Alexander v. Holmes County Board of Education Motion for Leave to File Brief Amicus Curiae and for Immediate Consideration Thereof and Brief Amicus Curiae for the National Education Association

    UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 89-4003

JOSEPH M. GIARRATANO,
Appellant,

v.
RAYMOND K. PROCUNIER, 
Director, Virginia Department 
of Corrections,

Appellee.

On Appeal from the United States District 
Court for the Eastern District of Virginia

BRIEF FOR APPELLANT

Gerald T. Zerkin, Esq.
Karen L. Ely-Pierce, Esq.
Linden Tower Professional Center 
Suite 108
2nd & Franklin Streets 
Richmond, Virginia 23219 
(804) 788-4412
Edward L. Wolf, Esq.
ARNOLD & PORTER
1200 New Hampshire Avenue, N.W. 
Washington, D.C. 20036 
(202) 872-8818

Julius L. Chambers, Esq. 
Richard H. Burr, Esq.
99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 219-1900

J. Gray Lawrence, Jr., Esq. 
HOWELL, DAUGHERTY,

BROWN & LAWRENCE 
One East Plume Street 
Post Office Box 3929 
Norfolk, Virginia 23514 
(804) 623-7334

Counsel for Appellant



TABLE OF CONTENTS

PAGE
STATEMENT OF ISSUES ..................... 1

COURSE OF PRIOR PROCEEDINGS............................  2
STATEMENT OF MATERIAL FACTS.................  4

A. Facts Underlying the Claims 
Pertaining to Competence to 
Stand Trial and the Unconsti­
tutional Consideration of 
Aggravating and Mitigating
Circumstances................................. 4

(i) Introduction.......................  4
(ii) Mr. Giarratano's confessions.......  8
(iii) Pretrial psychiatric 

evaluation and the 
emergence of an 
unswerving desire to
be convicted and sentenced
to death.........................  1q

(iv) The guilt-innocence phase of
Mr. Giarratano's trial............ 14

(v) The sentencing phase of
Mr. Giarratano's trial.............  16

(vi) Death row, 1979-1983: a
period of torment followed
by a metamorphosis........ :........ 18

(vii) The first, limited recognition
that Mr. Giarratano was incompetent 
during his trial proceedings......  21

(viii) The full recognition that
Mr. Giarratano was incompetent
in relation to every aspect
of his trial proceedings.........  2 3

(ix) The fundamental absence of 
evidence establishing that 
Mr. Giarratano is guilty or 
that he poses a threat of
dangerousness in the future........  28

1



(x) Mr. Giarratano's inability to
disclose the information that was 
necessary to construct his defense 
was the product of mental and
physical disabilities..............  33

B. Facts Underlying the Estelle v.
Smith Claim.............................  36

ARGUMENT
I. MR. GIARRATANO HAS ALLEGED FACTS WHICH 

DEMONSTRATE (A) THAT HE WAS INCOMPETENT 
TO STAND TRIAL SINCE HE COULD NOT CONSULT 
WITH COUNSEL IN THE WAY THE CIRCUMSTANCES 
OF HIS CASE REQUIRED THAT HE BE ABLE TO,
AND (B) THAT HIS COMPETENCE TO STAND TRIAL 
WAS NOT ADEQUATELY EXPLORED —  DUE TO THE 
DEFAULTS OF THE PERSONS CHARGED WITH 
EVALUATING HIS COMPETENCE, OR OF DEFENSE 
COUNSEL, OR BOTH —  AND THUS, THE DISTRICT 
COURT'S SUMMARY DISMISSAL OF THESE CLAIMS 
CANNOT BE SUSTAINED.........................
A. The Claim That Mr. Giarratano Was

Tried When He Was Incompetent..........
B. The Claim That Mr. Giarratano's Right

to an Adequate Inquiry Into 
Competency Was Violated By The 
Defective Inquiry in His Case..........

C. The Errors in the District Court's
Judgment................................

II. PSYCHIATRIC TESTIMONY INTRODUCED AGAINST MR.
GIARRATANO AT THE SENTENCING PHASE OF HIS 
TRIAL TO PROVE HIS "FUTURE DANGEROUSNESS" 
WAS CONSTITUTIONALLY INADMISSIBLE, AND THIS 
COURT SHOULD ADDRESS THIS CLAIM ON ITS MERITS 
NOTWITHSTANDING TRIAL COUNSEL'S FAILURE TO 
OBJECT.......................................
A. Affirmative prosecutorial use of 

statements elicited from a defen­
dant during a pretrial mental 
evaluation, and of opinions based 
on such statements, for the purpose 
of proving an aggravating 
circumstance at a capital 
s e n t e n c i n g  proceeding, is 
prohibited by the Fifth and 
Fourteenth Amendments..................

3 8

40

45

48

54

54

11



B. Psychiatric testimony offered in 
mitigation by Mr. Giarratano did 
not open the door to the 
prosecution's affirmative use of 
Dr. Ryans' testimony..............

C. Even if Dr. Ryans' testimony was 
not barred by the Fifth Amendment, 
it w a s  c o n s t i t u t i o n a l l y  
inadmissible under the Sixth 
Amendment.........................

D. This Court should address 
Giarratano's constitutional 
objection to Dr. Ryans' testimony 
on its merits because he has shown 
both "cause" for, and prejudice 
resulting from, the procedural 
default in state court......... ........

III. THE FINDING OF "FUTURE DANGEROUSNESS' AS THE 
SOLE AGGRAVATING CIRCUMSTANCE IN MR. 
GIARRATANO'S CASE FAILED TO SUITABLY DIRECT 
AND LIMIT HIS SENTENCER'S DISCRETION........
A. The Constitutionally Necessary

Narrowing Function of Aggravating 
Circumstances...................... .

B. The Failure of Virginia's "Future
Violent Crimes" Aggravating 
Circumstance to Suitably Direct and 
Limit the Sentencer's Discretion.......

C. The Egregious Failure of the Future
V iolent Crimes Aggravating 
Circumstance to Suitably Direct and 
Limit the Sentencing Court's 
Discretion in Giarratano's Case........

IV. THE SENTENCER UTILIZED THE INDISPUTABLY 
MITIGATING EVIDENCE OF MR. GIARRATANO'S 
MENTAL AND PHYSICAL ILLNESS AS AGGRAVATING 
EVIDENCE TO SUPPORT THE FINDING OF FUTURE 
DANGEROUSNESS, IN VIOLATION OF THE EIGHTH AND 
FOURTEENTH AMENDMENTS..................
A. The Death Penalty May Not Be 

Imposed Based Upon A Finding Of

56

61

64

70

70

72

79

83

i n



Future Dangerousness Where The 
Factual Predicate Of That Finding 
Lies In The Defendant's Mental 
Illness, Disorder Or Defect, Or In
His History Of Substance Abuse..........  84

B. The Penalty Of Death Is Excessive 
And Disproportionate In Relation To 
Petitioner's Degree Of Culpability.......  90

CONCLUSION..............................................  91
CERTIFICATE OF SERVICE.................................. 93

xv



Ake v. Oklahoma, 470 U.S. 68 (1985) .......................  41,59,61
Barefoot v. Estelle, 463 U.S. 880 (1983) ..................  73
Bassett v. Commonwealth, 222 Va. 844 (1981) ...............  75,78
Beaver v. Commonwealth, 232 Va. 521 (1987) ...............  77,78
Blackledge v. Allison, 431 U.S. 63 (1977) ................  48
Briley v. Commonwealth, 221 Va. 532 (1980) ...............  78
Briley v. Commonwealth, 221 Va. 563 (1980)................. 78
Briley v. Bass, 750 F.2d 1238 (4th Cir. 1984)..............  78
Buchanan v. Kentucky, 107 S. Ct. 2906 (1987) ..............  57,62
California v. Brown, 479 U.S. 538 (1987) .................  90
Caudill v. Peyton, 368 F.2d 563 (4th Cir. 1966) ...........  48
Clanton v. Muncy, 845 F.2d 1238 (4th Cir. 1988)...........  77
Clanton v. Commonwealth, 223 Va. 41 (1982) . .*............  78
Clark v. Commonwealth, 220 Va. 201 1979) .................  75,78
Clozza v. Commonwealth, 228 Va. 124 (1984) ...............  78
Coleman v. Commonwealth, 226 Va. 31 (1983) ...............  78
Coley V. State, 231 Ga. 829 204 S.E.2d 612 (1974) ........  7
Collins v. Auger, 577 F.2d 1107 (8th Cir. 1978) ...........  60
Cuevas v. State, 742 S.W. 2d 331

(Tex. Cr. App. 1987) .................................. 81
Delong v. Commonwealth, 234 Va. 357 (1987) ...............  78
Drope v. Missouri, 420 U.S. 162, 171 (1975) ..............  40,42,

............. .....................................  45,47,49
Dugger v. Adams, 57 U.S.L.W. 427 (Feb. 28, 1989) .........  68

TABLES OF AUTHORITIES
CASES PAGES

v



CASES PAGES
Dusky v. United States, 362 U.S. 402 (1962) 
Eddings v. Oklahoma, 455 U.S. 104 (1982)... 
Edmonds v. Commonwealth, 229 Va. 303 (1985)
Estelle v. Smith, 451 U.S. 454 (1981)___

Evans v. Lewis, 855 F. 
(11th Cir. 1988) .

2d 491

Evans v. Commonwealth, 222 Va. 766 (1981)
Evans v. Commonwealth, 228 Va. 468 (1984)
Fisher v. Commonwealth _____ Va. ____,

374 S.E. 2d 46 (1988) ...................
Frye v. Commonwealth 231 Va. 370 (1986) ......
Giarratano v. Commonwealth, 220 Va. 1064 (1980)
Gibson v. Zahradnick, 581 F.2d 75 

(4th Cir. 1978) cert denied.
439 U.S. 996 (1979) ......................

Godfrey v. Georgia, .446 U.S. 420 (1980) ......
Gray v. Commonwealth, 233 Va. 313 (1987) .....
Gregg v. Georgia, 428 U.S. 153 (1976) ........
Hoke v. Commonwealth, ___ Va. __, S.E. 2d ____,

No. 880268 (Va., Mar. 3, 1989) ...........
Ingram v. Peyton, 367 F.2d 933 (4th Cir. 1966)
Jurek v. Texas, 428 U.S. 262 (1970) ..........
Jurek v. Texas, 428 U.S. 262 (1976) ..........
Kibert v. Peyton, 383 F.2d 566,

(4th Cir. 1967) ............. .............
LeVasseur v. Commonwealth, 225 Va. 564 (1983) .
Lockett v. Ohio, 438 U.S. 586 (1978) .........
Lowenfield v. Phelps, ___ U.S. ___, 108”

S.Ct. 546 (1988)..........................

......  40,52-52

.....  86

.....  76,78

.....  54,56,58,
59,60,61,62,63,65

.....  86,88

......  78
78

.....  78

.....  78

.....  2,78-79

.....  54,56,59,65

.....  ■ 77,79,90

.....  78

.....  70,77

.....  78

......  4

.....  73,76

.....  58

.....  48

.....  76,78

.....  86

.....  72

vx



CASES PAGES
Machibroda v. United States, 368 U.S. 487

(1962) ................................................ 48
Mackall v. Commonwealth, ____ Va. ___,

372 S.E. 2d 759 (1988) ...............................  78
Mason v. Commonwealth, 219 Va. 1091 (1979) ...............  78
Mathis v. Zant, 704 F. Supp. 1062

(N.D.Ga. 1989) ........................................ 87,88
Maynard v. Cartwright, ___ U.S. ____, 108

S. Ct. 1853 (1988)   Passim
McCleskey v. Georgia, ___U.S. ___, 107

S.Ct. at 1756 (1987) .................................. 71
Middleton v. Dugger, 849 F.2d 491

(11th Cir. 1988) ................................  86-87
Miller V. Florida, 373 So. 2d 882 (Fla. 1979).............  85-86,88
O'Dell v. Commonwealth, 234 Va. 672 (1988) ................  78
Owsley v. Peyton, 368- F. 2d 1002 (4th Cir. 1966) ........... 48
Pate v. Robinson, 383 U.S. 375 (1966) .....................  45,59
Payne v. Commonwealth, 233 Va. 460 (1987) ................  78
Peterson v. Commonwealth, 225 Va. 289 (1983) .............  78
Pope v. Commonwealth, 234 Va. 114 (1987) ...... ........... 78
Pouncey v. United States, 349 F.2d 699

(D.C. Cir. 1965) ...................................... 43
Poyner v. Commonwealth, 229 Va. 401 (1985) ...............  78
Pulley v. Harris, 465 U.S. 37 (1984) ......................  71
Quintana v. Commonwealth, 224 Va 127 (1982) ...............  6,7,13
Rees v. Peyton, 384 U.S. 312 (1966) .............. ........ 50
Roberts v. Louisiana, 431 U.S. 633 (1977) ................  88

Rougeau v. State 738 S.W. 2d 651
(Tex. Cr. App. 1987) ................................... 81

- vii -



CASES PAGES
Satterwhite v. Texas ______ U.S. ________,

108 S. Ct. 1792 (1988) ................................. 64
Skipper v. South Carolina, 476 U.S. 1 (1986) ..............  61
Smith v. Commonwealth, 219 Va. 455 (1978) ................  73,74,78,79
Smith v. Murray, 477 U.S. 527 (1986) ......................  64,65,67
Smith v. Estelle, 445 F. Supp. 647

(N.D. Tex 1977) . .......................................  65
Stamper v. Commonwealth, 220 Va. 260 (1979) ..............  75,78,81
Stockton v. Commonwealth, 227 Va. 124 (1984) .............  78
Stout v. Commonwealth, ___Va. _____,

376 S.E.2d 288 (1988) .................................  78
Strickland v. Washington, 466 U.S. (1984) ................  42,67
Townes v. Commonwealth, 234 Va. 397 (1987) ................  78
Townsend v. Sain, 372 U.S. 293, (1963) ...................  48
Tuggle v. Commonwealth, 230 Va. 99 (1985) ................  7 8
Tuggle v. Commonwealth, 230 Va. 313 (1987) ................  78
Turner v. Bass, 753 F.2d 342, 351 (4th Cir. 1985) .........  77
Turner v. Commonwealth, 221 Va. 513 (1980)................  78
United States v. Leonard, 609 F.2d 1163

(5th Cir. 1980) ....................................... 60
United States ex rel. Brown v. Fogel

395 F. 2d 291 (4th Cir. 1968) ........................  4
Wainright v. Sykes, 433 U.S. 72 (1977) ...................  64,67
Watkins v. Commonwealth, 229 Va. 469 (1985) ...............  78
Williams v. Commonwealth, 234 Va. 168 (1987) .............  78
Williams v. Lynaugh, 809 F.2d 1063 (5th Cir. 1987) ........  57
Wilson v. United States, 391 F.2d 460 (D.C. Cir. 1968) .... 43
Woodson v. North Carolina, 428 U.S. 280 (1976) ...........  6

Zant v. Stephens, 462 U.S. 862 (1983) ....................  70,77,84,85

- viii -



Statutes
Va. Code Ann. § 19.2 - 264.2 ........    72,75,79,80
Va. Code Ann. § 19.2 - 264.3:1 (G)..........................  60
Va. Code Ann. § 19.2 - 264.4 (c).................. ......... 72,75,79
Virginia Acts of Assembly, Ch. 492 (1977)................... 73

Other Authority
Bedau and Radelet, Miscarriages of Justice 

in Potentially Capital Cases, 40 Stan. L
Rev. 21 (Nov. 1987) .................................... 7,49

Bennett and Sullwold, Competence to Proceed:
A Functional and Context-Determinative 
Approach, 29 J For Sci, 1119
(Oct. 1984) ............................................ 42,47

Black, Capital Punishment: The Inevitability
of Caprice and Mistake (1974) ................. ........ 84

Note, Incompetency to Stand Trial,
81 Harv. L. Rev. 455 (1967) ............................... 41

Note, Mental Illness as Aggravating
Circumstances in Capital Sentencing, 
89 Colum. L. Rev. 291 (1989) ...... 84,86

IX



STATEMENT OF ISSUES
1(a). Whether a person whose mental and physical dis­

abilities prevented him at trial from disclosing to his attorney 
how he came to believe that he committed two murders despite the 
absence of any memory for the crime, how and why he confessed 
thereafter, and why he became so driven to kill himself or be 
executed —  in a case where there is almost no independent 
evidence corroborating the confessions —  is entitled to an 
evidentiary hearing on his claim of incompetence to stand trial?

1(b). Whether a pretrial inquiry into competence to stand 
trial is adequate under the Due Process Clause where there is 
evidence not taken into account by the evaluating psychiatrist 
of the defendant's inability to remember the events of the crime 
and of the defendant's overwhelming suicidal thinking and 
behavior, and where defense counsel's difficulties in obtaining 
information and cooperation from his client are never revealed 
and evaluated by the court or the court's appointed expert?

2. Whether psychiatric opinion tending to establish 
"future dangerousness," developed on the basis of an interview 
with the defendant without appropriate warnings or notice to 
counsel, can be constitutionally admissible where the defendant's 
psychiatrist offers mental disability evidence solely as a 
mitigating circumstance and not as rebuttal of "future dangerous­
ness?"

1



3. Whether Virginia's unlimited and unconstrained 
application of the "future dangerousness" aggravating cir­
cumstance violates the principles of Maynard v. Cartwright and 
leads to the unguided and arbitrary capital sentencing of someone 
like petitioner?

4. Whether utilization of the indisputably mitigating 
evidence of petitioner's mental and physical illness as aggravat­
ing evidence to support the finding of "future dangerousness" 
comports with the Eighth and Fourteenth Amendments?

COURSE OF PRIOR PROCEEDINGS
On May 22, 1979, • the petitioner Joseph Giarratano was 

convicted in a bench trial in the Circuit Court for the City of 
Norfolk, Virginia of capital murder in the death of Michelle 
Kline and of first degree murder in the death of Barbara Kline. 
On August 13, 1979, Mr. Giarratano was sentenced to death. 
Thereafter, the Virginia Supreme Court affirmed the conviction 
and sentence. Giarratano v. Commonwealth. 220 Va. 1064, 266
S.E.2d 94 (1980).

A State habeas corpus proceeding was then undertaken. The 
Circuit Court denied relief in two separate orders, entered May 
26, 1981 and November 13, 1981. The Virginia Supreme Court found 
"no reversible error" in the Circuit Court's judgment and denied 
Mr. Giarratano's petition for appeal on November 30, 1982.

Federal habeas corpus proceedings were begun thereafter in 
the United States District Court for the Eastern District of 
Virginia. The habeas petition was amended twice, and the "Second

2



Amended Petition for Writ of Habeas Corpus" became the operative 
pleading for Mr. Giarratano. On October 1, 1985, the District 
Court denied relief on all claims except the claim that Mr. 
Giarratano was incompetent to participate in the sentencing 
portion of his capital trial. Thereafter, on June 25, 1986, the 
court denied relief on this claim as well and entered final 
judgment on the petition. Entry of the final judgment was 
stayed, however, to permit Mr. Giarratano to present his 
competency claim to the state courts.

A second state habeas corpus proceeding was then pursued by 
Mr. Giarratano. On July 9, 1987 the Circuit Court denied the 
petition summarily, and on June 17, 1988, the Virginia Supreme 
Court refused the petition for appeal.

Mr. Giarratano then sought leave to amend his federal 
petition in order to present to the District Court his fully 
developed claims concerning his competence to be tried —  not 
limited to his sentencing trial but focused upon his entire 
trial. By order of December 6, 1988, the District Court denied 
Mr. Giarratano leave to amend on the ground that there was no 
merit to the claims he sought to have amended into the petition. 
Final judgment was entered, a certificate of probable cause was 
granted, and a timely notice of appeal was filed.

3



STATEMENT OF MATERIAL FACTS

A. Facts Underlying the Claims Pertaining to Competence to
Stand Trial and the Unconstitutional Consideration of
Aggravating and Mitigating Circumstances^
(i) Introduction
The case of Joe Giarratano is by no means typical. It is a 

case which, at trial, was "open and shut." There was a detailed 
confession, there was physical evidence that seemed to cor­
roborate the confession, and while there was some question about 
Mr. Giarratano's impulsiveness and impaired self-control due to 
some mental disorder and the longstanding and acute effects of 
alcohol and drug consumption, the question did not rise to the 
level of a substantial defense. Personally, Mr. Giarratano was 
depressed and suicidal. However, his history appeared to be one 
of violence, and his threats to the staff at Central State 
Hospital, where he was sent for pretrial evaluation, confirmed 
that he posed a threat of dangerousness for the future.

In the ten years since his trial, Mr. Giarratano's case has 
become anything but an open and shut case. The first four-and- 
one-half years on death row were tumultuous for him. During 
those years, he continued to be very suicidal, he was tormented

1 As we explain, infra at 48-49, the District Court denied 
Mr. Giarratano's competency claims without an evidentiary 
hearing. Accordingly, this Court must treat the allegations of 
fact pertaining to this claim as true. See United States ex rel. 
Brown v. Fogel. 395 F.2d 291 (4th Cir. 1968); Ingram v. Pevton. 
367 F.2d 933 (4th Cir. 1966).

4



by psychotic hallucinations and delusions and bizarre thinking, 
and was torn apart by profound anger at himself and feelings of 
worthlessness. In late 1983, however, with the therapeutic 
intervention and counseling of Marie Deans, a very different Joe 
Giarratano began to emerge. The torment of psychotic processes 
subsided, feelings of self-worth began to grow, and —  most 
important for purposes of his case —  he began to develop some 
perspective on his life and, thereafter, on the crime for which 
he had been convicted and sentenced to death.

Gradually, Mr. Giarratano began to talk about things that 
were important. First, he began talking about his life: about 
the unspeakable horrors inflicted upon him by his mother and 
stepfather from early childhood through late adolescence, about 
the drug trafficking and drug traffickers that infested his 
childhood home, about the ridicule and abuse inflicted upon him 
by his mother's drug trafficking friends with his mother's 
consent, about the gnawing feelings of loneliness and isolation 
and worthlessness, which first led him to consume alcohol and 
drugs at the age of eleven and which pushed him to abuse these 
substances continually for the next ten years of his life, and 
about his first suicide attempt at the age of fifteen. In the 
course of talking about his life, he also began to talk about the 
people who knew him —  adolescent friends in Jacksonville and 
adult friends in Norfolk and elsewhere. Contact with these 
people confirmed Mr. Giarratano's extraordinary drug usage, but 
it also revealed something else: that Mr. Giarratano was not a

5



violent person, that he was instead a "really good person," who 
"would reach out to help other people," and who was "a good 
friend."

Finally, Mr. Giarratano began to talk about things that he 
had never been able to talk about before: what his actual 
memories were of the crime and why he confessed to it. His 
actual memory was of "waking up" in the murder victims' apartment 
and finding them dead. Frightened, in a drug and alcohol stupor, 
unable to think what else might have happened, Mr. Giarratano 
came to believe that he had killed Michelle and Barbara Kline. 
He had no memory of killing them, but in his damaged mental and 
physical state, he was especially vulnerable to blaming himself 
for the murders and for coming to believe that he had committed 
them. What followed thereafter was a period of consolidation, 
during which he became absolutely certain that he was the 
murderer, that he was irredeemably evil, and that he should die. 
He gave a detailed confession to the Norfolk police, in which he 
accepted the detail of the crime as they suggested them, and he 
thereafter did all he could to assure that he would be convicted 
and sentenced to death. He revealed none of his thought proces­
ses to his lawyer, because he had no ability to take a step back 
and see what was happening. He was totally immersed in his own 
irrational processes. He was, in short, "'the deluded instrument 
of his own conviction."' Culombe v. Connecticut. 367 U.S. 568, 
581-582 (1961) (quoting 2 Hawkins, Pleas of the Crown 595 (8th 
ed. 1824)).

6



With these revelations, Mr. Giarratano's counsel began for 
the first time to examine the other components of the state's 
case of guilt against Mr. Giarratano. What was found was at 
first astounding, and then shocking. The state's evidence apart 
from Mr. Giarratano's confessions was virtually non-inculpatory, 
even when subjected to cursory examination. When examined 
critically and subjected to investigation, the state's evidence 
lost all of its inculpatory gloss. In short, counsel for Mr. 
Giarratano have found that, apart from his own confession, there 
is no evidence tending to show that Mr. Giarratano killed 
Michelle and Barbara Kline.

It is against this background that the Court must evaluate 
Mr. Giarratano's claims related to his competence to stand trial. 
As implausible as it may seem at first blush, the facts suggest 
quite strongly that because of incompetency, an innocent person 
has confessed to crimes he did not commit. Such a thing is, to 
be sure, exceedingly rare, but it has happened in at least a 
handful of other cases. See. e.g.. Bedau & Radelet, Miscarriages 
of Justice in Potentially Capital Cases. 40 Stanford L. Rev. 21, 
116, 140, 160, (Nov. 1987) (cases of John Fry, Camilo Leyra, and 
Joseph Shea).

In sum, the case of Joe Giarratano is truly a modern-day 
odyssey, and like the odyssey of Ulysses, it is not a simple 
story. It is, however, unlike the story of Ulysses, a true 
story, which deserves a fair hearing.

7



(ii) Mr. Giarratano1s confessions
At 3:20 a.m. on February 6, 1979, Joe Giarratano walked up 

to Deputy Sheriff Charles Wells in the Greyhound station in 
Jacksonville, Florida. Wells, who was a deputy in the Jackson- 
ville-Duval County Sheriff's Department, was providing security 
in the bus terminal and at that time was eating breakfast. JA 
203. Mr. Giarratano asked Deputy Wells if he' could talk with 
him, Wells said that he could, and Giarratano then said "that he 
had killed two women in Norfolk, Virginia, and wanted to turn 
himself in." JA 203-204. Mr. Giarratano "appear[ed] to be 
rational" at that moment to Deputy Wells. JA 207. On further 
questioning, Mr. Giarratano told Deputy Wells that "the lady in 
Norfolk . . . owed him a thousand dollars and she refused to pay 
and an argument ensued and he killed her." JA 206. He also told 
Deputy Wells that "after he had killed the lady ... her daughter 
became excited and started to scream, so he strangled her and 
raped her." JA 207.

Within the next hour, Mr. Giarranto was questioned by two 
other Jacksonville deputies, Mooneyham and Baxter. He gave the 
same explanation of why he killed Barbara Kline which he had 
given to Deputy Wells (an argument over $1,000), JA 209, but he 
also told Deputies Mooneyham and Baxter how he killed Barbara 
Kline: by "pick[ing] up [a] kitchen knife and stabb[ing] her 
three or four times." Id. Mr. Giarratano then explained that 
"Michelle Kline was there and began to scream, and he strangled



her." JA 210. He mentioned nothing about sexually assaulting 
her. Id.

Mr. Giarratano's most detailed confession was given two days 
later, on February 8, 1979, to Norfolk detectives Mears and 
Whitt. JA 455-461. In this confession, Mr. Giarratano explained 
that he had lived with Barbara Kline in her apartment in Norfolk 
for three or four weeks, but that he had moved out three days 
before the murders. JA 456-457. He said that Michelle admitted 
him into the apartment at about 8:00 p.m. on Sunday night 
(February 4, 1979). JA 457. He was under the influence of four 
grams of Dilaudid. Id. He and Michelle talked for a while and 
then Michelle began massaging his neck and "rubbing up against" 
him. JA 458. They went into the bedroom, Mr. Giarratano tried 
to persuade Michelle to have sex with him, but she refused. Id. 
Thereafter,

[S]he started to leave the room and I grabbed 
her and jerked her back in there and threw 
her on the bed and she thought I was just 
joking around. She unbuttoned her top. I 
started taking off her pants. She started 
fighting and resisting me and screamed. I 
told her to shut up and I raped her. After I 
finished she started hollering and screaming 
and I told her to shut up, she wouldn't so I 
strangled her with my hands.

Id. Mr. Giarratano then threw a blanket over Michelle and left 
the apartment. Id. He returned, however, because he "noticed 
the lights were on in the house." Id. While he was still in the 
apartment, Barbara returned. JA 459. Mr. Giarratano heard her 
banging on the door. Id. Thereafter,

9



I grabbed a knife out of the kitchen and I 
waited by the wall in the living room and she 
unlocked the door and came up and I jumped 
out and was going to run down the stairs [.]
[S]he started screaming and I stabbed her.

Id.2 Mr. Giarratano then left the apartment, locking the "bottom
door" (the ground level entry door, which led to the stairs to
the Klines' second floor apartment). JA 460. After walking a
considerable distance, he took a taxi to the bus station, where
he boarded a bus to Jacksonville at 6:00 a.m. Id.

(iii) Pretrial psychiatric evaluation and the emergence of 
an unswerving desire to be convicted and sentenced to 
death

Approximately one week after he gave this confession, 
following his return to Norfolk from Jacksonville, Mr. Giarratano 
tried to hang himself in the Norfolk jail. Shortly thereafter, 
on the prosecutor's motion, Judge McNamara found "reason to 
believe that the mental condition of the defendant and his 
competency to stand trial should be examined." JA 548 (record of 
competency inquiry). He appointed Dr. J. S. Santos to examine 
Mr. Giarratano. Id. On February 17, 1979, after Dr. Santos had
seen Mr. Giarratano and concluded that he "is in need of emer­
gency hospitalization at CSH [Central State Hospital] for his 
mental difficulties," JA 551, Judge McNamara ordered that Mr. 
Giarratano be hospitalized and evaluated at Central State 
Hospital. JA 549.

2 At another point in the written statement, the officer 
asked Mr. Giarratano why he stabbed Barbara Kline, and he 
responded, "I stayed there because I knew Barbara would know I 
was the one that killed Michelle and I wanted to keep her from 
telling." JA 461.

10



In the course of Mr. Giarratano's ten-day hospitalization at 
Central State Hospital, from February 17-26, 1979, the staff who 
evaluated him were continually presented with suicidal ideation 
and behavior, and with his overwhelming conviction that he must 
die because he had killed the Klines:

(a) On February 22, Mr. Giarratano attempted to hang
himself again. As the note from his medical record recounts,

Pt. Giarranto [sic] was discovered in the 
patients bathroom with his shirt tied tightly 
around his neck. He was attempting suicide 
and also stated that he 'would have been 
gone' if it had not been for another patient.
He also stated that he 'had to pay for the 
crimes' that he committed.

JA 566.
(b) The next day he again said that he had to kill 

himself because he had killed two people. JA 568.
(c) On February 26, Mr. Giarratano became very 

agitated and was placed in restraints "for the protection of 
himself and others." Throughout the day, his behavior was noted 
as follows: "hostile, threatening," "behind gate cursing the 
aides and other patients," "still hostile and cursing and 
threatening the aides and other patients," and "[rjemains hostile 
and uncooperative, arrogant and belligerent." JA 572.

In the course of an interview with Dr. Miller Ryans, the 
person who headed the evaluation team, Mr. Giarratano was asked 
about the details of the murders. Notwithstanding his
intervening statement to Detectives Mears and Whitt, Mr. 
Giarratano relapsed into a version of events which he had earlier

11



recounted to the Jacksonville officers, prior to his 
interrogation by Detectives Mears and Whitt. As Dr. Ryans 
reported,

[Mr. Giarratano] admits that he was upset 
because the alleged victim 'did me an 
injustice. She lied to me about what had
happened to my fifteen hundred dollars so I 
kicked the door down, cut her throat and 
choked her fifteen year old daughter to 
death. ' He denies the rape and burglary 
charges.

JA 550.3
Notwithstanding these experiences with Mr. Giarratano, the 

Central State staff reported to the trial court that he was 
competent to stand trial:

3 At trial, Dr. Ryans acknowledged that Mr. Giarratano had 
"his temporal sequence reversed" when he talked with him about 
the crime. Joint Appendix on direct appeal to Supreme Court of 
Virginia, No. 791619 [hereafter referred to as "JA/DA"], at 98. 
His explanation for this was the following:

I would attribute it to the combination of 
the drugs. Now, as I said, he admitted to 
being high on cocaine and Dilaudid and 
inferred that he was also a heavy user of 
alcohol. Now, there is an entity called 
Korsakoff's syndrome in which a person has 
peripheral neuropathy, loss of recent memory 

„ and they confabulate. That is, under the
influence of these various medications and 
beverages they are aware of what happened, 
but they can't get it straight in their mind 
so they confabulate by saying what makes 
sense, what should have happened here and 
then they say, well, most likely this is what 
happened and they make up things and they 
confabulate consistent with what we call a 
Korsakoff's syndrome. They are not doing it 
on purpose, but they simply can't remember, 
so they will say this is what most likely 
happened so this is what I will say.

JA/DA 98-99.

12



Our evaluation of this young man reveals him 
to be in good contact with his environment, 
alert, coherent and relevant and free of any 
evidence of mental disorganization. There is 
no evidence of brain damage, mental illness 
(insanity) or feeblemindedness. Mr. 
Giarratano is aware of the charges pending 
against him, the seriousness of his legal 
situation and the possible outcome of a 
trial. This man is considered to be mentally 
competent and capable of participating in the 
proceedings pending in your Court.

JA 554.
Mr. Giarratano's first contact with his attorney took place 

after his return to the Norfolk jail from Central State. JA 145- 
146. From early on, Mr. Giarratano informed his attorney that he 
wanted to die:

[T]here had been between Joe and I a 
longstanding discussion of his ambivalence, 
whether or not he wished to live or die.
That ambivalence had been with him ever since 
I started talking with him.

JA 150-151 (state habeas corpus hearing testimony of Albert 
Alberi, Mr. Giarratano's trial counsel). Mr. Giarratano's 
"ambivalence" about living or dying interfered with his lawyer's
representation of him, because he freguently failed to assist his 
lawyer and at times even worked against him:

His ambivalence and his state of mind made it 
difficult for me to do it [the presentation 
of evidence or the handling of hearings] 
right, because I had the feeling that he and 
I at times were working, at cross purposes to 
each other. I did the best that I ... could 
do. I tried to put out everything that I 
could. I tried to find everything that there 
was to say. It troubled me at times that I 
knew that he was there and he didn't seem to 
want to give me any great help.

13



information his attorney asked him to provide:
He was difficult for me to fathom because in 
questioning him he would give very flat 
answers to my questions. If I'd ask him why 
he did something, he'd give an answer which 
in my estimation was not very well developed 
or amplified.

JA 152.
Despite these difficulties, Mr. Alberi continued to believe 

that Mr. Giarratano was competent, and thus he raised no question 
with the court about competence. JA 154. Nevertheless every 
decision made by Mr. Giarratano, every action taken, and every 
front on which he failed to assist in his attorney's efforts to 
defend him, seemed calculated to assure his conviction and 
sentence of death. Thus,

(a) he rejected a plea bargain offered by the state 
which would have resulted in a sentence of imprisonment rather 
than a sentence of death, JA 440-441;

(b) he decided to pursue an insanity defense against 
his lawyer's advice that the defense could not succeed since 
there was no evidence of insanity, id.; and

(c) he wrote to Judge McNamara just before sentence 
was imposed urging him to impose a death sentence "to end my 
pain," Circuit Court file, No. F1144-79, Circuit Court of the 
City of Norfolk.

(iv) The guilt-innocence phase of Mr. Giarratano's trial 
The case against Mr. Giarratano in the guilt phase of his 

trial rested upon his confession to Detectives Mears and Whitt on

JA 155. Moreover, Mr. Giarratano was not forthcoming with

14



February 8, 1979, JA 178-184, and upon several items of physical 
evidence which were presented as corroborative of his confession:

(a) a single pubic hair, consistent with but not 
necessarily identical to Mr. Giarratano's pubic hair, which was 
found among a number of hairs collected from Michelle Kline's 
"left hand, stomach, and pubic area," JA/DA, at 82-83;

(b) the presence of type 0 human blood on the front 
and left side of the right boot apparently worn by Mr. Giarratano 
on the night of the homicides, JA/DA 83 ;4

(c) the blood type of Michelle Kline, which was type 
0, JA/DA 83 (referring to lab report containing this 
information);

(d) the presence of "intact spermatozoa" in Michelle 
Kline's vaginal tract, which was indicative of sexual intercourse 
within twenty-four hours of her death, JA/DA 83-84, 85-86;

(e) the finding during the autopsy of Michelle Kline 
of "lacerations of the vaginal wall" and "bleeding from the 
vagina," which were "consistent with sexual abuse," JA/DA 23;

(e) the medical examiner's finding that Michelle Kline 
died as a result of asphyxia from strangulation, JA/DA 26; and

(f) the medical examiner's finding that Barbara Kline 
died as a result of bleeding from stab wounds to the neck and 
abdomen, JA/DA 20.

4 This boot was from the pair taken from Mr. Giarratano by 
the Norfolk police. See JA 185.

15



At the sentencing phase of Mr. Giarratano's trial, the 
Commonwealth presented the testimony of Dr. Miller Ryans, who had 
evaluated Mr. Giarratano before trial at Central State Hospital, 
JA/DA 152-167, and the testimony of probation officer John 
Jacknik, who testified about the presentence investigation report 
he prepared, JA/DA 138-151. A copy of his report was made a part 
of the record, JA/DA 151, and it is included in the state 
appellate record, at JA/DA 278-287. The defense presented the 
testimony of Dr. Robert Showalter, who evaluated Mr. Giarratano 
at the request of the defense between the guilt and sentencing 
phases of the trial. JA/DA 168-200. The court's findings 
reflect the evidence presented.-

The sole aggravating circumstance found by the trial judge 
was "that there is a probability that the defendant would commit 
criminal acts of violence that would constitute a continuing 
serious threat to society." JA 214. The evidence found to 
support this conclusion was the following:

(a) Mr. Giarratano's prior convictions —  for "drug 
abuse, grand larceny[,] possession of a concealed weapon[,] 
battery of a law enforcement officer, aggravated assault[,] and 
escape," JA 214;5

5 The charges of grand larceny and possession of a 
concealed weapon arose from the same incident, when Mr. 
Giarratano was a juvenile. JA/DA 286. The escape was from a 
juvenile institution. Id. The battery and aggravated assault 
charge arose from the same incident, when Mr. Giarratano was 
twenty years old. Id.

, (v) The sentencing phase of Mr. Giarratano1s trial

16



(b) Mr. Giarratano's history of heavy drug usage and 
involvement in his family's illegal activities, JA 215;

(c) Mr. Giarratano's threats of future violence which 
were expressed to Dr. Ryans, and Mr. Jacknik, id.;6

(d) Mr. Giarratano's stated motives for committing the 
murders, which reflected a need to prevent arrest or the view 
that the victims "'deserved to die,'" JA 215-216;

(e) the commission of a second murder —  of Barbara 
Kline —  after the first, JA 216; and

(f) medical opinion, from both Dr. Ryans and Dr. 
Showalter, which expressed the view that Mr. Giarratano suffered 
mental and emotional disorders which made him vulnerable to 
committing violent acts in the future, JA 216-220.

The mitigating circumstances considered by the trial court
were based on the same evidence underlying the "medical opinion"
component of the findings in support of future dangerousness.
Compare JA 221-227 with JA 216-220. According to the trial court
this evidence established:

(a) That the defendant was suffering from 
severe emotional damage inflicted during his 
childhood by abusive treatment and 
environment[,] resulting in repressed anger 
and hatred toward his mother and sister which 
surfaced during his association with the 
mother and daughter victims in this case, and 
became directed toward them symbolically; ...

6 "To Dr. Ryans: 'I am going to kill myself, but I will
take your aide with me.' To Mr. Jacknik: 'Imprisoned for 40
years, sooner or later I would fight, kill someone instead of 
getting beaten.'" JA 215.

17



(b) That the defendant was heavily under the 
influence of drugs and alcohol at the time of 
the offense and has a history from childhood 
of excesses and abuse of these substances 
evidenced by actual physical damage to his 
liver; [and]
(c) That the combination of these factors 
caused extreme emotional stress and a low 
threshold of self control.

JA 221-222.
The trial court imposed the sentence of death, despite these 

mitigating circumstances, on the basis of the following 
reasoning:

[T]he evidence of emotional stress and 
reduced control[,] while admissible by 
statute and carefully considered by the Court 
is not of such nature as to mitigate the 
penalty in this case. By becoming an 
habituate of drugs and alcohol[,] one does 
not cloak himself with immunity from penalty 
for his criminal acts.

JA 221.
(vi) Death row, 1979-1983: a period of torment followed by

a metamorphosis
On August 13, 1979, the trial court sentenced Mr. Giarratano 

to death. JA 212-229. For the next four-and-one-half years, Mr. 
Giarratano suffered immensely from the disorders which had been 
identified by Dr. Showalter and Dr. Ryans in the trial court 
proceedings. Periodically between August, 1979, and December, 
1983, he continued to experience episodes of intense suicidal 
depression. During those times he would sometimes decide to drop 
further legal proceedings and to seek his execution. See

18



In such periods, he would also experienceAppendix to brief.7 
excruciating psychotic processes similar to those he experienced 
during the trial proceedings —  sometimes auditory or visual 
hallucinations, sometimes less distorted misperceptions of 
reality. See JA 534-535 (letter from Dr. Miller Ryans, August 
19, 1980); JA 537-542 (psychological report by Brad Fisher,
Ph.D., December, 1983).8 Typical of these experience is one Mr. 
Giarratano reported in August, 1980 to one of his counsel: "'The
voices are laughing at me ... and I want to hurt myself to stop 
it.... The medicine [800 mg. Thorazine daily] doesn't seem to be 
doing any good....'" Appendix to brief, at 8 .

In the earlier part of this four year post-trial period, Mr. 
Giarratano's day-to-day emotional life was still a tormented one, 
often alternating between bizarre out-of-touch thought processes

7 In the appendix, we have excerpted a portion of Mr. 
Giarratano's Memorandum of Points and Authorities in Support of 
Petitioner's Claims Under Hearing XI of the Second Amended 
Petition for Writ of Habeas Corpus. See JA 5 (docket no. 34) . 
This portion recounts in greater detail Mr. Giarratano's torment 
during this period of time.

8 Dr.. Showalter had observed Mr. Giarratano's vulnerability 
to psychotic processes during his evaluation between the guilt 
and sentencing phases of the trial:

Mr. Giarratano reflected some distorted 
perceptions of reality which suggestprepsychotic 
processes. At times there seemed to be a fusion 
of fantasy and reality. He seemed to be of 
average intelligence, an impression confirmed by 
the psychological tests. His thinking, however, 
was unsophisticated and childlike, and he appeared 
to have difficulty in abstracting.

JA/DA 296.

19



and jailhouse bravado. See JA 544-546 (affidavit of Michael
Hardy, July 7, 1988, recounting an interview with Mr. Giarratano
in May, 1980) . Toward the latter part of this period, he began 
to be "able to reason in a more coherent and rational manner...." 
JA 514 (letter from Dr. Showalter).

Since the fall of 1983, Mr. Giarratano has improved
enormously. The dynamics underlying his improvement have been
twofold: he has developed a therapeutic relationship with Marie
Deans (from the Virginia Coalition on Jails and Prisons), which
has begun to heal the deep, lifelong wounds of abuse and
deprivation inflicted upon him by his mother and stepfather, and
he has finally been freed from the residual effects of drug
abuse. JA 514-515 (letter from Dr. Showalter). Dr. Showalter
has been in a position to observe Mr. Giarratano's healing:

I most recently interviewed Mr. Giarratano at 
the Mecklenburg Correctional Center on May 
28, 1988. During this interview he presented 
himself as a relaxed, fully rational and 
psychologically well integrated man. I was 
very impressed by the remarkable change that 
had taken place in Mr. Giarratano's psycho­
logical functioning during the five year 
period since I last saw him in the fall of 
1983. It is my opinion that during this five 
year period his ongoing positive and 
consistent relationships with individuals who 
demonstrated a sincere care for him and his 
abstinence from drugs and alcohol have 
combined to produce a striking level of 
psychological rehabilitation.

JA 514-515.
It is this "striking level of psychological rehabilitation" 

which began to suggest to his counsel that he was far more 
debilitated during trial proceedings than anyone had realrzed.

20



(vii) The first, limited recognition that Mr. Giarratano 
was incompetent during his trial proceedings

When Mr. Giarratano gradually emerged from the shadows of
psychological disability in the fall of 1983, he began to
disclose facts about himself which he had never disclosed before.
These facts revealed in extraordinary detail the crippling
environment in which Mr. Giarratano was raised. While there were
hints in the sentencing phase of his trial that Mr. Giarratano
had a bad relationship with his mother, and that she might have
abused him, no evidence ever came close to revealing the
nightmarish truth which he was first able to reveal, beginning in
late 1983 and continuing through 1984. The District Court
summarized this evidence well in its order of June 25, 1986:

Joseph M. Giarratano wanted to die. His 
first attempt at suicide came when he was 
approximately 15 and followed the death of 
his stepfather, Albert Parise. As noted 
above, Giarratano was very close to his 
stepfather during his early childhood and, 
for reasons made clearer below, saw him as 
the only positive adult figure in his life.
What was apparently unknown, to either judge 
McNamara or Giarratano1s counsel, was that 
this relationship changed in a most fundamen­
tal respect when Giarratano was approximately 
10 years old. Parise began sodomizing
Giarratano, with his mother's knowledge and 
tacit approval according to the petitioner.
These rapes occurred repeated until the 
stepfather died. As time went on, Parise 
also forced Giarratano to engage in inter­
course with his sister to satisfy his own 
voyeuristic desires.
If Giarratano's relationship with his 
stepfather was debasing, his relationship 
with his mother was no better according to 
him. When he was three or four years old, 
she would leave him alone for days at a time 
in their New York apartment. Drug dealers

21



and other felons were frequent visitors in 
their home and a frequent source of 
"amusement" for his mother and her "friends" 
was to beat Giarratano with broom handles, 
baseball bats and other weapons. His life 
was threatened by both his mother and her 
visitors. He was burned. He was shocked 
with a cattle prod. He was locked in a tool 
shed overnight. He was handcuffed to a fence 
at night. Surrounded by this inhuman
environment, Giarratano latched on to drugs, 
which were ever-present in the household, at 
a very early age. His drug use was
encouraged by his mother.
During the sentencing hearings, Judge 
McNamara learned that Giarratano had an 
"extremely difficult" relationship with his 
mother and that she had abused him. Nothing 
was presented to indicate the extent of the 
depravity Giarratano now claims he suffered 
at the hands of his mother.
Giarratano's early reliance on drugs and the 
hellish circumstances of his childhood took 
their toll. He began hearing voices at a 
very early age. At first, the voices 
comforted him and kept him company. 
Gradually, however, they became more 
threatening. Ultimately, they mocked him, 
urging him to murder his mother.

JA 359-360.
Dr. William Lee, the psychologist who participated in the 

pretrial evaluation of Mr. Giarratano with Dr. Ryans at Central
oState Hospital, was so moved by the revelation of these new facts 

that he expressed the view that "psychological factors" operative 
during the trial proceedings had "the effect of precluding the 
disclosure of childhood experiences and resultant emotional 
reactions that would have been pivotal to understanding his 
character formation or socialization." Memorandum of Points and 
Authorities, supra (JA 5, docket No. 34), at 17. Dr. Lee also

22



concluded "with reasonable professional certainty," that these
same "psychological factors" also impaired Mr. Giarratano's
ability to consult with counsel: "indications are that his
responsiveness to advice of counsel and communication between
client and attorney would have been contaminated." Id. at 18.
Had Dr. Lee known of the "childhood experiences and resultant
emotional reactions" which Mr. Giarratano had been unable to
disclose during trial court proceedings, this knowledge

would have substantially altered formulations I 
held at the time of his examination concerning 
mitigation and future dangerousness.

Id., at 17.
These are the underlying revelations which led to the 

assertion of the first claim that Mr. Giarratano was incompetent 
during his trial. Because the revelations were limited in their 
impact to sentencing issues, however, the claim -- raised under 
heading XI in the Second Amended Petition for Writ of Habeas 
Corpus, JA 257-258 —  asserted only that Mr. Giarratano was 
incompetent to participate in the sentencing phase of his trial.

(viii) The full recognition that Mr. Giarratano was
incompetent in relation to every aspect of his 
trial proceedings

From 1984 through 1988, Mr. Giarratano's mental health 
continued to improve. See JA 514-515 (letter of Dr. Showalter 
noting Mr. Giarratano's marked improvement between late 1983 and 
1988). With his improvement, he gained enough perspective to be 
able to explore matters which he had not previously explored: 
for the first time during this period, "in various discussions

23



with my lawyers and Marie Deans about the case, ... I began
remembering that I really did not know what occurred that night
in the apartment." JA 447 (affidavit of Mr. Giarratano, July 5,
1988). Mr. Giarratano explained how this process occurred:

In discussions about the various events I would 
recall certain events that I had apparently 
forgotten.... None of these facts caused me to 
doubt that I had murdered Toni and Michelle. The 
only significance they held for me was that I 
remembered that I really did not know what 
happened that night; and forced me to look closer 
to distinguish what I actually remembered from 
what I was told by the Norfolk police, what I 
remembered from the trial, or had rationalized in 
my own mind for myself.

JA 447-448.
This process of reflection led Mr. Giarratano to piece 

together what he actually remembered from the night of February 
4, 1979, and to be able to explain for the first time, how he 
came to believe that he had murdered the Klines, how and Why he 
confessed, and why he became so driven to kill himself or be 
executed —  and why he was unable to reveal any of this to his 
lawyer or anyone else during his trial. What he has only 
recently been able to piece together is the following:

(a) After consuming alcohol and injecting Dilaudid for
several hours on February 4, 1979, Mr. Giarratano remembers that
he went to the apartment of Barbara (Toni) and Michelle Kline to 
pick up some of his personal belongings, and he "thinks" he was 
let in by Michelle. JA 444.

(b) The "next actual memory" he had was of "waking up" 
on the sofa in the apartment, finding Barbara Kline laying on the

24



floor in the bathroom in a large pool of blood, and then finding 
Michelle laying naked across the bed in the bedroom across from 
the bathroom, with her face "swollen . . . and discolored." Id.

(c) After discovering the bodies, he "kept asking 
myself if I could have done this, but I just didn't know." He 
then became confused and afraid, and all "I could think to do was 
run." Id.

(d) He then remembered leaving the apartment, walking 
around, and finally getting a taxi to the bus station in Norfolk, 
where he purchased a ticket to Jacksonville (the town in which he 
had grown up). Id.

(e) Just before or just after boarding the bus to 
Jacksonville, Mr. Giarratano injected what remained of his 
Dilaudid. JA 444-445. During the trip to Jacksonville, he 
remembers

feeling crazy —  like I was going out of my 
mind. I kept telling myself that I could not 
have killed them, but I really couldn't 
convince myself that I hadn't. Nothing was 
making sense to me.

Id.
(f) By the time he got to Jacksonville, he had become 

convinced that he must have killed Barbara and Michelle, and that 
is when he approached Deputy Wells. Id.

(g) On questioning by Deputy Wells and thereafter by 
Deputies Mooneyham and Baxter, Mr. Giarratano was asked why he 
had killed the women. He told the officers that he "really didn't 
know why" but that he was certain that he had killed them. Id.

25



The officers kept pushing him for an explanation, however, so he 
made up one. Id.

(h) Two days later while he was still in Jacksonville, 
Mr. Giarratano was interviewed by Detectives Mears and Whitt from 
the Norfolk Police Department. He confirmed for them his belief 
that he had killed Barbara and Michelle Kline, but he changed his 
account of the murders in response to information they provided 
him. As Mr. Giarratano explained in his affidavit of July 5, 
1988,

They asked me if I had killed Toni and 
Michelle, and why. I told them that I had 
killed Toni and Michelle, and apparently I 
gave the[m] the same statement that I had 
given to the Jacksonville officer. They told 
me that it could not have happened like that. 
After further questioning about the statement 
I gave to the Jacksonville police, the 
Norfolk detective told me that he believed me 
when I said that I had murdered Toni and 
Michelle, but . that he needed to know the 
actual truth about what had happened. He 
then informed me that Toni had been murdered 
after Michelle, and that Michelle had been 
raped; and that my statement to the Jackson­
ville officer could not be right. I remember 
telling the detective's [sic] then that I 
really couldn't remember what had happened 
because I was high, but that I had to have 
murdered them because I was the only one at 
the apartment. I told the officer that I 
would tell him what happened, but that I 
really could not remember. Eventually after 
going back and forth for several minutes the 
detective began asking me, 'could it have 
happened like this, is this what happened?' 
And, I would say 'yes'. The detective would 
then ask me to put it into my own words, and 
I would comply. After I would do that the 
other detective would write down what I had 
stated. He would repeat it back to me after 
he was finished, and ask me if that was 
correct. When the statement was finished

26



they asked if I would sign and, initial each 
page, and I agreed.

JA 445-446.
(i) Even after his interrogation by the Norfolk 

police, Mr. Giarratano still felt bewildered. "I did not want to 
believe that I killed them, but I couldn't be sure that I didn't 
—  could not convince myself that I hadn't killed them." JA 446. 
Any uncertainty was resolved shortly after he arrived at the 
Norfolk city jail:

After I was processed and placed in the cell 
I noticed a couple of spots that appeared to 
be blood on my shoe. When I arrived at the 
Norfolk jail I was still wearing the same 
clothes from the night I left the apartment, 
and until this time I had not noticed any 
blood on my person or clothing. I immedi­
ately contacted a jailer and requested to 
speak with one of the detectives. Shortly 
thereafter I turned my shoes over to them.
After seeing those specks of blood there 
wasn't a doubt in my mind that I had murdered 
Toni and .Michelle: even though I couldn't
remember actually killing them.

JA 446-447.
(j) With this discovery, Mr. Giarratano no longer felt

bewildered. Nagging doubt gave way to self-hatred and despair:
I was convinced that I was evil and that I 
had to be punished for what I did. I 
couldn't sleep, I couldn't keep any food 
down, I knew I was sick, and all I wanted to 
do was die. I attempted to hang myself, but 
failed. Soon after that I was transferred to 
Central State Hospital. It is hard for me to 
recall all that occurred during this period.
Looking back to that time is confusing 
because the only thing that seemed real to me 
was that I had murdered Toni and Michelle. I 
was evil and had to be punished for what I 
did.

27



JA 447.
(ix) The fundamental absence of evidence establishing that 

Mr. Giarratano is guilty or that he poses a threat of 
danaerousness in the future

These revelations by Mr. Giarratano have provided 
substantial reason to re-examine the Commonwealth's evidence 
against him in both phases of his trial.

As noted, supra at 14-15, the guilt phase evidence consisted 
of Mr. Giarratano's confessions and various pieces of physical 
evidence, which purported to corroborate the confessions. When 
Mr. Giarratano's confessions and the physical evidence are 
examined closely, as Mr. Giarratano urged the District Court to 
do, it is plain that there is no corroboration of his confessions 
by the physical evidence, and there is pervasive internal 
inconsistency within his confessions. The result is that there 
is no reliable evidence of Mr. Giarratano's guilt. He could have 
been convicted only if one presumed his confessions' to be 
accurate.

There is an assumption that a detailed confession can be 
given only by one who knows the details of the crime. Thus, when 
sufficient details are provided in a confession, we have a sense 
that the confession is self-corroborative. This can be so, 
however, only if the confession is internally consistent and if 
the confession is not contradicted by the crime scene evidence. 
These indicia are strikingly absent in Mr. Giarratano's confes­
sions, as shown by the facts proffered to the District Court.

28



(a) There is an absence of fundamental internal 
consistency in Mr. Giarratano's confessions: He ascribes to 
contradictory versions of the basic facts in his confessions. He 
says that he killed Barbara Kline in an argument over money, then 
killed Michelle because she was screaming. In one version 
setting forth this sequence of events, he says he raped Michelle 
after killing Barbara; in the other, he says he only killed 
Michelle and did not rape her. In a very different version of 
events, he says that he first killed Michelle after raping her, 
then killed Barbara after she discovered him in the apartment. 
Inconsistencies like this can sometimes be reconciled because one 
version seems "worse" than the other, and the confessor might be 
seen as trying to mitigate his culpability. However, an equally 
plausible reason can be that the person suffers from mental or 
physical disabilities that either prevent him from remembering 
events at all or cause him to fill in memory gaps with various 
plausible explanations. Mr. Giarratano and the experts who have 
evaluated him over the years —  including, significantly, Dr. 
Ryans from Central State Hospital —  provide substantial factual 
support for this explanation. Indeed, Dr. Ryans testified at 
trial that the inconsistencies in Mr. Giarratano's confessions 
were due to "Korsakoff's syndrome," an organic brain disorder 
caused by Mr. Giarratano's ingestion of alcohol, cocaine, and 
Dilaudid over long periods of time, in which the person suffers 
"loss of recent memory" and "confabulate[s]," or "make[s] things 
up," to fill in the memory gaps. JA/DA 98-99.

29



(b) The other reason proffered to the District Court 
for finding that the confessions are of very questionable 
accuracy is that they are contradicted in substantial ways by the 
crime scene evidence. Thus, there is a high probability that 
Michelle Kline was not strangled with the use of hands, as Mr. 
Giarratano said she was, but with the use of a "chokehold" or a 
"ligature". See Motion for Relief from Judgment and Memorandum 
in Support Thereof, at 9-10 and Exhibits 6-8 (filed in the 
District Court on April 7, 1989).9 There is evidence that 
Michelle was dragged to the bedroom, that she did not go 
voluntarily as Mr. Giarratano said. See JA/DA 72. There is 
evidence that Michelle had her underpants and pants on at the 
moment she died —  not, as Mr. Giarratano said, that her pants 
were off prior to the rape and murder. See JA 472-473 (referring 
to the odor of urine in Michelle's clothing). There is evidence 
that Barbara Kline was killed from behind by someone hiding in 
the bathroom, see Rule 60 motion, at 9 and Exhibits 3 and 4, and 
that the killer likely used his right hand, id.. Exhibit 3. Mr.

9 Mr. Giarratano filed this motion under Rule 60(b) of the 
Rules of Civil Procedure on the basis of newly-discovered facts. 
He realizes that it is not a part of the appellate record herein. 
However, he believes that the facts contained in the 60(b) motion 
are highly material to the issues before this Court on appeal. 
For this reason, he has filed a motion in this Court asking that 
the appeal be continued until the District Court has resolved the 
60(b) motion. A copy of the 60(b) motion has been included with 
the motion for continuance. At the time this brief was due, 
neither motion had been decided. Because the 60(b) motion is 
properly before the District Court, and the facts contained 
therein are material to this- Court's resolution of Mr. 
Giarratano's appeal, however, reference will be made herein to 
the facts alleged in the 60(b) motion.

30



Giarratano said that he was waiting for Barbara "by the wall in 
the living room" and attacked her from there, but in fact she was 
killed in the bathroom. JA 459. Moreover, Mr. Giarratano is 
left-handed and has neurological deficits which diminish his 
ability to use his right arm and hand. JA 523. Finally, Mr. 
Giarratano said that he locked the exterior door to the apartment 
when he left (after the stabbing of Barbara) , but it was found 
unlocked. Rule 60 motion, at 11.

The remaining physical evidence relied on by the state does 
not establish in any way, certainly not beyond a reasonable 
doubt, that Mr. Giarratano was the killer-rapist:

(a) One of twenty-one hairs recovered from or near 
Michelle's body for analysis was found to be consistent with, not 
identical to, Mr. Giarratano1s pubic hair. JA/DA 82-83 and Trial 
Ex. C-23 (admitted at 83) . No pubic hair sample was obtained 
from Michelle Kline or Barbara Kline. JA 464. Thus, no 
comparison of the unknown hairs to their pubic hairs could be 
made. Mr. Giarratano had lived in the apartment, so even if this 
was his hair, the presence of it does not suggest that he was 
Michelle's assailant. JA 471.

(b) The presence of type 0 human blood on one of Mr. 
Giarratano's boots —  which happened to match Michelle's blood in 
this respect —  does not suggest that Mr. Giarratano was her or 
her mother's assailant. Rule 60 motion, at 4-8. There was no 
blood on Mr. Giarratano' s clothing or property when he was 
arrested in Jacksonville. Rule 60 motion, Exhibit 5. There was

31



no evidence that Michelle, whose blood was type 0, had bled 
sufficiently from her vaginal lacerations to have deposited blood 
anywhere outside her body. Rule 60 motion, at 6 n. 2. Barbara 
Kline's blood type was never determined. Id. at 5. Even if it 
had been type 0, however, the nature of Barbara Kline's wounds 
and the amount of bleeding which followed would have left far 
more blood on Mr. Giarratano's boot than was found by the State's 
serologist. Rule 60 motion, at 5-8. Thus, it is unreasonable to 
believe that the blood on the boot was related to the crime 
scene.

(c) The presence of ''intact spermatozoa" in Michelle 
Kline's vaginal tract establishes at most that she had sexual 
intercourse within twenty-four hours of her death, and the 
finding of vaginal lacerations establishes at most that this 
intercourse was rape. Neither of these facts in any way 
identifies Mr. Giarratano as the rapist. See JA 472-473.

Finally, in support of its burden to show that death was the 
proper sentence, the state relied upon the evidence introduced in 
support of its case on guilt or innocence, the testimony of Dr. 
Ryans, and upon facts developed in a presentence investigation. 
See JA/DA 138-151, 152-167, 278-287. The presentence 
investigation relied heavily upon information provided by Mr. 
Giarratano's mother, Carol Parise, or at her request, by her 
friends and associates. The picture created by Ms. Parise was 
that her son was a violent young man, who posed a danger to those 
around him and who lied to counselors and mental health

32



professionals regarding his family situation during his childhood 
and teenage years. See Rule 60 motion, at 15-19. Thus, the 
presentence report provided powerful corroboration for Dr. Ryans' 
views that Mr. Giarratano was a dangerous person. Post-trial 
investigation of Mr. Giarratano's history and of Ms. Parise and 
her associates has revealed that this picture of Mr. Giarratano 
was a manifestly false impression, and that Ms. Parise 
intentionally fabricated the factual basis for much of the 
presentence report. Id. Mr. Giarratano was neither violent nor 
a liar. Id.

(x) Mr. Giarratano's inability to disclose the information 
that was necessary to construct his defense was the 
product of mental and physical disabilities

Mr. Giarratano's inability to disclose necessary information 
was not a "chosen" incapacity. It was not a form of repentance 
by one who, knowing he "has committed a heinous crime may be 
truly repentant and feel that the only absolution would be to 
submit himself to, and accept, the maximum punishment." JA 680 
(District Court's order of December 6, 1988). Mr. Giarratano's
certainty, despite his absence of knowledge, that he committed 
the crime, his unrelenting desire to be punished, and his failure 
to reveal his thought processes about these matters to anyone, 
were a product of disability, not rationality.

Mr. Giarratano was suffering from the combined effects of 
three crippling disabilities. Dr. Jack Mendelson, one of the 
nation's leading experts on the psychiatric consequences of drug 
abuse, has explained that Mr. Giarratano's many years of drug

33



abuse likely produced a chronic psychotic illness, in which he 
periodically suffered delusions and hallucinations. JA 421- 
422. Dr. Robert Showalter has further explained that Mr. 
Giarratano's drug-created vulnerability to psychosis was enhanced 
by the schizoaffective disorder which he suffered, which also 
periodically produced delusions and hallucinations. JA 423-424. 
In addition, the schizoaffective disorder caused him to suffer 
profound periods of depression, characterized by feelings of 
worthlessness, self-hatred, and suicidal thoughts and behavior. 
Id. Finally, as a University of Virginia neuropsychologist, Dr. 
Jeffrey Barth, has found, Mr. Giarratano suffered organic brain 
damage at the time of his arrest and trial, and this damage 
impaired "his ability to grasp the essential nature of new and 
unfamiliar problems and situations." JA 518. When thrust into 
such situations, "[h]is ability to engage in abstract thinking, 10

10 According to the American Psychiatric Association's 
Diagnostic and Statistical Manual of Mental Disorders (3d ed., 
Rev., 1987),

[a delusion is a] false personal belief 
based on incorrect inference about external 
reality and firmly sustained in spite of what 
almost everyone else believes and in spite of 
what constitutes incontrovertible and obvious 
proof or evidence to the contrary. The 
belief is not one ordinarily accepted by 
other members of the person's culture or 
subculture (i.e., it is not an article of 
religious faith). . . . [It] should be 
distinguished from a hallucination, which is 
a false sensory perception (although a 
hallucination may give rise to the delusion 
that the perception is true).

Id. at 395.

34



to be flexible in his thinking, and to think efficiently is 
significantly impaired." Id.

Together, these disabilities explain why Mr. Giarratano came 
to believe that he killed Barbara and Michelle Kline. Most 
people who would find themselves in Mr. Giarratano's circum­
stances when he regained consciousness in the Klines' apartment 
would not come to believe that they had killed the Klines. Logic 
would tell them that someone else must have committed the crimes 
while they were passed out. However, Mr. Giarratano's dis­
abilities led him to the opposite conclusion. Subject to 
delusional thinking —  to developing false impressions and 
holding fast to false ideas about reality —  and to thinking the 
worst about himself, Mr. Giarratano was more likely to infer, as 
he did, that he was the killer. JA 515 (letter of Dr. 
Showalter). With only a limited ability "to grasp the essential 
nature of new and unfamiliar problems and situations," JA 518 
(affidavit of Dr. Barth), he was peculiarly vulnerable to his 
delusional, self-deprecating thought processes in these 
circumstances. He did not have the ability to step back, 
consider the possibility that someone else may have killed the 
Klines, and give at least as much credence to that theory as to 
the theory that he was the killer. Id.

Once he came to this conclusion, his vulnerability to 
feelings of worthlessness and self-hatred impelled him to commit 
suicide, either by his own hand or through the processes of the 
criminal justice system. With significant impairment in his

35



ability to engage in abstract thinking or to be flexible in his 
thinking, JA 518, Mr. Giarratano could not distance himself 
enough from his suicidal compulsion to be able to tell anyone why 
he was so driven to self-destruction. Id.

In sum, as Dr. Showalter has explained:
Contrasting his cognitive and affective 
processes as assessed in May 1988 with the 
observation of the level of compromise of 
these functions noted in June 1979 strongly 
suggests that in the spring of 1979 Mr. 
Giarratano's capacity for rational decision 
making, as it related to adequately assisting 
counsel in developing his defense, may have 
fallen below the required statutory standard 
necessary to establish, competency to stand 
trial. Specifically, Mr. Giarratano believed 
that he had killed the victims as accused and 
both consciously and unconsciously used this 
belief to further activate and intensify his 
suicidal drives. Inviting execution by the 
state, through administration of the death 
penalty, therefore became a very appealing 
way to end for Mr. Giarratano in 1979 and 
several years thereafter, a life of isolation 
and misery. These ideas were very strongly 
influenced by the symptoms Mr. Giarratano was 
experiencing in 1979 as a result of the 
symptoms of the schizoaffective process, 
which in turn was augmented by a combination 
of persisting toxic sequela related to his 
long drug abuse history and the emerging 
symptoms of an abstinence syndrome.

JA 515.
B. Facts Underlying the Estelle v. Smith Claim

As noted, in response to Mr. Giarratano's attempted suicide 
in the Norfolk jail on February 16, 1979, the trial court ordered 
that Mr. Giarratano be evaluated at Central State Hospital. At 
the same time, the court appointed Albert Alberi to represent Mr. 
Giarratano on the charges arising from the Kline homicides. JA

36



146. According to his testimony during the state habeas 
proceeding, Alberi played no role whatsoever in his client's 
transfer to Central State. Id.

Alberi testified that when he was notified of his
appointment to represent Mr. Giarratano he was simultaneously 
told that his client had already been "dispatched to Central 
State Hospital because he had attempted suicide." 'Id. Alberi 
believed that the hospitalization "was for the purpose of 
rehabilitating [Giarratano] to the point that he could par­
ticipate in his own defense." JA 147. He did not learn until 
later that its purpose included evaluation of his client's 
competency and sanity, and he received no indication until the 
sentencing phase of Mr. Giarratano's trial that information 
derived from the exam would be introduced to establish the
statutory predicate for a death sentence. Id. Alberi did not
see or speak with his client until after Mr. Giarratano had
returned from the hospital to the city jail nine days later. JA 
146-148.

Mr. Giarratano was examined at Central State by Dr. Ryans. 
Dr. Ryans asked Mr. Giarratano whether he had any contact with an 
attorney and Mr. Giarratano indicated that he had not. Dr. Ryans 
then told Mr. Giarratano that he had the right not to talk with 
members of the hospital staff, that nothing he said could be used 
against him if he pleaded not guilty, but that his statements 
could be used against him if he raised an insanity defense. JA 
156, 158-159. Dr. Ryans did not tell Mr. Giarratano that his

37



statements might be used against him at the sentencing stage of 
the capital trial. JA 157.

During his hospitalization at Central State Hospital, Mr. 
Giarratano was in acute emotional turmoil and as we have noted, 
again attempted to commit suicide. JA 158-159. He told'Dr. 
Ryans that he was determined to kill himself, and that if an aide 
"tried to stop him, he would take [the aide] with him." JA 161- 
162.

At the sentencing phase of the trial, the Commonwealth 
called Dr. Ryans as one of its two witnesses in its case-in­
chief. JA/DA 152-167. On direct examination, Dr. Ryans 
testified about the threatening statements made by Mr. Giarratano 
during the course of his hospitalization and concluded that, in 
his opinion, it was probable that Giarratano would constitute a 
homicidal threat to the prison population and to the general 
population if he were released. Id. The trial judge relied on 
his testimony in support of his finding that Giarratano would 
constitute a continuing danger to society. JA 214, 215-218.

ARGUMENT
I.

MR. GIARRATANO HAS ALLEGED FACTS WHICH DEMONSTRATE 
(A) THAT HE WAS INCOMPETENT TO STAND TRIAL SINCE 
HE COULD NOT CONSULT WITH COUNSEL IN THE WAY THE 
CIRCUMSTANCES OF HIS CASE REQUIRED THAT HE BE ABLE 
TO, AND (B) THAT HIS COMPETENCE TO STAND TRIAL WAS 
NOT ADEQUATELY EXPLORED —  DUE TO THE DEFAULTS OF 
THE PERSONS CHARGED WITH EVALUATING HIS COM­
PETENCE, OR OF DEFENSE COUNSEL,. OR BOTH —  AND 
THUS, THE DISTRICT COURT'S SUMMARY DISMISSAL OF 
THESE CLAIMS CANNOT BE SUSTAINED.

38



On July 11, 1988, Mr. Giarratano sought to amend his still- 
pending federal habeas petition to add two claims related to his 
competence to stand trial: a claim that he was tried when he was 
incompetent (XIII), and a claim that his right to an adequate 
inquiry into trial competency was denied by the defective inquiry 
in his case (XIV). See JA 400-623. These claims expanded upon 
and incorporated the claim that he was incompetent to participate 
in his capital sentencing proceedings, which he had already made 
in his pending petition (XI).

The District Court denied Mr. Giarratano's proposed 
amendment on the ground that it was "unnecessary." JA 681. 
Though recognizing that claims XIII and XIV were concerned with 
incompetency in relation to the entire trial, and that claim XI 
was concerned only with incompetency in relation to the sentenc­
ing proceeding, the court found that "[t]he same operative facts 
support (or do not support) the proposed amendment and claim XI." 
Id. On this basis, the Court found "that the proposed amendment 
is unnecessary since the claims therein have already been brought 
to the court's attention and denied." Id.

Claim XI was denied, without an evidentiary hearing, in an 
order entered June 25, 1986, for failure to state a claim upon 
which relief could be granted. JA 350-370. The court construed 
the claim as premised upon an elevated standard of competency, 
which had already been considered and rejected by this Court, and 
which was not required by the Due Process Clause. JA 361-367.

39



This construction was erroneous as to Claim XI and is erroneous 
as to claims XIII and XIV.11

As we will demonstrate, claims XIII and XIV rest comfortably 
upon the settled due process principles which safeguard the right 
of a criminal defendant to be tried only if he or she is 
competent. No new legal ground need be broken in order for Mr. 
Giarratano to prevail on his claims. The facts which he has 
alleged, if true, entitle him to relief. All he asks is that he 
be afforded an evidentiary hearing within which to prove that his 
allegations are true.
A. The Claim That Mr. Giarratano Was Tried When He Was 

Incompetent
The Supreme Court has formulated the test for trial

competency in two ways. In Dusky v. United States, 362 U.S. 402
(1962), the Court held that

the 'test must be whether [the defendant] has 
sufficient present ability to consult with 
his lawyer with a reasonable degree of 
rational understanding —  and whether he has 
a rational as well as factual understanding 
of the proceedings against him.'

Thereafter, in Drope v. Missouri. 420 U.S. 162, 171 (1975), the
Court explained,

It has long been accepted that a person whose 
mental condition is such that he lacks the 
capacity to understand the nature and object 
of the proceedings against him, to consult 
with counsel, and to assist in preparing his 
defense may not be subjected to trial.

11 This error of the District Court, as well as the other 
faulty underpinnings of its decision, will be discussed infra. at 
48-54.

40



The application of the competency test in a particular case
is always guided by the underlying purpose of the right to be
subjected to trial only when competent. As the Court explained
in Drope, "it suffices to say that the prohibition is fundamental
to an adversary system of justice." 420 U.S. at 171-172. To
amplify its conception of why the competency requirement is
fundamental to the adversary system, the Court, cited to Note,
Incomoetencv to Stand Trial. 81 Harvard L. Rev. 455, 457-459
(1967). This article explains,

Since the primary purpose of the incompetency 
rule is to safeguard the accuracy of 
adjudication, competency requires, at a 
minimum, that the defendant be sufficiently 
coherent to provide his counsel with 
information necessary or relevant to 
constructing a defense. Otherwise, if only 
the defendant knew of exonerating circumstan­
ces, he might be erroneously convicted.

Id. at 457.
There is nothing novel in recognizing that the minimum 

requirement of competency —  in light of its fundamental place in 
an adversarial system of justice -—  is to assure that the 
defendant be able "to provide counsel with information necessary 
or relevant to constructing a defense." In other contexts in 
which the Court has focused on safeguards that are crucial to the 
adversary system, "[t]he Court has long recognized that when a 
State brings its judicial power to bear on . . . [a] defendant in
a criminal proceeding, it must take steps to assure that the 
defendant has a fair opportunity to present his defense." Ake v . 
Oklahoma. 470 U.S. 68, 76 (1985) (requiring the provision of a

41



competent psychiatrist to assist an indigent defendant where
insanity is to be a significant factor at trial) . See also 
Strickland v. Washington. 466 U.S. 668, 685 (1984) (right to 
counsel is crucial in adversarial system "since access to 
counsel's skill and knowledge is necessary to accord defendants 
the 'ample opportunity to meet the case of the prosecution' to 
which they are entitled"). Accordingly, Drone 1s "capacity... to 
consult with counsel and to assist in preparing [the] defense" 
and Dusky's "'ability to consult with [one's] lawyer with a 
reasonable degree of rational understanding'" must mean, at a 
minimum, that "the defendant be sufficiently coherent to provide 
his counsel with information necessary or relevant to con­
structing a defense." Note, supra. at 457.

In determining the defendant's ability to perform this 
function, the courts have examined the particular circumstances 
of each case, for how much ability to provide information is 
required will vary with what is "necessary or relevant" to 
constructing the available defenses in his case. "While there 
are some minimal requirements for competency .applicable to all 
defendants,12 others will vary, depending upon the complexity of 
the case and the extent of the defendant's necessary participa­
tion." Bennett & Sullwold, Competence to Proceed: A Functional 
and Context-Determinative Approach, 29 J. For. Sci. 1119, 1121, 
(Oct. 1984). Where, for example, the prosecution's case

12 These requirements are those concerned with the ability 
"to understand the nature and object of the proceedings." Drope, 
420 U.S. at 171.

42



independent of any confession of the defendant, is very strong, 
"such as to negate all reasonable hypotheses of innocence," the 
inability of the defendant to provide his counsel with 
information relevant to a defense is less important. Wilson v. 
United States. 391 F.2d 460, 463-464 (D.C. Cir. 1968). A person 
who cannot provide such information in this kind of case may 
nevertheless be competent. Id. What is essential is that the 
accused "be able to perform the functions which 'are essential to 
the fairness and accuracy of [his particular] criminal 
proceeding.'" Id. at 463 (quoting Pouncev v. United States, 349 
F.2d 699, 701 (D.C.Cir. 1965)).

When Mr. Giarratano's case is analyzed through this 
framework, it is immediately clear that the circumstances of his 
case required that he be able to perform the accuracy-assurance 
function quite well: there was a profound need for him to 
provide his counsel with information relevant to constructing his 
defense. Without his confessions, the state's case on guilt and 
innocence was extremely weak, and with investigation by the 
defense —  as the post-trial investigation by Mr. Giarratano's 
counsel has shown —  it could have been reduced to non- 
inculpatory facts. Thus, the state's case rested inordinately on 
Mr. Giarratano's confessions. For this reason, he needed to be 
able to provide his counsel with all the information he could 
about the circumstances of his confessions: what facts he 
actually remembered, whether these facts supported his 
confessions, why he confessed. Since the confessions were the

43



state's case against him, he had to have the capacity to recount 
these facts. As we have alleged, however, he was without such 
capacity —  not because of choice, but because of serious, 
interconnected mental and organic disabilities.

Similarly, the state's crucial evidence in relation to 
sentencing turned upon a portrait of Mr. Giarratano as a person 
with a longstanding history of violence. In many respects, this 
portrait was false. Mr. Giarratano was not violent, had no 
history of violence, and had no reputation for violence among 
those who knew him best. Mr. Giarratano, however, was the key to 
rebutting this portrait. He needed to be able to recount his 
history for his lawyer, to tell him who knew him and who could 
accurately describe his character, but he could not do this. His 
disabilities submerged him in silence, sealed him in feelings or 
worthlessness, and forced him to embrace this utterly inaccurate 
portrait of himself.

Thus, the accuracy of Mr. Giarratano's entire trial hinged 
upon his having the capacity to reveal to counsel the 
"exonerating circumstances," Note, supra. 81 Harvard L. Rev. at 
457, which he, and only he, could reveal. In the statement of 
facts, we have outlined those exonerating circumstances which he 
knew, and we have also outlined the ways in which his 
disabilities eviscerated his capacity to reveal them. In the 
unique circumstances of his case, the Due Process Clause demanded 
that he not be tried unless he had the capacity to reveal these 
exonerating circumstances. At the very least, therefore, Mr.

44



Giarratano has alleged facts sufficient to require an evidentiary- 
hearing.
B. The Claim That Mr. Giarratano1s Right to an Adequate Inquiry 

Into Competency Was Violated Bv The Defective Inquiry in His 
Case
Due process requires that the "procedures" used to determine 

competence to stand trial be "adequate to protect a defendant's 
right not to be tried or convicted while incompetent...." Drope 
v. Missouri. 420 U.S. at 172 (citing Pate v. Robinson. 383 U.S. 
375 (1966)). In determining whether the procedures have been
constitutionally adequate in a particular case, the Court has 
examined all of the facts bearing upon competency and analyzed 
whether the inquiry into these facts has fairly settled the doubt 
about competency which led to the inquiry.

For example, in Drope the Court examined the array of data 
revealed through court-ordered psychiatric evaluation and was 
particularly concerned about the "contrary" data, which raised 
questions about the defendant's ability to participate in goal- 
directed tasks. 420 U.S. at 175-176.13 The Court was also 
concerned about defense counsel's difficulties in relating with 
his client, for the revelation of such difficulties provides 
important information in the determination of competency. Id. at 13

13 There were "aspects of the [psychiatric] report suggesting 
competence, such as the impressions that petitioner did not have 
'any delusions, illusions, hallucinations...,' was 'well oriented 
in all spheres, ' and 'was able, without trouble, to answer 
questions testing judgment,'" but there was also "contrary 
data": "although cooperative in the examination, [petitioner] 
'had difficulty in participating well,' 'had a difficult time 
relating,' and 'was markedly circumstantial and irrelevant in his 
speech.'" Id.

45



176-17714. And finally, the Court was concerned about the 
petitioner's own expressions of irrational behavior during the 
proceedings, such as his attempted suicide, and whether such 
expressions were appropriately "considered together with the 
[other] information available" concerning the petitioner. Id. at 
180.

For these reasons, the Court held that there was "sufficient 
doubt of [Drope's] competence to stand trial to require further 
inquiry on the question." Id. at 180. The doubt about Drope's 
competency had not been sufficiently resolved by the inquiries 
which were made.

Similarly, in Mr. Giarratano's case, the doubt about his 
competence to stand trial was not sufficiently resolved by the 
inquiries which were made. Mr. Giarratano was initially sent to 
Central State Hospital for a competency evaluation because he 
attempted suicide. His stay at Central State was punctuated by 
considerable suicidal ideation, another attempted suicide, and a 
spate of "hostile[,] uncooperative, arrogant and belligerent 
behavior." JA 431-432. Further, his thinking about the crime 
showed marked gaps in memory, coupled with the kind of attempts 
to fill in those gaps typical of persons suffering the serious 
organic impairment of Korsakoff's syndrome. JA/DA 98.

14 As the Court observed, "Although we do not, of course, 
suggest that courts must accept without question a lawyer's 
representations concerning the competence of his client..., an 
expressed doubt in that regard by one with 'the closest contact 
with the defendant,'... is unquestionably a factor which should 
be considered." Id. at 177 n. 13 (citations omitted).

46



Notwithstanding this kind of behavior and thinking, the Central 
State evaluation concluded that Mr. Giarratano was "in good 
contact with his environment, alert, coherent and relevant and 
free of any evidence of mental disorganization" and was "capable 
of participating in the [court] proceedings...." JA 432-433. As 
in Drooe. while there was evidence "suggesting competency," there 
was also a considerable amount of "contrary data," which the 
Central State evaluators failed to account for in explaining 
their conclusion that Mr. Giarratano was competent.

Further, the Central State evaluation was conducted before 
Mr. Giarratano and his attorney had any opportunity to develop a 
relationship. Thus, it could not have taken into account Mr. 
Giarratano's capacity to consult with counsel or assist in the 
preparation of his defense, for at that point, no one knew what 
the state’s case required that Mr. Giarratano be able to do, or 
whether he would have the capacity to do it.15

This inadequacy was exacerbated by defense counsel, because 
he failed to disclose the difficulties he was having in securing 
Mr. Giarratano's cooperation and assistance. See JA 150-155 
(describing these difficulties). Even before Drope was decided, 
with its emphasis on the need for the competency inquiry to take 
into account counsel's difficulties with the defendant, this

15 See Bennett and Sullwold, supra. 29 J. For. Sci. at 1121 
("[s]ince it is not generally known at the time of the 
examination into competence which functions a defendant must be 
able to perform nor the extent to which the defendant must be 
able to perform the requisite functions, it is premature in many 
cases for an opinion on competence to be reached at the time of 
the initial examination").

47



Court recognized the obligation of counsel to disclose such 
problems and found competency inquiries constitutionally 
deficient where they failed to consider them. See Kibert v. 
Peyton. 383 F.2d 566, 568-69 (4th Cir. 1967); Owsley v. Peyton, 
368 F.2d 1002 (4th Cir. 1966). See also Caudill v. Peyton. 368 
F.2d 563 (4th Cir. 1966).

And finally, as in Drope. Mr. Giarratano's suicidal behavior 
continued, replete with his letter to the trial judge asking for 
imposition of the death sentence. Yet no additional inquiry was 
undertaken to assess the significance of this behavior in 
relation to his competence to stand trial.

Thus, in a way strikingly parallel to the circumstances in 
Drope. the competency inquiry here left too many unresolved 
doubts about Mr. Giarratano's competency. There was, as in 
Drope. "sufficient doubt of [Mr. Giarratano's] competence to 
require further inquiry on the question." Drope. 420 U.S. at 180.
C. The Errors in the District Court's Judgment

The District Court denied Mr. Giarratano's competency claims 
because in its view, they failed to state a claim upon which 
relief could be granted.16 As the preceding analysis of the

16 As the Supreme Court has explained, habeas corpus claims 
may be denied without an evidentiary hearing in only two 
circumstances: if, when the allegations are assumed to be true, 
the petitioner is conclusively entitled to no relief as a matter 
of law, or if the allegations are "patently false or frivolous" 
or "wholly incredible." See Blackledae v. Allison. 431 U.S. 63, 
74 n. 4, 76, 78 (1977); Townsend v. Sain. 372 U.S. 293, 307, 312 
(1963); Machibroda v. United States. 368 U.S. 487, 495-496 
(1962). The District Court denied relief on the grounds that as 
a matter of law, Mr. Giarratano was conclusively entitled to no 
relief. No suggestion has ever been made that these claims are

48



claims plainly demonstrates, this decision was erroneous. It 
came about because of a fundamental misunderstanding of the 
claims which Mr. Giarratano has asserted.

Mr. Giarratano's competency claims, in both the Second 
Amended Petition for Writ of Habeas Corpus (claim XI) , JA 257- 
258, and the Amendment to Petition for Writ of Habeas (claims 
XIII and XIV), JA 400-608, have consistently focused on the 
"capacity ... to consult with counsel and to assist in preparing 
[the] defense," Drope v. Missouri, 420 U.S. at 171, portion of 
the competency test. Mr. Giarratano has never argued that he 
lacked the "capacity to understand the nature and object of the 
proceedings against him." Id. The gravamen of his claims has 
always been that he lacked the capacity to provide information to 
counsel that was necessary to construct his defense. See JA 257- 
258 ; 406-419. See also Mr. Giarratano' s Exceptions to 
Magistrate's Reports, May 22, 1985, at 9-11, 32-33 (hereafter 
referred to as "Exceptions").17

A serious misunderstanding of the first competency claim 
developed in 1985 and 1986 in relation to ancillary aspects of 
the claim. In addition to its primary focus on Mr. Giarratano1s 
inability to reveal information necessary to his defense, the 
claim (then, only claim XI in the second amended petition) also

wholly incredible. Nor could there be. See Bedau and Radelet, 
Miscarriages of Justice in Potentially Capital Cases, supra, at 
7 .

17 This document is listed as entry number 18 on the 
renumbered portion of the District Court docket sheet. JA 4.

49



focused on his inability to make rational decisions about his 
defense. JA 258 (5 78) . Even though this aspect of the 
competency claim was analytically supportable under the Duskv- 
Drope test of competency —  i. e. . whether the defendant has the 
capacity "to consult with his lawyer with a reasonable degree of 
rational understanding," Dusky. 362 U.S. at 402 —  Mr. 
Giarratano's counsel at that time inexplicably and mistakenly 
believed that it was not. For this reason, he appeared to 
concede that Mr. Giarratano was competent under the Duskv-Drope 
standard, and then argued that a competency standard "more 
stringent" than the Duskv-Drope standard should control. See 
Exceptions, at 33-36.18 In articulating this alternative 
standard, counsel relied primarily on Rees v. Peyton, 384 U.S. 
312 (1966). As the District Court aptly explained counsel's view 
of the Rees standard, "Under the Rees standard,, a defendant must 
not only be able to understand the events occurring around him, 
he must be capable of making rational decisions based on the

18 In the Exceptions, Mr. Giarratano's counsel wrote, 
"Petitioner was aware of the nature and consequences of the 
proceedings against him, understood the charges and was able to 
communicate with counsel. However, even if a defendant is 
competent to stand trial under the traditional standard [citing 
Dusky 1 , this does not mean that he is competent for all pur­
poses." Id. at 33. The extent of counsel's confusion is 
strikingly revealed in his statement that Mr. Giarratano was 
"able to communicate with counsel." In fact, Mr. Giarratano's 
competency claim at that time was that he could not communicate 
with counsel: he could not disclose information about his life
that was necessary to the development of his penalty phase 
defense, JA 257-258 (ff 76-77), and he could not consult 
rationally with his lawyer as to decisions regarding his defense, 
JA 258 78).

50



information and advice available to him." JA 364 (order of June 
25, 1986).

Counsel's confusion about the need for a standard other than 
the Duskv-Drope standard is revealed by this articulation of the 
Rees standard, as one counsel believed to be "more stringent" 
than the Duskv-Drope standard. In fact, the Duskv-Drope standard 
also requires, as counsel believed only Rees required, that the 
defendant "be capable of making rational decisions based on the 
information and advice available to him." This is the plain 
meaning of Dusky1s requirement that the defendant be able "to 
consult with his lawyer with a reasonable degree of rational 
understanding." Nevertheless, in the District Court's view, Mr. 
Giarratano's counsel believed that "the Dusky standard is 
deficient in that, under its str [ i] ctures, a defendant's 
competency is measured in large part by his ability to comprehend 
what is occurring around him and not on his ability to act on 
what he comprehends." JA 365.

The District Court, however, did not share counsel's 
confusion. The District Court recognized that Dusky. as well as 
Rees. requires "some measure of volitional capacity," i.e., the 
"ability to act on what he comprehends." JA 365-366. For this 
reason, the court found "a certain inconsistency between the 
petitioner's concession that he was competent under Dusky, and 
his contention that he was unable to fully cooperate with his 
attorney." JA 366. The Court reconciled this inconsistency, not 
by finding that Mr. Giarratano's counsel had mistakenly conceded

51



his client's competence under Dusky, as it should have, but by
finding that Mr. Giarratano's asserted "incapacity" was not
really an incapacity but simply a "choice" not to cooperate:

In this case, the petitioner concedes that he was 
sufficiently competent to satisfy [the Dusky1 
standard. If Giarratano had the ability to 
consult with his counsel, yet chose not to, and 
this choice resulted in a dirth [sic] of mitiga­
ting evidence at the sentencing hearing, the 
resulting verdict is not remediable by federal 
habeas corpus

JA 366 (emphasis in original).
Through this torturous route, the inartful and confused 

argument by Mr. Giarratano's counsel —  which plainly rested upon 
substantial factual allegations that Mr. Giarratano did not have 
the ability to consult with counsel —  unwittingly misled the 
District Court into finding that the claim was really about 
Giarratano's choices about how to defend himself, not about his 
inability to make such choices. Thus, the summary denial of 
claim XI in 1986 rested upon the District Court's fundamental 
misapprehension of the claim, which was unintentionally created 
by Mr. Giarratano's counsel.

This mistaken view of the competency claim continued to 
color the court's analysis when it was presented with claims XIII 
and XIV in the latter part of 1988. The primary thrust of these 
claims was that Mr. Giarratano was unable, due to mental and 
physical disability —  not to personal choice —  to reveal to his 
lawyer: how and why he came to confess, why he sought his own
death thereafter, and why the portrait of him as a violent youth 
and young man was utterly inaccurate. See JA 402-405 (introduc­

52



tion to claims XIII and XIV). The claims also asserted that the 
same disabilities which precluded him from revealing these 
crucial facts to counsel also precluded him from consulting 
rationally with counsel on a whole array of decisions essential 
to his defense. Id. Notwithstanding the facial validity of 
these claims, the District Court still labored under the 
misapprehension created by counsel's mistaken concession in 1985, 
and found that claims XIII and XIV were deficient for the same 
reasons it found claim XI deficient. He construed these claims 
as still premised upon a "motivational" element within the test 
of competency:

Although the petitioner desires the Court to 
equate 'capacity' with motivation or at least to 
find a volitional element within capacity, the 
Court declines to do so. The Dusky standard 
requires that a defendant possess sufficient 
present ability to consult with his attorney; it 
does not require that a defendant be motivated to 
assist defense counsel in obtaining the defen­
dant's acquittal or a less than maximum sentence.

JA 680 (emphasis in original).
This understanding of Mr. Giarratano's claims is plainly 

mistaken. It does not comport with the way the claims were pled 
in the 1988 amendment, and it does not even comport with the 
District Court's summary of the claims which immediately preceded 
its analysis. See JA 678-680. Mr. Giarratano's claims do not 
focus on his "motivation," but rather on the underlying 
incapacity which manifested itself in, among other things, his 
motivation to be punished with the death penalty.

53



Mr. Giarratano should not go to his death without a fair 
adjudication of his facially sufficient claims of incompetence. 
If the claims- have previously been understood not to have facial 
merit because of the inartfulness of counsel's argument of the 
claims, that deficiency should not preclude this Court now from 
requiring that the claims be given a full and fair hearing. This 
is not a successor habeas proceeding. There is no proper or just 
legal doctrine which can serve as a basis for avoiding the 
evidentiary hearing on these claims which, as they are now 
understood and articulated, is so plainly deserved.

II.
PSYCHIATRIC TESTIMONY INTRODUCED AGAINST MR. 
GIARRATANO AT THE SENTENCING PHASE OF HIS 
TRIAL TO PROVE HIS "FUTURE DANGEROUSNESS" WAS 
CONSTITUTIONALLY INADMISSIBLE, AND THIS COURT 
SHOULD ADDRESS THIS CLAIM ON ITS MERITS 
NOTWITHSTANDING TRIAL COUNSEL'S FAILURE TO 
OBJECT.

A.
defendant durina a Dretrial mental evaluation. and of
opinions based on such statements. for the purpose of
province an aaaravatina circumstance at a capital sentencina
proceeding is prohibited bv the Fifth and Fourteenth
Amendments.
In Gibson v. Zahradnick. 581 F.2d 75, 80 (4th Cir. 1978), 

cert, denied. 439 U.S. 996 (1979), this Court held that in­
criminating statements elicited during a court-ordered psychiat­
ric examination are constitutionally inadmissible to prove the 
defendant's guilt. In Estelle v. Smith, 451 U.S. 454, 464 
(1981) , the United States Supreme Court held that the Fifth and 
Sixth Amendments also apply to the use of psychiatric evidence at 
capital sentencing proceedings. Taken together, Gibson and

54



Smith establish that the prosecution may not make affirmative use 
of evidence obtained in the course of a pretrial psychiatric 
examination to prove the elements of a criminal offense or the 
statutory predicates for a death sentence which are the function­
al equivalents of the elements of an offense.

The Fifth Amendment implications of psychiatric examination 
in capital cases are starkly evident in both Smith and' 
Giarratano. Soon after Benjamin Smith was arrested, and after 
counsel had been appointed to represent him, the court ordered a 
psychiatric evaluation of his competency to stand trial. 451 
U.S. at 457. Smith was not told that disclosures made during 
this examination, or opinions based on those disclosures, could 
be used by the prosecution to obtain a death sentence, and he had 
no opportunity to consult with counsel concerning the evaluation. 
Id. at 459-460. The Supreme Court held that Smith's privilege 
against self-incrimination had been violated when the prosecu­
tion, during the penalty phase of the capital trial, presented 
the testimony of the court-appointed psychiatrist to prove that 
Smith would constitute a future danger to society —  a necessary 
predicate for a death sentence under Texas law. Id. at 468. The 
defense had no "indication that the compulsory examination would 
be used to gather evidence necessary to decide whether, if 
convicted, [Smith] should be sentenced to death." Id. at 467. 
To sustain the death penalty on the basis of the psychiatrist's 
testimony would have been to make Smith the "deluded instrument 
of his own execution." Id. at 462.

55



This is precisely what happened in Mr. Giarratano's case. 
Within a few days of his arrest, Giarratano was so obviously 
disturbed that the prosecution requested an examination by Dr. 
Santos. Santos, in turn, recommended emergency treatment at 
Central State. Although Mr. Giarratano was advised, pursuant to 
this court's decision in Gibson v. Zahradnick. of the possible 
use of Dr. Ryans' testimony if he pleaded insanity, the pos­
sibility that the fruits of the evaluation could be used by the 
prosecution to obtain a death sentence was not mentioned. 
Indeed, an attentive listener would probably infer from Dr. 
Ryans' statement that this could not be done. Nonetheless, when
Mr. Giarratano's statements on the ward, and Dr. Ryans' opinion
based on those statements, were used to show that Mr. Giarratano 
would constitute a future danger to society, Mr. Giarratano
became the "deluded instrument of his own execution." 451 U.S. 
at 462.
B. Psychiatric testimony offered in mitigation by Mr. 

Giarratano did not open the door to the prosecution's
affirmative use of Dr. Ryans' testimony.
The magistrate's report —  upon which the District Court 

relied in reaching its decision —  recognized the "potential" for 
a Fifth Amendment violation in the prosecution's use of Dr. 
Ryans' testimony against Giarratano. JA 28619. However, the

19 Based on Estelle v. Smith, the magistrate found the 
"potential" Fifth Amendment violation in Dr. Ryans' failure to 
advise Giarratano that the results of the examination could be 
used as proof of dangerousness at the sentencing phase. ■ However, 
as this court recognized in Gibson, the defendant's Fifth
Amendment interests can be adequately protected only by barring 
affirmative prosecutorial use of the testimony.

56



magistrate concluded that no violation actually occurred because 
Giarratano intended to introduce, and did in fact introduce, 
psychiatric testimony in mitigation and that this testimony 
retrospectively opened the door to Dr. Ryans' testimony. JA 287.

The prosecution is entitled, of course, to use psychiatric 
testimony to rebut psychiatric claims raised by the defense.
Buchanan v. Kentucky. 483 U.S. ___, ___, 107 S.Ct. 2906, 2918
(1988) (when the defense has requested a psychiatric examination 
and has raised a psychiatric defense, the prosecution may use the 
results of that examination for "limited rebuttal purpose"). But 
that is not what happened in this case. Dr. Ryans' testimony was 
admitted as part of the prosecution's case-in-chief for the 
purpose of supporting a finding of future dangerousness —  a 
finding which the prosecution was required to prove beyond a 
reasonable doubt in order to obtain a death sentence. At this 
stage in the sentencing proceedings, neither the prosecution nor 
the court could anticipate the issues that would be raised by the 
defense. If the defendant had subsequently introduced rebuttal 
psychiatric testimony on future dangerousness, Dr. Ryans' 
testimony might have turned out, retrospectively, to be admis­
sible. See Williams v. Lvnauqh. 809 F.2d 1063 (5th Cir. 1987) 
(holding that the defendant waived his Fifth Amendment rights 
when he himself "first introduced psychiatric evidence on the 
issue of future dangerousness"). But Dr. Showalter, who had 
examined Giarratano at the University of Virginia Forensic 
Psychiatric Clinic, was called by the defense to testify on

57



mitigating factors relating to Giarratano1s developmental history 
and diminished mental responsibility for the offense, not on the 
question of future dangerousness. JA 285.

By confounding the permissible use of psychiatric evidence 
for rebuttal purposes and the impermissible use of such evidence 
to prove an element of the prosecution's case-in-chief,20 the 
magistrate blurred a distinction which is both fundamental and

20 Giarratano has been unable to find any authority to 
support the proposition that a defendant who introduces 
psychiatric evidence in mitigation thereby opens the door to 
psychiatric testimony to prove an aggravating circumstance such 
as "future dangerousness." The magistrate based his conclusion
entirely on dictum from Estelle v. Smith, which was taken out of 
context. According to the magistrate,

The Supreme Court stated that its opinion in a
prior case FJurek v. Texas. 428 U.S. 292 (1976)]
"emphasized that a defendant is free to present 

• whatever mitigating factors he may be able to 
show, e.g., the range and severity of his past 
criminal conduct, his age, and the circumstances 
surrounding the crime for which he is being 
sentenced. . . . The state, of course, can use the 
same type of evidence in seeking to establish a 
defendant's propensity to commit other violent 
crimes."

JA 296 (quoting Smith. 451 U.S. at 472-73).
The magistrate interpreted this quote to mean that if the
defendant introduces psychiatric evidence in mitigation, the 
state may introduce "the same type of evidence" (i.e.,
psychiatric testimony) on future dangerousness. This passage, 
however, occurred in the context of the Supreme Court's
discussion of why "the future dangerousness issue is in no sense 
confined to the province of psychiatric experts." 451 U.S. at
472. Thus, in its original context, it seems more plausible to
read this passage to mean that both the defense and the
prosecution should be able to meet their burden of proof without 
resort to psychiatric evidence. Indeed, as if to underscore this 
point, the Court states: "the holding in Jurek was guided by the 
recognition that the inquiry into [future dangerousness] does not 
require resort to medical experts." Id. at 473.

58



intimately connected with the principle that underlies Estelle v. 
Smith and Gibson v. Zahradnick.

If the state were barred from examining the defendant and 
using the results of such an examination to rebut psychiatric 
claims raised by the defense, this would deprive the prosecution 
of a fair opportunity to counter the defense claim. Moreover, 
the defendant does not become the "deluded instrument" of his own 
conviction under these circumstances because he and his lawyer 
have controlled the decision to put his mental condition in 
issue.

A different situation occurs, however, when the prosecution 
is permitted to introduce psychiatric evidence, not for rebuttal 
purposes, but to establish an element of the prosecution's case­
in-chief. The state is then being permitted to use the fruits of 
pretrial mental evaluations to make its affirmative case for a 
conviction or a death sentence. If this can be done, the 
defendant will be forced to choose between his Fifth Amendment 
privilege against self-incrimination and his due process right to 
explore and present psychiatric evidence in his defense, Ake v.

o

Oklahoma, 470 U.S. 68 (1985), or his due process right not to be 
tried while incompetent, Pate v. Robinson. 383 U.S. 375 (1966).

As the Court recognized in Gibson v. Zahradnick, the defense 
must be free to explore the availability of psychiatric evidence 
without running the risk that the investigation will furnish 
evidence to the prosecution. Accordingly, this Court held that 
the prosecution may not use any statements made during a

59



psychiatric evaluation as proof of guilt; such statements are 
admissible only if the defendant puts his mental condition in 
issue, and then only to rebut that issue. Accord United States 
v. Leonard. 609 F.2d 1163 (5th Cir. 1980); Collins v. Auger, 577 
F.2d 1107 (8th Cir. 1978).

The principle underlying Smith v. Estelle can be effectuated 
only by-applying the Gibson rule to capital sentencing proceed­
ings.21 Stated simply, the Fifth Amendment and the Due Process 
Clause bar prosecutorial use of information or opinion elicited 
during a psychiatric examination unless the evidence is intro­
duced for the limited purpose of rebutting claims raised by the 
defense in mitigation.22 By introducing evidence in mitigation, 
the defense does not open the door to unrelated evidence in 
aggravation.23 Were the rule otherwise, the defendant would be 
forced to choose between his Fifth Amendment right to remain 
silent and his virtually unqualified right, under the Due Process 
Clause and the Eighth Amendment, to obtain and introduce

21 As the Supreme Court noted in Estelle v. Smith, there 
is no basis to "distinguish between the guilt and penalty phases 
of [a capital murder trial] so far as the protection of the Fifth 
Amendment privilege is concerned." 451 U.S. at 463.

22 The Virginia General Assembly specifically enacted such 
a prohibition in 1986. See Va. Code Ann. § 19.2-264.3:1 (G) 
(1988) .

23 As the magistrate noted, JA 296, psychiatric testimony 
offered in mitigation may be relevant to the dangerousness issue, 
but the evidence is not fungible. In this case, Dr. Ryans' 
testimony, which focused explicitly on the predictive issue, was 
unrelated, both clinically and logically, to the testimony by Dr. 
Showalter regarding Giarratano's developmental background and 
mental condition at the time of the offense.

60



psychiatric testimony in support of a claim in mitigation of a 
death sentence. Skipper v. South Carolina. 476 U.S. 1 (1986);
cf. Ake v. Oklahoma. 470 U.S. 68 (1985).
C. Even if Dr. Ryans' testimony was not barred by the Fifth

ATn̂ nrimp-nt, it was constitutionally inadmissible under the
Sixth Amendment.
Under the rule announced in Gibson. properly understood, the 

defendant's Fifth Amendment interests are adequately protected by 
the defense's opportunity to control the use of psychiatric 
testimony at trial. However, if the magistrate's ruling 
correctly states the constitutional rule, the defendant's Fifth 
Amendment interests cannot be adequately protected without 
consultation with counsel before the evaluation. Thus, if Gibson 
does not bar the prosecution's affirmative use of Dr. Ryans' 
testimony, it was clearly inadmissible under the Sixth Amendment.

In Estelle v. Smith, the Supreme Court held that a capital 
defendant's Sixth Amendment rights are violated when the defense 
counsel does not receive notice that his client will be undergo­
ing a psychiatric examination to evaluate his future dangerous­
ness, and when the prosecution, during the penalty phase of the 
trial, uses the results of that examination as the basis for 
testimony on this issue. 451 U.S. at 469-71. On the way to that 
conclusion, the Court found that "adversary proceedings" had 
begun by the time Smith underwent psychiatric examination. Id. 
at 470. Moreover, the Court found that the examination proved to 
be a "critical stage" of the aggregate proceedings against Smith, 
since the prosecution utilized Dr. Grigson's testimony in

61



presenting its case-in-aggravation at the sentencing hearing. Id. 
at 471. Noting how difficult it is for a layman to grasp the 
nuances of the privilege against self-incrimination, and 
observing that the psychiatric examination is "literally a life 
and death matter," the Court held that a defendant should not be 
forced to undergo such an examination without the opportunity to 
consult with counsel beforehand. Id.

For Sixth Amendment purposes, Giarratano1s case is indistin­
guishable from Estelle v. Smith. Giarratano had been indicted 
and assigned counsel when he was ordered to undergo psychiatric 
evaluation; thus adversary proceedings had begun. In addition, 
although the . psychiatrist in Giarratano's case was not the 
state's sole witness in aggravation, his testimony was instrumen­
tal in the state's effort to prove future dangerousness. And, in 
this case as in Smith, "defense counsel...[was] not notified in 
advance that the psychiatric examination would encompass the 
issue of future dangerousness."24 451 U.S. at 471.

The magistrate's discussion of Sixth Amendment law is 
impossible to reconcile with his analysis of Mr. Giarratano's

24 Following Smith v. Estelle, there was some question as 
to whether the Sixth Amendment right is satisfied merely by 
notifying defense counsel of the examination, or whether counsel 
must also be apprised of the specific purpose of the examination. 
The Supreme Court clarified this in Buchanan v. Kentucky, 107 S. 
Ct. 2906, 2929 (1987), specifying that "the proper concern of 
this Amendment [is] the consultation with counsel. Such 
consultation, to be effective, must be based on counsel being 
informed about the scope and nature of the proceeding.... [T]he 
effectiveness of the consultation also would depend on counsel's 
awareness of the possible uses to which petitioner's statements 
in the proceeding could be put."

62



Fifth Amendment .rights. The magistrate concluded that Mr. 
Giarratano was not prejudiced by not being able to speak to his 
attorney since Alberi "was aware" that the results of the 
examination could be used only on the issue of competency and 
sanity, and since Giarratano would have had no choice but to 
submit to an exam on competency and sanity once he invoked the 
insanity defense.25 However, this reasoning contradicts the 
magistrate's holding on the Fifth Amendment claim: Assuming that 
Alberi "was aware" that the results of the examination could be 
used only on the issues of competency and sanity, this belief 
turned out to be erroneous because the magistrate holds that 
these results were properly admitted on the issue of future 
dangerousness as well. JA 296. If the fruits of the evaluation 
can be used for this purpose, both counsel and the defendant must 
be notified. In the absence of such notice, Giarratano- "was 
denied the assistance of his attorney[] in making the significant 
decision of whether to submit to the examination and to what end 
the psychiatrist's findings could be employed." Estelle v. 
Smith. 451 U.S. at 471. As in Smith, the statements elicited 
during the examination became "literally a life and death 
matter." 451 U.S. at 471. Denied the opportunity to consult

25 The magistrate found that "petitioner's trial counsel 
was promptly notified that petitioner had been transferred to the 
mental hospital and [of] the reason for the transfer." JA 296 
(emphasis supplied.) However, the record does not support the 
magistrate's finding that Alberi knew that his client's 
competence and sanity were being evaluated. To the contrary, 
Alberi stated that he was told that the reason for Giarratano's 
transfer was to rehabilitate him following his suicide attempt, 
not to develop testimony for trial. JA 146-147.

63



with counsel, Giarratano became the "'deluded instrument' of his 
own execution." Id. at 462.

In sum, the introduction of Dr. Ryans' testimony as part of 
the prosecution's case-in-aggravation clearly violated Giar- 
ratano's rights under both the Fifth and Sixth Amendment 
Amendments.2 6
D. This Court should address Giarratano's constitutional 

objection to Dr. Ryans' testimony on its merits because he 
has shown both "cause" for, and prejudice resulting from, 
the procedural default in state court.
The constitutional objection to Dr. Ryans' testimony was 

raised for the first time in state habeas proceedings. Because 
Mr. Alberi neither objected to the testimony at the time of the 
trial nor raised the issue on direct appeal, Giarratano's claim 
is admittedly subject to the doctrine of procedural default 
announced in Wainricht v. Svkes. 433 U.S. 72 (1977), and applied
in Smith v. Murray. 477 U.S. 527’(1986).

In Smith v. Murray, the Supreme Court held that a "delibera­
te, tactical decision not to pursue a particular claim" in the 
mistaken belief that it was without merit does not constitute 
"cause" for a procedural default. 477 U.S. „at 534. The Court 
explained that "[the] process of ‘winnowing out weaker arguments 26

26 Moreover, it is clear that this constitutional error 
was not harmless under the criteria announced by the Supreme
Court in Satterwhite v. Texas. _____ U.S. ____, 108 S.Ct. 1792
(1988)-. TDo invoke the harmless error rule, the court must be 
convinced beyond a reasonable doubt that the inadmissible
testimony "did not influence the sentencing [judge]." Id. at __,
108 S.Ct. at 1799. In Giarratano's case, Dr. Ryans' testimony
not only influenced the sentencing judge but appears to have 
served as an essential factual predicate for his finding of 
future dangerousness. (See discussion of "prejudice" infra-)

64



on appeal and focusing' on those more likely to prevail, far from 
being evidence of incompetence, is the hallmark of effective 
advocacy." Id. at 535. From his perspective at the time that he 
was preparing the appeal, Smith's counsel's failure "to recognize 
the legal basis of the claim" was not an error "of such magnitude 
that it rendered counsel's performance constitutionally defi­
cient. . . ." Id. . It became clear only with the benefit of 
hindsight that counsel had failed to anticipate "the likelihood 
that a federal court [would] repudiate an established state 
rule." Id. at 536.

Giarratano's case is clearly distinguishable from Smith v. 
Murray. Alberi's failure to object to Dr. Ryans' testimony was 
not based on a belief that the claim had no merit. To the 
contrary, Alberi had been informed in advance that Dr. Ryans' an­
ticipated testimony was constitutionally objectionable. Just 
prior to the capital sentencing proceeding, one of Giarratano's 
present counsel specifically brought the district court's 
decision in Smith v. Estelle. 445 F. Supp. 647 (N.D. Tex. 1977), 
to Alberi's attention, advising him to object in the event that 
the prosecution sought to introduce psychiatric testimony on the 
dangerousness issue. Transcript of state habeas corpus hearing 
9/25/81 [hereafter, "HT], at 38-39. Alberi also testified that 
he was aware of this Court's holding in Gibson v. Zahradnick. HT 
37-38.

Alberi testified at the habeas proceedings that he had 
considered making an objection during the sentencing proceeding,

65



but that he made a "tactical decision" not to do so, HT 35, based 
on his judgment that Dr. Ryans' testimony had a "minimal effect" 
on the court, HT 31, 71, that the testimony that Dr. Showalter 
would present in mitigation would offset Dr. Ryans' testimony in 
aggravation, HT 69, and that Dr. Ryans would be allowed to 
testify anyway since he was planning to put Dr. Showalter on the 
witness stand, HT 73.

Mr. Alberi's explanation has the distinct flavor of a post- 
hoc rationalization for a demonstrably ill-considered decision. 
The time to object to Dr. Ryans' testimony was before he 
testified. At that point, none of the "tactical" explanations 
would apply. What this comes down to is that Mr. Alberi did not 
understand the law and made no effort to become better informed 
even after he was told about the problem. In fact, Alberi 
admitted during the habeas proceedings that "he had not seriously 
and deeply weighed the state of the case law at that point." HT 
35. He testified that he had no recollection of reading Smith v. 
Estelle, HT 38-39, and that he lacked a "good, clear" understand­
ing of the interplay between, mitigating and aggravating factors. 
HT 85-86.27

27 The magistrate's finding that Alberi was aware of the 
Smith opinion and made a "conscious, deliberate, well-considered 
and reasonable decision not to object to Dr. Ryans' testimony" is 
clearly erroneous, both because it is controverted by Alberi's 
testimony regarding his understanding of the law and, most 
importantly, because the magistrate's judgment that Alberi's 
decision was "reasonable" is intertwined with his own erroneous 
judgment that Dr. Showalter's testimony opened the door to Dr. 
Ryans' testimony.

66



Alberi's performance fell far short of the standard of a 
reasonably competent attorney. If anything, his error seems even 
more egregious if it is viewed without the "distorting effects of 
hindsight." 477 U.S. at 53 6. Given the information he had at 
the time of the proceedings, his failure to object to Dr. Ryans' 
testimony and to pursue the issue on appeal was an error of such 
magnitude that, it rendered his performance at the sentencing 
phase of Giarratano's trial constitutionally deficient under the 
test of Strickland v. Washington. 466 U.S. 668 (1984).

Assuming that Giarratano has demonstrated "cause" for the 
procedural default, the prejudicial effect of the constitutional 
error is clearly demonstrated in the trial judge's sentencing 
memorandum JA 212-228. Although the meaning of "prejudice" in 
the context of a procedural default is not altogether clear, Dr. 
Ryans' testimony was prejudicial by even the stringent standard 
articulated for ineffective assistance of counsel claims in 
Strickland v. Washington. 466 U.S. 668 (1984): "whether there is 
a reasonable probability" that, but for Dr. Ryans' inadmissible 
testimony "the result of the proceeding would have been dif­
ferent." Id. at 695.

The trial judge explicitly relied on the threatening 
outburst made by Mr. Giarratano at Central State, as reported by 
Dr. Ryans, and on Dr. Ryans' opinion regarding the probability of 
future violence, in support of his finding, beyond a reasonable 
doubt, that Giarratano would constitute a continuing threat to 
society. This finding was the sole statutory predicate for Mr.

67



Giarratano's death sentence. Thus, it îs indisputable that Dr. 
Ryans' testimony influenced or contributed to the trial judge's 
finding. Although the application of the Strickland standard is 
inherently speculative, the record raises "a reasonable probabil­
ity" that the trial judge would not have made this finding 
without Ryans' testimony and, therefore, that the outcome would 
have been different.

Even if this Court were to rule that appellant has not shown 
sufficient "cause" for the procedural default, the Court's 
inquiry should not end there. The Supreme Court noted in 
Wainright v. Svkes that a procedural default should "not prevent 
a federal habeas court from adjudicating for the first time the 
federal constitutional claim of a defendant who in the absence of 
such adjudication will be the victim of a miscarriage of 
justice." 433 U.S. at 91 (emphasis added). More recently, the 
Court stated that in certain cases the concepts of cause and 
prejudice must "yield to the imperative of correcting a fundamen­
tally unjust incarceration." Smith v. Murray, 477 U.S. at 537. 
See also Dugger v. Adams. 57 U.S.L.W. 427 (2-28-89). In Smith, 
the court found that there was no "fundamental miscarriage of 
justice" because the admission of the inadmissible psychiatric 
testimony did not "preclude the development of true facts" or 
"serve to pervert the jury's deliberation concerning the ultimate 
question whether in fact petitioner constituted a continuing 
threat to society." 477 U.S. at 528. In contrast, the admission 
of Dr. Ryans' testimony contributed heavily to an inaccurate

68



factual determination on a necessary predicate for the death 
sentence.

The Fifth and Sixth Amendment claims discussed above relate 
to the admissibility, not the reliability, of Dr. Ryans' 
testimony. It must also be recognized, however, that this 
testimony was profoundly unreliable. Giarratano had been taken 
to Central State Hospital in a state of acute emotional distur­
bance. As a consequence of his deteriorated mental condition, he 
failed to cooperate with the hospital staff, attempted suicide 
and did not divulge the information required for a thorough 
clinical evaluation relevant to capital sentencing. Dr. Ryans 
misconstrued Giarratano's acute state, and his imminent danger to 
himself, as evidence of characterological propensities and of 
long-term future dangerousness to others. See. e.q.. Letter of 
Dr. William Lee, 6/19/85, referred to supra. at 22-23 (where Dr. 
Ryans' colleague, Dr. Lee, acknowledges that if he had known Mr. 
Giarratano's true life history, this "knowledge ... would have 
substantially altered formulations I held at the time of his 
examination concerning mitigation and future dangerousness"). 
Thus, Dr. Ryans' testimony in this case actually "served to 
pervert" the sentencing judge's deliberation concerning the 
question of future dangerousness. Joseph Giarratano is not now, 
and may never have been, a danger to others.

In sum, to overlook the constitutional violation relating to 
Mr. Giarratano's evaluation at Central State would be to permit a 
"fundamentally unjust execution." By the same token, the

69



unreliability of Dr. Ryans' testimony is inextricably linked to 
Giarratano's profound mental distress during the evaluation 
itself, further reinforcing the argument developed earlier that 
his mental incompetence infected the entire course of the 
criminal proceedings against him.

III.
THE FINDING OF "FUTURE DANGEROUSNESS' AS THE 
SOLE AGGRAVATING CIRCUMSTANCE IN MR.
GIARRATANO'S CASE FAILED TO SUITABLY DIRECT 
AND LIMIT HIS SENTENCER'S DISCRETION

A. The Constitutionally Necessary Narrowing Function of
Aggravating Circumstances
The foundation of Eighth Amendment death-penalty jurispru­

dence is the requirement that the sentencer's discretion be 
"suitably directed and limited." Gregg v. Georgia, 428 U.S. 153, 
189 (1976). This guiding principle recently was reaffirmed in
Maynard v. Cartwright. ___ U.S.___ , 108 S. Ct. 1853 (1988), in
which a unanimous Court held unconstitutional Oklahoma's 
"especially heinous, atrocious, or cruel" aggravating cir­
cumstance.

It is statutory aggravating circumstances that primarily 
limit the capital sentencer's discretion. These circumstances 
"circumscribe the class of persons eligible for the death 
penalty," Zant v. Stephens. 462 U.S. 862, 878 (1983), by focusing 
the sentencer's attention upon "the factors about the crime and 
the defendant that the State, representing organized society, 
deems particularly relevant to the sentencing decision." Gregg. 
428 U.S. at 192. Through aggravating circumstances, "the types

70



of murders for which the death penalty may be imposed become more 
narrowly defined and limited to those which are particularly
serious or for which the death penalty is peculiarly appro­
priate..." Id. at 222 (White, J., concurring).

To accomplish this "constitutionally necessary narrowing
function," Pulley v. Harris. 465 U.S. 37, 50 (1984),

[E]ach statutory aggravating circumstance 
must satisfy a constitutional standard 
derived from Furman itself. For a system 
'could have standards so vague that they 
would fail adequately to channel the decision 
patterns of juries with the result that a
pattern of arbitrary and capricious sentenc­
ing like that found unconstitutional in 
Furman could occur'....

Zant. 462 U.S. at 876-77 (citation and footnote omitted).
In short, statutory aggravating circumstances must provide a 

"'meaningful basis for distinguishing the few cases in which [the 
penalty] is imposed from the many cases in which it is not,'" 
Godfrey. 446 U.S. 420, 427-428 (1980)(quoting Gregg. 428 U.S. at
188), by referring to objective, readily identifiable facts whose 
presence or absence can be determined by rational sentencers.

When deciding whether a particular death penalty scheme 
meets Eighth Amendment requirements, the Court "[has] not stopped 
at the face of [the] statute, but [has] probed the application of 
the statutes to particular cases." McCleskev v. Georgia.
___U.S.___, 107 S.Ct. 1756, 1773 (1987) (discussing Godfrey];
Maynard. 108 S. Ct. at 1857-59. When the language of a state's 
statutory aggravating circumstance does not adequately channel 
discretion, the Supreme Court examines the opinions of the

71



highest state court in an effort to discover a "narrowing 
principle" or "specific curing instruction" that directs and 
limits a sentencer's discretion. Maynard. 108 S. Ct. at 1859.

In sum, whether by "objective legislative definition",
Lowenfield v. Phelps. ___U.S. ___, 108 S. Ct. 546, 554 (1988), or
through a judicially articulated "narrowing principle", Maynard. 
108 S. Ct. at 1859, the meaning of an aggravating circumstance 
must be clear enough to direct and limit the sentencer1s 
discretion.
B. The Failure of Virginia's "Future Violent Crimes" Aggravat­

ing Circumstance to Suitably Direct and Limit the Senten­
cer 's Discretion
In Virginia, the "future violent crimes" aggravating

circumstance is codified in two plainly inconsistent provisions.
Code of Va., Section 19.2-264.2, in relevant part, provides that:

In assessing the penalty of any person 
convicted of an offense for which the death 
penalty may be imposed, a sentence of death 
shall not be imposed unless the court or jury 
shall (1) after consideration of the past 
criminal record of convictions of the 
defendant, find that there is a probability 
that the defendant would commit criminal acts 
of violence that would constitute a continu­
ing serious threat to society... (emphasis 
added).

Section 19.2-264.4(C), in relevant part, provides that:
The penalty of death shall not be imposed 
unless the Commonwealth shall prove beyond a 
reasonable doubt that there is a probability 
based upon evidence of the prior history of 
the defendant or of the circumstances 
surrounding the commission of the offense of 
which he is accused that he would commit 
criminal acts of violence that would 
constitute a continuing serious threat to 
society...(emphasis added).

72



Both of the above provisions (herein "future violent crimes 
aggravating circumstance(s)") were enacted by the Virginia 
legislature* at the same time; they were companion provisions in 
the bill that, when enacted, became the current Virginia death 
penalty statute. See Virginia Acts of Assembly, Ch. 492, 1977.

In the first capital appeal under the current Virginia death . 
penalty statute, Smith v. Commonwealth, 219 Va. 455 (1978), the
Virginia Supreme Court adopted an appropriate "narrowing 
principle", Maynard. 108 S. Ct. at 1859, that limits sentencing 
discretion; this principle both gives more specific meaning to 
the inherently imprecise language of the future violent crimes 
aggravating circumstance,28 and provides a clear rule for sorting 
reliable evidence from unreliable evidence.29 The Court based 
its consideration that the future violent crimes aggravating 
circumstance was not unconstitutionally vague on its finding that 
the circumstance

28 See discussion infra at 74-75.
29 Although the United States Supreme Court rejected a 

facial constitutional challenge to a Texas aggravating 
circumstance that contained part of the language embodied in 
Virginia's future violent crimes aggravating circumstance, Jurek 
v. Texas. 428 U.S. 262, 269 (1970), the Court noted that the
"Texas Court of Criminal Appeals has yet to define precisely the 
meanings of such terms as 'criminal acts of violence' or 
'continuing threat to society"', apparently expecting that the 
Court would do so. Id. at 272. Later, in rejecting a broad 
argument that psychiatric opinions about future dangerousness 
should be excluded entirely, the Court expressed its expectation 
that the adversary process would "sort" "reliable 
from...unreliable evidence and opinion about future 
dangerousness". Barefoot v. Estelle. 463 U.S. 880, 901 (1983).

73



is designed to focus the fact-finder's 
attention on prior criminal conduct as the 
principle predicate for a prediction of 
future 1 dangerousness30 If the defendant 
has been previously convicted of 'criminal 
acts of violence', i.e., serious crimes 
against the person committed by intentional 
acts of unprovoked violence, there is a 
reasonable 'probability', i.e., a likelihood 
substantially greater than a mere pos­
sibility, that he would commit similar crimes 
in the future. Such a probability fairly 
supports the conclusion that society would be 
faced with a 'continuing serious threat'.

219 Va. at 478.
The critical component of this narrowing principle is that 

the previous acts that are the predicate for predicting, beyond a 
reasonable doubt, the probability of future criminal acts of 
violence must be not only (1) "criminal acts of violence," but 
also, (2) "serious crimes against the person" (3) "committed by 
intentional acts" (4) "of unprovoked violence." Id. at 478. This 
clear definition of "past criminal record of convictions" 
clarifies that language and. at the same time, provides a 
reasonable basis for defining, and a reasonable predicate for 
predicting, probable future "criminal acts of violence" that pose 
a "continuing serious threat to society."

30 in a footnote, the Court said:
It should be noted that, while prior criminal 
conduct is the principle predicate, the 
statute provides a further predicate, viz., 
"the circumstances surrounding the commission 
of the offense of which [the defendant] is 
accused".

Smith. 219 Va. at 478, n. 4.

74



Having devised the required narrowing principle, and having 
expressly relied upon that principle to reject the vagueness 
challenge to the future violent crimes aggravating circumstance, 
the Virginia Supreme Court then immediately ignored it. For 
example, one year later, in Clark v. Commonwealth. 220 Va. 201, 
210 (1979), the Court found that a conviction for conspiracy to 
distribute controlled drugs satisfied the "past criminal record" 
requirement and constituted an adequate predictive predicate even 
though it was not a serious crime against the person or a crime 
of unprovoked violence.

Indeed, the Court went even further in unchecking the 
discretion of capital decisionmakers. It found that the absence 
of a specific mitigating circumstance, remorse, helped establish 
the future violent crimes aggravating circumstance. In so doing, 
it relied upon the "prior history" language of § 19.2-264.4(C), 
rather than the "past criminal record of convictions" language of 
§ 19.2-264.2.31

However, in 1981, in Bassett v. Commonwealth, 222 Va. 844, 
851 (1981) , the Court quoted with approval the complete text of 
the Smith narrowing principle, concluding that, so construed, the 
future violent crimes aggravating circumstance "has a common- 
sense meaning which a jury can understand and thus supplies a

31 In the same year, in Stamper v. Commonwealth. 220 Va. 260 
(1979), the Court held that convictions for unauthorized use of a 
motor vehicle and being an accessory after the fact to an escape 
helped establish the predictive predicate, and entertained the 
possibility, without deciding, that misbehavior in prison would 
be admissible for this purpose. Id. at 277.

75



sufficient standard for a jury to predict future criminal 
conduct." Id. at 852. By reviving the Smith narrowing principle, 
the Court seemed to indicate its intention to apply it in the 
future.

But one year later, in Quintana v. Commonwealth. 224 Va. 127 
(1982), the Court held admissible to prove the future violent 
crimes aggravating circumstance jailhouse comments about unproven 
violent conduct made to other inmates, even though one of the two 
inmate witnesses who related these "admissions" thought the 
capital defendant was "'bragging'" about his past conduct "in 
order to create a 'macho' image." Id. at 148. See also LeVasseur 
v. Commonwealth. 225 Va. 564 (1983) ("[t]he admission of
evidence, other than criminal convictions, as to the defendant's 
dangerousness, was expressly approved in Quintana v. Common­
wealth. 224 Va. 127, 295 S.E.2d 643 (1982)").32

Later, in Edmonds v. Commonwealth. 229 Va. 303, 311 (1985),
in a holding that acknowledges virtually no limits on the
information a capital decisionmaker can consider in determining
whether the Commonwealth has established the future violent
crimes aggravating circumstance, the Court said:

In making such a determination, the fact­
finder is entitled to consider not only the

32 The Court in LeVasseur also rejected the argument that 
the existence of the two inconsistent future violent crimes 
aggravating circumstances renders Virginia's statute 
unconstitutionally vague, citing Jurek v. Texas, 428 U.S. 262 
(1970). However, the Texas statute before the Court in Jurek 
contained neither of the two inconsistent Virginia provisions 
and, therefore, Jurek had little relevance to the issue before 
the court in LeVasseur.

76



defendant's 'past criminal record of 
convictions,' ... but also 'any matter which 
the Court deems relevant to the sentence.'
Code § 19.2-264.4(B); 'the prior history of 
the defendant or...the circumstances 
surrounding the commission of the offense,'
Code § 19.2-264.4(C); and the 'heinousness of 
the crime.'

Id. at 312 (citation omitted and emphasis added). Accord, Beaver 
v. Commonwealth. 232 Va. 521, 528 (1987) (evidence of juvenile 
adjudications and dispositions, as well as allegations' of 
unadjudicated criminal activity, can help establish the future 
violent crimes aggravating circumstance).

These cases demonstrate that the Virginia Supreme Court has 
not applied its articulated narrowing principle, or any other 
constitutionally valid narrowing principle, see Maynard. 108 S. 
Ct. at 1859, with any consistency. Instead, it has relied upon 
precisely the same inherently open-ended "events of each case" 
test that was held unconstitutional by the Court in Maynard. 108 
S. Ct. at 1859. The result of this ad hoc non-principled 
approach, as in Maynard, is that the aggravating circumstance has 
failed entirely to "suitably direct...and limit" the discretion 
of capital sentencers, Gregg. 428 U.S. at 189, "genuinely narrow" 
the class of persons eligible for the death penalty, Zant. 462 
U.S. at 876-77, or provide a "principled way to distinguish" one 
capital defendant from another. Godfrey v. Georgia, 446 U.S. 420, 
433 (1986).33

33 In previous cases, this Court has given only cursory 
consideration to the constitutionality of the future 
dangerousness circumstance. See Clanton v. Muncy. 845 F.2d 1238, 
1243 (4th Cir. 1988); Turner v. Bass. 753 F.2d 342, 351 n. 10

77



One shorthand measure of this failure is instructive. In 
thirty-six capital appeals, decided over the course of more than 
a decade, the Virginia Supreme Court has reviewed, but never 
reversed, a trial court finding that a capital defendant 
satisfied the unconstitutionally elastic future violent crimes 
aggravating circumstance. Nor has any of the seven justices ever 
dissented in these thirty-six opinions with respect to the 
application of this circumstance.34 That is because, as defined,

(4th Cir. 1985); Brilev v. Bass. 750 F.2d 1238, 1245 (4th Cir.
1984) . It has never before been asked to consider a Godfrey- 
Mavnard challenge to Virginia's application of this circumstance.

34 Smith v. Commonwealth. 219 Va. 455 (1978) ; Mason v.
Commonwealth. 219 Va. 1091 (1979); Clark v. Commonwealth. 220 Va. 
201 (1979); Stamper v. Commonwealth. 220 Va. 260 (1979); 
Giarratano v. Commonwealth. 220 Va. 1064 (1979); Turner v.
Commonwealth. 221 Va. 513 (1980); Brilev v. Commonwealth, 221 Va. 
532 (198 0) ; Brilev v. Commonwealth. 221 Va. 563 (198 0) ; Evans v.
Commonwealth. 222 Va. 766 (1981) ; Bassett v. Commonwealth. 222
Va. 844 (1981); Clanton v. Commonwealth. 223 Va. 41 (1982);.
Quintana v. Commonwealth. 224 Va. 127 (1982); Peterson v. 
Commonwealth. 225 Va. 289 (1983); LeVasseur v. Commonwealth. 225
Va. 564 (1983); Coleman v. Commonwealth. 226 Va. 31 (1983);
Stockton v. Commonwealth. 227 Va. 124 (1984); Clozza v.
Commonwealth. 228 Va. 124 (1984); Evans v. Commonwealth. 228 Va.
468 (1984); Tuggle v. Commonwealth. 228 Va. 493 (1984); Edmonds
v. Commonwealth. 229 Va. 303 (1985) ; Povner v. Commonwealth, 229
Va. 401 (1985); Watkins v. Commonwealth. 229 Va. 469 (1985);
Tuggle v. Commonwealth, 230 Va. 99 (1985) (holding that
Commonwealth erred in failing to provide the defendant with an 
independent psychiatrist, but not finding insufficient evidence 
to support the finding of future dangerousness); Frye v.
Commonwealth. 231 Va. 370 (1986) ; Beaver v. Commonwealth. 232 Va. 
521 (1987); Gray v. Commonwealth. 233 Va. 313 (1987); Payne v.
Commonwealth. 233 Va. 460 (1987) ; Pope v. Commonwealth. 234 Va.
114 (1987); Williams v. Commonwealth. 234 Va. 168 (1987); Townes
v. Commonwealth. 234 Va. 307 (1987); Delong v. Commonwealth, 234
Va. 357 (1987); O'Dell v. Commonwealth. 234 Va. 672 (1988);
Fisher v. Commonwealth. ___ Va. ___, 374 S.E.2d 46 (1988);
Mackall v. Commonwealth. ___ Va. ___, 372 S.E.2d 759 (1988);
Stout v. Commonwealth. ___ Va. ___, 376 S.E.2d 288 (1989); Hoke
v. Commonwealth. ___ Va. ___, __S.E.2d ___, No. 880268 (Va., Mar.
3, 1989).

78



every person convicted of capital murder satisfies the future 
violent crimes aggravating circumstances.35 36
C. The Egregious Failure of the Future Violent Crimes Aggravat­

ing Circumstance to Suitably Direct and Limit the Sentencing 
Court's Discretion in Giarratano1s Case
Mr. Giarratano's case demonstrates the unconstitutional 

vagueness, as applied to him, of the future violent crimes 
aggravating circumstance. At the threshold, both the sentencing 
court and the Virginia Supreme Court, without explanation or 
analysis, chose to apply the unlimited test of the future violent 
crimes aggravating circumstance codified in § 19.2-264.4(C),
rather than the quite different, and more limited, test codified 
in § 19.2-264.2.36 Neither Court applied the narrowing principle 
articulated in Smith v. Commonwealth. 219 Va. 455 (1978), even

35 Just as "a person of ordinary sensibility could fairly 
characterize almost every murder as 'outrageously or wantonly 
vile, horrible and inhuman'", Godfrey. 446 U.S. at 428, any 
"person of ordinary sensibility" who is told to consider "the 
circumstances surrounding the commission" of a capital murder, 
and given no guidance about the significance of these 
circumstances (or about many other important matters, see, infra, 
at 80-82), will virtually inevitably predict violent criminal 
behavior. The State of Oklahoma stated this proposition most 
plainly in its brief in Maynard, at 58-59:

If anything, an aggravating circumstance that 
requires a jury to speculate as to whether a 
defendant is going to commit crimes in the 
future gives the jury more discretion than if 
it merely decides whether the crime was 
'especially heinous, atrocious, or cruel.' A 
decision that a crime is 'especially heinous, 
atrocious, or cruel' involves an assessment 
of concrete, historical facts, while the 
prediction of future conduct is incapable of 
objective analysis.

36 See JA 214; Giarratano v. Commonwealth. 220 Va. 1064, 
1074-75 (1980).

79



though Smith had been decided less than one year before the
sentencing court's decision. If the § 19.2-264.2 test, as
construed in Smith. had been applied,37 there could have been no 
reasonable argument that the Commonwealth established the future 
violent crimes aggravating circumstance.38

As importantly, when it considered the sentencing evidence, 
neither the sentencing court nor the Virginia Supreme Court had 
before it any test —  whether the § 19.2-264.2 test, the Smith 
construction, or another "narrowing principle" —  that gave 
meaning to the open-ended language of the Virginia death penalty 
statute or channeled, in any reasonable way, sentencing and 
appellate discretion. Thus, no standards guided the consideration 
of, or gave meaning to:

1) the compelling evidence that Giarratano was a lifelong 
drug addict and alcoholic;

2) the direct relationship between his addictions and 
criminal behavior;

3) the significance of his prior adult conviction for auto 
theft;

4) the significance of both the adjudication and disposition 
—  an 18 month probation, with an "adjudication of guilty

37 The caption of § 19.2-264.2 is the language of mandate—  
"Conditions for imposition of death sentence" (emphasis added) 
—  making even more inexplicable the failure to apply it to 
Giarratano's sentencing.

38 See discussion supra at 32-33.

80



withheld” of the only adult charges of violent crimes JA/DA
286 (emphasis added);39

5) the significance of Giarratano's severe and chronic self­
destructive behavior;

6) the hypothetical "society" in which Giarratano's future 
was being evaluated, —  the larger "society", or a more tightly 
controlled prison "society" —  and the relative dangers of 
violent crimes he would allegedly pose to each;40

7) the meaning of "probability";41
8) the significance of much of the extraordinarily general 

and inherently unreliable "evidence", in the nature of conclusory 
rumor, in the Giarratano "Presentence Report";42

39 Alleged "battery of a law enforcement officer, 
aggravated assault (2) and resisting arrest with violence", all 
of which allegedly arose out of a single event. The absence of 
guidance about the significance of such allegations is 
particularly troublesome when, as in Giarratano's case, only the 
conclusory paper record of these allegations is admitted. The 
Virginia Supreme Court has warned that in "determining" a capital 
defendant's "proclivity for violence", the "mere record of 
previous convictions" can present "an inaccurate or incomplete 
impression of the defendant's temperment and disposition." 
Stamper v. Commonwealth. 220 Va. 260, 276 (1979).

40 Compare Rouqeau v. State. 738 S.W. 2d 651, 660 (Tex. Cr. 
App. 1987) (clarifying that, under the partially similar Texas 
death penalty provision, "society" includes the Department of 
Corrections).

43 Compare Cuevas v. State. 742 S.W. 2d 331, 346-47 (Tex. 
Cr. App. 1987) (clarifying the meaning of "probability").

42 See e.g., Mrs. Parise, Giarratano's mother, reported that 
she was told by...[a] psychiatrist 'Joseph is just an obese child 
who feels sorry for himself,"' JA/DA 281; the receipt of letters 
"attesting to Mrs. Parise's good character". JA/DA 287.

81



9) the nature of the future "criminal acts of violence" that 
"constitute a continuing threat to society";43 and

10) the time in the "future" —  now, ten years, twenty years 
or a lifetime —  at which Giarratano allegedly would commit 
criminal acts.44

In sum, Mr. Giarratano was sentenced to death on a finding 
of future dangerousness, and his sentence was affirmed on this 
basis, even though the Virginia death penalty statue has plainly 
inconsistent provisions defining the future violent crimes 
aggravating circumstance; there is no indication why one, rather 
than the other, was applied in his case; the one provision 
applied in Giarratano's case is unconstitutionally vague; the 
Virginia Supreme Court has not given it a constitutionally 
required narrowing interpretation; and the Commonwealth's 
evidence, if it had been properly limited and measured against a

43 "Hitting someone with your fist is a 'criminal act of 
violence'; does the [comparable] section [in the Texas Act] mean 
that a jury must vote to electrocute persons shown to be given to 
fisticuffs? If not, where is the line? Secondly, what is the 
difference between 'criminal acts of violence' which do, and 
those which do not, 'constitute a continuing threat to society'"? 
Black, Capital Punishment: The Inevitability of Caprice and 
Mistake 63 (1974).

44 In this respect, the testimony of Dr. Ryans, the 
Commonwealth's witness at the Giarratano sentencing hearing, 
provides critical evidence of the fatal vagueness of the future 
violent crimes aggravating circumstance. At the sentencing 
hearing, he located his prediction of dangerousness "twenty years 
from now". JA/DA 157. At the state habeas corpus hearing, Dr. 
Ryans admitted that "I couldn't give an answer about twenty 
years from now", and located the time of future dangerousness as 
"this point in time". HT 126, 129.

82



constitutionally adequate standard, failed to establish the 
future violent crimes aggravating circumstance.

IV.
THE SENTENCER UTILIZED THE INDISPUTABLY 
MITIGATING EVIDENCE OF MR. GIARRATANO' S 
MENTAL AND PHYSICAL ILLNESS AS AGGRAVATING 
EVIDENCE TO SUPPORT THE FINDING OF FUTURE 
DANGEROUSNESS, IN VIOLATION OF THE EIGHTH AND 
FOURTEENTH AMENDMENTS.

Under heading IV of the Second Amended Petition For Writ of 
Habeas Corpus, Mr. Giarratano asserted that the penalty of death 
was excessive and disproportionate in relation to his degree of 
culpability, in light of his diminished responsibility and 
mitigating mental abnormality. In his Amendment To Petition For 
Writ Of Habeas Corpus, he asserted under heading XV that the 
sentencer impermissibly treated his emotional and mental illness, 
and his history of drug and alcohol abuse as an aggravating 
factor, rather than as a mitigating factor. Both claims were 
asserted under the Eighth and Fourteenth Amendments to the United 
States Constitution.

The magistrate found no constitutional dimension to the 
heading IV claim, noting that it amounts "to nothing more than an 
expression of dissatisfaction that mitigating circumstances 
proffered by petitioner did not persuade the sentencing court 
that a life sentence rather than a capital sentence was 
appropriate." JA 301. The District Court adopted the magis­
trate's holding and dismissed that claim on the merits.

As to the heading XV claim, the District Court refused to 
allow the amendment based on its finding of lack of merit to the

83



claim, and refused to allow the proposed supplement thereto on
the grounds that it was cumulative. JA 683-684. The Court's
rationale for denying the amendment was that "[t]he trial court
based its sentencing decision on the fact of the petitioner's
future dangerousness, regardless of what the cause for that
dangerousness is. The sentence was not imposed because the
petitioner allegedly had a mental or emotional disorder."
A. The Death Penalty May Not Be Imposed Based Upon A Finding Of 

Future Dangerousness Where The Factual Predicate Of That 
Finding Lies In The Defendant's Mental Illness. Disorder Or 
Defect. Or In His History Of Substance Abuse
The distinction drawn by the District Court between 

imposition of the death penalty because the defendant has a 
mental or emotional disorder and imposition of the death penalty 
based upon a finding of future dangerousness, which is itself 
predicated upon that same mental or emotional disorder, is 
meaningless. Whichever way the relationship between the 
condition and the penalty is formulated, the simple fact is that 
the aggravating circumstance used to justify the sentence of 
death is rooted in the same facts of mental and emotional 
disorder. They are thus functionally equivalent. See Note, 
Mental Illness As An Aggravating Circumstance in Capital 
Sentencing. 89 Colum. L. Rev. 291, 301 (1989).

In Zant v. Stephens, 462 U.S. 862 (1983), the Supreme Court, 
in upholding Georgia's sentencing scheme, noted that Georgia had 
not

"attached the 'aggravating' label to factors 
that are constitutionally impermissible or 
totally irrelevant to the sentencing process,

84



such as for example the race, religion, or 
political affiliation of the defendant,
[cites omitted], or to conduct that actually 
should militate in favor of a lesser penalty, 
such as perhaps the defendant's mental 
illness. Cf. Miller v. Florida. 373 So.2d 
882, 885-886 (Fla. 1979). If the aggravating 
circumstance at issue in this case had been 
invalid for reasons such as these, due 
process of law would require that the jury's 
decision to impose death be set aside.

Id. at 885. Thus, the Supreme Court recognized that it is
constitutionally impermissible to attach the aggravating label to
a condition of mental illness, as was done in this case.

.In Miller, upon which the Supreme Court relied in Stephens, 
the Florida Supreme Court recognized what the district court 
refused to recognize in the instant case: that there is no
distinction between a finding of aggravation based upon mental 
illness, and a finding of aggravation based upon future danger­
ousness, when that finding is itself predicated upon mental 
illness. The trial court had sentenced the defendant to death 
because it was the only way to assure that he would not commit 
such a crime again. 373 So.2d at 885. The Court interpreted the 
trial court's decision as a determination that the defendant's 
allegedly incurable and dangerous mental illness was an aggravat­
ing factor. Id* Since the Florida sentencing scheme, like the 
Virginia scheme, suggested that mental illness is a mitigating 
factor, the Court held that it was impermissible to treat the 
defendant's propensity to commit violent acts as an aggravating 
factor. Id. at 886. In so holding, the Court stated that "[t]he 
trial judge's use of the defendant's mental illness, and his

85 -



resulting propensity to commit violent acts (emphasis added) was 
contrary to the legislature's intent that mental illness be 
considered mitigating rather than aggravating." Id. at 886. 
Thus, the Court rightly drew no distinction between relying on 
mental illness itself as an aggravating factor and relying on 
future dangerousness which is factually rooted in mental illness 
as an aggravating factor. In the instant case, on the other 
hand, the district court elevated form over substance in drawing 
that distinction.

If, in fact, mental illness is to be considered a mitigating 
factor, as virtually all states, including Virginia, agree it 
should, Note, supra. 89 Colum. L. Rev. at 296-298, it cannot also 
provide the basis for aggravation without undermining the very 
purpose of the constitutional requirement of individualized 
sentencing. In Lockett v. Ohio. 438 U.S. 586 (1978), the Supreme 
Court invalidated Ohio's capital sentencing scheme because it 
limited the mitigating circumstances that could be considered. 
Id. at 608. This limitation was fatal because the constitution 
requires completely individualized determinations. Xd. at 
604-606. Meaningful consideration cannot be given to mental 
illness as a mitigating factor, however, if, at the same time, it 
provides the basis of a finding of an aggravating circumstance. 
Thus, a factor which has been consistently recognized as 
mitigating in nature, see. e. g. . Eddings v. Oklahoma. 455 U.S. 
104, 115-116 (1982); Evans v. Lewis. 855 F.2d 631, 636-637 (9th 
Cir. 1988); Middleton v. Dugger. 849 F.2d 491, 495 (11th Cir.

86



>1988); Mathis V. Zant. 704 F.Supp. 1062 (N.D.Ga. 1989), is 
effectively removed from consideration as such by the sentencer's 
reliance on it to establish an aggravating factor.

It is not in dispute that Mr. Giarratano suffered from 
serious mental disturbance. Dr. Showalter testified that the 
petitioner suffered from "a schizoid personality disturbance" or 
"pre-psychotic personality disturbance." JA/DA 172. He 
concluded that petitioner "was under extreme mental and emotional 
disturbance at the time of the commission of these crimes" due to 
the "chronic longstanding stress" of his childhood environment 
and the "acute stress" of drug abuse, JA/DA 179-180, 183, 
resulting in "serious impairments, both chronic and acute, of his 
capacity to control his behavior." Giarratano v. Commonwealth, 
at 1077. Dr. Ryans did not dispute that finding. In fact, he 
too was "certain" that petitioner "had a severe disturbance of 
his personality." Indeed, the trial court and the Virginia 
Supreme Court recognized that the two doctors agreed almost 
completely, differing only as to whether or not the murders were 
symbolic. Id.

Based upon this evidence, it can hardly be argued that 
petitioner was not suffering from the very sort of emotional and 
mental illness or disorder which has been recognized repeatedly 
as being mitigating in nature. This evidence was critical to the 
finding of future dangerousness and, thus, provided the factual 
predicate of the finding of an aggravating circumstance. The 
sentencing court thereby attached an aggravating label to

87



petitioner's mental, condition, and interposing a finding of 
future dangerousness between his mental illness and imposition of 
the death penalty does not change that result. See Miller v. 
Florida. 373 So.2d at 886.

The suggestion in the record that the presence of alcohol 
and drug abuse in petitioner's history negates the mitigating 
effect of his mental disability is unsupportable. Indeed, such 
abuse itself constitutes a mitigating factor. Matthis v. Zant.
704 F.Supp. at ___(citing Roberts v. Louisiana, 431 U.S. 633, 637
(1977)). In Matthis. the Court found ineffective assistance of 
counsel based on the failure to introduce evidence of drug and 
alcohol abuse, along with the failure to introduce evidence of 
emotional and mental disturbance. Id. See also. Evans v. Lewis. 
855 F.2d at 636-637. If indeed, such abuse is so clearly 
mitigating that the failure to introduce evidence of it con­
stitutes ineffective assistance of counsel, it cannot also 
provide the factual predicate of a finding of future dangerous­
ness upon which imposition of the death penalty may be based 
without placing the attorney contemplating the introduction of

o
such evidence on the horns an of an insoluble dilemma. Thus, the 
sentencing court's attachment of an aggravating label to 
appellant's history of mental illness and substance abuse, when, 
in fact it mitigated culpability, resulted in the imposition of 
the sentence of death in violation of the Eighth and Fourteenth 
Amendments.

88



A rule of law that endorses the sentencing court's rationale 
would render the sentencing process arbitrary and capricious, 
contrary to the Supreme Court's oft-repeated intention to 
eliminate arbitrariness from death sentencing. See discussion 
supra. at 70-72. If evidence that is consistently recognized as 
mitigating can be relied upon alternatively as the factual 
predicate of the aggravating circumstance upon which imposition 
of the death penalty is premised, the sentencing proceeding 
becomes completely arbitrary. The result turns not on the 
rational identification and balancing of aggravating and 
mitigating circumstances, but rather on the particular and 
unpredictable predilections of the sentencer. If the evidence
establishes that the defendant may again commit a violent crime 
due to his chronic mental illness and/or substance abuse, the 
sentencer may choose to treat that evidence as aggravating 
because it establishes future dangerous-ness, or mitigating 
because it indicates less culpability. The sentencer's resolu­
tion of this conflict depends not on the character of the 
accused, but on the propensities of the sentencer, or on other 
arbitrary factors, which is entirely contrary to all modern 
Eighth Amendment jurisprudence.

Since in the instant case, the finding of the aggravating 
factor of future dangerousness was predicated upon appellant's 
emotional and mental illness and history of substance abuse, 
which should have mitigated, rather than aggravated his cul­
pability, the sentence of death must be vacated.

89



B. The Penalty Of Death Is Excessive And Disproportionate In
Relation To Petitioner's Degree Of Culpability
The requirement that sentencers consider all mitigating 

evidence is intended to enable the sentencer to distinguish those 
defendants who are most deserving of the death penalty. See.
Godfrey v. Georgia. 446 U.S. 420, 433 (1980). In the instant
case, however, the sentencer erroneously judged petitioner's 
culpability and, thus, the significance of the mitigating 
evidence, by the higher standard applicable to determinations of 
legal responsibility embodied in such concepts as diminished 
responsibility. The issue at sentencing is not whether the 
defendant's conduct is to be excused by the mitigating cir­
cumstances, but rather whether, because of those mitigating 
circumstances, he is "less culpable than defendants who have no 
such [characteristics]." California v. Brown. 479 U.S. 538, 545
(1987) (O'Connor, J., concurring).

The court in the instant case found that "[b]y becoming an 
habituate of drugs and alcohol one does not cloak himself with 
immunity from penalty for his criminal acts," JA 227, even 
though the court also quoted Dr. Showalter's testimony that his 
drug abuse was "not to be viewed as the well-adjusted kid who 
goes and takes drugs and gets hooked on them and decides he wants 
to start the life of a junkie...,'" JA 218-219, but rather was an 
attempt by him to "cope with the pressures building up inside 
him." JA 219. The court also found that appellant's personality 
was a specific product of his mistreatment by his mother, his 
step-father's early death, his exposure to his sister's promis­

90



cuity, his chance meeting with his natural father as a fellow 
prisoner, and his use of drugs and alcohol, JA 222, but dismissed 
the significance of all of this by the simplistic finding that 
his immediate condition was the result of "self imposed" drug and 
alcohol abuse. In fact, the evidence conclusively established 
that his substance abuse was itself a product of his traumatic 
childhood, and not the voluntary self-indulgence of a well 
adjusted adolescent. The Court erred, however, when it judged 
the significance of this evidence by the standard applicable to 
guilt and innocence rather than that applicable to mitigation.

As noted above, the Supreme Court has recognized substantive 
limits on aggravating factors that can support imposition of the 
death penalty. When, as here, all the evidence establishes that 
the defendant's conduct is the product of factors indicating a 
diminished moral, if not legal, culpability, the sentencer cannot 
constitutionally impose the sentence of death by holding that 
that identical mitigating evidence has rendered him a future 
danger.

CONCLUSION
In this case, a severely disabled man, who was so disabled 

that he believed that he had committed a murder he did not 
commit, gave himself to the police and the prosecutor. All too 
willingly, the Commonwealth obliged this man's pathetic 
delusion. That the crime scene evidence did not corroborate his 
guilt was of no moment, that the state's psychiatrist would use 
his uncounseled, tormented ravings to show his dangerousness was

91



of no moment, that his ravings rather than a narrow factual 
accurate inquiry into his non-violent past would secure his death 
sentence was of no moment, that his sentencer would turn his 
disabilities into the reasons to kill him was of no moment. 
While these matters were of no moment to the Commonwealth, they 
must be to this Court.

Accordingly, Mr. Giarratano's case should be remanded to the 
District Court for an evidentiary hearing on his claim of trial 
incompetency, or in the alternative, the writ should be granted 
as to the conviction for the trial court's failure to make 
adequate inquiry into his competence to stand trial. Further, 
the writ should be granted as to sentence for any or all of the 
three grounds set forth herein.

Respectfully submitted,

Julius L. Chambers 
Richard H. Burr 
99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 219-1900
Gerald T. Zerkin 
Karen L. Ely-Pierce 
Linden Tower Professional Center 
Suite 108
2nd & Franklin Streets 
Richmond, Virginia 23219 
(804) 788-4412
J. Gray Lawrence, Jr.
HOWELL, DAUGHERTY,

BROWN & LAWRENCE 
One East Plume Street 
Post Office Box 3929 
Norfolk, Virginia 23514 
(804) 623-7334

92



Edward L. Wolf 
ARNOLD & PORTER
1200 New Hampshire Avenue, N.W. 
Washington, DC 20036 
(202) 872-8818

Counsel for Appellant

Certificate of Service
I hereby certify that two copies of the foregoing brief have 

been served upon the appellee by mailing the copies to counsel 
for appellee, Robert Q. Harris, Esquire, Assistant Attorney 
General, 101 N. Eighth Street, Richmond, Virginia 23219, this 
jbfl-day of April, 1989.

Counsel for Appellant

93



*«' i

IN THE UNITED STATES DISTRICT COURT 
FOR THE

EASTERN DISTRICT OF VIRGINIA 
Norfolk Division

)
JOSEPH M. GIARRATANO, )

)Petitioner, )
)v. ) Civil Action No. 83-153-N
)RAYMOND K. PROCUNIER, )
)ResDondent. )

_____________________________ ________________ )

MEMORANDUM OF POINTS AND AUTHORITIES IN 
SUPPORT OF PETITIONER'S CLAIMS UNDER HEADING XI 
OF THE SECOND AMENDED PETITION FOR HABEAS CORPUS

J. Gray Lawrence, Jr. 
HOWELL, DAUGHERTY, BROWN <5 

LAWRENCE 
P.O. Box 3638 
Norfolk, Virginia 23524 
(804) 623-7334

Richard L. Wertheimer 
Edward L. Wolf 
Steven G. Reade 
ARNOLD & PORTER
1200 New Hampshire Avenue, N.W. 
Washington, D.C. 20036 
(202) 872-6700
Counsel for Petitioner 
Joseph A. Giarratano

Of Counsel:
J. Lloyd Snook, III 
Richard J. Bonnie

Dated: March 3, 1986



Page
TABLE OF CONTENTS

INTRODUCTION......................... '............... . 1

STATEMENT OF FACTS....................................  3

ARGUMENT............................................... 21
A. Giarratano’s Mental Condition 

Caused His Sentencing To Be
Constitutionally Flawed..........................  23
1. Competence Must Be Assessed 

with Reference to the Particular 
Decision To Be Made by the
Defendant.....................................  23

2. Giarratano Waived Crucial 
Constitutional Rights Due
to His Psychological Disorders.............. 32
a. Giarratano's behavior was 

the functional equivalent
of a waiver of counsel..................  3 3

b. Giarratano effectively waived 
his right to a reliable 
sentencing due to his
psychological disorders..................  3 5

c. Giarratano's rejection of a 
plea bargain was the result

. of psychological disorders.............. 3 9

B. The Death Sentence Was a Direct 
Consequence of Giarratano's 
Impaired Condition at Time
of Trial..........................................  40

C. The' Correct Remedy Is To Resentence
Giarratano........................................  45

CONCLUSION............................................  47

(i)



6

The first witness in mitigation was Dr. Showalter, 
who was prepared to testify about the inherent 

unreliability of opinions on long-term dangerousness 
but was never asked to refute Dr. Ryans. Dr. Showalter 
agreed with Dr. Ryans that Giarratano was severely 
mentally disturbed, but would only state that he was 
dangerous (primarily to himself) for the near-term.

The only other witness in mitigation was Carol 
Parise, Giarratano's mother, who testified simply that 
the information in the presentence report was accurate.

During his direct appeal and the early stages 
of his state and federal habeas actions, Giarratano's 
preference for death remained relatively constant.
Within days of the affirmance of his sentence by the 
Virginia Supreme Court, Giarratano asked Alberi not 
to prepare any more appeals and instead to have an 
execution date set "as soon as possible." Giarratano 
wrote the trial judge on two more occasions, requesting 
in each instance that his execution be carried out 
expeditiously. An execution date was set for June 13, 
19S0.

On June 3, 1980, Giarratano met with Dr. Showalter 
and Richard J. Bonnie, Director of the Institute of



7

Law, Psychiatry and Public Policy, which operates the 
Forensic Psychiatry Clinic, and stated that he wanted 
to die because he had not been able to obtain medical 
attention to "kill" the "voice" that was tormenting 
him. He believed that the only way to kill the voice -- 
which had been with him intermittently since childhood -■ 
and to stop it from laughing at him, was to die.

On the basis of this interview and his prior 
detailed examination of Giarratano, Dr. Showalter 
concluded that Giarratano was suffering from an acute 
psychotic deterioration. After extensive discussion 
with Mr. Bonnie and Dr. Showalter, Giarratano finally 
authorized Mr. Bonnie to seek a stay of his death 
sentence, and was then sent to Southwestern State 
Hospital, which concluded that he was not psychotic -- 
just under stress.

During the months of June, July, and August 1980, 
Giarratano changed his mind almost daily about whether 
to authorize further appeals. He attempted suicide 
on July 29, 1980, by slashing his wrists with a razor. 
This suicide attempt came very close to succeeding.
Two weeks later, Giarratano told Mr. Bonnie and J. Lloyd 
Snook, III, another attorney trying to help in his case, 
that he wanted the Commonwealth to help him commit



8

suicide, since he had been unable to do it himself; 
he wanted no more appeals.

Giarratano continued, however, to vacillate; 
on August 14, 1980, he authorized counsel to file a 
Petition for Writ of Habeas Corpus on his behalf. That 
permission, however, was revoked on August 22, 1980, 
when Giarratano decided, "[T]his isn't going to work . . .
I can't stand it any more . . .  I want to call it all 
off." Several days later, Giarratano called Mr. Bonnie 
and complained that he could not sleep: "The voices
are laughing at me . . . and I want to hurt myself to
stop it . ... The medicine [800 mg. Thorazine daily]
doesn't seem to be doing any good . . . ."

At about this time, Dr. Ryans of Central State, 
concluded that there was, doubt about Giarratano's 
competence and suggested psychiatric treatment at Central 
State Hospital to restore Giarratano's ability to "make 
appropriate decisions in regard to the legal process 
involving his life."

. Counsel then submitted to the Circuit Court for 
the City of Norfolk a Suggestion of Need for Hearing 
on Sanity or Competency; before that Suggestion could 
be considered by the Court, however, Giarratano's mother,



9

Carol Parise, filed a Petition for Writ of Habeas Corpus 
on his behalf, as Next Friend. In September, Giarratano 
agreed to allow counsel to pursue a Petition for Writ 
of Habeas Corpus in his own name.

Thereafter, Giarratano appeared to calm down.
He told counsel that the voices had, for the most part, 
gone away, and he was no longer interested in pursuing 
psychiatric treatment. The state habeas petition was 
pursued, albeit with Giarratano continually urging counsel 
to take the shortest possible route; for example, he 
instructed counsel not to prepare a Petition for Writ 
of Certiorari from the denial of state habeas relief.
There were, however, few obvious signs of mental distress.

This changed in 1983. After reluctantly 
authorizing counsel to file a federal habeas petition 
before this Court in February, Giarratano attempted 
in July to withdraw it so that his execution could go 
forward. This unexplained and dramatic shift in 
Giarratano's attitude toward his appeals again prompted 
concerns as to his competency, and Giarratano's counsel 
arranged for him to be examined by a psychologist,
Dr. Brad Fisher. He was also examined by a team of 
clinicians who reported their findings to the
Commonwealth.



10

After examining Giarratano on five occasions 
over a three-month period, Dr. Fisher identified the 
reason for Giarratano's unwillingness to cooperate with 
counsel trying to prevent his execution: Giarratano
"fe[lt] that he would rather die than continue to live 
with the psychological chaos and anguish that he feels 
inside.” This "psychological chaos and anguish" was, 
according to Dr. Fisher, attributable to "psychotic 
thinking and behavior [that] appears to have been present 
to some extent since his early childhood," the symptoms 
of which included "both visual and auditory 
hallucinations." (Fisher Final Report, at 4-5 (emphasis 
added)). Accordingly, Fisher's "overall findings," 
which were "buttressed by extensive previous records, 
including data from psychiatric commitments, other related 
psychological and psychiatric evaluations, court records 
and psychological testimony," were that Giarratano was 
suffering from a long-term psychological disturbance:

Joseph does indeed show psychotic leanings, 
and . . . the mental disturbance he
demonstrates has been present to some 

..extent since a very early age. The source 
for the disturbance can be seen quite 
clearly in development that included 
access to and even encouragement for 
taking drugs indiscriminately, combined 
with physical abuse. This resulted in 
several suicide attempts and 
hospitalizations for psychiatric problems



11

* * * *

d

dating back to a very early age and 
continuing throughout his life.

(Id. at 6 (emphasis added).)

In late November 1983, after extensive and 
intensive lay and professional counseling, Giarratano 
decided to resume his appeals. This was a vastly 
different Giarratano. For the first time, he actively 
assisted his counsel. For the first time, he involved 
himself personally in the efforts of his counsel and 
others in their efforts to save his life. Since that 
time there have been no more suicide attempts and no 
more requests for quick execution.

As a result of counseling, Giarratano was now 
able for the first time to tell his attorneys and others 
a great deal that he had never told anyone before -- 
things he had not told psychiatrists, the probation 
officer, or Mr. Alberi. But the process of disclosure 
took a great deal of time. It was not unlike peeling 
an onion -- layer by layer.

. This information, had Giarratano only been able 
to convey it at the time of his trial, would have had 
an impact upon the course of its penalty phase. It 
would have served to refute the Commonwealth's case