Barr v. Columbia Brief Opposing Petition for Writ of Certiorari

    No. 86-6284

In the

(Enurt of Unifrii islatpa
October Teem, 1987

J ohn T. Satterwhite,

v.
Petitioner,

State or Texas,
Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF 
CRIMINAL APPEALS OF TEXAS

BRIEF OF AMICUS CURIAE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC. 

IN SUPPORT OF PETITIONER

Julius L. Chambers 
J oel B erger*

NAACP Legal Defense and 
Educational Fund, Inc.

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

A n t h o n y  G. A m s t e r d a m  
New York University 

School of Law 
40 Washington Square South 
Boom 327
New York, New York 10012 
(212) 998-6198 

Attorneys for the NAACP 
Legal Defense and 
Educational Fund, Inc.

•Counsel of Record



*■

- i -
QUESTIONS PRESENTED

1* Whether the admission of the
testimony of Dr. James P. Grigson at 
petitioner's penalty trial violated his 
Sixth Amendment rights under Estelle v. 
Smith, 451 U.S. 454 (1981).

2. Whether the violation of
petitioner's rights under Smith may be
deemed harmless error.



#

- ii -

t >bT.B OF CONTENTS

PAGE

QUESTIONS PRESENTED ............
TABLE OF AUTHORITIES ...........
STATEMENT OF INTEREST 0FRMTPUS CURIAE NAACP LEGAL 

DEFENSE AND EDUCATIONAL 
FUND, INC...................

4OPINIONS BELOW ..................
4JURISDICTION ....................

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED .......

STATEMENT OF THE CASE ..........
The Guilt Trial ...........
The Penalty Trial .........  11
The Appeal .................

SUMMARY OF ARGUMENT ............

iii
PAGE

ARGUMENT
I. THE ADMISSION OF THE

TESTIMONY OF DR. JAMES P. 
GRIGSON AT PETITIONER'S 
PENALTY TRIAL VIOLATED 
HIS SIXTH AMENDMENT RIGHTS 
UNDER ESTELLE V. SMITH.
451 U.S. 454 (1981) .......  37

II. THE VIOLATION OF PETITIONER'S 
RIGHTS UNDER SMITH MAY NOT BE 
DEEMED HARMLESS ERROR............ 46

CONCLUSION 64



*

- iv -

T*BT,E OF AUTHORITIES

PAGECASES

Adams v. Texas, 448 U.S. 38 48
(1980)   '

Barefoot v. Estelle, 463 U.S.880 (1983) ................ 2,b«,o
Battle v. Estelle, 655 F.2d  ̂ 51

692 (5th Cir.1981)   '
California v. Ramos, 463 U.S. 4Q

992 (1983) ...................
Ex parte Chambers, 688 S.W.2d 5?

483 (Tex. Crim. App. 1984) ...
Chapman v. California, 386 U.S. ^  4?

18 (1967) ....................
Clark v. State, 627 S.W.2d 693 5Q

(Tex. Crim. App. 1981) ......
Delaware v. Van Arsdall, ^.S. 46___t 89 L.Ed.2d 674 (1986) ... 4
Ex parte Demouchette, 633 S.W.2d

879 (Tex. Crim. App. 1982) ...
Edwards v. Arizona, 451 U.S. 44

477 (1981) ..................
Enmund v. Florida, 458 U.S.

782 (1982) .................. 2

v -
CASES FACE

Estelle v. Smith, 451 U.S.
454 (1981), aff/a 602 F.2d 
694 (5th Cir. 1979), aff"a 
445 F.Supp. 647 (N.D. Tex.
1977) ......................  passim

Fahy v. Connecticut, 375 U.S.
85 (1963)   47

Furman v. Georgia, 408 U.S.
238 (1972) ...................  2

Gardner v. Florida, 430 U.S.
349 (1977) ..................  49

Gholson v. Estelle, 675 F.2d 734
(5th Cir. 1982) .............. 50,51

Gregg v. Georgia, 428 U.S.
153 (1976) ................... 2

Green v. Estelle, 706 F.2d 
148 (5th Cir. 1983), 
rehearing denied with 
opinion. 712 F.2d 995 
(5th cir. 1983) ..............3,50,57

Lockett V. Ohio, 438 U.S. 586 (1978) 2
Maine v. Moulton, ___ U.S. ___,

88 L.Ed.2d 481 (1985).......  40
Massiah v. United States, 377 U.S.

201 (1964)   39
Muniz v. Procunier, 760 F.2d 

588 (5th Cir. 1985),
cert, denied. ___ U.S. ___,
88 L.Ed.2d 274 (1985) ... 3,50,51,57



CASES PAGE

Adams v. Texas, 448 U.S. 38
(1980)   2,48

Barefoot v. Estelle, 463 U.S.
880 (1983)   2,58,59

Battie v. Estelle, 655 F.2d
692 (5th Cir. 1981) ..........  3,51

California v. Ramos, 463 U.S.
992 (1983)   48

Ex parte Chambers, 688 S.W.2d
483 (Tex. Crim. App. 1984) ... 57

Chapman v. California, 386 U.S.
18 (1967)   46,47

Clark v. State, 627 S.W.2d 693
(Tex. Crim. App. 1981)   50

Delaware v. Van Arsdall, ___ U.S.
___, 89 L.Ed.2d 674 (1986) ... 46

Ex parte Demouchette, 633 S.W.2d
879 (Tex. Crim. App. 1982) ... 56

Edwards v. Arizona, 451 U.S.
477 (1981) ..................  44

Enmund v. Florida, 458 U.S.
782 (1982)   2

#

- iv -

TABLE OF AUTHORITIES

V
CASES** PAGE

Estelle v. Smith, 451 U.S.
454 (1981), affla 602 F.2d 
694 (5th Cir. 1979), aff'a 
445 F.Supp. 647 (N.D. Tex.1977) ........'   passim

Fahy v. Connecticut, 375 U.S
85 (1963) ....................  4?

Furman v. Georgia, 408 U.S.
238 (1972) ..................  2

Gardner v. Florida, 430 U.S.
349 (1977) .................  49

Gholson v. Estelle, 675 F.2d 734
(5th Cir. 1982) .............. 50f51

Gregg v. Georgia, 428 U.S.
153 (1976) ...................  2

Green v. Estelle, 706 F.2d 
148 (5th Cir. 1983), 
rehearing d ^ n ^  yf+ft 
SEimon, 712 F.2d 995 
(5th Cir. 1983) ..............3,50,57

Lockett v. Ohio, 438 U.S. 586 (1978) 2
Maine v. Moulton, ___ U.S. ___

88 L.Ed.2d 481 (1985)___ !... 40
Massiah v. United States, 377 U S201 (1964) .................I. 3g
Muniz v. Procunier, 760 F.2d 

588 (5th Cir. 1985),
gertr denied, ___ u.S.
88 L.Ed.2d 274 (1985) ... 3,50,51,57



*

- vi -

CASES PAGE

Powell v. State, --- S.W.2d »No. 67,630 (Tex. Crim. App.
July 8, 1987) ............... 50,5

Rose v. Clark, --- U.S. ---, 92
L. Ed. 2d 460 (1986)...........  46

Satterwhite v. State, 726 S.W.2d S a t t e r w h i ^  App> 1986) ... passim

Turner v. Murray, --- u *s*---' 90L.Ed. 2d 27 (1986) ...........  48
United States v. Henry, 447 U.S.

264 (1980) ...................
United States v. Lane, U.S.---,

88 L.Ed.2d 814 (1986) .......  4b
White v. Estelle, 720 F.2d 415

(5th Cir. 1983)............... 5U,pi
Witherspoon v. Illinois, 391 U.S.

510 (1968) ...................
Woodson v. North Carolina, 428

U.S. 280 (1976) ..............
STATUTES
Tex. Code Crim. Pro. Art. __

37.071 .................  '
OTHER AUTHORITIES
The American Lawyer (Nov. 1979) .. 60,62
D Magazine (June 1980)   61,62

Dallas Times-Herald (Sept.
30, 1979) .................... 59,62

National Law Journal (Nov.
24, 1980) ................    59,62

- vii -
OTHER AUTHORITIES PAGE



*

No. 86-6284

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1987

JOHN T. SATTERWHITE,
Petitioner.

- v. -
STATE OF TEXAS,

Respondent.

ON WRIT OF CERTIORARI TO THE COURT 
OF CRIMINAL APPEALS OF TEXAS

BRIEF OF AMICUS CURIAE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC.

IN SUPPORT OF PETITIONER

STATEMENT OF INTEREST OF AMICUS CURIAE 
The NAACP Legal Defense and Educa­

tional Fund, Inc. is a non-profit 
corporation established to assist black 
citizens in securing their constitutional 
rights. In 1967, it undertook to 
represent indigent death-sentenced



♦

-  2 -

prisoners for whom adequate representa­
tion could not otherwise be found. It 
has frequently represented such prisoners 
before this Court. E^., Furman v. 
Georgia, 408 U.S. 238 (1972); Lockett v.
Ohio. 438 U.S. 586 (1978); Enmund v.
F lo r id a , 458 U.S. 782 (1982). The Fund
has also appeared before this Court as 
amicus curiae in capital cases. E^-'
^ithersooon v. Illinois, 391 U.S. 510

(1968) ; Greaa v- Georgia, 428 U.S. 153

(1976) ; Adams v. Texas, 448 U.S. 38

(1980) ; Rarefoot v. Estelle , 463 U.S. 880

(1983) .
The Fund has been long involved with 

issues raised by prosecutorial use of 
psychiatric testimony at the penalty 
phase of Texas capital cases. The Fund 
represented the successful death-sen­
tenced prisoner in Estelle v. gffiitti, 451 
U.S. 454 (1981), afJLig 602 F.2d 694 (5th

3
cir. 1979), aff'a 445 F.Supp. 647 (N.D.
Tex. 1977) , at all three levels of his 
federal habeas corpus proceeding. During 
the pendency of Smith and thereafter, we 
provided consultative assistance to many 
Texas attorneys representing death- 
sentenced prisoners on Smith issues. The 
Fund was counsel of record or amicus 
curiae in three cases before the United 
States Court of Appeals for the Fifth 
Circuit involving prosecutorial claims 
that Smith error should be deemed 
harmless. Muniz v. Procunier. 760 F.2d
588 (5th Cir. 1985), cert, denied. ___
U.S. ___, 88 L.Ed.2d 274 (1985); Green v.
Estelle. 706 F. 2d 148 (5th Cir. 1983), 
rehearing denied with opinion. 712 F.2d 
995 (5th Cir. 1983); Battie v. Estelle. 
655 F.2d 692 (5th Cir. 1981).

Because of the Fund's extensive 
experience and intimate familiarity with



4
smith questions, we believe that we can 
be of assistance to the Court in this 
ease. Consent has been granted by both 
parties to the filing of this amiSUS 
r.uriae brief.

nPTHTQMB BELOW
The majority and dissenting opinions- 

of the Texas Court of Criminal Appeals 
are reported at 726 S.W.2d 81 (Tex. Crim. 

App. 1986) .
.tdribpiction

jurisdiction of this Court rests 
upon 28 U . s . c .  §1257(3). Petitioner's 
conviction and death sentence were 
affirmed by the Texas Court of Criminal 
Appeals on September 17, 1986, and
rehearing was denied on December 3, 1986. 
A timely petition for writ of certiorari 
was filed, and on June 1, 1987, this
Court granted certiorari. ---- U.S. ---,
55 U.S.L.W. 3807.

I

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

This case involves the Fifth, Sixth, 
Eighth and Fourteenth Amendments to the 
Constitution of the United States, and 
Tex. Code Crim. Pro. Art. 37.071 (repro­
duced as an Appendix to this brief). 

STATEMENT OF THE CASE
On September 19, 1979, petitioner

was convicted of capital murder for the 
March 12, 1979 killing of Mary Frances
Davis, clerk at a Lone Star Ice and Food 
Store in San Antonio, Texas, during the 
commission of a robbery. On September 
20, 1979, after a penalty trial conducted 
pursuant to Tex. Code Crim. Pro. Art. 
37.071, the jury answered "yes" to the 
statutory special issues which determine 
the sentence in Texas capital cases. 
Accordingly, petitioner was sentenced to

- 5 -

die.



6
The Guilt Trial

The prosecution's non-accomplice 
testimony established that: (i) peti
tioner and Sharon Bell were seen in the 
store by several customers shortly before 
the crime, although none of these 
customers observed the robbery, murder or 
getaway; (ii) the victim's body, dis­
covered by subsequent customers and the 
police, had one close-range bullet wound 
in each temple; (iii) a *22 caliber 
pistol used by the perpetrator was found 
the following evening in the glove 
compartment of a car driven by peti-

tioner, a six foot tall black male

weighing about 160 pounds , when that

vehicle was stopped for speeding in

nearby Live Oak, Texas; (iv) Sharon Bell, 
a six foot tall black woman weighing 
approximately 220-250 pounds, was in the 
passenger seat of the car when it was

7
stopped in Live Oak; (v) Sharon Bell 
repeatedly told the arresting officer in 
Live Oak that the gun was hers and that 
John Satterwhite knew nothing about it, 
and gave a sworn statement to that 
effect; (vi) while the arresting officer 
searched the car, petitioner stood behind 
it as ordered by the officer but Bell 
kept making movements toward it until 
twice ordered by the officer to stop; and 
(vii) the pistol had been purchased from 
a pawn shop by petitioner's mother two 
weeks earlier. JA 83-84, 88-90; Sat­
terwhite V. State , 726 S.W.2d 81, 86, 
88-89 (Tex. Crim. App. 1986); SF 333, 
341, 343, 2453-54, 2461, 2468-69 (testi­
mony of arresting officer).1

The only direct evidence about the 1

1 Numbers preceded by "JA" refer 
to pages of the Joint Appendix; those 
preceded by "SF" refer to pages of the 
Statement of Facts before the Texas Court 
of Criminal Appeals.



-  8 -

robbery end murder wee the eccomplice 
testimony of Sheron Bell. The record 
establishes that Bell previously had been 
convicted of murder with malice, SF 2317, 
and at the time of petitioner's trial was 
under indictment for (i) the capit 
murder of Mary Frances Davis, (ii) 
another capital murder and (ill) the 
aggravated robbery of a liquor store, SF 
2286. She had been hospitalized for 
mental illness on several occasions, and 
had been discharged from a mental 
hospital only about a month before the 
instant offense. SF 2278, 2287-88, 2321- 
23, 2333. she had been living with
petitioner, and had spent a couple of 
nights in a house occupied by petitioner 
and his mother, around the time of the 
offense. SF 2323-24. The prosecutor 
conceded before she took the stand that:

t have promised her if ^
testify to the truth that I will not

9
seek the Death Penalty against her.
MR. TAKAS [Defense Counsel]: That
is in both cases that she's charged 
with?
MR. HARRIS [Prosecutor]: Both
cases.

SF 2275.
Bell's version of the robbery and

murder, as recounted by the Texas Court
of Criminal Appeals, was the following:

[A]ppellant and Bell approached the 
cash register where the deceased was 
standing. Bell asked for two or
three packages of Kool cigarettes. 
The deceased placed them on the 
counter, whereupon the appellant 
pulled a pistol out, pointed it at 
the deceased, and demanded that the 
deceased give him money. The 
deceased opened the cash register 
and placed the money in a paper 
sack. The deceased then volunteered 
that there was more money in the 
vault. The three went to the vault 
where the deceased opened the vault 
and placed the contents in the sack 
and handed it to Bell. Bell then 
headed for the door. When she left 
the vault area, the appellant was 
pointing the gun towards the 
deceased's temple. As she was 
leaving the store she heard the 
deceased ask the appellant not to 
shoot her. She then heard two or* 
three gunshots. The pair got in the



10
car and left. When she asked the 
appellant why he shot her, he stated 
he did not want to leave any wit 
nesses.

JA 87-88; 726 S.W.2d at 88.
At the conclusion of her direct 

examination by the prosecutor, Bell
testified as follows;

q . Now, you and I talked about two 
weeks ago, did we not?

A. Yes.
q . Did we discuss your testimony 

here today?
A. Yes.
q . Can you tell the jury what 

promises I made you, if I aia-
A. None.
q . Didn't I tell you though that I 

would not seek the Death 
Penalty in your case if you 
would tell the truth about this 
case?

A. Yes.
SF 2318-19.

The defense called no witnesses and 
introduced no evidence at the guilt

11
trial. The trial court instructed the 
jury on the Texas law of parties, under 
which petitioner could be convicted as an 
accomplice even if Sharon Bell shot the 
victim.2
The Penalty Trial

The non-expert testimony at peti­
tioner's penalty trial was summarized by 
the Texas Court of Criminal Appeals as 
follows:

[E]ight peace officers testified 
that appellant's reputation for 
being a peaceful and law abiding 
citizen was bad. One of the 
officers stated that he had a 
confrontation with appellant. He 
said that after receiving a com­
plaint about appellant, he attempted 
to question him. As he approached 
appellant, appellant reached inside 
his waistband. The officer grabbed 
his hand and found a loaded pistol 
inside appellant's waistband.

Lee Roy Merriweather testified 
that he used to be married to appel­
lant's mother. He stated that less 
than a year before the present 
offense, he had an argument with

2 JA 90-95; 726 S.W.2d at 89-91.



12
appellant. Merriweather l°<*ed
appellant out of thexr home and 
he responded by shooting
Merriweather through the door. The 
witness was hit twice and was 
hospitalized for a month.

The evidence presented also 
showed that appellant had been 
convicted of aggravated assault, 
burglary with intent to commit 
theft, theft under fifty doiLars, 
and robbery by assault with fire 
arms.

JA 97-98; 726 S.W.2d at 93. Petitioner
had been placed on probation for the 
theft (1968), sentenced to 30 days in 
jail on the assault (1968), and placed on 
probation for the robbery (1970). On the 
burglary, the last of the convictions 
(1972), he had been sentenced to the 
Texas Department of Corrections for 2-6 
years; he was released in 1974 and had no 
further convictions until the instant 
case. SF 2721—22.

The prosecution presented the expert 
testimony of Dr. Betty Lou Schroeder, a 

ant-nnio psychologist, and Dr. James

13
P. Grigson, a Dallas psychiatrist. The 
record reflects that on March 16, 1979,
three days after petitioner's arrest in 
Live Oak and one day after he had been 
formally charged with capital murder (JA 
6), the prosecution had filed a motion 
r e q u e s t i n g  a p p o i n t m e n t  of a 
"disinterested, qualified Psychologist" 
to conduct an examination as to 
petitioner's competency to stand trial, 
his sanity at the time of the offense, 
and his "propensity for violence and 
dangerousness in the future as well as 
the likelihood of the defendant to commit 
future acts of violence." JA 3.3 That 
same day the court appointed Dr. Schroe­
der to conduct an examination. JA 5. 
Petitioner was indicted on April 4, 1979,

3 Tex. Code Crim. Pro. Art. 
37.071(b)(2) requires the prosecution to 
prove this likelihood beyond a reasonable 
doubt in order to obtain a death sentence.



14
SF 5-6, and defense counsel was appointed 
on April 10, 1979, JA 7-8. On April 17, 
1979, the prosecution filed a motion 
seeking the appointment of Dr. John T. 
Holbrook, a psychiatrist, and Dr. 
Schroeder, again to conduct an examina­
tion with respect to petitioner's 
competency, sanity, and -propensity for 
violence and dangerousness as well as the 
likelihood of the Defendant to commit 
future acts of violence.” JA 12-13; SF 
22. The motion does not reflect any 
certificate or other proof of service 
upon defense counsel. Ibid- The 
following day the trial oourt entered an 
order appointing Doctors Holbrook and 
Schroeder to conduct an examination. JA 
14. as the court of Criminal Appeals 
noted, ”[t]he record does not contain a 
court order instructing Dr. Grigson to 
examine appellant,” but Dr. Grigson

15
claimed at trial that he did examine 
petitioner "pursuant to a court order." 
JA 97; 72 6 S . W. 2d at 92. The record 
contains a letter from Dr. Grigson to the 
trial court, dated May 8, 1979, stating 
that he examined petitioner in the Bexar 
County Jail on May 3. The letter 
concludes with the statement that 
petitioner "is a severe antisocial 
personality disorder [sic] and is 
extremely dangerous and will commit 
future acts of violence." JA 15-16.4

On May 29, 1979, defense counsel 
filed a "motion to restrict access to the 
defendant," alleging that he "has 
previously been interviewed by certain 
psychologists and/or psychiatrists at the 
State's insistence and reguest and 
without the benefit of counsel," and that

4 Dr. Holbrook also examined 
petitioner, SF 305, but the prosecution 
did not call him as a witness at trial.



16
the defense feared additional prosecu­
torial efforts to have him interviewed by 
medical experts or police officers. JA 
17. The motion was granted the day it 
was filed. SF 41. That same day defense 
counsel filed a motion to suppress 
various evidentiary items, paragraph 5 of 
which reguested suppression on Sixth
Amendment grounds of.

The testimony of any and allpsychiatrists, psychologists or
neurologists who have been aPPoin£®d 
and/or who have e*amined *** Defendant since the time of hi 
arrest in March, 1979, for the 
present crimes....

JA 22. This paragraph of the motion
bears the court's endorsement of the 
words "Hearing granted" in the left-hand 
margin. SF 55; see also JA 44-45. 
However, on August 30, 1979, the court
declined to conduct a pretrial hearing on 

this issue:
What I'm doing is denying you a 
hearing before trial on whether or

17
not testimony that we may not reach 
in the trial is going to be admis­
sible. When we get to any psychia­
trists, feel free to object, feel 
free to object to any guestion and 
I'll rule on that at that time.

SF 320-21.
Dr. Schroeder was called to testify 

at the penalty trial. Upon voir dire 
examination outside the jury's presence, 
she testified that she first examined 
petitioner on March 16, 1979, the same
day that the prosecution had filed a 
motion seeking an examination and the 
court had entered an order appointing 
her. JA 47-48. She initially read 
petitioner the Miranda warnings from a 
little card she carried in her billfold. 
JA 47. She then asked him to sign a 
release; he did so, and she conversed 
with him for the next hour or hour and 
fifteen minutes. Ibid. When guestioned 
by defense counsel as to whether 
petitioner asked for a lawyer during this



18
initial interview, she replied "No. Not 
at that time." Ibid- Dr. Schroeder saw 
petitioner "on a number of occasions" 
after the initial interview. Ibid. At 
the conclusion of voir dire examination, 
the court instructed Dr. Schroeder not to 
••relate anything that the Defendant might
have told you." JA 48.

With the jury present, Dr. Schroeder
testified that following the initial 
examination she saw petitioner "on a 
number of occasions after that" and also 
"sent my psychological associate over to 
conduct some tests." JA 51. Petitioner 
completed one of the subsequent tests 
with the associate, JA 51, 52, but
otherwise refused to be tested or 
interviewed again, JA 51. Two tests, the 
Bender-Gestalt and Rorschach, were 
conducted by Dr. Schroeder on March 16 
along with her interview. JA 51-52. Dr.

19
Schroeder recounted several other 
approaches by her and her associate, 
including one by the associate on June 4, 
1979 and one by her only two or three 
weeks before trial (i.e.. in August or 
September 1979). JA 54.

The prosecutor asked Dr. Schroeder 
to testify "[b]ased on your experience as 
a clinical psychologist and based upon 
your clinical interview, the tests that 
you administered and the observations 
that you have made of this Defendant," 
JA 54. She replied that petitioner was a 
"very evasive, very guarded individual" 
who displayed a "very cunning kind of 
guardedness." Ibid. "He is a cunning 
individual, very evasive, very guarded. 
A user of people. Particularly notice­
able was his lack of ability to feel what 
other people feel. An inability to feel 
what we call empathy." JA 55. Dr.



20
Schroeder further testified that peti­
tioner was "particularly unable to feel 
feelings of guilt." JA 56. She also 
stated that:

He tends to be an individual who has 
a rather bold representation of 
himself, particularly as a male. 
His masculinity, sexuality. It was 
my opinion that beneath this kind of 
representation was a very insecure 
individual who had very real doubts 
about his own ability to perform.

Ibid. Dr. Schroeder diagnosed petitioner
as an "antisocial personality" and
testified that he "will be a continuing
threat" to society. Ibid.

On cross-examination, Dr. Schroeder
stated that following the initial
examination of petitioner there were "a
number of other times I had conversation
with him." JA 57. When asked whether
she had warned him of his rights "at
every subsequent visit," she replied:

A. I don't recall that I did.
q . Were you aware of a Court order

21
signed in May asking you to 
inform counsel for the Defen­
dant when you did that?

A. An order in May? I only have a 
copy of one order and it's 
dated March 16th.

Q. Did you ever make an attempt to 
get hold of his attorneys and 
talk to his attorneys about the 
possibility of speaking to my 
client?

A. No.
Q. Did you know he had an attorney 

appointed to represent him?
A. I assumed it would be so. At 

the time I originally saw him 
on March 16th I don't believe 
an attorney had been appointed. 
We talked about that I believe.

JA 57.
At the conclusion of her cross- 

examination, Dr. Schroeder testified that 
she had also examined Sharon Bell. 
Defense counsel asked:

Q. Did you come to the conclusion 
that after discussing with her 
that she was a person whose 
relations, what she related to 
you lacked a certain amount of 
credibility?



22
A. Yes.
Q. Are you still of that opinion?
A. Yes.

JA 58.
Q. Your opinion would be that you 

arrived at would be that Sharon 
Bell's story lacks credibility 
from your evaluation of her?

A. I don't have the evaluation of 
her here but I can assure you 
that I have some doubts about 
Miss Bell on a number of areas.

JA 59.
The prosecution's concluding witness 

at the penalty trial was Dr. Grigson. 
Upon voir dire examination outside the 
jury's presence, Dr. Grigson testified 
that he had attempted to examine peti­
tioner on March 19, 1979 —  three days
after the court order appointing Dr. 
Schroeder —  but was not able to examine 
him until May 3, 1979. JA 60. Dr.
Grigson said that he explained the 
purposes of the examination to petitioner

23
and advised petitioner of his right to
remain silent or refuse the examination.
Ibid. At first the doctor maintained
that he had advised petitioner of the
possibility that the examination could
lead to adverse testimony at the penalty
phase of a capital trial and result in a
death sentence. Ibid. However, when
pressed as to whether he had specifically
warned petitioner that "the fruits of
that conference or interview could be
used against him," Dr. Grigson replied:

No, sir. I didn't use those words. 
I did say that it could be harmful 
to him or it could be helpful to him 
depending upon what the findings would be.

JA 61.5
The trial court instructed Dr. 

Grigson not to relate to the jury 
anything petitioner might have said to

Dr. Grigson testified to the same effect before the jury. JA 70.



24
him. JA 61. However, defense counsel's 
objection to the doctor testifying at all 
was denied. JA 62.

With the jury present, Dr. Grigson 
testified that he had subjected peti­
tioner to a "mental status examination" 
on May 3, 1979. JA 65-66. The doctor
described the nature of the examination 
in considerable detail. JA 66-68. 
Before he could testify as to his 
findings, defense counsel twice objected 
on the grounds set forth in the pretrial 
motion. Both objections were overruled. 
JA 68, 70.6

Dr. Grigson testified that:
A. For the most part Mr. 

Satterwhite was pleasant and 
was cooperative. There was one 
area of considerable signifi­
cance. That was an absence of

6 In petitioner's motion for a 
new trial, defense counsel once again 
charged that he had no prior notice of 
Dr. Grigson's examination of his client. 
JA 40-41.

25
any type of guilt feelings. 
There was times when you would 
have expected, in view of what 
was being discussed, you would 
have expected the person to 
have shown remorse, regret, 
shame, embarrassment, some form 
of guilt. There was absolutely 
no signs whatsoever of any type 
of guilt or remorseful feelings.

JA 71. After stating that in his opinion 
petitioner was competent to stand trial 
and sane at the time of the offense, Dr. 
Grigson testified as follows:

Q. [By the Prosecutor] __ did you
form an opinion based upon your 
examination of Mr. Satterwhite 
as to whether or not he would 
be a continuing threat to 
society by acts of criminal violence?
Yes, sir. I formed an opinion 
with regard to that.

Q. What is your opinion?
A. Yes. It's my opinion that Mr. 

Satterwhite will present a 
continuing threat to society by 
continuing acts of violence.

Q. Is there some type of label or 
name that you give?

A. They are only interested in



their own self-pleasure and 
gratification.
They repeatedly break the rules 
and regulations of the laws. 
Those are the outstanding 
characteristics. Just simply a 
lack of conscience and only 
interested in what they want.

Q. Are all people under that clas­
sification the same degree?

A. No, sir. They are not.
Q. Different degrees?
A. Yes. sir. There are.
Q. How or what type of range do 

you use?
A. Well, you could use a scale of 

say 1 to 10 where you would 
have individuals say at the one 
level are relatively, mild 
sociopaths. They only break 
small rules. Then you could 
start going up the scale where 
you have individuals that may 
be all they will ever do is do 
burglaries or these type of 
crimes.
Then as you go up you get into 
acts of violence, rape, a [sic] 
assaultive behavior. Then at 
the top of the scale, say an 
individual that is a 10, these 
are individuals that have 
complete disregard for another 
human being's life. These are

- 26 - 27
the people who needlessly take 
another person's life.

Q. Based upon your examination of
Mr. Satterwhite and based upon 
your expertise in the field of 
psychiatry, do you have an 
opinion as to where Mr. 
Satterwhite fits in that scale?

A. Yes, sir. I do.
Q. What is that opinion?
A. That he would be ten plus. He

would be as severe a sociopath as you can be.
Q. Would you consider him to be

dangerous then?
A. Absolutely.
Q. Is there any cure or rehabi­

litation for severe antisocial 
behavior person [sic]?

A. First, with the regard to cure,
it's not an illness so there is 
no treatment. There is nothing 
that can be done as far as 
medicine in psychiatry as far 
as rehabilitation. There has 
been no form of rehabilitation 
that has been successful with 
an individual when they get to 
this point in life where if 
they take another human being's 
life then there is nothing that 
can be done to modify or change 
their behavior.



28
Q. Of course that would be on the 

outside. That wouldn't apply 
in a prison setting, would it?

A. Yes, sir. His behavior will 
continue regardless where he 
is, regardless whether he's 
inside of prison or outside or 
prison.

JA 72-73.
When asked on cross-examination 

about the American Psychiatric Associa­
tion's opposition to his activities and 

, its filing of an amicus curiae brief in 
the case of Smith v. Estelle,̂  Dr. 
Grigson replied as follows:

Now, you are talking about the 
group that said homosexuality 
is normal and they are opposed 
to the Death Penalty. Now, 
this same group is also opposed 
to my testifying like this here 
today.

q . So, you are not implying those 
people are abnormal that would 
take a stands [sic] against 
you?

A. Oh, I think homosexuality is a 
sickness.

7 602 F .2d 694 (5th Cir. 1979).

29

Q. That is not what I asked you.
A. I'm sorry.
Q. You are not implying that

people that take stands against 
you are abnormal are you?

A. I don't know that anybody has 
ever taken a stand against me.

JA 76. When pressed as to whether there
have been programs in which sociopaths
have been cured, the doctor testified:

With severe sociopaths there 
are none.

Q. What you are saying, if there
is one you haven't heard of it?

A. No, sir. In all the reviews
that have been done with regard 
to your severe sociopaths those 
people who have disregard for 
other human beings life [sic], 
there has been none that have 
been reported in any way at all 
successfully.
Now, it is true that there has 
been research done with regard 
to the milder sociopaths. 
These are individuals that can 
be helped.

Q. Is that correct?
A. No. The Federal Government has



30
been spending millions of 
dollars for a number of years 
to try to find something to do 
with these people.

JA 77.
The defense called no witnesses and 

introduced no evidence at the penalty 
trial. On summation, the prosecution 
relied heavily upon the testimony of its 
medical experts:

[Y]our District Attorney's office as 
a result of what he did to Mary 
Davis on March 12th, 1979 has this
man examined by a person who works 
for Bexar County, Betty Lou 
Schroeder. Dr. Betty Lou Schroeder 
and she finds that this man has an 
antisocial personality disorder. 
And she tells you under oath, ladies 
and gentlemen, based upon her
experience, based on her opinion 
that this man is a continuing threat 
to our society.
The District Attorney's office seeks 
another opinion. Doctor James 
Grigson, Dallas psychiatrist and
medical doctor. And he tells you
that on a range from 1 to 10 he's 
ten plus. Severe sociopath.
Extremely dangerous. A continuing 
threat to our society. Can it be 
cured? Well, it's not a disease. 
It's not an illness. That's his 
personality. That's John T.

31
Satterwhite.

SF 2725-26. The defense on summation 
argued the theory that Sharon Bell, 
deemed a non-credible witness by Dr. 
Schroeder, was the individual who 
actually killed the victim. The jury was 
reminded that it had been instructed on 
the Texas law of parties, and told that 
if petitioner had been convicted on this 
basis he should be deemed less culpable 
for purposes of punishment. Defense 
counsel noted that the most gruesome 
testimony about the killing came from 
Sharon Bell, the prosecution's star 
witness at the guilt trial, whose 
veracity had been questioned at the 
penalty trial by Dr. Schroeder. SF 2729- 
37.
The Appeal

The Texas Court of Criminal Appeals 
heard oral argument on April 22, 1981,



32
but did not decide the appeal until 
nearly 5-1/2 years later. In an opinion 
issued on September 17, 1986, the Court
held that Sixth Amendment error had been 
committed under Estelle v. Smith. 451 
U.S. 454 (1981):

As in Estelle v. Smith, appellant 
had already been indicted when this 
[Dr. Grigson's] examination took 
place. Thus, his right to assis­
tance of counsel had attached. 
Kirby v. Illinois, supra [406 U.S. 
682 (1972)]. While the attachment
of that right does not mean that 
appellant had a constitutional right 
to have counsel actually present 
during the examination, Estelle v. 
Smith. supra. it does mean that 
appellant's attorneys should have 
been informed that an examination, 
which would encompass the issue of 
future dangerousness, was to take 
place. Additionally, the attachment 
of this right meant that appellant 
could have consulted with his 
attorney prior to the examination. 
There is nothing to indicate that 
appellant gave a knowing, intel­
ligent, and voluntary waiver of his 
right to counsel, and a waiver will 
not be presumed from a silent 
record. We, therefore, conclude 
that Dr. Grigson's testimony was 
improperly admitted into evidence in 
violation of appellant's Sixth 
Amendment right to assistance of

33
counsel.

JA 97; 726 S.W.2d at 92-93. However, the 
majority believed that the Smith error 
had been rendered harmless by the 
combination of (i) the prosecution's non­
expert testimony at the penalty trial, 
(ii) Dr. Schroeder's testimony, which was 
the subject of neither a contemporaneous 
trial objection nor a ground of error on 
appeal, and (iii) the details of the 
crime, as recounted by Sharon Bell. ja 
97-99; 726 S.W.2d at 93.

Judge Clinton's dissenting opinion 
challenged the harmless error holding:

The ubiquitous James P. Grigson, 
M.D., testified in his own inim­
itable fashion, now well known to 
every experienced practitioner in 
capital cases. To find that "in 
light of other evidence presented," 
admitting his expert opinion on what 
is literally a matter of life or 
death does not amount to reversible error is startling.

JA 103; 726 S.W.2d at 95.
[T]he jury's answer to special issue



34
two patently is based in part at 
least on testimony of Dr. Grigson, 
bolstered by argument of the 
prosecutor reminding jurors that Dr. 
Grigson is a "Dallas psychiatrist 
and medical doctor [as compared to a 
mere psychologist employed by Bexar 
County]" and then recounting that 
"Dr. Grigson ... tells you that on a 
range from 1 to 10 [appellant is] a 
ten plus," following that with an 
iteration of terms Dr. Grigson can 
explicate so expertly to jurors.

JA 104; 726 S.W. 2d at 96 (brackets in
original).

In their certiorari petition, 
petitioner's trial attorneys once again 
challenged the admissibility of Dr. 
Grigson's testimony. The Questions
Presented omit any mention of Dr. 
Schroeder's testimony, although in the 
body of the petition counsel argued that 
they did object to the psychologist's 
testimony "on numerous occasions." Cert, 
pet. at 10. The Texas Attorney General's 
office, appearing in the case for the

35
first time,8 filed a brief in opposition 
which did not defend the harmless error 
holding of the Court of Criminal Appeals. 
The brief instead argued (pp. 8-10), 
contrary to both the majority opinion and 
Judge Clinton's dissent, that no Smith 
error had occurred. This Court granted 
certiorari on June 1, 1987.

SUMMARY OF ARGUMENT 
I. The admission of Dr. Grigson's 

testimony constituted an obvious 
violation of petitioner's Sixth Amendment 
rights under this Court's unanimous 
decision in Estelle v. Smith. 451 U.S. 
454 (1981). The State has sought to
distinguish petitioner's case from Smith 
rather than defend the harmless error 
holding below, but this argument is

8 The Bexar County District 
Attorney's office represented the State 
before the Texas Court of Criminal 
Appeals.



unsupported by the record. The Sixth 
Amendment violation here is even more 
flagrant than in Smith.

II. Given the broad range of 
discretion accorded Texas capital 
sentencing juries and the relatively 
unstructured nature of their inquiry, the 
Court s h o u l d  not a s s u m e  that 
unconstitutionally admitted evidence 
which may have contributed to a death 
verdict was harmless beyond a reasonable 
doubt. The prosecution's case for death 
was far more convincing with Dr. 
Grigson's testimony than it would have 
been without him. Dr. Grigson's
reputation as an exceedingly persuasive 
expert witness has been widely reported 
and is no secret to this Court. There is 
more than a reasonable possibility that 
his testimony contributed significantly 
to the death verdict in this case.

I

- 36 - 37
ARGUMENT

I
THE ADMISSION OF THE
TESTIMONY OF DR. JAMES P.
GRIGSON AT PETITIONER'S 
PENALTY TRIAL VIOLATED HIS 
SIXTH AMENDMENT RIGHTS 
UNDER ESTELLE V. SMITH.
451 U.8. 454 (1981)______

A
In Estelle v. Smith. 451 U.S. 454

(1981), this Court dealt with a Texas
prosecutor's use of the very same sort of 
psychiatric testimony used in this case 
to secure a sentence of death. Indicted 
on capital charges, Smith was visited in 
the Dallas County Jail by Dr. Grigson 
without notice to defense counsel. Smith 
was thus deprived of the advice of 
counsel in determining whether to speak 
to the doctor. He allowed Dr. Grigson to 
examine him; the prosecution subsequently 
called Grigson at Smith's penalty trial; 
and Grigson testified, based upon the



38
examination, that Smith was a dangerous 
sociopath who was certain to commit 
future criminal acts of violence. Smith 
was sentenced to die.

This Court unanimously invalidated 
the death sentence. Finding that Smith 
had been made the "'deluded instrument' 
of his own execution," 451 U.S. at 462, 
the Court held that the Sixth Amendment 
forbade the Texas practice of utilizing 
an accused's uncounseled post-indictment 
interviews with psychiatrists to meet the 
State's burden of proving probable future 
dangerousness (Tex. Code Crim. Pro. Art. 
37.071 (b) (2)) at the penalty phase of
capital trials. The Court's rationale 
bears repeating here, because it fits 
equally well what the State of Texas and 
Dr. Grigson did to John T. Satterwhite, 
and explains why it was fundamentally 
unjust.

39
Here, as in Smith, Grigson's role 

was "essentially like that of an agent of 
the State." 451 U.S. at 467. Petitioner's 
'Sixth Amendment right to counsel clearly 
had attached when Dr. Grigson examined 
him ... and their interview proved to be 
a 'critical stage' of the aggregate 
proceedings ... see Coleman v. Alabama. 
399 U.S. 1, 7-10 (1970) (plurality
opinion); Powell v. Alabama, supra. [287 
U.S.] at 57 [1932]." Id. at 470.
Defense counsel was not notified that 
Grigson would be attempting to interview 
petitioner, and petitioner was therefore 
'denied the assistance of his attorney[] 
in making the significant decision of 
whether to submit to the examination," 
id. at 471.9

. 9 Massiah v. United
377f U *S - 201 (1964), relied upon in Smith at 470 (opinion of the Court) 

474 (concurring opinion of Justic4
(continued...)



40
As this Court observed in Smith,

quoting the Fifth Circuit's opinion:
[T]he decision to be made regarding 
the proposed psychiatric evaluation 
is "literally a life or death 
matter" and is "difficult .. . even 
for an attorney" because it requires 
"a knowledge of what other evidence 
is available, of the particular 
psychiatrist's biases and predilec­
tions, [and] of possible alternative 
strategies at the sentencing 
hearing." 602 F.2d, at 708. It
follows logically from our prece­
dents that a defendant should not be 
forced to resolve such an important 
issue without "the guiding hand of 
counsel." Powell v. Alabama, supra, 
at 69.

Id. at 471.9 10

9 (...continued)
Stewart, joined by Justice Powell), and 
474-75 (concurring opinion of Justice 
Rehnquist)? United States v. Henry, 447
U.S. 264 (1980); Maine v. Moulton, ---
U.S. ___, 88 L.Ed.2d 481 (1985).

10 See also Smith v. Estelle,
supra, 602 F.2d at 708: "Only defendants
who do not know better will allow 
themselves to be examined by psychia­
trists antecedently favorable to the 
state." Id- at 708-09: "For a lay de­
fendant, who is likely to have no idea of 
the vagaries of expert testimony and its 
possible role in a capital trial, and who(continued...)

I

In one sense, this case is even more 
egregious than Smith. There, Dr.Grigson's 
examination had at least been authorized 
by the trial court, to satisfy the court 
that Smith was competent to stand trial. 
451 U.S. at 456-57 & n.l. Here the
record contains no court order author­
izing Grigson to interview petitioner for 
any reason. JA 97; 726 S.W.2d at 92.

B
The State's brief in opposition to 

certiorari, instead of defending the 
harmless error holding below, argued that 
no Smith error occurred. The argument is 
specious.

- 41 -

*°(...continued)
may find it difficult to understand, even 
if he is told, whether a psychiatrist is 
examining his competence, his sanity, his 
long-term dangerousness for purposes of 
sentencing, his short-term dangerousness 
for purposes of civil commitment, his 
mental health for purposes of treatment, 
or some other thing, it is a hopelessly 
difficult decision."



42
The Attorney General suggests that 

the prosecutor's motions of March 16 and 
April 17, 1979, seeking examinations of
petitioner's competency, sanity and 
probable future dangerousness (JA 3-4, 
12-13), were sufficient to notify defense 
counsel that the State "intended to 
determine whether there was any psychia­
tric evidence to support the future 
dangerousness issue" (brief in opp. at 
9). The Attorney General also argues
that petitioner waived his Sixth Amend­
ment rights (id. at 10). However, these 
contentions ignore the relevant facts of 
record: (i) The motion of March 16 was
filed nearly a month before petitioner 
had any defense counsel (JA 7-8). (ii) 
The motion of April 17 bears no proof of 
service upon defense counsel (JA 12-13, 
SF 22). (iii) Neither the trial court's
order of March 16, 1979 appointing Dr.

43
Schroeder, nor its order of April 18, 
1979 appointing Doctors Holbrook and 
Schroeder, provides that the examinations 
are to encompass probable future danger­
ousness (JA 5, 14). (iv) Neither the 
orders themselves nor anything else in 
the record establishes that defense 
counsel received copies of the orders, 
(v) None of the motions or orders contain 
any mention of Dr. James P. Grigson. (vi) 
Defense counsel asserted without 
contradiction that he had no advance 
notice of Grigson's examination (JA 17, 
40-41). (vii) And nowhere in Grigson's 
testimony is there any indication that he 
warned petitioner of the right to consult 
with counsel prior to deciding whether to 
submit to the examination (JA 60-61, 69- 
70).11 11

11 According to Dr. Grigson, his 
warnings were based upon the federal

(continued...)



44
Under these circumstances, the Texas 

Court of Criminal Appeals correctly 
determined that Dr. Grigson's testimony 
violated petitioner's Sixth Amendment 
rights and that petitioner may not be 
presumed to have waived those rights. JA 
97; 726 S.W. 2d at 92. As this Court
noted in Smith itself, "[w]aivers of the 
assistance of counsel . . . 'must not only 
be voluntary, but must also constitute a 
knowing and intelligent relinquishment or 
abandonment of a known right or 
privilege. '" 451 U.S. at 471 n. 16,
quoting Edwards v. Arizona, 451 U.S. 477, 
482 (1981) . There is nothing in this

11 (...continued)
district court decision in Smith. JA 60, 
69. But that decision "overlooked the 
role that an attorney might have played 
in helping a client like Smith decide 
whether he wished to submit to an 
examination." Smith v. Estelle, 602 F.2d 
694, 708 (5th Cir. 1979). The Fifth
Circuit's modification of the district 
court ruling was not issued until four 
months after Dr. Grigson interviewed petitioner.

45
record to establish a waiver meeting that 
standard.i2

The Texas Court of Criminal 
Appeals held that Dr. Grigson's warnings 
to petitioner were sufficient to satisfy 
his Fifth Amendment rights under Smith 
(451 U.S. at 461-69). JA 100; 726 S.W.2d 
at 94. We have some doubt as to whether 
the record supports this holding. See p. » 
23, supra. However, in light of the 
manifest Sixth Amendment Smith error 
present here, it is unnecessary to reach 
this question.



46
II

THE VIOLATION OF PETITIONER'S RIGHTS 
UNDER SMITH MAY NOT BE DEEMED 
HARMLESS ERROR_____________________

A
In Chapman v. California. 386 U.S. 

18, 24 (1967), this Court ruled that a
constitutional violation may be deemed 
harmless only if it was "harmless beyond 
a reasonable doubt." The Court has 
repeatedly adhered to the Chapman 
standard in recent cases. See Rose v.
Clark. ___ U.S. ___ , 92 L.Ed.2d 460, 469
(1986), and cases cited therein; Delaware
v. Van Arsdall. ___ U.S. ___ , 89 L.Ed.2d
674, 684 (1986); United States v. Lane,
___ U.S. ___, 88 L.Ed.2d 814, 823-824 n.9
(1986). Pursuant to this standard, 
petitioner's death sentence must be 
invalidated unless the Court is satisfied 
beyond a reasonable doubt that Dr. 
Grigson's testimony was "so unimportant

47
and insignificant that ... [it] may, 
consistent with the Federal Constitution, 
be deemed harmless." Chapman v. Califor- 
—i-• supra, 386 U.S. at 22. In the words 
of Fahy v. Connecticut, 375 U.S. 85, 86- 
87 (1963), guoted in Chapman (id. at 23), 
"[w]e are not concerned here with whether 

was sufficient evidence on which 
the petitioner could have been 
[sentenced to death] without the evidence 
complained of. The guestion is whether 
there is a reasonable possibility that 
the evidence complained of might have 
contributed to the ... [death sentence]."

Because the jury's sentencing 
decision in a Texas capital case is 
considerably less structured than its 
determination of guilt, the capacity of 
an appellate court to assess what the 
jury would have done in the absence of 
the tainted evidence is correspondingly



*

- 48 -
restricted. The Texas capital sentencing 
process "is not an exact science, and the 
jurors ... unavoidably exercise a range 
of judgment and discretion." Adams v. 
Texas. 448 U.S. 38, 46 (1980). There is 
no objective, normative marker available 
to say what portions of the evidence they 
may have regarded as "overwhelming." 
California v. Ramos. 463 U.S. 992, 1007-
1009 (1983) . For this reason, the harm­
lessness of constitutional error at 
petitioner's capital sentencing 
proceeding should be determined solely by 
asking whether the evidence might have 
contributed to the jury's decision. No 
more demanding standard would take 
adequate account of "the range of 
discretion entrusted to a jury in a 
capital sentencing hearing," Turner v. 
Murray. ___  U.S. ___ , 90 L.Ed.2d 27, 35
(1986), and the qualitative difference

49
between death and other forms of 
punishment, entailing a "corresponding 
difference in the need for reliability in 
the determination that death is the 
appropriate punishment in a specific 
case." Woodson v. North Carolina. 428 
U.S. 280, 305 (1976) (plurality opinion); 
Gardner v. Florida. 430 U.S. 349, 357-358 
(1977) (plurality opinion); id. at 363- 
364 (concurring opinion of Justice 
White).

Until the decision below, no
appellate court had ever found a Smith
error harmless. in its only prior
decision considering such a harmless
error claim, the Texas Court of Criminal
Appeals stated the correct standard and
reached the correct result;

the issue we must confront is ... 
whether the testimony of Coons [the 
prosecution's psychiatrist] might 
have contributed to the jury's 
verdict during the punishment phase. 
We conclude that there was a



50
reasonable possibility that Coons' 
testimony might have contributed to 
the jury's verdict during the 
punishment phase of appellant's 
trial.

Clark v. State. 627 S.W.2d 693, 698 (Tex. 
Crim. App. 1981).13 The Fifth Circuit 
has considered the issue on five oc­
casions, and each time has rejected the 
prosecution's harmless error contention. 
Muniz v. Procunier. 760 F.2d 588 (5th
Cir. 1985) , cert, denied. ___  U.S. ___ ,
88 L.Ed. 2d 274 (1985); White v. Estelle. 
720 F.2d 415, 418 (5th Cir. 1983); Green 
V. Estelle. 706 F.2d 148 (5th Cir. 1983), 
rehearing denied with opinion. 712 F.2d 
995 (5th Cir. 1983); Gholson v. Estelle. 
675 F. 2d 734, 745 (5th Cir. 1982) (con­

In Powell v. State. ___ S.W.2d
__, No. 67,630 (Tex. Crim. App. July 8,
1987) (argued May 27, 1981), the Court of 
Criminal Appeals rejected a Smith claim 
on the merits (slip op. at 6-12) and then 
added a brief passage of dicta commenting 
that even if error had existed it would 
be harmless (id. at 12-13).

51
curring opinion); Battie v. Estelle. 655 
F.2d 692 (5th Cir. 1981).14

B
Analysis of the prosecution's other 

evidence on the issue of punishment in 
this case reveals no basis for a deter­
mination that Dr. Grigson's testimony was 
harmless beyond a reasonable doubt.

Although the accomplice testimony of 
Sharon Bell described a brutal crime,

rp-nrH was either counsel ofrecord, amicus or a consultant in all 
five cases. Although harmless error is
opinions^ °nlY th* Mlj^  and Gholson
bdefs will ireVi6W °5 the Fifth Circuit necessarily n° doubt that the Courtnecessarily considered and rejected
harmless error claims in each case.3

As a practical matter, virtuallv
has^a TSm?th deatlr se£tenced Prisoner who
case ClaXK? ^aS already won his
certiorarT “ S F  brief in °PP°sition to certiorari (No. 85-151) at 6-7 and
Appendix C. unless there are other cases
pending rinr th° that haVe remai"edpending m  the Texas Court of Criminal
Appeais longer than this one and Powell
again?°Urt ^  ^  likely to see t h f i S i ;



52
there is no warrant in the record to 
assume that the details of her account—  

and especially her description of 
petitioner's role —  were necessarily 
believed by the jury or contributed 
significantly to the penalty verdict. 
Bell had previously been convicted of 
murder, was facing two capital murder 
charges and one aggravated robbery 
charge, and had been promised that in 
return for her testimony against peti- 
tioner she would not be sentenced to die. 
She had numerous prior mental hospital 
commitments. She lied on the witness 
stand about the deal she had struck with 
the prosecutors in this case. She at 
first told the arresting officer that the 
gun used to kill the victim was hers, and 
even gave a sworn statement to that 
effect before changing her story. The 
gun was closest to her at the time of

53
arrest, and it was she who made threaten­
ing movements while the arresting officer 
searched the vehicle. And her physical 
size belies any suggestion that she 
lacked the capacity to be either an equal 
or dominant participant in the robbery- 
murder.

In short, while the jury found that 
petitioner was sufficiently involved in 
the crime to merit conviction, it may 
well have done so on the theory submitted 
in the court's instructions, under which 
Bell could have been the actual killer. 
In any event, there is no reason to 
assume that Bell's account of the offense 
was accepted as a whole or contributed 
significantly to the jury's assessment of
petitioner's probable future dangerous­
ness .

Eight police officers testified in 
conclusory fashion that petitioner's



54
reputation for being a peaceable and law- 
abiding citizen was "bad.” Given the 
fact that petitioner did have a criminal 
record, this testimony could hardly have 
come as a surprise to the jury. However, 
one cannot plausibly assume that a record 
consisting of two probated sentences, a 
30-day jail term, and one burglary 
conviction for which petitioner served 
two years in prison —  followed by five 
years with no further criminal 
convictions prior to the present one 
sufficiently convinced the jury that 
petitioner deserved to die. The shooting 
episode described by petitioner's 
mother's ex-husband (i) was not shown to 
have resulted in a criminal complaint or 
conviction, and (i i) occurred during a 
family argument in which the witness 
concededly threatened to cut petitioner 
with a knife (SF 2668). And while one of

55
the police reputation witnesses also 
testified to petitioner's possession of a 
gun at the time of an arrest, the 
prosecution adduced no evidence that 
petitioner was guilty of any crime in 
that connection.

This leaves the testimony of psycho­
logist Betty Lou Schroeder, the prosecu­
tion's other expert, as the principal 
basis for a claim that Dr. Grigson's 
opini0*13 were harmless. in considering 
the effect of this testimony, the Court 
should bear in mind that it was admitted 
in patent violation of Estelle v. smith 
and should never have reached the jury's 
ears in the first place. The warnings 
that Schroeder gave petitioner on March 
16, 1979 did not include advice that her 
answers "could be used to produce 
evidence against him at the penalty 
phase," and were plainly insufficient to



56
satisfy the Fifth Amendment requirements 
of Smith. See Ex parte Deroouchette. 633 
S . W.2d 879, 880-81 (Tex. Crim. App.
1982).15 * In addition, her diagnosis was 
based in part on subsequent uncounseled 
testing and observations which took place 
without any warnings at all, long after 
counsel had been appointed. JA 54, 57.
The court below recites that petitioner's 
counsel "did not object to Dr.
Schroeder's testimony at trial and does 
not complain of its admission on appeal." 
J. A. 98; 726 S.W.2d at 93 (emphasis in
original) , but fails to note that, as a 
matter of state law, no contemporaneous 
trial objection to Smith error is 
required in cases tried prior to this

15As this Court held in Smith, 
petitioner should have been advised that 
the examination "would be used to gather
evidence necessary to decide whether, if 
convicted, he should be sentenced to 
death." 451 U.S. at 467.

57
Court's Smith decision.16

In any event, a fair reading of Dr. 
Schroeder's testimony together with Dr. 
Grigson's should leave this Court uncon­
vinced that Dr. Grigson's was harmless 
beyond a reasonable doubt. Dr. Grigson's 
testimony was far more thorough, complete 
and self-assured. while the psycholo­
gist's testimony at least conceded that 
the credibility of Sharon Bell was 
dubious, Dr. Grigson was an unwavering

484 (̂ Tex̂ ~P CrH m Ch™ b^ ' 688 S.W.2d 483,
cited ^ PP* 1984)' and oasesdted therein; id. at 486 (concurring
Court?11 See^f bM * majority of the
F 2d 588 V * tocunier, 760F.2d 588 (5th Cir. 1985), cert^denied,
-- u.S. ----, 88 L. Ed. 2d 274 (1985) anrt

S S i d ^ S r ^ ' - 706 F ’ 2d 148 * reh eartn nagnied with opinion, 712 F.2d ^9^
ir. 1983), both holding that Texas has

Aspect tMoPOrcaneOUS, objection rule with respect to cases tried prior to Smith
an attack upon Dr. Schroeder's testimony been included in the brief on

df!!-ini in a BUPPlemental brief filedthe 5-l/2 years the case was pending on appeal), Texas law would have 
required consideration of the claim



58
advocate for the prosecution. He cloaked 
his testimony in medical terminology 
which could not fail to impress the jury 
with his knowledge and expertise.

c

Beyond a reading of the cold record 
of this case, however, there are addi­
tional facts concerning Dr. Grigson which 
this Court is entitled to notice judi­
cially. Since this is the third Texas 
capital case involving Dr. Grigson to be 
heard by the Court,17 and his testimony 
has been summarized in countless 
certiorari petitions as well, the Court 
has more than a passing familiarity with 
this particular expert witness. However, 
the sheer multitude of his appearances 
does not tell the entire story. Equally 
remarkable is his success rate in capital

17 Estelle v. Smith. supra;
Barefoot V. Estelle. 463 U.S. 880 (1983).

59
cases, brought about not so much by the 
scientific accuracy of his testimony18 as 
by the extraordinary skill with which it 
is delivered to the jury.

As of November 1980, Dr. Grigson had 
already testified for the prosecution "in 
about 60 murder sentencing hearings, and 
in all but one of those the death penalty 
was imposed." National Law J o u r n a l r Nov. 
24, 1980, pp. 1, 8. A Dallas Times- 
Herald article of September 30, 1979, 
p.l, stated that there had been 22 
capital murder trials in Dallas County as 
of then. "Grigson testified for the 
prosecution in every case. Only one 
defendant escaped death row."

The National Law Journal found Dr. 
Grigson's testimony "devastating." "His

. . The American PsychiatricAssociation filed amicus curiae briefs in 
both gmith and Barefoot attacking the 
reliability of Dr. Grigson's testimony.



V

professional demeanor and self-assurance 
create a formidable barrier for defense 
lawyers." The doctor was described as 
speaking to juries in "a folksy but pro­
fessional manner," projecting the "gentle 
demeanor of Marcus Welby."

An American Lawyer article of the 
same period (November 1979), pp. 25-26, 
found Dr. Grigson's manner "folksy and 
relaxed," without any "ambiguity or 
subtle distinction. He addresses the 
jury in plain, non-technical language." 
His answers are "direct, definitive and 
uncompromising." Dr. Grigson himself 
told the American Lawyer: "I've been on
the witness stand a lot of times, and 
I've been asked every question you can 
think of. I know what I'm doing." The 
article reported that "[m]ost attorneys 
treat Grigson with kid gloves, knowing 
that if he is pushed too hard on cross­

- 60 - 61
examination, he can damage a defendant 
even further. ('A lot of them are afraid 
of me', says Grigson, half-smiling.)"

A June 1980 feature in D Magazine, a 
Dallas monthly, found Dr. Grigson to be 
"the epitome of southern charm" (p. 167) 
and reported that "he has turned expert 
testimony into an art and a business in a 
way no other professional ever has." (p. 
168) . The article described Dr. Grig- 
son's appearances of the period as 
follows:

His testimony was generally devas­
tating. Jurors otherwise tentative 
about bringing the hammer down on a 
defendant found Grigson's testimony 
about dangerousness a convenient 
handle to grasp in making their 
deliberation; fact issues might 
remain in dispute and circum­
stantial evidence could remain 
cloudy, but Jim Grigson's tes­
timony was always crystal clear. 
Defense attorneys, generally lacking 
in psychiatric expertise, found it 
impossible to cross-examine effec­
tively or impeach the smooth- 
talking doctor with the terrific 
smile. "We learned a way to deal 
with him, all right," recalls one.



62
"And that was don't.11 

p. 170.
The Dallas Times-Herald reported

that by the time Dr. Grigson finishes his
testimony, "the jury seems captivated, as
if Grigson has penetrated the invisible
fraternal bond and become the 13th
juror." As the National Law Journal
stated, summarizing the observations of
several defense attorneys, "he relieves
the jury of the massive burden of
decision." One defense lawyer described
this effect to the Journal as follows:

He tells the jury what it wants to
hear ___  [H]e helps put that
barrier between juror and the 
defendant and he does it with a 
medical certainty.

Dr. Grigson himself agrees, according to 
his interview with the American Lawyer: 
"I think the jurors feels a little better 
when a psychiatrist says it —  somebody 
that's supposed to know more than they

63
know."

^ lcus knows of one videotaped 
rendition of a Grigson performance, a 
simulated version of his Smith testimony 
prepared for a 1978 Texas Criminal 
Defense Lawyers Association conference. 
If this were a federal habeas corpus 
proceeding, it could have been introduced 
in evidence and the Court could see for 
itself what the articles guoted above are 
saying. For now, the articles and this 
Court's own reading of numerous Grigson 
transcripts will have to suffice. This 
man is one of the most devastatingly 
effective expert witnesses in the history 
of the American courtroom. To call his 
testimony "harmless" beyond a reasonable 
doubt is inconceivable.



64
CONCLUSION

The judgment of the Texas Court of 
Criminal Appeals affirming petitioner's 
death sentence should be reversed.

Respectfully submitted,

JULIUS L. CHAMBERS 
JOEL BERGER*NAACP Legal Defense and 

Educational Fund, Inc. 
99 Hudson Street 
16th Floor
New York, New York 10013 
[212] 219-1900

ANTHONY G. AMSTERDAM 
New York University 

School of Law 
40 Washington Square 

South —  Room 327 
New York, New York 10012 
[212] 998-6198

Attorneys for the NAACP 
Legal Defense and 
Educational Fund. Inc.
♦Counsel of Record

APPENDIX



(

A—1

Tex. Code Crim. Pro. Art. 37.071. 
Procedure in capital case

(a) Upon a finding that the 
defendant is guilty of a capital offense, 
the court shall conduct a separate 
sentencing proceeding to determine 
whether the defendant shall be sentenced 
to death or life imprisonment. The 
proceeding shall be conducted in the 
trial court before the trial jury as soon 
as practicable. In the proceeding, 
evidence may be presented as to any 
matter that the court deems relevant to 
sentence. This subsection shall not be 
construed to authorize the introduction 
of any evidence secured in violation of 
the Constitution of the United States or 
of the State of Texas. The state and the 
defendant or his counsel shall be 
permitted to present argument for or 
against sentence of death.

(b) On conclusion of the presenta­
tion of the evidence, the court shall 
submit the following three issues to the 
jury.

(1) whether the conduct of the 
defendant that caused the death 
of the deceased was committed 
deliberately and with the 
reasonable expectation that the 
death of the deceased or 
another would result;
(2) w h e t h e r  there is a 
probability that the defendant 
would commit criminal acts of 
violence that would constitute



A-2
, • „ fhrpat to society,a continuing threat

and
(3) if raised by the evidence^ 
whether the conduct of th^
detendr  was unreasonable in
response to the provocation, if 
any, by the deceased.
(C> state readoSbt^lnd

submitted beyond *turn a special verdict
“ S..yeJ" or "no” on each issue submitted.

(d) The court shall charge the jury
that:

M i it may not answer any 
isLue "yes" unless it agrees 
unanimously; and

it may not answer any 
isLue "no” unless 10 or more 
jurors agree.

Tf the iury returns an affirma- (e) If the J - . iqsue submitted
tive finding on e he court shall 
under this to death. If thesentence the def finding on [or isjury returns a negati f g subinittedunable to answer ; any « «  flhall
under this article, th confinement in
sentence the e  ̂ Corrections forthe Texas Department of
life.

1 Material in br.added by amendment subsequen 
petitioner's trial

A-3

an If a defendant is convicted ofan offense under Section 19 03ra>
Penal Code, the court shall submit (th4 
three issues under Subsection (b) of this
o f  the ӣ  Wlath .re9?rd to the conduct Of the defendant in murdering the
?ndiltme„t1."dlVldUal firSt nan,ed in «».

state f(ol the attorney for the
L  n 'o M h f n J  ney f ° r the defendant
juror of the effit^of ‘V i l ^ ^ t h l  
this article?]0*1 1SSUe SUbraitted under

,  ̂  ̂ The judgment of convictionand sentence of death shall be subject to 
automatic review by the Court of Criminal
tionalbv WV;hln 60 days after certifica­tion by the sentencing court of the

re1C°rd Vnless time is extended an 
bvdi ^ ° ? al Period not to exceed 3 0 days by the Court of Criminal Appeals for qood
Criminal10̂ '  ?UCh review hV the Court of Criminal Appeals shall have priority over
all other cases, and shall be heard iJ 
accordance with rules promulgated by the Court of Criminal Appeals.