Ake v. Oklahoma Brief of the National Legal Aid and Defender Association and Georgetown Legal Internship Program as Amici Curiae Supporting Petitioner

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No. 83-5424

In  The. v
(Jlnurt of tl|P Ilnitp^ States

•• •^^^<.T.-*>..^5cT0BBB Term, 1988 • r v , X ■

y. <- •• • -------' V *". ,.. . ;■ -:/1;. .‘. y
Glenn  Burton Ake, y r i

Petitioner,
v.

State of Oklahoma,
Respondent.

On Writ of Certiorari to the Court 
of Criminal Appeals of the State of Oklahoma

BRIEF OF THE NATIONAL LEGAL AID AND 
DEFENDER ASSOCIATION AND GEORGETOWN LEGAL 

INTERNSHIP PROGRAM AS AMICI CURIAE 
SUPPORTING PETITIONER

Richard J. W ilson
N ational Legal A id and Defender 

A ssociation
1625 K Street, N.W.—Eighth Floor 
Washington, D.C. 20006 
(202) 452-0620

James M. Doyle *
Georgetown Legal Internship  

P rogram
605 G Street, N.W.
Washington, D.C. 20001 
(202) 624-8380 

*  Counsel oj Record



Issue Presented
Amici will address the following

issue:

WHETHER THE TRIAL COURT 
VIOLATED THE PETITIONER'S 
RIGHT TO EFFECTIVE 
ASSISTANCE OF COUNSEL WHEN 
IT DENIED HIM EXPERT AND 
INVESTIGATIVE SERVICES 
NECESSARY TO DEVELOP AND 
PRESENT HIS INSANITY DEFENSE 
AND TO REBUT THE PROSE­
CUTION'S PSYCHIATRIC TESTI­
MONY AT THE PENALTY PHASE OF 
HIS CAPITAL TRIAL?

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TABLE ££ CONTENTS
Table of Authorities............... iv
Interest of Amici .................  1
Issue Presented ...................

WHERE THE TRIAL COURT DENIED 
DEFENSE COUNSEL EXPERT AND 
INVESTIGATIVE SERVICES 
NECESSARY TO DEVELOP AND 
PRESENT PETITIONER'S INSANITY 
DEFENSE AND TO REBUT THE 
PROSECUTION'S PSYCHIATRIC 
TESTIMONY AT THE PENALTY 
PHASE OF HIS CAPITAL TRIAL,
THE PETITIONER'S RIGHT TO
EFFECTIVE ASSISTANCE OF
COUNSEL WAS VIOLATED ........... i
I. THE PROPER FUNCTIONING OF 

THE ADVERSARIAL PROCESS IS 
UNDERMINED WHEN DEFENSE 
COUNSEL IS DENIED THE MEANS 
NECESSARY FOR DEVELOPING A 
DEFENSE ........................ 5

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II. AN ATTORNEY WITH RESOURCES 
WHO FAILED TO INVESTIGATE 
AN INSANITY DEFENSE ON 
PETITIONER'S BEHALF WOULD 
HAVE PERFORMED IN A 
CONSTITUTIONALLY DEFICIENT MANNER....................... 13

III. THE GENERAL POLICIES WHICH 
SUPPORT DOCTRINES OF 
FINALITY IN THE CRIMINAL 
LAW ALSO SUPPORT THE 
ALLOCATION TO APPOINTED 
COUNSEL OF THE RESOURCES 
NECESSARY TO FULFILL HIS 
CRITICAL ROLE IN THE
ADVERSARY SYSTEM ...............  18

Conclusion............................24

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TABLE Q£ AUTHORITIES
CASES
Beavers v. Balkcom, 636 F.2d

114 (5th Cir. 1 9 8 1 ) ................. 16
Brennan v. Blankenship, 472

F.Supp. 149 (D.W.D.Va. 1979). . . .  17
Davis v. State of Alabama, 596

F. 2d 1214 (5th Cir. 1 9 7 9 ) ......... 15
Greer v. Beto, 379 F.2d 923

(5th Cir. 1 9 6 7 ) ...................  16
McMann v. Richardson, 397 U.S.

759 (1970).......................... 7
Strickland v. Washington,

___U.S.___ (1984).................  5,8
13,17,20

United States v. Cronic,
___U.S.___ (1984).................  5

United States v. Fessel,
531 F.2d 1275
(5th Cir. 1 9 7 6 ) ...................  16

United States ex rel. Smith v.
Baldi, 344 U.S. 561 (1953)........  22

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CONSTITUTION AND STATUTES
United States Constitution: 

Sixth Amendment . . . .
18 U.S.C. §3006A(e)

(Supp. 1979)........
MISCELLANEOUS:

passim

9

Alschuler, The Defense 
Attorney's Role in Plea 
Bargaining, 84 YALE L.J.1179 (1975) .................

Bator, Finality in Criminal Law 
and Federal Habeas Corpus for 
State Prisoner, 76 HARV.L.REV.

21-22
Criminal Defense Technical 

Assistance Project, A 
Study of Defense Services 
for Indigent Criminal 
Defendants In South Carolina: 
Analysis and Recommendations,

26
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American Bar Association,
Standards Relating to the 
Administration of Criminal 
Justice, (1970) ............. 7,9

Saltzburg, A Special Aspect 
of Relevance: Countering 
Negative Inferences 
Associated With the Absence 
of Evidence, 66 CAL.L.REV.
1011 (1978).................  12

Note, The Indigent's Right 
to an Adequate Defense:
Expert and Investigational 
Assistance in Criminal 
Proceedings, 55 CORNELL L.REV. 632 (1970)............. 10



53-5425
In The Supreme Court of the United 

States
October Term, 1983

Glen Burton Ake, 
Petitioner

v.
State of Oklahoma, 

Respondent

Interest q± Amici
The National Legal Aid and Defender 

Association (NLADA) is the sole national 
voice for the overwhelming majority of

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public defenders, private attorneys and 
defender clients who make up its defender 
membership. Representing nearly 600 
member public defender offices and about 
7,000 individual defenders, NLADA has 
spoken out on national issues of concern 
to the legally indigent and their 
attorneys in both civil and criminal 
cases.

The Legal Internship Program is a 
graduate degree program in Trial 
Advocacy. Each year since 1960 ten E. 
Barrett Prettyman Fellows have 
represented indigent criminal defendants 
in the District of Columbia Court of 
Appeals, the District of Columbia

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superior Court and the United states 
District Court and the United States 
Court of Appeals for the District of 
Columbia Circuit. since the program's 
inception, Georgetown graduate fellows 
have represented more than two thousand
indigent clients in the District of
Columbia courts. Fellows also supervise j
third year law students from Georgetown
University Law Center who undertake to
represent indigents charged with
misdemeanor offenses in the Superior
Court. The third component of the
fellowship —  alongside teaching and
practice — is scholarship. Fellows must
complete a thesis of publishable quality

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in order to earn an LL.M. degree.
Amici are vitally interested in the 

role played by defense counsel in the 
administration of criminal justice. it 
is that interest which leads us, after
considering the content of this case, to 
join as amici curiae in urging this Court 
to hold that the Petitioner's right to 
effective assistance of counsel was
violated when the trial judge refused to 
Provide expert psychiatric and
investigative services necessary to
develop his insanity defense and to rebut 
prosecution psychiatric testimony at the 
Penalty phase of his capital trial.

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I

proces?PERtoFUNCTIONING of the adversarial

This term in United StafPc v.
£r'°nifi/ ---U,S*---' 52 USLW 4560 (1984)
and Strickland v. __u.s.__ _
52 USLW 4565 (1984) this Court made its
first extended statements concerning the 
scope and content of a criminal 
defendant's right to effective assistance 
of counsel. A central theme in the 
Court's opinions was stated by Justice 
O'Connor, writing for the Court in 
S trickland v. Washinqfpn .

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The benchmark for judging
any claim of ineffectiveness i
must be whether counsel's
conduct so undermined the
proper functioning of the
adversial process that the
trial cannot be relied on as
having produced a justresult. j i

52 USLW at 4570. j
Amisi contend that unless attorneys j
acting on behalf of indigent defendants 
are provided with the means necessary to ;
develop reasonable defenses, their 
representation is doomed to fall below 
the standard set in Stricklanri v.
Washington,

Not every lawyer can be a tactical |
genius and even very good lawyers do not 
perform equally well in every case. That

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there will be some variance in lawyer 
performance was implicity accepted by 
this Court when in McMann v. Richarrifinn 
it referred to "the range of competence 
demanded of attorneys in criminal cases". 
397 U.S. 759, 771 (1970). It is fair to 
say, however, that no one disputes that 
counsel has a duty to explore and develop 
the factual context of reasonable 
defenses. ABA, Standards Relating to the 
Prosecution Function and the Defense 
Function §4.1 (1970); Alschuler, The
Defense Attorney's Role in Plea 
Bargaining, 84 Yale L.J. 1179 (1975).

At times this exploration quickly 
will lead to obvious dead-ends. At times

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totoo, it may be possible adequately 
conduct an exploration without seeking 
the provision of expert or investigative 
service. For example, counsel may be 
able to eliminate potential defenses 
Simply by conferring with his client.
£txickIan(1 v- Washington,
---U.s.---, 52 USLW at 4571. m  other
cases, published works on forensic 
techniques may obviate the need for 
expert services. Nevertheless, there 
will continue to be cases in which 
defense counsel, barred by ethical 
standards from testifying at trial, 
cannot develop a defense without having 
an investigator available to testify.



Moreover, there will continue to be 
cases, such as the Petitioner's, in which 
the absence of a witness is compounded by 
the absence of any personal expertise on 
the part of counsel in a highly 
specialized and technical field.The 
Congress and the vast majority of state 
legislatures make provision for such 
cases. 18 U.S.C. §3006A(e) (Supp. 1979); 
Statues cited, Petition for Certiorari at 
13n. °f the legal commentators who
have addressed the issue agree that some 
cases will call for the appointment of 
expert psychiatrists. See e.g., ABA 
Standards Relating to the Administration 
of Criminal Justice §1.5 (Draft 1968);



Note, The Indigent's Right to an Adequate 
Defense: Expert and Investigational 
Assistance In Criminal Proceedings, 55 
Cornell L. Rev. 632, 641-643 (1970) . 
Petitioner1s case provides an 
illustration of the wisdom of those 
views.

When a defense lawyer is deprived 
of services necesary to develop his case 
that deprivation does not create merely a 
gap in the evidence; it also removes an 
important check on the opposing advocate. 
In Petitioner's case this was clearest at 
the penalty phase, when no informed 
response was possible to the 
prosecution's agressive use of

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psychiatric testimony. The hamstringing 
of Petitioner's lawyer was also made 
evident during the trial's guilt stage, 
however, when the prosecutor repeatedly 
emphasized to the jury that the 
psychiatrists had no opinion of the 
petitioner's sanity at the time of the 
offense, capitalizing on the inference 
that since the psychiatrists had no 
opinion, the defense was meritless. 
Since a decision to deny expert services 
to a defendant imposes no corresponding 
handicap on the prosecution, similar 
distortions of the adversary process will 
arise whenever services necessary to the 
defense are withheld from defense

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counsel. See Saltzburg, A Special Aspect 
of Kelevance: Countering Negative 
Inferences Associated With the Absence Of 
Evidence, 66 CAL.L.REV. 1011 (1978)

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I I

AN ATTORNEY WITH RESOURCES WHO FAILED TO 
INVESTIGATE AN INSANITY DEFENSE ON 
PETITIONER'S BEHALF WOULD HAVE PERFORMED 
IN A CONSTITUTIONALLY DEFICIENT MANNER.

The evidence against the Petitioner 
was overwhelming. It included, among 
other things: a 44-page statement given 
to the police; an oral admission to a 
third party; and the possession, in the 
presence of the third party, of property 
belonging to the victims. Any lawyer 
would have been forced to recognize that 
the chances for defending the case on the 
theory that the Petitioner did not commit 
the acts with which he was charged were, 
to say the least, bleak. Cf., Strickland

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v* Washington/ aupxa 52 u s l w at 4571.
On the other hand, the Petitioner's 

mental state at his arraignment plainly 
suggested a potential insanity defense. 
A competency evaluation was ordered sua 
■SJ2QHt£. Following that evaluation, a 
state psychiatrist recommended that:

Because of the severity of 
his mental illness and 
because of the intensities 
of his rage, his poor 
control, his delusions, he 
requires a maximum security facility. . .

Throughout his trial, Petitioner received 
high doses of a powerful anti-psychotic 
medication. Particularly in light of the 

state of the factual
the only responsible

unpromising
defenses,

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professional decision for Petitioner's 
lawyer to make at that point was to 
continue to explore the insanity defense.

The trial lawyer in this case
attempted to do so but was thwarted by
the court. if he had not made the
attempt he might well be found to have
rendered constitutionally ineffective
assistance. Indeed he would have been
vulnerable to the criticism voiced by the
Fifth Circuit in v. AlaJaama, 596
F.2d 11214, 1219 (5th Cir. 1979);

In summary, Davis's 
attorneys knew that Davis 
had a history of mental 
problems, knew that insanity 
was his only possible 
defense, knew, or thought, 
that Davis himself would be 
little help in developing



the defense, knew what 
possible outside sources 
might be developed, and - to 
judge from what they said 
when they argued for a 
continuance - knew that 
without some investigation 
they had practically no 
defense to offer. Still 
they made no effort to 
investigate or develop the 
possible sources of 
evidence. This is not a 
borderline case; it is a 
clear breach of the duty a 
defense attorney owes to his client.

Numerous opinions have found counsel 
ineffective for failing to explore an 
insanity defense. See, e.g., Davis v. 
Alabama, supra; United States v. Fesspi . 
531 F. 2d 1275 (5th Cir. 1976); G r e e r  v .

379 F. 2d 923 (5th Cir. 1967); 
Beavers v. JBalkcom, 636 F.2d 114 (5th

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Cir. Unit B 1981); Brennan v. 
.Blankenship , 472 F.supp. 149 (D.w.D.va. 
1979) . The Sixth Amendment guarantee of 
effective assistance of counsel is 
undermined as significantly when diligent 
counsel are prevented from fulfilling 
their role in the adversary process as 
when incompetent counsel shirk their 
duties. The consequences to "a fair 
trial, a trial whose result is reliable" 

the test of Strickland v. Washington, 
.smLa, 52 USLW at 4570 - are the same.

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I



Ill
THE GENERAL POLICIES WHICH SUPPORT 
DOCTRINES OF FINALITY IN THE CRIMINAL LAW 
ALSO SUPPORT THE ALLOCATION TO APPOINTED 
TRIAL COUNSEL OF THE RESOURCES NECESSARY 
TO FULFILL HIS CRITICAL ROLE IN THE 
ADVERSARY SYSTEM

Final criminal judgments are 
desirable for a number of reasons. They 
conserve resources; they promote a sense 
of judicial responsibility; they enhance 
the educational and deterrent functions 
of the criminal law and they provide (at 
least in some cases) an opportunity to 
begin a process of rehabilitation. See 
generally, Bator, Finality in Criminal 
Law and Federal Habeas Corpus For State 
Prisoners, 76 Harv.L.Rev. 441, 451-453

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(1963) . When a state such as Oklahoma 
interprets this Court's opinion in United 
States -LSLIjl Smith So. Baldi . 344 U.S. 
561 (1953) as sanctioning the uniform 
denial of expert psychiatric assistance 
in every case it makes the attainment of 
these incidents of prompt, final 
judgments impossible.

Petitioner's case, is an 
illustration. The difficulty is not 
simply that the defendant had a 
persuasive insanity defense and was 
unable to present it; the difficuty is 
that Oklahoma has adopted a procedure 
which makes it impossible to know whether 
a potential defense existed or not.

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Where defense counsel is provided 
with the resources necessary for 
exploring a defense, an early, final 
resolution can be achieved in several 
ways. A psychiatric examination may 
reveal that no defense exists, or it may 
reveal that the defense is so implausible 
that legitimate tactical considerations 
mandate foregoing it. See, Strickland v. 
Washington. supra. It may result in a 
defense being presented at trial and 
accepted or rejected by the trier of 
fact. The Oklahoma approach eliminates 
all of these potential means for 
resolving a case. It preserves only the 
potential for a post hoc analysis which

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is not only too late but is less reliable 
since it is conducted by a reviewing 
court inevitably less informed than trial 
counsel or the trial jury before whom a 
defendant has a right to present his 
defense if he chooses.

Even those commentors who take the 
most restrictive approach to collateral 
attacks on criminal convictions would 
permit collateral attacks where the 
meaningfulness of the trial process is at 
issue. Professor Bator, writing
specifically about the right to counsel; 
notes that:

Deprivation of counsel in 
cases where the demands of 
fairness embodied in the due 
process clause call for 

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representation by counsel 
is, I submit, precisely the 
kind of error which should 
deprive a state litigation 
of sanctity. It casts doubt 
on the meaningfulness of the 
process provided by the 
state for the resolution of 
all the issues in the case: 
we cannot say that any 
question in the case, state 
or federal, has had a fair 
and full litigation, for 
purposes of finality, if the 
defendant is found to 
require the assistance of 
counsel because in the 
circumstances of the case he 
was incapable of making an 
adequate defense himself.
Bator, supra, at 458.

The interests of the administration of
justice are not served if the states are
allowed to believe that Smith v. Bflldl
permits them to withhold necessary
subsidiary services from defense counsel

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only to discover that convictions must be 
vacated when, during the course of a 
collateral attack, impressive exculpatory 
psychiatric evidence is generated. Amici 
urge this Court to clarify for state 
courts and legislatures the fundamental 
fact that the guarantee of effective 
assistance must be understood to include 
not merely the services of an attorney 
but of an attorney equipped to fulfill 
his or her role as an adversary: equipped 
where it is necesary with expert 
assistance.

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CONCLUSION
Amici join in supporting 

Petitioner's claims that his rights to 
due process of law* egual protection of 
the laws and compulsory process were 
violated. The particular interest of our 
organizations, however, is in the 
guarantee of effective assistance of 
counsel and we have sought in this brief 
to emphasis that aspect of Petitioner's 
claim.

The reported opinions suggest that 
there may be serious deficiencies in the 
pretrial preparation of many defense 
lawyers. Strazzella, Ineffective 
Assistance of Counsel Claims: New Uses,

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New Problems, 19 ARIZ.L.REV. 443 (1977). 
These deficiencies ought not to be 
aggravated by a grudging attitude towards 
the allocation of rescources demonstrably 
necessary for a functioning defense. 
Empirical research seems to indicate that 
just that aggravation is occuring. One 
study notes that: "The problems 
discussed above have caused several 
private attorneys appointed to represent 
indigent defendants to simply forego 
these necesary services on the assumption 
that they are no longer available... 
Lawyers have given up any hope of 
receiving funds for these necessary 
services and believe that, even if

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if requested, they will not be
approved___ " Criminal Defense Technical
Assistance Project, A Study of Defense 
Services For Indigent Criminal Defendants 
In South Carolina: Analysis and
Recommendations, 39-40 (1981).

Amici urge this Court to state 
clearly that the right to effective 
assistance of counsel includes the right 
to those services necessary for the 
fulfillment of counsel's adversary role, 
to eliminate whatever confusion may have 
survived this Court's opinion in Unitsd 
States ex rel. Smith 2L±. Bflldl t SUPISf anc* 
to remand this case for a new trial.

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» r« ,

Respectfully submitted,

JAMES M. DOYLE 
(Counsel of Record)

RICHARD J. WILSON

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*