Ake v. Oklahoma Motion for Leave to File Amici Curiae and Brief of the Public Defender of Oklahoma County, The Public Defender of Tulsa County, and the Oklahoma Criminal Defense Lawyer's Association, as Amici Curiae Supporting Petitioner

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!?*; IN THE ; 'i :  :W :! \ V 'r . I ; - T
Jubreme Court of the United States 9

I ' j i ;  V>ON WRIT OF CERTIORARI TO THE 
t X  OKLAHOMA COURT OF CRIMINAL APPEALS ,3 * - ' -- •"•— ■•’•’•• • - •' O•>'; ;&v%-2;Ayfc,*̂ •<• *.;':• - v•.•-••• > ■■* v •■ ■•; • •' . > » * • -•'.•* " .
•MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE;

AND W ' • C ’-•< :. ■ •..*• . ’ ■ • :• - ■ : ■
I M  BRIEF OF THE PUBLIC DEFENDER OF-OKLAHOMA 

.COUNTY, .OKLAHOMA, THE PUBLIC DEFENDER, OF 
0 U L S A  COUNTY, OKLAHOMA, AND THE OKLAHOMA 
®CRIMINAL DEFENSE LAWER’S ASSOCIATION, ;:AS 

VMiCI CURIAE SUPPORTING PETITIONER.^

y* . -. * 409 County Office Bldg.
Oklahoma City,OKl73 
(405) 236-2727 ext. 582 .

- a - :;i' 
FRANK MCCARTHY, Esq._ . M ■ ■••_■»■« ;*£>«* X:*{r Xt'K-.-

of Oklahoma County r  
409 County Office Bldg, ''i 
Oklahoma City, OK'73102 \

Deputy Public D e f e n d e r v  
Office of the Public Defender 
of Tulsa County 
Tulsa County Courthouse 
Tulsa, Oklahoma 74103 
(918) 584-5623 I - . i J»«*»• •'> ' 

RAY, JR.; Esq 
Amicus Curiae Coordinator, 
Oklahoma Criminal. Defense 
Lawyers Association

fa-«i



No. 83-5424

IN THE SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1983

GLEN BURTON AKE, 
Petitioner, 

v.
THE STATE OF OKLAHOMA, 

Respondent.

ON WRIT OF CERTIORARI TO THE 
OKLAHOMA COURT OF CRIMINAL APPEALS

MOTION OF THE OFFICE OF THE PUBLIC 
DEFENDER OF OKLAHOMA COUNTY, 

OKLAHOMA, THE OFFICE OF THE PUBLIC 
DEFENDER OF TULSA COUNTY, 

OKLAHOMA, AND THE OKLAHOMA CRIMINAL 
DEFENSE LAWYERS ASSOCIATION FOR 
LEAVE TO FILE BRIEF AMICI CURIAE 

IN SUPPORT OF PETITIONER.



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fchMt ft*.:.;rj !fJ,'5'V*?-*i*hj?j|;!|r? 7 • '.; ;?* ’;t':i!-'«;:.;;l-: j.i'j-j}

To the Honorable, The Chief Justice and 
Associate Justices of the United States 
Supreme Court:

The Office of the Public Defender of 
Oklahoma County, Oklahoma, the Office of 
the Public Defender of Tulsa County, 
Oklahoma, and the Oklahoma Criminal Defense 
Lawyer's Association (OCDLA) respectfully 
moves for leave to file the attached brief 
amici curiae.

The consent of the attorney for the 
petitioner has been obtained and filed with 
the Clerk. Respondent has declined to 
consent, based on its Office policy of 
remaining silent with regard to amici 
curiae briefs.

The Office of the Public Defender of 
Oklahoma and of Tulsa Counties are 
statutorily created offices created for the 
primary purpose of representing indigent 
persons accused of crimes, including
capital offenses 19 Okl. Stat. §§138.1

theseet. seq. On several occasions,
Offices have attempted, without success, to 
obtain funds for investigating and 
presenting expert witnesses, and to secure 
mitigating evidence in capital cases. See, 
Davis v. State, 665 P.2d 1186 (Okl.Cr. 
1983); Cox v. State, 644 P.2d 1077 (Okl.Cr. 
1982); Irvin v. State, 617 P.2d 588 
(Okl.Cr. 1980). This Office is vitally 
interested in the resolution of this case 
affirming a constitutional right to these 
funds.

The OCDLA is a statewide, non-profit 
organization of over 200 criminal defense 
attorneys dedicated to goals of 
professional excellence, protection of the 
rights of individuals, and the promotion of 
justice through law. Various members of 
the Association are appointed by the courts 
to represent indigent defendants outside 
the Tulsa and Oklahoma Counties. Like



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these public defenders, they receive no 
funding for expert witnesses, or mitigation 
evidence in capital cases. See Maghe v. 
State, 620 P.2d 433 (Okl.Cr. 1980). The 
membership of this Association shares the 
interest of the Public Defenders of Tulsa 
and Oklahoma Counties in affirming a
constitutional right to these funds.

Amici Curiae concurs with all of the 
arguments advanced in the Petition for Writ 
of Certiorari, and Brief of Petitioner 
filed in this case. However, Amici notes 
that each of the attorneys for Amici are 
Oklahoma lawyers practicing criminal law on 
an exclusive basis. Because counsel for 
Mr. Ake is not an Oklahoma lawyer, and is 
not intimately familiar with Oklahoma 
procedure, petitioner has not addressed how 
the nuances of Oklahoma law and procedure 
effect this issue. Because the primary
purpose of the attached brief amici curiae

is to demonstrate to the Court the 
relationship of current Oklahoma law and 
procedure to this issue, this brief can 
make a contribution to the Court's 
decisional process in this case.

Accordingly, the Offices of the Public 
Defender of Oklahoma and Tulsa Counties, 
Oklahoma and the OCDLA move for leave to 
file the attached brief amici cur iae.

Respectfully submitted,

ROBERT A. RAVITZ, Esq.*
First Assistant Public Defender 

Office of the Public Defender 
of Oklahoma County 
409 County Office Bldg. 
Oklahoma City, Oklahoma 73102 
(405) 236-2727, ext. 582

FRANK McCa r t h y , Esq.
Deputy Public Defender

Office of the Public Defender 
of Tulsa County 
Tulsa County Courthouse 
Tulsa, Oklahoma 74103 
(918) 584-5623



THOMAS J. RAY, JR., Esq. 
Amicus Curiae Coordinator 

Oklahoma Criminal Defense 
Lawyers Association 
217 N. Harvey, Suite 100 
Oklahoma City, Okla, 73102 
(405) 232-4601

ATTORNEYS FOR AMICI CURIAE

♦Counsel of Record
i

•**» -n- r . •v.-.-)-.:.,,. , ■ ■ • , ■ -I-.'

QUESTIONS PRESENTED
Amici will address the following issues: 
1. When an indigent defendant's legal

sanity at the time of the offense is
seriously in issue, can a state
constitutionally refuse to provide any
opportunity whatsoever for him to obtain 
expert psychiatric examination necessary to 
prepare and establish his insanity defense?

2. Is an indigent defendant facing the 
death penalty entitled to financial 
assistance to prepare and present evidence 
in his favor at the sentencing hearing?

l



TABLE OF CONTENTS

:-::: ,1 ;V f ' i:* ' |  V ;  : V l

Questions Presented.......................  i
Table of Authorities........................ii
Interest of Amici.........................  1
Summary of Agreement .....................  2
I. WHEN AN INDIGENT DEFENDANT'S 

SANITY AT THE TIME OF THE OFFENSE 
IS SERIOUSLY AT ISSUE, THE STATE 
MAY NOT CONSTITUTIONALLY DENY HIM 
THE MEANS TO ESTABLISH THE DEFENSE . . 4
A. THE OKLAHOMA STATUTORY SCHEME
PROVIDING DEFENSE COUNSEL FOR AN 
INDIGENT CRIMINAL DEFENDANT ALLOWS 
NO FUNDS FOR OBTAINING OR 
PRESENTING EXPERT WITNESSES IN 
SUPPORT OF THE INSANITY DEFENSE. . . .  4
B. OKLAHOMA RULES OF LAW AND
PROCEDURE REGARDING THE INSANITY 
DEFENSE MAKE IT NEARLY IMPOSSIBLE 
TO PREVAIL WITHOUT THE AID OF 
EXPERT TESTIMONY..................... 10
C. THE CONSTITUTION REQUIRES THAT 
IF AN INDIGENT CRIMINAL
DEFENDANT'S SANITY AT THE TIME OF 
THE OFFENSE IS SERIOUSLY IN DOUBT,
HE MUST BE PROVIDED WITH THE 
NECESSARY MEANS TO OBTAIN AND 
PRESENT EXPERT TESTIMONY TO 
SUPPORT THAT DEFENSE................. 18

II. AN INDIGENT DEFENDANT FACING THE DEATH 
PENALTY IS ENTITLED TO NECESSARY 
FINANCIAL ASSISTANCE TO PREPARE AND 
PRESENT RELEVANT MITIGATING EVIDENCE . 22

ii

Conclusion 29
TABLE OF AUTHORITIES

Adair v. State, 6 Okl.Cr. 284, 118
P. 416 (1911)......................... 11

Ake v. State, 663 P.2d 1, 6
(Okl.Cr. 1983) .......................  20

Bias v. State, 568 P.2d 1269 (Okl. 1977) . 7
Bills v. State, 585 P.2d 1366

(Okl.Cr. 1978)   16
Bounds v. Smith, 430 U.S. 817 (1977) . . 27,28
Cox v. State, 644 P.2d 1077, 1079

(Okl.Cr. 19 8 2 ) .............. 23,25nl0
Davis v. State, 665 P.2d 1186, 1190

(Okl.Cr. 19 8 3 )............ 8,9,21,26,29
Earl v. Tulsa County District Courts,

606 P .2d 545 (Okl.Cr. 1979)........... 9
Eddings v. Oklahoma, 455 U.S. 104 (1982) 23,26
Estelle v. Smith, 451 U.S. 454 (1981). . . 26
Garrett v. State, 586 P.2d 754

(Okl.Cr. 1978) .......................  14
Gresham v. State, 489 P.2d 1335, 1357

(Okl.Cr. 1971) .......................  12
Hardt v. State, Okl.Cr. 490 P.2d 752

(1971) ................................ 8
Hiqh v. State, 401 P.2d 189

(Okl.Cr. 1965) .......................  12
iii



I

IIi
i

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Irvin v. State, 617 P.2d 588
(Okl.Cr. 1980)   8,9,20,26

Johnson v. State, Motion Hearing Transcript
January 28, 1982 .....................  29

Jones v. State, 648 P.2d 1251, 1254
(Okl.Cr. 1982), cert. den. ___U.S.
___, 103 S.Ct. 799 ...................  11

Lockett v. Ohio, 438 U.S. 586 (1978)4,23,28,29
Maqhe v. State, 620 P.2d 433, 435

(Okl.Cr. 1980) .......................  7
Munn v. State, 658 P.2d 482, 484

(Okl.Cr.' 1983).......................  13
McFarthing v. State, 630 P.2d 324

(Okl.Cr. 1981) .......................  16
Public Defender of Oklahoma County, T.

Hurley Jordan, and Assistant Public 
Defender of Oklahoma County, Robert 
A. Ravitz v. Court Fund of Oklahoma 
County, the Honorable Jack R. Parr,
Dan Gray, Court Clerk, and the 
Honorable Charlie Y. Wier. (Case no.
55715 denied September 20, 1980) . . 5, n2

Heed v. State, 23 Okl.Cr. 56, 212
P. 441 (1923).........................  13

Richardson v. State, 569 P.2d 1018,
1020 (Okl.Cr. 1977)...................  12

Smith v. State, 594 P.2d 784
(Okl.Cr. 1979)..................... 26,nil

Sontag v. State, 629 P.2d 1269
(Okl.Cr. 1981) .......................  4

I V

State v. Palmer, CRF-82-984, District
Court of Oklahoma County.............. 17

State v. Paris Johnson, CRF-80-1081 and
CRF-80-1082. . .  ..................  6

Strickland v. Washington, ___U.S.___,
slip op. p. 26 (1984)...............18, n7

Tittle v. State, 44 Okl.Cr. 287, 280
P. 865 (1929).........................  12

United States ex rel Smith v. Baldi,
344 U.S.'"'561 (1953).............. .20,21,27

Wardeus v. Oregon, 412 U.S. 470 (1973) . . 6
Westbrook v. Zant, 704 F.2d 1481, 1496

(11th Cir. 19 8 3 ) .....................  26
Whisenhunt v. State, 279 P.2d 366

(Okl.Cr. 1955)   13,14
Wilson v. State, 568 P.2d 1279

(Okl.Cr. 1977) .....................  12,14

CONSTITUTION, STATUTES, ETC.
Title 22 Okl. Stat. §464 , 1271 ..........  4,6
Title 19 Okl.Stat. §138.1.................  4
Title 19 Okl. Stat. §137.1; 138.4. . . . 5,7,9
Title 20 Okl. Stat. §1304(a)(b)(3) . . . .  5
18 U.S.C.A. §3006 A ( E ) ...................  8
Title 19 Okl.Stat. §138.6

v
9



10

irr'' •
Maas v. Territory, 10 Okl. 714, 717,

I 63 P. 960, 961 (1901)..........
M'Naqhten Rule, 8 Eng. Rptr. 718

(HL 1843).......................
Revised Laws 1910 §2094 now Title 21

Okl. Stat. §152(4)................... 11
Note, The Indigent's Right to an Adequate 

Defense: Expert in Investigational 
Assistance In Criminal Proceedings,

| 55 Cornell L. Rev. 632, 641-43 (1970). 19i
Title 22 Okl. Stat. §1175.1..............21
Title 22 Okl. Stat. §1125.3.............21,n8
Title 22 Okl. Stat. §1175.4, 1175.5. . . 21,n8

* I Report of the Attorney General's Commission
on Poverty in the Administration of 
Federal Criminal Justice, at 11 (1963) 22

Title 21 Okl.Stat. §701.13 (C) ( 3 ) ........ 23
Title 22 Okl. Stat. §982 ............... 26,nil
Eighth and Fourteenth Amendments ........  28i

V I

No. 83-5424

IN THE SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1983

GLEN BURTON AKE, 
Petitioner, 

v.
THE STATE OF OKLAHOMA, 

Respondent.

ON WRIT OF CERTIORARI TO THE 
OKLAHOMA COURT OF CRIMINAL APPEALS

BRIEF OF THE PUBLIC DEFENDER 
OF OKLAHOMA COUNTY, OKLAHOMA,

AND THE PUBLIC DEFENDER 
OF TULSA COUNTY, OKLAHOMA,

AND THE OKLAHOMA CRIMINAL DEFENSE 
LAWYER'S ASSOCIATION,

AS AMICI CURIAE SUPPORTING PETITIONER.



INTEREST OF AMICI

•:; - •:»: :,: j.rjI

The Offices of the Public Defender of

Oklahoma County and of Tulsa County are

statutorily created offices whose primary 
function is the representation of indigent 
criminal defendants in these two metropolitan 
areas. These offices represent thousands of 
indigent defendants each year, some of whom 
are charged with, and tried for, capital 
murder. In some of these cases, insanity is 
raised as a defense. Neither office receives 
funds for expert witnesses necessary for the 
preparation and defense of these cases. 

(Infra, p. 6-10 ) .
The Oklahoma Criminal Defense Lawyer’s 

Association (OCDLA) is a state wide, 
non-profit organization of over 200
practicing attorneys founded in 1976, 
dedicated to goals of professional
excellence, protection of the rights of
individuals, and promotion of justice through

- 1 -

law. Many members of the OCbhA are appointed 
to represent indigent accused person 
various criminal offenses, including capita

nf these cases, the insanity murder. In some of the
•s raised. These attorneys receive defense is raisea.

token «ee and no expense money
investigation of the case. (Infra at

vitally interested in theAmici are vitally
principles laid down in this case regar ing
the right to funds to investigate and pres

a explore and
an insanity defense. and
investigate mitigating evidence in capi 
cases. our vital interest in affirming
constitutional right to access

i d  to our involvement funds in these areas led

in this case.

SUMMARY of ARGUMEMT
! Oklahoma provides a small fee « «

, to represent indigent attorneys appointed to
. It provides no fundscriminal defendants. P



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for these attorneys or public defenders in 
order that a serious insanity defense can be 
developed and presented. (point I.A., 
infra.) The manner in ,which Oklahoma has 
chosen to apply the insanity defense makes it 
extremely difficult, if not impossible, to 
prevail without the assistance of an expert 
witness. (point I.B., infra.) Denial of 
funds to obtain and present such an expert is 
violative of numerous constitutional 
guarantees. (point I.C. infra.)
II. Oklahoma trial judges have recognized 
the need to provide funding to indigent 
capital defendants in order to explore and 
present mitigating evidence. The Oklahoma 
Court of Criminal Appeals, though recognizing 
the usefulness of this evidence, has 
consistently denied these funds. This is a 
violation of the Eighth Amendment, as applied 
to the states through the Fourteenth
Amendment, and contrary to Lockett v. Ohio,

-3-

438 U.S. 586 (1978).
ARGUMENT

I. WHEN AN INDIGENT DEFENDANT'S SANITY 
AT THE TIME OF THE OFFENSE IS SERIOUSLY 
AT ISSUE, THE STATE MAY NOT 
CONSTITUTIONALLY DENY HIM THE MEANS TO 
ESTABLISH THE DEFENSE.

A. THE OKLAHOMA STATUTORY SCHEME PROVIDING 
DEFENSE COUNSEL FOR AN INDIGENT CRIMINAL 
DEFENDANT ALLOWS NO FUNDS FOR OBTAINING OR 
PRESENTING EXPERT WITNESSES IN SUPPORT OF 
THE INSANITY DEFENSE.

In Oklahoma, indigent criminal
defendants are provided counsel for trial
in one of three ways: (1) through the
appointment of private counsel 1/, Title 22
Okl. Stat. §464, 1271 ; (2) appointment of
the Office of the Public Defender in
counties with a population exceeding
200,000, Title 19 Okl. Stat. §138.1
et.seq; or (3) through appointment in some 
counties of a part-time Public Defender.

17 Such counsel may not refuse 
appointment. Refusal makes one subject to 
a contempt of court citation. Sontag v. 
State, 629 P.2d 1269 (Okl.Cr. 1981).

-4-



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Title 19 Okl. Stat. §137.1; 138.4.
Although the State provides counsel to an 
indigent defendant, it provides NO funds 
for employment of experts for an insanity 
defense, or any other technical defense for 
that matter.

By statute, Oklahoma prosecuting 
attorneys are authorized to spend state 
funds for expert witnesses. Title 20 Okl. 
Stat. §1304 (a) (b) (3) . No reciprocal right 
to these funds is available under any 
circumstances for indigent defendants. 
This is true even where the court deems the 
evidence material and necessary, and orders 
these funds. 2/

J/ Fn State v. Paris Johnson, CRF-80-1081 
and CRF-80-1082, the District Court, upon 
application of the defendant, ordered the 
Court Fund Board to pay $500 to hire a 
chemist the court deemed necessary and 
material to the defendant's care. The 
Court Fund Board refused, the defendant 
filed a writ of mandamus in the Oklahoma 
Supreme Court. That court refused to 
assume original jurisdiction and denied 
petitioner's writ of mandamus. Public

-5-

Amici believes a refusal to grant
expert funds despite a finding by a court 
that the expert testimony is necessary and 
material to the defense clearly offends due 
process when the State is entitled to hire 
these additional experts. Cf. Wardeus v. 
Oregon, 412 U.S. 470 (1973).

Mr. Ake was represented by a private 
attorney appointed by the court, and 
assisted by Canadian County's part-time 
Public Defender. By terms of Title 22 
Okl.Stat. §§464, 1271, all court appointed 
attorneys in Oklahoma, in non-capital 
cases, are limited to a maximum fee of $500 
to $600. See Bias v. State, 568 P.2d 1269

2/ cont. Defender of Oklahoma County, T.
Hurley Jordan, and Assistant Public
Defender of Oklahoma County, Robert A.
Ravitz v. Court Fund of Oklahoma County,
the Honorable Jack R. Parr, Dan Gray, Court
Clerk, and the Honorable Charlie Y. Wier.----- 1--------=---=-- ;-;— ---:-- ;----tttz wTrTTrr(Case No. 1980)

- 6-



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(Okl. 1977).2/ In capital cases, an
attorney is entitled to a maximum fee of 
$2,500, the specific amount left to the 
discretion of the trial judge. Title 21 
Okl.Stat. §701.13. The part-time Public 
Defender is limited to a salary of
$7,200.00 per annum to be paid monthly. 
Title 19 Okl. Stat. §138.4(b).

Although counsel received token 
compensation for his own fee and out of 
pocket expenses, NO funds for establishment 
of this serious insanity defense were 
provided to counsel for Mr. Ake. The Court 
of Criminal Appeals has foreclosed that 
possibility in all cases involving indigent 
defendants. The court summarized its view 
in Maghe v. State, 620 P.2d 433, 435 
(Okl.Cr. 1980):

3/ Counsel may petition for "extraordinary 
out of pocket expenses" and "extraordinary 
professional services" if certain
requirements are met. Bias, supra, at 
1272. Amicus OCDLA is unaware of any 
attorney receiving a greater fee than that 
provided by statute.

"Admittedly, and as pointed 
out by the appellant, the 
assistance now sought at the 
state level is available to a 
federal indigent criminal 
defendant pursuant to sub 
section (e) of the Criminal 
Justice Act of 1964 , as 
amended. 18 U.S.C.A. §3006 
A(E) ) .
However, as noted in Hardt v.
State, Okl.Cr. 490 P.2d 752 
(1971), state legislators 
could appropriately provide 
impecunious defendants with 
this aid if deemed practical 
and in the public interest.
In the absence of enabling 
legislation, we know of no 
judicial precedent,
constitutional mandate, or 
statutory authority in
Oklahoma obligating this 
state, at its expense, to 
make available to the 
appellant, in addition to 
counsel, the full
paraphenalia of defense.

Capital cases are not even excluded from
this rule. Davis v. State, 665 P.2d 1186,
1190 (Okl.Cr. 1983); Irvin v. State, 617
P .2d 588 (Okl.Cr. 1980).

Indigents represented by the Office of
the Public Defender of Tulsa and Oklahoma

- 8-



1

Counties fare no better. Although 
allowance is made by statute for office 
space and supplies, Title 19 O.S. §138.1, 
and salary for attorneys, Title 19 Okl. 
Stat. §138.4(a), 4/ secretaries, and 
investigators, Title 19 Okl. Stat. §138.6, 
the Oklahoma Court of Criminal Appeals has 
refused to provide funds to pursue the 
insanity defense or any defense requiring 
employment of an expert. See Davis, supra; 
Irvin, supra.

Thus, the denial in Mr. Ake's case was 
not an unusual one, but one which occurs 
with frequency in the state courts of
Oklahoma.

1

i

4/ By terms of this statute, these salaries 
are equal to the salaries of the county's 
District Attorney and his assistants. Earl 
v. Tulsa County District Courts, 606 P.2d 
545 (Okl.Cr. 1979). -9-

B. OKLAHOMA RULES OF LAW AND PROCEDURE 
REGARDING THE INSANITY DEFENSE MAKE IT 
NEARLY IMPOSSIBLE TO PREVAIL WITHOUT THE 
AID OF EXPERT TESTIMONY.

Because of the manner in which Oklahoma 
law is administered, it is clear that an 
accused person cannot reasonably expect to 
prevail with an insanity defense -- no 
matter how strong-- without the aid of 
expert testimony. Without supporting 
expert testimony, this defense is 
practically doomed from the start.

Two reasons exist for this. First,
Oklahoma uses a version of the M'Naghten
Rule, 8 Eng. Rptr. 718 (HL 1843). The
M'Naghten Rule (right/wrong test) is the
most strict of all insanity tests.
Oklahoma has consistently used M'Naghten
since before statehood. In Maas v .
Territory, 10 Okl. 714, 717, 63 P. 960, 961
(1901), the court said:

"The test of
responsibility is fixed 
at the point where one 

- 10-



h>"i • •: i .h

has the mental capacity 
to know that the act is 
wrong, and if one has
sufficient mental
capacity to distinguish 
between right and wrong, 
as applied to the
particular act, and to 
understand the nature 
and consequences of such 
act, he is responsible 
for the same."

This rule was codified by the first
legislature in Revised Laws 1910 §2094, now
Title 21 Okl. Stat. §152(4). Adair v_.
State, 6 Okl.Cr. 284, 118 P.416 (1911).
Recently, in Jones v. State, 648 P.2d 1251,
1254 (Okl.Cr. 1982), cert. den. ____U.S.___,
103 S.Ct. 799, the Court of Criminal
Appeals reiterated:

"The defendant must 
demonstrate at trial 
that during the
commission of the crime 
he was suffering from
mental disease or defect 
rendering him unable to 
differentiate between
right and wrong, or 
unable to understand the 
nature and consequences 
of his acts."

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'V, i'„W ■ -i. ■"'VI-1 tf ‘

- 11-

This is the "exclusive" test for insanity 
in Oklahoma. See, Richardson v. State, 569 
p . 2d 1018, 1020 (Okl.Cr. 1977). Attempts
to modify the rule have been rejected. See 
Tittle v. State, 44 Okl.Cr. 287, 280 P. 865 
(1929) (irresistible impulse defense 
rejected); Gresham v. State, 489 P.2d 1355, 
1357 (Okl.Cr. 1971) (diminished capacity 
defense implicitly rejected).

Second, Oklahoma procedures for 
establishing the insanity defense make it 
difficult to prevail to any degree without 
expert testimony. Although Oklahoma allows 
the opinion testimony of lay persons on 
this issue, 5/ Wilson v. State,
568 P .2d 1279 (Okl.Cr. 1977); High v. 
State, 401 P.2d 189 (Okl.Cr. 1965), this

|7 A predicate must be laid that the lay 
person had sufficient opportunity for 
observation of the accused. Supra.

- 12-



I: i' V i::'

I

evidentiary benefit is worthless as a
practical matter. This is true because
Oklahoma has long employed a presumption of
sanity. Reed v. State, 23 Okl.Cr. 56, 212
P.441 (1923). In Munn v. State, 658 P.2d
482, 484 (Okl.Cr. 1983), the Court of
Criminal Appeals explained:

The initial burden is on
the_____defendant______ to
establish a reasonable 
doubt as to his sanity.
Once the defendant
establishes a reasonable 
doubt of his sanity, the 
presumption of sanity 
vanishes and it is 
incumbent upon the state 
to prove beyond a 
reasonable doubt that 
the defendant could 
distinguish between
right and wrong and
therefore was sane at 
the time of the 
offense." (Emphasis
Added). See also
Whisenhunt v. State, 279 
P .2d 366 (Okl.Cr. 1955).

Without expert testimony, this 
presumption is difficult, if not
impossible, to overcome.

-13-
In Garrett v

State, 586 P. 2d 754 (Okl.Cr. 1978) , the
defendant, an eighty year old woman, was
convicted of manslaughter in the first
degree. She testified that she remembered 
walking to the victim's home, arguing with 
the victim, and that the victim struck 
her. Id. at 755. She did not remember
shooting anyone. 1(3. Other witnesses 
testified that the defendant "looked like
'she had gone berserk'" Id. and "'looked
wild.'" 1(3. at 754. The Court of Criminal 
Appeals noted that this evidence "is not 
evidence that brings the defendant within 
the above rule to show that she did not
know right from wrong. As we stated in 
Whisenhunt, 'until legal insanity was 
established there was not sufficient 
evidence to create that reasonable doubt 
required by the law shift the burden of 
proving defendant's sanity to the state.'" 
Id. at 756. In Wilson v. State, 568 P.2d

-14-



1279 (Okl.Cr. 1977), the defendant was 
charged with pointing a weapon at another 
after an altercation with airport guards 
when the defendant attempted to drive his 
car up an exit ramp. A lay witness 
testified that the defendant "was not a 
normal person", and stated the basis for 
that opinion. Ici. at 1280. The defendant 
also testified, but was largely 
unresponsive, and confused. Id.* However,

the Court of Criminal Appeals said no

reasonable doubt was raised as to the

defendant's sanity. Id. at 1281. It also

noted that the state produced expert

psychiatric testimony. Id. 6/

6/ ft Ts noteworthy that the defendant in 
this case was represented by a public 
defender, who, as shown at supra, p. 6-11 
had not the funds to employ or call an 
expert of his own. -15-

Fur thermore, reliance by the defendant on 
lay witnesses may prevent the jury from 
even considering the defense, as the court 
is not obligated to instruct on insanity 
unless a reasonable doubt as to sanity is 
raised. Bills v. State, 585 P.2d 1366 
(Okl.Cr. 1978). Experience teaches that it 
is often harder for a lay witness to 
specifically testify whether one knew right 
from wrong at the time of his acts.

The problem of success in presenting an 
insanity defense without experts who can 
testify to the defendant's insanity at the 
time of the offense is illustrated by 
McFarthing v. State, 630 P.2d 324 (Okl.Cr. 
1981) . In McFarthing, the defendant was 
charged with robbery. He was represented 
by private counsel with no funds to hire an 
expert. At the time of the offense, he had 
been in and out of mental institutions, and
two physicians testified his psychosis was

-16-



a recurring one, coming and going. Id.

Other witnesses testified regarding his

bizzare behavior. Id. at 324-325. Only
the arresting officers testified that he 
seemed lucid to them. Ic3. McFarthing was 
convicted and sentenced to 15 years 
imprisonment. 7/

Thus, Oklahoma has chosen to apply the 
most strict of all insanity tests. At the 
same time it refuses to provide an indigent 
the financial means to meet this heavy 
burden. Such an incongruous policy should 
not be allowed to stand.

7 7  The fundamental unfairness of thTs 
policy is best illustrated by the case of 
State v. Palmer, CRF-82-984, District Court 
of Oklahoma County, a case tried by Amicus 
Office of the Public Defender of Oklahoma 
County. Defendant was charged with Murder 
in the First Degree after he allegedly 
walked into a nursing home and stabbed an 
elderly lady to death . The defendant was 
a twenty year old indigent with no prior 
record. The defendant's family was able to 
obtain $400 for the hiring of an expert 
psychiatrist. Upon testifying at trial 
regarding the drug of PCP which might have 
been involuntarily taken by the defendant

-17-

C. THE CONSTITUTION REQUIRES THAT IF AN 
INDIGENT CRIMINAL DEFENDANT'S SANITY AT THE 
TIME OF THE OFFENSE IS SERIOUSLY IN DOUBT, 
HE MUST BE PROVIDED WITH THE NECESSARY 
MEANS TO OBTAIN AND PRESENT EXPERT 
TESTIMONY TO SUPPORT THAT DEFENSE.

Amici has shown above that in Oklahoma, 
Mr. Ake (and any indigent criminal 
defendant raising the insanity defense) 
faced nearly insurmountable odds in 
establishing a serious insanity defense 
without the aid of experts who could 
testify regarding his mental condition at 
the time of the offense. The barriers 
imposed by the State of Oklahoma are 
incompatible with our constitutional 
guarantees.

Amici agrees in full with the arguments

2/ cont. the night of the killing, and the 
effects of alcohol on an individual coupled 
with the doctor's opinion on the mental 
framework of the defendant, an Oklahoma 
jury convicted the defendant of the lesser 
included crime of manslaughter. Four 
hundred dollars to hire an expert prevented 
the breakdown in the adversarial process 
that our system counts on to produce just
results. See Strickland v. Washington, __
U.S.___, slip op. p. 26 (1984).

-18-



advanced in Petitioner's Petition for Writ
of Certiorari and Brief-in-Chief. With 
Petitioner, Amici argues that virtually 
every constitutional right available to an 
accused is violated when funds for expert 
witnesses are denied. Provisions related 
to equal protection, due process, effective 
assistance of counsel, and important Sixth 
Amendment rights to compulsory process for 
obtaining witnesses and confrontation of 
adverse witnesses require that indigent 

! criminal defendants be provided with expert
assistance where appropriate. Note, The 
Indigent's Right to an Adequate Defense: 
Expert In Investigational Assistance In 
Criminal Proceedings, 55 Cornell L.Rev. 
632, 641-43 (1970).

Amici further notes that in denyinqCi*i •• ! •: i;. \-i l-Jiv’
funds of this nature on a constitutional
basis, the Oklahoma Court of Criminal

I Appeals has relied on this Court's
-19-

pronouncement in United States ex rel Smith
v. Baldi, 344 U.S. 561 (1953) . Ake V .

State, 663 P . 2d 1, 6 (Okl.Cr. 1983) ; See
also Irvin V . State, 617 P .2d 588, 594
(Okl.Cr. 1980). However, United States ex
rel Smith v. Baldi is distinguishable. 
This Court held in Smith v. Baldi that 
where a Pennsylvania court had already 
appointed one psychiatrist to examine the 
accused as to his insanity at the time of 
the offense and where that psychiatrist 
gave testimony, there was no constitutional 
mandate for Pennsylvania to appoint a 
second psychiatrist after petitioner plead 
guilty, to provide information as to 
appropriate sentence. Id. at 568. in 
Oklahoma, the state is required to submit a 
defendant for pre-trial testing to 
determine his present competency only, 8/

§/ This is not meant to imply that 
commitment is automatic. The procedure 
involves the filing of a formal

- 20-



not his

i'fjH*-: :t• r ^ >4;-«*J* ■

5 1 i :‘ *!;';'! •; »;\: rV-V**

:.'■■■■■ *■■' • v«■>vvva*:vwc«ir,i;-stc•'<?

wk;-|.

not his legal sanity at the time of the 
offense. Title 22 Okl.Stat. §1175.1 et. 
seq. 9/ This clearly distinguishes
Oklahoma's procedures from those in Baldi 
as Oklahoma defendants are given no 
opportunity whatsoever for psychiatric
examination regarding mental state at the 
time of the offense. See n. 10, infra.

Denied state funded assistance, Mr. Ake 
was placed in the position of all Oklahoma 
indigents who raise the insanity defense. 
Although on trial for his life, he still

8/ cont. application, and the evidentiary 
hearing before one can be committed for 
observation. Title 22 Okl.Stat. §1125.3. 
Another hearing is required before one may 
be declared presently incompetent. Title 
22 Okl.Stat. §1175.4, 1175.5.
|7 On at least one occasion, a judge 
ordered the state mental hospital to do 
psychological testing on a capital 
defendant. Legal counsel for the hospital 
told the parties that no statutory 
authority would allow them to comply with 
such an order. Davis v. State, supra. 
Motion Transcript Feb. 21, 1978 p. 10
(Appendix A) . The hospital would not 
perform the tests.

- 21-

could not surmount the obstacle of his
indigency and offer expert evidence in 
support of his defense. This situation, 
all too common in Oklahoma, "in which 
persons are required to contest a serious 
accusation but are denied access to the 
tools of contest is offensive to fairness 
and equity." Report of the Attorney 
General's Commission on Poverty in the 
Administration of Federal Criminal Justice, 
at 11 (1963).
II. AN INDIGENT DEFENDANT FACING THE

DEATH PENALTY IS ENTITLED TO 
NECESSARY FINANCIAL ASSISTANCE TO 
PREPARE AND PRESENT RELEVANT 
MITIGATING EVIDENCE.

Petitioner's brief-in-chief insists
that an indigent criminal defendant should
be allowed means to present evidence in
mitigation of punishment and in rebuttal of
the state's evidence of aggravating
circumstances. (Brief of Petitioner,

) . Amici wholeheartedly agree. 
- 2 2 -

P



ifr'' '■
Amici point out to this court in addition 
that a capital defendant in Oklahoma is 
provided NO financial means to explore such 
mitigating evidence, much less to rebut the 
state's evidence in aggravation.

This court in Eddings v. Oklahoma, 455 
U.S. 104 (1982) has most recently
recognized that evidence of a defendant's 
character can be relevant mitigating 
evidence and must be presented to the trier

::i> ' '■ i" VsY*"* of fact if it is available. See also, 
Lockett v. Ohio, 403 U.S. 586 (1978). 
Oklahoma's capital punishment statute 
directs the Court of Criminal Appeals in 
all cases to consider "whether the sentence 
of death is excessive or disproportionate 
to the penalty imposed in similar cases, 
considering both the crime and the
defendant." Title 21 O.S. §701.13(C) (3) . 
The Oklahoma Court of Criminal Appeals in 
Cox v. State, 644 P.2d 1077, 1079 (Okl.Cr.
1982) , noted: 23-

"A mitigating
circumstance for the
jury to consider is 
whether 'the murder was 
committed while the 
defendant was under the 
influence of mental or 
emotional disturbance.' 
Additionally, the trial 
judge is required, 
independent of the 
jury's determination, to 
consider whether the
defendant's physical or 
mental condition calls 
for special
consideration.
Even if the defendant is 
determined to be legally 
sane, he should be 
afforded the opportunity 
to introduce evidence of 
his mental condition at 
the punishment stage. 
Psychiatric testimony of 
the defendant's mental 
or emotional state at 
the time of the killing 
may very likely
influence the jury's 
decision as to whether 
to recommend a life
sentence or a sentence 
of death." 10/

10/ Cox had been convicted of two counts of 
murder in the first degree and sentenced to 
death. On appeal, the Court of Criminal 
Appeals reversed the conviction for failure

-24-



Incredibly, the Court of Criminal 
Appeals, despite this statement, affirmed 
the denial of funds to Cox for establishing

To7 cont. to commit the defendant for 
observation to determine present 
competency. On retrial, Amicus Office of 
the Public Defender of Oklahoma County 
represented Cox. Cox was convicted of 
murder in the first degree and received a 
life sentence on one count and sentenced to 
twenty-five years on a conviction of 
manslaughter on the other count.

The Cox decision clearly demonstrates 
the dilemma an Oklahoma criminal defense 
lawyer faces. By statute and the Cox 
decision, defense counsel must reasonably 
believe his client is presently incompetent 
to stand trial before he can ethically 
recommend commitment. Cox v. State, supra 
at 1078-79. Absent this reasonable belief, 
the attorney can not ethically seek 
commitment, no matter how strong the 
evidence of mental or emotional deficiency, 
or retardation short of present 
incompetency. A lawyer cannot compel 
commitment and establish mitigating 
evidence which could amount to a sentence 
of less than death. The jury is never 
presented relevant mitigation evidence 
which could effect its decision and thus 
insure reliability in sentencing.-25-

this mitigating evidence, Ij3. at 1077. 11/
Irvin v. State, supra; Davis v. State, 
supra.

"Permitting an indigent capital 
defendant to introduce mitigating evidence 
has little meaning if funds available for 
compelling the evidence are unavailable." 
Westbrook v. Zant, 704 F.2d 1481, 1496
(11th Cir. 1983). In Oklahoma, indigent 
defendants are precluded financially from 
developing psychiatric evidence for use in 
mitigation of punishment at the second 
stage of trial. It is undisputed that 
evidence of mental disturbance less than 
insanity is a valid mitigating 
circumstance. Eddings v. Oklahoma, supra. 
See also Estelle v. Smith, 451 U.S. 454

11/ A capital defendant Ti not even 
entitled to a pre-sentence investigation 
report, a right available to most 
non-capital defendants. See, Title 22 
Okl.Stat. §982. Smith v. State, 594 P.2d 
784 (Okl.Cr. 1979).-26-



(1981) . United States ex rel Smith v.
Baldi, supra at 573 (Frankfurter, J., 
dissenting). Funds should be provided upon 
a reasonable showing of need to procure 
valid mitigating evidence.

In this regard, the court is directed
to its decision in Bounds v. Smith, 430
U.S. 817 (1977) . In Bounds, this Court
held, "the cost of protecting a
constitutional right cannot justify its
total denial." 1(3. at 825. In Bounds, the
issue was whether state prison inmates are
entitled to assistance by the State in
pursuing legal remedies. The court held
that requiring the expenditure of state
funds is necessary to provide a person's
Fourteenth Amendment right of access to the
courts. Surely if a person is entitled to
expenditure of funds to guarantee his right
to the courts, a capital defendant is
entitled to funds to prove his execution

-27-

would constitute a cruel and unusual
punishment due to the peculiarities of his
character and upbr inging. Thus, Bounds,
when read in conjunction with Lockett,
requires the allowance of funds to the
defendant to investigate mitigation 
evidence.

Even without Bounds, Lockett v. Ohio by 
its own terms requires this result. 12/ 

Oklahoma provides no authorization of

12/ There i s ^ p e r f e c t  procedure for 
deciding in which cases governmental 
authorities should be used to impose
death. But a statute that prevents the 
sentencer in all capital cases from givinq 
independent mitigating weight to the
aspects of the defendant's character and 
record into circumstances of the offense 
proffered in mitigation, creates the risk 
that the death penalty will be imposed in 
spite of factors which may call for a less 
severe penalty. When the choice is between 
life and death, that risk is unacceptable 
a . incompatible with the commands of the 
Eighth and Fourteenth Amendments." id. at 60 5. —-28-



funds to allow an indigent defendant to 
pursue and present relevant mitigating 
evidence. This result is totally
incompatible with the spirit, if not the 
dictate, of Lockett. Several Oklahoma 
trial judges, experienced with capital 
sentencing evidence and procedures, believe 
this to be so. See Appendix A, Davis v. 
State, Motion Hearing Transcript February 
21, 1978; Appendix B, Johnson v. State,

:: • I • I V i  -V.< ! V : ' i
Motion Hearing Transcript, January 28, 1982.

CONCLUSION
Denial of funds for expert psychiatric

testing denied appointed counsel the
ability to present a serious insanity
defense, or to rebut the state's allegation
of aggravating circumstances. (Brief for
petitioner at p. _______ ) . This situation
is common for most indigent accused persons
in Oklahoma who raise a necessary and
substantial insanity defense requiring

-29-

expert testimony. This deprivation is 
constitutionally infirm on multiple 
constitutional grounds, and the judgment 
and sentence of the Oklahoma court must be 
vacated and remanded with directions to 
afford petitioner these rights.

Respectfully submitted,

ROBERT A. RAVITZ, Esq.*
First Assistant Public Defender 

Office of the Public Defender 
of Oklahoma County 
409 County Office Bldg. 
Oklahoma City, Oklahoma 73102 
(405) 236-2727, ext. 582

FRANK MCCARTHY, Esq.
Deputy Public Defender

Office of the Public Defender 
of Tulsa County 
Tulsa County Courthouse 
Tulsa, Oklahoma 74103 
(918) 584-5623

-30-



i'i'frT ■;.•■'•i-'.i •• -

i i1 . ' , l • i ■ t >i i •* • •> ‘ • 1 :

■ ; t ‘ .m -■ ^  vVcNifc-. n

funds to allow an indigent defendant to 
pursue and present relevant mitigating 
evidence. This result is totally
incompatible with the spirit, if not the 
dictate, of Lockett. Several Oklahoma 
trial judges, experienced with capital 
sentencing evidence and procedures, believe 
this to be so. See Appendix A, Davis v. 
State, Motion Hearing Transcript February 
21, 1978; Appendix B, Johnson v. State,
Motion Hearing Transcript, January 28, 1982.

CONCLUSION
Denial of funds for expert psychiatric 

testing denied appointed counsel the 
ability to present a serious insanity 
defense, or to rebut the state's allegation 
of aggravating circumstances. (Brief for
petitioner at p. _______ ) . This situation
is common for most indigent accused persons 
in Oklahoma who raise a necessary and
substantial insanity defense requiring

-29-

deprivation isexpert testimony. This 
constitutionally infirm on multiple 
constitutional grounds, and the judgment 
and sentence of the Oklahoma court must be 
vacated and remanded with directions to 
afford petitioner these rights.

Respectfully submitted,

ROBERT A. RAVITZ, Esq.*
First Assistant Public Defender 

Office of the Public Defender 
of Oklahoma County 
409 County Office Bldg. 
Oklahoma City, Oklahoma 73102 
(405) 236-2727, ext. 582

FRANK MCCARTHY, Esq.
Deputy Public Defender

Office of the Public Defender 
of Tulsa County 
Tulsa County Courthouse 
Tulsa, Oklahoma 74103 
(918) 584-5623

-30-



THOMAS J. RAY, JR., Esq. 
Amicus Curiae Coordinator 

Oklahoma Criminal Defense 
Lawyers Association 
217 N. Harvey, Suite 100 
Oklahoma City, Okla, 73102 
(405) 232-4601

ATTORNEYS FOR AMICI CURIAE

♦Counsel of Record

-31-

APPENDIX



li.-. f . .̂ . ::v v-;.::-.;j.

APPENDIX A
STATE V. DAVIS, CRF-77-2905, 2906

Motion Hearing, dated Feb. 21, 1978, before
the Honorable David Cook, District Judge:

THE COURT: Is there anything you can
stipulate in regard to what was said or done 
at that hearing?

MR. STUART: Your Honor, I believe we can 
stipulate that Judge Hunter's order was to 
the effect that that be done and him sent to 
Central State for psychological testing or 
educational evaluation if it could be done on 
Monday and him sent down there and back prior 
to Tuesday. That is as far as I will 
stipulate.

MRS. JOPLIN: Excuse me. After we left
Judge Hunter's courtroom, Mr. Stuart and I 
called Central State and talked to Mike Cain 
who is legal counsel for Central State, who 
told both of us that there was no statutory 
authority that would allow them to comply



with such an order. They said they couldn't 
do it.

MR. STUART: I will so stipulate that Mr. 
Cain did say that...

9Tr. p. 10, L. 9 - 24.
*★*

THE COURT: Judge, again, we appreciate
your courtesy in coming in and supplying the 
record which wasn't made before you last 
Friday afternoon. I would like to be advised 
of what did occur...

[DISTRICT] JUDGE [STEWART M. HUNTER]: As 
I recall it was a motion for funds to hire an 
expert witness to testify in mitigation. The 
gist of it being that he wanted to get a 
psychiatrist or psychologist to examine the 
defendant and then testify in mitigation 
presuming the trial reached that point.

My feeling was that if defendant had 
sufficient funds of his own and was
incarcerated. I would order him to be made 
available for an examination by his own
r\r- i  i r a f o  n c \ ; p h i  a f r  i  c f  T ■Fo.l H A An

indigent should be entitled to the same thing 
if it is available. And my intent was to 
order him to be made available for an 
examination by a State psychiatrist because 
there are no state funds available to my 
knowledge for expert witnesses in either 
event. My thinking was that it's not one of 
those things that is necessarily necessary, 
but it would sure be nice to have if you were 
a defendant in a first degree murder case.

THE COURT: Thank you, Judge.

(Tr. p. 23, L. 22 through p. 24, L. 18).



APPENDIX B
STATE V. JOHNSON, CRF-81-4939
Motion Hearing, dated Jan. 28, 1982, before
the Honorable Joe Cannon District Judge: 
(Regarding Motion for Independent
Psychological Evaluation)

THE COURT: You can't hire— you can’t
hire investigators and you can't hire experts 
and all that and you talked me into--one day 
of ruling that again. And I think you're
right on the law. And I knew--I know you're 
right.

But the trouble of it is, there's three 
fellows out there on the State Capitol that 
say that that's not the law. And you took it 
out there and they overruled you--and they 
overruled me, not you. And I think they're 
flirting with dynamite...

...Be overruled. (Tr. p. 16, L. 9-20).
MR. RAVITZ: For the record, Judge, I

would like to state that I don't have any

funds. My client's indigent —
THE COURT: Well, for whatever its worth, 

Ravitz... I agreed with you a year ago, I 
agree with you now...

And you're not--I cannot legally give you 
those funds. And what the Supreme Court of 
the United States is going to say about it 
one of these days is another ball game. But 
I can't do that. And the Court of Criminal 
Appeals told me that you can't do this. I ve 
got to follow them. (Tr. p. 18, L. 1-14).

* * *
THE COURT: You've got to convince them

[the Court of Criminal Appeals] out there. 
That's who you've got to convince.

MR. RAVITZ: I've tried.
THE COURT: Take it on up to the Supreme 

Court of the United States. (Tr. p. 20, L.
1-5) .