petitioner] is suffering from schizophrenia, undifferentiated 
type, acute and chronic. The delusional material, the free- 
floating and disorganized ideational and verbal productivity, 
and his flatness of afreet are the highlights of the signs leading 
to this diagnosis of psychosis. The possibility that he could 
be lying or malingering is indeed remote in my professional 
opinion.

Id. at 100a (emphasis added).
23 Id. at 164a.
24 Id. at 166a.
23 Id. at 164a.



22
counsel or by independent mental health experts.10 The 
absence of any adversarial debate on the issue of Peti­
tioner’s competency deprived the Governor of the oppor­
tunity to test the accuracy of the conclusions reached by 
the three state-appointed psychiatrists.

The opportunity to challenge the commission’s findings 
was especially critical to a proper determination by the 
Governor of Petitioner’s competency because, although all 
of the examiners agreed that Petitioner suffers from 
some form of serious mental disorder, they disagreed as 
to the severity of his mental disorder. Moreover, the 
commission’s conclusions differed radically from the con­
clusions of two other psychiatrists who earlier had per­
formed more extensive and comprehensive examinations 
of Petitioner, with no indication that these earlier con­
clusions had been considered by the three State psychia­
trists or reconciled with the conclusions they reported to 
the Governor. Because Petitioner was not given an oppor­
tunity to respond to the findings of the commission ex­
aminers, the quality of those findings was untested by the 
“truth-seeking function” of the adversary process, and 
were inherently unreliable. See Gardner v. Florida, 430 
U.S. at 359. This conclusion is especially warranted be­
cause the decisionmaker—the Governor—was a lay per­
son who lacked the specialized knowledge and training 
necessary to evaluate the conflicting evidence, a t least 
without the benefit of an adversarial hearing. In view 
of these procedural deficiencies, the risk of error to which 
the determination of Petitioner's competency was sub­
jected is constitutionally intolerable.

Like the absence of a hearing, the failure to provide 
Petitioner with the meaningful assistance of a competent 
mental health professional during these proceedings pre- 20

20 Indeed, in construing this statute, the Florida Supreme Court 
approved the Governor's “publicly announced policy of excluding all 
advocacy on the part of the condemned from the process of deter­
mining whether a person under a sentence of death is insane.” 
Goode v. Wainwright, 448 So.2d 999, 1001 (Fla. 1984).



eluded the Governor’s individualized consideration of all 
relevant factors and substantially undermined the possi­
bility of accurate factfinding. Although Petitioner’s men­
tal condition was evaluated by two psychiatrists prior to 
the § 922.07 proceeding, the failure to provide for mean­
ingful participation in the proceedings by these profes­
sionals resulted in the exclusion of highly probative evi­
dence on the issue of Petitioner’s competency. Not only 
were the comprehensive reports of these professionals not 
considered by the Governor,-7 but he was not even myde 
aware of the existence of these reports by the commis­
sion psychiatrists. Nor were the commission psychia­
trists required to explain, deny, or otherwise account for 
the extensive documentation by these professionals of 
Petitioner s psychotic delusional processes, and their con­
clusions that Petitioner’s severe psychosis “suicidally 
compels him to embrace his own death” and that he 
“lacks the mental capacity to understand the reasons 
why [the death penalty] is being imposed on him.” App. 
at 155a, 158a. Thus, the Governor’s decision was based 
upon partial and unchallenged information of highly 
questionable accuracy. This exclusion of highly relevant 
information is inconsistent with the constitutional re­
quirement that the decisionmaker in capital proceedings 
“possess[] the fullest information possible concerning the 
defendant’s life and characteristics,” including any miti­
gating evidence. Lockett v. Ohio, 438 U.S. at 003, quoting 
Williams v. New York, 337 U.S. 241, 247 (1949).

The failure to provide Petitioner with an adversary 
proceeding in which he could be assisted meaningfully by 
competent mental health professionals is especially egre­
gious in view of the nature of the “examination” con­
ducted by the state-appointed psychiatrists. As noted 
above, their “examination” consisted of a one-half hour 
interview with Petitioner in the prison courtroom, con- 27

27 There is no provision in the statutory scheme of § 022.07 for 
submitting materials other than those prepared by the commission 
psychiatrists to the Governor.

23



24

versations with the prison staff, inspection of Petition­
er’s cell and cursory review, at best, of background ma­
terials containing Petitioner’s medical history and re­
ports of other psychiatric evaluations. These procedures 
fall significantly below the generally accepted standard of 
care necessary to produce reliable forensic mental health 
evaluations.2®

First, “ [b]ecause psychological states are complex and 
fluctuate, a single and relatively brief examination is 
. . . inadequate.” J. Zis k in , 2 Co ping  W ith  P sychiatric  
a nd  Psychological T e stim o n y  13 (3d ed. 1981). See 
also Ziskin, Giving Expert Testimony: Pitfalls and Haz­
ards for the Psychologist in Court, in T he  Role of t h e  
F orensic  P sychologist 101 (G. Cooke, ed. 1980) (“ [A] 
single examination even of two to three hours duration, 
is insufficient . . . .  [M laterial elicited in a single ses­
sion might be quite different a week later in the same 
individual . . . .  [I ]t is advisable to spread the examina­
tion over at least two and preferably three sessions.” ). 
Manifestations of schizophrenia “are present one day and 
not the next. They are revealed to one examiner and not 
to another . . . .  A complete account of a patient’s symp- 
tomotology, therefore, demands that he be observed over 
an extended period of time.” L. B ellak  & L. Loeb , T he  
S chizo ph renic  S yndro m e , 337-38 (19G9), cited in Hays 
v. Murphy, 663 F.2d 1004, 1012 n.13 (10th Cir. 1981) 
(discussion of competency to bring habeas proceeding on 
one’s own behalf). A one-half hour examination fails to 
provide a sufficient basis for an accurate and reliable 
professional opinion as to a condemned prisoner’s compe­
tency to be executed.

Proper clinical evaluation also requires the establishment 
of a trusting relationship with the examiner, in a physical 
setting that is conducive to evoking the spontaneous and 28

28 See also the critical reviews of these procedures by two 
nationally-known forensic psychiatrists. App. at l(!'Ja, 187a. See 
generally nn.30, 32, infra.



25

candid exchange with the subject that forms the prin­
cipal basis for the evaluation. Standard 4.1 of the Stand­
ards for Providers of Psychological Services, requires 
psychologists to “promote the development in the service 
setting of a physical, organizational, and social environ­
ment that facilitates optimal human functioning.” See 
oluo APA, Specialty Guidelines for the Delivery of Serv­
ices by Clinical Psychologists at Guideline 4, 36 A m. 
Psychol. 640 (1981). The likelihood that, given Peti­
tioner’s paranoid condition, the courtroom was inherently 
“oppressive” to Petitioner and thereby increased the dif­
ficulty of establishing trust with his examiners, is sub­
stantial. See generally Wilson, Prison <4.s An Environ­
ment in The Role Of T he Forensic Psychologist, 
supra at 279. This impression might have been rein­
forced further by the presence of correctional officers, 
and numerous other “strange” individuals—including the 
three psychiatrists—all observing him during the same 
brief time period. Finally, the very short time period 
made it extremely unlikely that any of the commission 
psychiatrists would be able to establish sufficient rap­
port with Petitioner to evoke reliable data on which to 
base a valid assessment of his mental condition.29 30

29 The Interpretation of this Standard provides in pertinent part: 
As providers of services, psychologists have the responsibility 
to be concerned with the environment of their service unit, 
especially as it affects the quality of service, but also as it im­
pinges on human functioning . . . .  Physical arrangements and 
organizational policies and procedures should be conducive to 
the human dignity, self-respect, and optimal functioning of 
users, and to the effective delivery of service.

APA, Starulards for Providers of Psychological Services, 32 Am. 
Psychol. 495 (1977).

•10 These criticisms were made also by the forensic psychiatrists 
who reviewed the commission psychiatrists’ procedures:

The conditions under which the interview was conducted, in­
cluding the amount of time spent interviewing [Petitioner], 
were unlikely to produce sufficient data for reliable forensic



In addition to the clinical interview, forensically- 
oriented mental health professionals generally recjuire 
appropriate physical examinations and certain standard 
psychological test batteries before rendering an opinion 
on an individual’s mental competency. See generally T. 
Blau, T he Psychologist As E xpert Witness (1984); 
H. Kaplan, A. F reeman & B. Saddock, A Comprehen­
sive Textbook Of Psychiatry/III  (3d ed. 1980). Fur­
ther psychological assessment was especially important 
in this case because of the difficulties of establishing ver­
bal communication with Petitioner.31 Had psychological 
tests been administered to Petitioner, the commission psy­
chiatrists would not have had to rely “largely on infer­
ential deduction from physical behavioral observation,” 
App. at 160a, and other nonverbal indicia, which “greatly 
enhance the opportunity for error and misinterpretation

evaluation. The interview was conducted in a courtroom, and 
a “room full” of people, including- one or more correctional 
officers, was present. The environment was thus not conducive 
to the informal, intimate setting which is generally necessary 
to establish sufficient rapport for a psychiatric interview. In 
the setting described it would have been extremely difficult for 
(Petitioner] to fully reveal his problems or the nature of his 
illness. The thirty minute effort to establish communication 
under the conditions already noted was also inadequate. On 
rare occasions some patients can be accurately diagnosed in 
such a brief period. (Petitioner!’s diagnosis, however, was 
not easily made due to the unusual nature of his behavior and 
his unusual method of communicating.

App. at 171a. See also id. at 192a.
31 One of the commission psychiatrists reported that “(t]he in­

terview was conducted with great difficulty from a verbal point of 
view, since the inmate responded] to questions in a stylized, man- 
neristic doggerel. Thus, an answer to a question might be ‘beckon 
one, come one, Alvin one, Q one, kind one.’ ’’ App. at 160a.

Another reported that “(Petitioner ] did not initially respond but 
did so after hi3 lawyers encouraged him. Most of his responses to 
the questions were bizarre. He continued to respond by jibberish 
talk such as ‘break one’, ‘God one’, ‘heaven one.’ ” Id. at 163a.

26



on the part of the examining [clinician],” in assessing 
Petitioner’s competency

Psychological tests, which measure a variety of factors 
including intelligence, personality and psychopathology,33

27

33 See Critique of Forensic Psychiatrist at App. 100a:
[One of the commission psychiatristsj indicated that by his 
ability to “read between the lines” of verbal responses which 
[Petitioner] did give that [the psychiatrist) was of the 
opinion that [Petitioner] knew exactly what was going on[,] 
but if one relies on the transcript of the interchange between 
the psychiatrist and [Petitioner] then there is great doubt, at 
least to this observer, that there was a rational interchange be­
tween [Petitioner] and the psychiatrist, because [Petitioner] 
gave irrelevant responses to questions put to him although 
the words he used had some association with the questions 
asked. [Petitioner]’s responses do not indicate he had a ra­
tional understanding of the process and in fact some of [Peti­
tioner]^ responses were interpreted by [the psychiatrist] to 
mean [Petitioner] maintained the belief that he would be spared 
by the angel of death and this delusional belief is in keeping 
with other delusional beliefs that [Petitioner] manifested to 
others in his correspondence.

33 See, e.g., the Wechsler Adult Intelligence Scale (“WAIS”), 
the Minnesota Multiphasic Personality Inventory (“MMPI”), the 
Rorschach Test and the Thematic Apperception Test (“TAT”). 
The WAIS is the most widely accepted intelligence test for adults. 
It is administered individually by the exai’iner, and consists of 
11 sub-tests, six comprising the Verbal Scale and five comprising 
the Performance Scale. The Verbal Scale measures general infor­
mation, memory, vocabulary, mathematical skills and practical judg­
ment. The Performance Scale measures visual-motor skills as well 
as more verbally-oriented cognitive skills.

The MMPI is the most commonly used and accepted non-projective 
test of personality. It consists of 550 affirmative statements to 
which the testee responds “true”, “false”, or “cannot say . The 
MMPI items range widely in content and include such areas as 
health, psychosomatic symptoms, neurological disorders, and motor 
disturbances; sexual, religious, political, and social attitudes; edu­
cational, occupational, family, and marital questions; and many 
well-known neurotic or psychotic behavior manifestations, such as 
obsessive and compulsive states, delusions, hallucinations, ideas 
of reference, phobias, and sadistic and masochistic trends. The test



permit an accurate assessment of the examinee’s func­
tional abilities that are critical to a proper competency 
determination. In addition, psychological testing may 
be helpful in demonstrating pathology that is not evident 
clinically. See Cooke, The Role of the Psychologist in 
Criminal Court Proceedings, in T he Role of the Fo­
rensic Psychologist, supra a t 96.“ Psychological tests 
may also be useful in assessing the issue of malingering 
a concern stated by one of the commission psychiatrists 
bee D. S hapiro, Psychological Evaluation and Ex­
pert Testimony 188 (1984). The use of psychological 
tests ot intelligence and cognitive capacity is particularly 
important in jurisdictions such as Florida where the test 
for^ mental capacity focuses exclusively on the individ­
ual’s ability to understand the nature and effect of the 
death penalty and why it is to be imposed on him. In

28

yields a profile analysis based on the interrelationships of the 
scores on ten clinical scales.

The Rorschach Test and the TAT, which consist of unstructured 
tasks designed to encourage the free play of the examinee’s fanta­
sies, are among the most common projective tests. The test stimuli, 
Rorschach ink blots or ambiguous depictions in tho TAT, are in­
tentionally vague, requiring the examinee to produce responses that 
reveal psychological facts about himself or herself that otherwise 
may be hidden, e.g., needs, anxieties, fears, personality structure. 
These tests are also helpful in assessing the intellectual skills 
and judgment of the examinee. See generally L. Cronuach, Essen­
tials of Psychological Testing (4th ed. 1984); A. Anastasi, 
Psychological Testing (5th ed. 1982).

W Most psychological tests are designed to be essentially objective 
and standardized measures of samples of behavior. A. Anastasi 
Psychological T esting (5th ed. 1982). One influential forensic 
psychiatrist has commented that psychological tests may be a "more 
objective method of evaluation than the clinical interview. Sadoff, 
Working with the Forensic Psychologist, in T he Role ok T he 
Forensic P sychologist 106, 109 (G. Cooke, ed. 1980).

See also Cooke, An Introduction to Basic Issues and Concepts in 
Forensic Psychology, in T he Role of the F orensic Psychologist, 
supra at 7 (‘ The use of tests provides the psychologist with a tool 
that  may give him data not available to the psychiatrist . . . .” ).

30 See App. at 162a. See also n.22.



29
such jurisdictions, requiring assessment by psychologists, 
who are specially trained to assess intellectual ability and 
cognitive capacity, is critical to a reliable and accurate 
determination of mental competency. Notwithstanding 
the standard use of these procedures in clinical evalua­
tions, and their particular appropriateness to the evalua­
tion of Petitioner, the state-appointed psychiatrists failed 
to refer Petitioner to a competent psychologist for a 
comprehensive psychological assessment.

The final major respect in which the commission’s re­
ports fell below professionally acceptable standards for 
reliable forensic evaluations is their failure to account 
for the substantial data, including the opinions of two 
other psychiatrists who had performed more extensive 
and comprehensive examinations of Petitioner, that were 
contrary to the commission’s findings. In their reports 
to the Governor, the commission psychiatrists marie no 
reference at all to the grandiose delusions from which 
Petitioner suffers, which bear directly on his ability to 
understand why he is to be executed—the delusions 
that he has the power to free his family and others 
held hostage in the State Prison by the Ku Klux 
Klan, to fire and prosecute the officers responsible for the 
crisis, to replace the Justices of the Florida Supreme 
Court, and to stop his own execution. Nor did they ac­
count for the professional assessments of the prior ex­
aminers. This deliberate ignoring of the conclusions of 
other practitioners without further explanation severely 
undermines the credibility of the commission’s reports. 
See generally Ziskin, Giving Expert Testimony: Pitfalls 
and Hazards for the Psychologist in Court, in T he Role 
of the Forensic Psychologist, supra at 101.

These professional shortcomings of the state-appointed 
psychiatrists’ evaluations of Petitioner’s mental condition, 
together with the absence of adversarial debate on their 
findings, the failure to permit Petitioner to submit expert 
evaluations by his own witnesses, and the failure to 
require the Governor to make a written record of the



30
evidence that he relied on in determining that Petitioner 
is competent to be executed, created a constitutionally 
intolerable risk that Petitioner will be deprived erro­
neously of his constitutional right not to be executed 
while insane. As a result, the procedures followed by 
the State of Florida in determining Petitioner’s compe­
tency to be executed failed to meet the heightened stand­
ards of procedural fairness required in capital cases by 
the Eighth and Fourteenth Amendments.

CONCLUSION
For the reasons stated above, the judgment of the 

court of appeals should be reversed.

Respectfully submitted,

Laurel Pyke Malson 
Donald N. Bersoff

(Counsel of Record)
Bruce J. E n n is , Jr.

E n n is , Friedman , Bersoff 
& E wing

1200 17th Street, N.W.,
Suite 400

Washington, P C. 20036
(202) 775-8100 

Attorneys for Amici Curiae
January 30, 1986