Corrected Substitute Pages for Complaint

    N e w  Y o r k  L a w  S c h o o l
5 7  W O R T H  S T R E E T  

N E W  Y O R K , N . Y. 10013

(2121 431-2100

(212) 431-2182

July 30, 1987

Julius L. Chambers, Esq.
NAACP Legal Defense and Education Fund 
99 Hudson Street, 16th Floor 
New York, New York 10013

Dear Mr. Chambers:

Enclosed please find one copy of amicus curiae, Coalition for the 
Fundamental Rights and Equality of Ex-Patients (FREE).

Sincerely,

PM:ij
Enc



NO. 86-6284

In The

Supreme Court of tfje ®mteb States
October Term, 1986

JOHN T. SATTERWHITE,
Petitioner,

vs.

THE STATE OF TEXAS,
Respondent.

ON WRIT OF CERTIORARI 
TO THE TEXAS COURT OF CRIMINAL APPEALS

MOTION FOR LEAVE TO FILE BRIEF OUT OF TIME 
AND BRIEF AMICUS CURIAE OF THE COALITION 

FOR THE FUNDAMENTAL RIGHTS AND EQUALITY 
OF EX-PATIENTS IN SUPPORT OF PETITIONER

J. Benedict Centifanti, Law Clerk MICHAEL L. PERLIN 
On the Brief Director, Federal

Litigation Clinic 
PETER MARGULIES * 
Managing Attorney 
New York Law School 
57 Worth Street 
New York, NY 10013 
(212) 431-2183

*Counsel of Record

THE COPY CENTER, INC. 615 Chestnut Street Philadelphia, PA 19106 (215)928-1900



Motion to File Brief Amicus 
Curiae Out of Time by the 
Coalition for the Fundamental 
Rights and Equality of 
Ex-Patients in Support of 
Petitioner____________________

The Coalition for the Fundamental 
Rights and Equality of Ex-patients 
("Coalition for the FREE") respectfully 

submits this motion to request permission 
to file its proposed brief amicus curiae 
out of time.

Counsel for the petitioner have 
consented to the filing of this Motion
and the related Brief amicus curiae and
their consent will be filed with the
Court. Counsel for the State has
declined to consent.

The Coalition seeks this leave to
file out of time due to a combination of 
circumstances. Beginning shortly after 
this petition for certiorari in this case

-x-



was granted by this Court, counsel for 

the Coalition made reasonable efforts to 
contact counsel for petitioner by 
telephone. Due to conflicting summer 
schedules and other commitments of 
counsel, final arrangements for consents 

and due dates were not concluded until 
the week of July 20, 1987. Acting in 
good faith, counsel for the Coalition 
mistakenly relied on a proposed extended 
filing date of July 28, 1987. Counsel 
only became aware of the actual filing 
date of July 24, 1987 after contacting 
counsel for the State on Monday, July 27, 
1987.

The Coalition seeks this Court's 
pemission to file late in this case 
because of the particular interest of its 
members in this matter. The 
organizational members of the Coalition

-IX-



for the Fundamental Rights and Equality
1/

of Ex-patients (hereinafter the

"Coalition for the FREE") are all groups 

whose primary interests and activities 

concern the promotion of public 

understanding of mental health issues and 
the protection of the rights of the 
mentally ill and of present and former 
mental patients. Members and clients of 
these organizations include many former 
patients, their families and friends, as
well as advocates for the mentally ill.

1/ The 
for the
NATIONAL

participants in the Coalition 
FREE are as follows:

MENTAL HEALTH ASSOCIATION;
NATIONAL MENTAL HEALTH CONSUMERS
ASSOCIATION; SHARE OF DAYTONA BEACH,
FLORIDA, INC. ; THE MENTAL PATIENT'S
ASSOCIATION OF NEW JERSEY; MISSOURI
MENTAL HEALTH CONSUMERS' ASSOCIATION; THE
MONTANA MENTAL HEALTH CONSUMERS ADVOCACY
PROJECT; and THE MENTAL PATIENTS'
ASSOCIATION OF PHIADELPHIA

(A more complete description of
the members of the Coalition is included 
at page 1 of the Brief amicus curiae 
attached hereto).

-ill-



the Court willIn this case, 
hear arguments specifically on the 

applicability of the Fifth Amendment to 

psychiatric interviews and on the

effectiveness of waiver of Miranda 
rights. Many of the members of the 

Coalition— and/or clients of

members— have been involved in court 
proceedings which implicated these or 
closely-related questions. Whatever this 

Court decides in this case will 
undoubtedly affect the outcome of similar 
cases in the future and will also likely 
impact on all proceedings involving the 
criminal law, psychiatric testimony and 
Miranda rights, including cases in the
state courts.2/ Therefore, amici
curiae now wish to share their
specialized knowledge and insights with 
this Court and the parties in this case.

-iv-



Amici curiae believe that no
other party or amici here will make 
available to the Court these arguments 

regarding the proper role of psychiatric 

testimony, Miranda rights and waiver, the 
right to counsel in these contexts, and 
the current research and commentary on 

these issues. Because of their
demonstrated concern about the proper 
uses of psychiatric testimony and their 
involvement in similar proceedings, 
amici curiae believe that they have a 
clear interest in this case, and can 
offer a significant alternate viewpoint 

on these issues to this Court.

Michael L. Perlin 
Director, Federal 

Litigation Clinic 
Peter Margulies* 
Managing Attorney 
New York Law School 
57 Worth Street 
New York, NY 10013 
(212) 431-2133
*Counsel of Record

-v-



Question Presented

Was petitioner denied effective 

assistance of counsel, a fair and 

impartial trial, equal protection of the 

law, due process of law and his right to 
be free from cruel and unusual punishment 
guaranteed by the Fifth, Sixth, Eighth 
and Fourteenth Amendments to the United 
States Constitution because the Trial 
Court allowed witness, James Grigson, 
M.D. to testify to evidence obtained in 
violation of Article I, Section 10 of the 
Texas Constitution and in violation of 
the Fifth, Sixth and Fourteenth 
Amendments of the Constitution of the 
United States?

-vi-



TABLE OF CONTENTS

Page

I. STATEMENT OF INTEREST OF
AMICUS CURIAE...........................1

II. SUMMARY OF ARGUMENT....................8

III . ARGUMENT............................   9

A. The Decision Below Is
Inconsistent with Estelle 
v. Smith, 451 U.S. 454 
(1981) Because Petitioner 
Was Not Adequately Warned 
Regarding the Potential 
Use of the Psychiatric 
Interview in Sentencing 
Proceedings........................ 9

B. The Failure to Notify 
Petitioner's Counsel in 
Advance of Dr. Grigson's 
Interview Violated the 
Sixth Amendment's Guaran­
tee of Effective Assis­
tance of Counsel................. 20

IV. CONCLUSION............................32

- V l l -



TABLE OF CASES

Ake v. Oklahoma,. 470 U.S. 68,
105 S.Ct., 1007 84 L.Ed. 2d 53 (1985).... 5
Allen v. Illinois, 106 S.Ct. 2988 (1986). .5
Anderson v. State, 135 Ariz. 578, 663 
P.2d 570 (1980) .......

Barefoot v. Estelle, 463 U.S. 880, 103 
S.Ct. 3383, 77 L.Ed. 2d 1090 (1983)

Page

578, 6 63

880, 103
) . . .
387, 97

Ct. 515
.4, 5

Brewer v, Williams, 430 U __
S.Ct. 1232, 51 L.Ed. 2d 424 (1977).......  30
Colorado v. Connelly, 10 
(1986) _  ....

Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 
1866 , 68 L.Ed. 2d 359 (1981)......... passim

Ford v. Strickland, 106 S.Ct. 2595 (1986)..16
Miranda v. Arizona, 348 U.S. 436, 86
S.Ct. 1602, 16 L.Ed 2d 694 (1966)..... passim

Moran v. Burbine, 106 S.Ct. 1135 (1986)
............ 12, 16, 31

Nethery v. State, 692 S.W. 2d 686 (Tex.
Ct. Crim. App.) (1985)...................  27
People v. Medina, ___ Col.
961 (1985) ......

_, 705 P. 2d
'..........19

Rivers v. Katz, 67 N.Y. 2d 483, 504 
N.Y.S. 2d 74 (Ct. App. 1986)............  19
Rogers v. Commissioner, 396 Mass. 489,

-viii-



458 N.E. 2d 308 (1983) 19

Satterwhite v. State of Texas, No. 67,220 
slip opinion (Tex. Ct. Crim. App., Sept.
17, 1986) ...................  11
Smith v. Estelle, 602 F.2d 694 (5th Cir. 
1979) ...................  12

Smith v. Murray, 106 S.Ct. 2661 (1986)..5, 6
Strickland v. Washington, 466 U.S. 668, 
104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984),
reh. den. 467 U.S. 1267, 104 s.Ct. 3562,
&2 L. Ed. 2d 864 (1984)......... ..........  27
United States v. Chronic, 466 U.S. 648, 
104 S.Ct. 2039, 75 L.Ed 2d 430 (1984)....  28
United States Department of the Treasury, 
Bureau of Alcohol, Tobacco and Firearms 
v. Galioto, 106 S.Ct. 2683 (1983)..... iq

Statutes
The Insanity Defense Reform Act of 1984, 
Pub.L. No. 98-472, 98 Stat. 2057 (1984)___ 6

Other Authorities
Brief amicus curiae for 
Psychiatric Assocition in 
Estelle

the American 
Barefoot v.
____10, 22, 27

Brief amicus curiae for the American 
Psychiatric Association in Estelle v. 
Smith ....................
Carroll, "Insanity Defense Reform," 114

-ix-



Mil. L.R. 183 (1986) 6

Ewing, " 'Doctor Death' and the Case for 
an Ethical Ban on Psychiatric and 
Psychological Predictions of
Dangerousness in Capital Sentencing 
Cases," 8 Am. J.L. & Med. 407 (1983)....  27
Note, "Ake v. Oklahoma: An Interloper in
the Brave New World of the 1984 Insanity 
Defense Reform Act Challenges Federal 
Rule of Evidence 704(b)," 55 Miss L.J.
287 (1983) ...................... 6
Perlin, "Dulling the Ake in Barefoot' s 
Achilles Heel", 3 N.Y.L.S, Hum. Rts. Ann.
91 (1985) .......................  27
Slobogin, "Dangerousness and Expertise," 
133 U.Pa.L.R. 97 (1984)..............13, 22

"The Supreme Court, 1980 Term," 95 Harv. 
L.R. 91 (1981)  .25
"The Supreme Court, 1982 Term," 97 Harv.
L. R. 70 (1983) ....................... 27
Taylor, "Dallas' Doctor of Doom," Nat'1. 
L.J. Nov. 24, 1980 at 1, col. 2......... 27
"They Call Him Dr. Death", Time, June 1, 
1981 at 64  27
White, "Waiver and the Death Penalty:
The Implications of Estelle v. Smith," 72 
J. of Crim. L. & Criminol. 1522 (1981)

......... 13, 17, 24, 29

-x-



I. STATEMENT OF INTEREST OF AMICUS CURIAE 
This brief amicus curiae is being 

filed in support of the Petitioner. 
Counsel for the petitioner have consented
to the filing of this Brief and their
consent will be filed with the Court.
Counsel for the State has declined to
consent.

Amici curiae, the organizational
members of the Coalition for the

Fundamental Rights and Equality of
1/Ex-patients (hereinafter the

"Coalition for the FREE") are all groups

1/ The participants in the Coalition 
for the FREE are as follows:

NATIONAL MENTAL HEALTH ASSOCIATION
The National Mental Health 

Association ("NMHA") is the nation's 
oldest and largest non-governmental, 
citizens' voluntary organization 
concerned with mental illnesses and 
mental health. Founded in 1909 by 
Clifford Beers, a man who suffered from a 
serious mental illness, the Association 
has historically led efforts on behalf of 
mentally ill people in institutions and 
the community. The NMHA has grown into a

1



whose primary interests and activities 

concern the promotion • of public 
understanding of mental health issues and
(footnote continued)
network of 650 chapters and state
divisions working across the United
States. It is composed of volunteers who 
are mostly non-mental health
professionals. Some are family members 
whose loved ones have been affected by 
mental illness; others are former
patients. All are committed to advocacy 
for the improved care and treatment of 
mentally ill people, the promotion of 
mental health and the prevention of
mental illnesses.

NATIONAL MENTAL HEALTH CONSUMERS' 
ASSOCIATION

The National Mental Health Consumers' 
Association was organized in Baltimore, 
Maryland in June, 1985, as a national 
representative voice for mental health 
consumers and charged with developing 
national forums so that the concerns of 
mental health consumers can be heard.

SHARE OF DAYTONA BEACH, FLORIDA, INC.
SHARE of Daytona Beach, Florida, 

Inc., organized in Daytona Beach in 
January, 1980, was incorporated in 
November, 1985 as a non-profit 
corporation in the State of Florida. 
SHARE'S primary thrust is the rights of 
mental patients and former mental 
patients.

2



the protection of the rights of the 
mentally ill and of present and former 
mental patients. Members and clients of

(footnote continued)
THE MENTAL PATIENT'S ASSOCIATION 

OF NEW JERSEY
The Mental Patient's Association of 

New Jersey was established in May, 1984 
in Asbury Park, New Jersey and is a 
statewide network of individuals and 
self-help organizations devoted to the 
development of self-help and advocacy 
groups and the protection of the 
interests and rights of mental health 
consumers.

MISSOURI MENTAL HEALTH CONSUMERS' 
ASSOCIATION

The Missouri Mental Health Consumers' 
Association was formed by former mental 
patients in St. Louis in 1986 in order to 
promote the rights and interests of 
mental health consumers in Missouri. One 
of the principal interests of MMHCA is in 
affecting public policy decisions 
involving mental health issues from the 
consumer perspective.

THE MONTANA MENTAL HEALTH CONSUMERS' 
ADVOCACY PROJECT

The Montana Mental Health Consumers' 
Advocacy Project, an unincorporated 
association formed in November, 1983, in 
Billings, Montana, is an ex-mental 
patient self-help and political action 
group, organized for the purposes of 
fighting discrimination and stigma and 
influencing legislation for the rights of 
mental patients.

3



these organizations include many former
patients, their families and friends, as
well as advocates for the mentally ill.

This case, like others in which the

Coalition and/or its members have filed
recent amicus briefs in this Court,
involves issues of the relationship
between the mental health field and the

legal system, specifically here
concerning the proper role and activities
of psychiatrists in the area of criminal

2/law.
(footnote continued)

THE MENTAL PATIENTS' ASSOCIATION OF 
PHIADELPHIA

The Association was formed in 
Philadelphia in 1985 in an effort to 
organize mental health consumers to 
oppose all efforts to erode the rights 
and freedoms of those who have been 
hospitalized for psychiatric illness and 
to call for an end to discriination 
against the psychiatrically disabled in 
any form.

2/
The Coalition for the FREE 

and/or its members have filed amicus 
briefs in several recent cases before 
this Court. See, e.g., the Coalition's 
amici briefs in United States Department

4



In this case, the Court will
hear arguments specifically on the
applicability of the Fifth Amendment to
psychiatric interviews and on the

effectiveness of waiver of Miranda
rights. Many of the members of the
Coalition— and/or clients of
members— have been involved in court
proceedings which implicated these or
closely-related questions. Whatever this
Court decides in this case will
undoubtedly affect the outcome of similar
cases in the future and will also likely
impact on all proceedings involving the
criminal law, psychiatric testimony and
Miranda rights, including cases in the

2/state courts. Therefore, amici

(footnote continued)
of the Treasury, Bureau of Alcohol,
Tobacco and Firearms v. Galioto, 106 S. 
Ct. 2683 (1986) and Colorado v."Connelly, 
107 S. Ct. 515 (1986).

3/ This Court's recent caseload 
reflects the increasing concern about
these and related issues. See, in

5



curiae now wish to share their 

specialized knowledge and insights with 
this Court and the parties in this 
case.

Amici 
party or 

available 

regarding 
testimony,

curiae believe 
amici in this 

to the Court 

the proper rol 
Miranda rights

that no other 
case will make 

these arguments 

of psychiatric 
and waiver, the

(footnote continued)
addition to this case, Colorado v. 
Connelly, 107 S.Ct. 515 (1986); Smith v. 
Murray, 106 S.Ct. 2661 (1986); Allen v. 
Illinois, 106 S.Ct. 2988 (1986); and Ake 
v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1007, 
84 L.Ed. 2d 53 (1985). Smith v. Murray, 
above, in particular, clearly 
foreshadowed this case. See Smith v. 
Murray, 106 S.Ct. at 2664 regarding the 
absence of any warnings as required under 
Estelle v. Smith, 451 U.S. 454 (1981). 
In addition to these cases, there is one 
other development in this area of the law 
which may also be currently influencing 
the role of psychiatry in this context: 
The Insanity Defense Reform Act of 1984, 
Pub. L. No. 98-472, 98 Stat. 2057 
(1984) . See, e.g ., Note "Ake v. 
Oklahoma: An Interloper in the Brave New
World of the 1984 Insanity Defense Reform 
Act Challenges Federal Rule of Evidence 
704(b)" 55 Miss. L♦J . 287, 315 (1985). 
See also, Carroll, "Insanity Defense 
Reform," 114 Mil. L. R. 183 (1986)

6



right to counsel in these contexts, and 

the current research and commentary on 
these issues. Because of their 
demonstrated concern about the proper 
uses of psychiatric testimony and their 
involvement in similar proceedings, 

amici curiae believe that they have a 
clear interest in this case, and can 
offer a significant alternate viewpoint 
on these issues to this Court.

7



II. SUMMARY OF ARGUMENT

The ruling below in this case by the 
Texas Court of Criminal Appeals is 

inconsistent with this Court's decision 
in Estelle v. Smith, 451 U.S. 454, 101 

S.Ct. 1866, 68 L.Ed. 2d 359 (1981) 
because petitioner was not given an 

adequate warning about the specific 
purposes for the psychiatric interview 
either by the expert witnesss or by 
having the assistance of his counsel with 

notice in advance of the interview. The 

potential use of the psychiatric 
testimony in the capital sentencing phase 
of his criminal proceedings had to be 
expressly stated to petitioner by the 
expert in order to satisfy both Estelle 
and Miranda v. Arizona, 348 U.S.436, 86 
S.Ct. 1602, 16 L.Ed. 2d 694 (1966). (Pt. 
Ill A) Notwithstanding the allegedly

8



unobjected-to

failure

testimony- of another

expert, the failure to notify 

petitioner's counsel in advance of the 
interview by Dr. Grigson violated 

petitioner's Sixth Amendment right to 

effective assistance of counsel, 

especially given the professional 
background and experience of this 
particular expert and the ambiguous and 
contradictory warning given petitioner by 
that expert alone. (Pt. Ill B.)

III. ARGUMENT

A. The Decision Below Is
Inconsistent with Estelle v. 
Smith, 451 U.S. 454 (1981)
Because Petitioner Was Not 
Adequately Warned Regarding the 
Possible Use of the Psychiatric 
Interview In Sentencing
Proceedings ____________ ____

In Estelle v. Smith, 451 U.S. 454
(1981) this court has already
definitively established guidelines for

9



permitting the use— -and prohibiting the

abuses— of psychiatric testimony such as
4/

that involved in this case. In that
case, this court stated:

3ecause respondent did not 
voluntarily consent to the 
pretrial psychiatric examination 
after being informed of his 
right to remain silent and the 
possible use of his statements, 
the State could not rely on what 
he said to Dr. Grigson to

4/There should be no question 
about amicus' longstanding opposition to 
the use of such psychiatric testimony in 
the first instance because of the 
well-known fallibility of psychiatric 
predictions of dangerousness. See, e.g., 
the Brief amicus curiae of the Coalition 
for the Free in United States Department 
of Treasury, Bureau of Alcohol, Tobacco 
and Firearms v, Galioto, above at p. 14 
regarding the "false positive rates of 
experts' predictions of dangerousness." 
See also, 3rief amicus curiae for the 
American Psychiatric Association in 
Barefoot v. Estelle, 463 U.S. 880, 103 
S.Ct. 3383, 77 L.Ed. 2d 1090 (1983) at p. 
12: "The unreliability of psychiatric 
predictions of long-term future 
dangerousness is by now an established 
fact within the [psychiatric] 
profession," citing numerous studies in 
support thereof at p. 13, n. 8.

10



establish his future
dangerousness. If, upon being 
adeqauately warned, respondent 
had intimated he would not 
answer Dr. Grigson's questions, 
the validly ordered competency 
examination nevertheless could 
have proceeded upon the
condition that the results would 
be applied solely for that 
purpose. In such circumstances, 
the proper conduct and use of 
competency and sanity
examination are not frustrated 
but the State must make its case 
on future dangerousness in some 
other way.

Estelle v. Smith 451 
U.S. above at 468-69 

(emphasis added)
Here, however, there clearly was no 

such "adequate" warning to petitioner by 
anyone of the "possible use" of the 
psychiatric interview in the sentencing 

phase. Indeed, here petitioner was
positively misled about its possible use 
by Dr. Grigson's remarks that the 
interview "could be harmful or it could 
be helpful depending upon what the 
findings would be." Satterwhite v. State 
of Texas, No. 67, 220, slip opinion

(Texas Ct. of Crim. App., Sept. 17,

11



1986), at p. 25. (hereinafter
"Opinion"). Interestingly, the lower
court in Estelle had foreseen this
approach in that opinion where no
warnings had been given:

If the state is entitled to compel a
defendant to submit to an
examination, it can, in an effort to 
gain the defendant's cooperation, 
mislead him or indeed lie to him 
about the significance of the
examination; it can take advantage of 
his ignorance or lack of
understanding. It can coerce him in 
any way that does not make his
statements less useful to the 
interrogating psychiatrist.
Psychological pressure, sharp
practices, and deceit are likely to 
be, in effect, the means of
compelling examinations. These
tactics are inherently
discriminatory. Smith v. Estelle,
602 F . 2d 694, 707-8 (5th Cir. 1979).

Similarly, in Moran v. Burbine, 106
S. Ct. 1135, at 1158, (1986) Justice
Stevens' dissenting opinion notes as
follows:

In this case it would be perfectly 
clear that Burbine's waiver was 
invalid if, for example, Detective 
Ferranti had "treatened, tricked, or 
cajoled" Burbine in their private

12



pre-confession meeting— perhaps by- 
misdescribing the statements obtained 
from DiOrio and Sparks— even though, 
under the Court's truncated analysis 
of the issue, Burbine fully 
understood his rights. Petitioner's 
case here is even more clear 
regarding the misleading nature of 
the warnings given to him.
Because of these concerns, as others

5/
have commented, the Court's decision 

in Estelle would seem to require— as a 
bare minimum— a specific disclosure about 
the possible use of the interview at 
sentencing.

Yet here, even the State's own

examination shows that Dr. Grigson's
"warning" fails to meet that standard.

Q. And prior to the examination 
did you given [sic] any type of 
admonitions to him in the way of 
warnings?

1/ See e.g., White, "Waiver and the 
Death Penalty: The Implications of
Estelle v. Smith," 72 J. of Crim. L. & 
Criminol. 1522, 1534-37 (1981)
(hereinafter "White"); and Slobogin, 
"Dangerousness and Expertise," 133 
<J. Pa. L. R. 97, 167 (1984) (hereinafter
"Slobogin").

13



A. Yes, sir. I did. I
explained to him on both 
occasions the purposes of the 
examination in terms of the 
three questions, that I was 
primarily doing the evaluation 
in order to determine the 
question of competency, the 
question of sanity or insanity 
and the question of whether or 
not he presented a continuing 
threat to society, whether or 
not there was a question as to 
propensity of violence,
dangerousness. Respondent's
Brief in Opposition, pp. 5-6 
(hereinafter "RBO")

Dr. Grigson then went on to tell
petitioner about a federal judge's
decision that permitted defendants to
decline to be interviewed. (Id.)

Clearly, all of this highly technical
language and disclosure is rendered
totally meaningless without one's being 
given the context of the "possible use" 
of this evidence at sentencing.

As then Chief Justice Burger noted in 

Estelle concerning the parallel issue of 
the right to counsel regarding this 
context:

14



...(R )espondent was denied the 
assistance of his attorneys in 
making the significant decision 
of whether to submit to the 
examination and to what end the 
psychiatrist's findings could be 
employed.

Estelle v. Smith, 451 
U.S. above, at 471 
(emphasis added)

In petitioner's case, the failure to
notify counsel about the interview— in
addition to raising the Sixth Amendment
issues discussed below— further
underscores the lack of "adequate
warning" given here regarding its
"possible use'.' The defendant in a capital
case needs to know what is really at

issue before he can properly evaluate
whether or not to waive his right to
decline to give permission for a
psychiatric interview that indeed "could
be harmful or...could be helpful" to his

1/very life. There can be no effective
waiver of Miranda rights where the 
defendant's interests are not

15



"red-flagged" in a more candid manner 
than Dr. Grigson's approach did here. 
Recently in Moran v. Burbine, 106 S.Ct. 
above, at 1141 (1986) this Court
expressed the standards for waiver in 
this way:

[T]he waiver must have been made with 
a full awareness both of the nature 
of the right being abandoned and the 
consequences of the decision to
abandon it. (emphasis added)

Clearly, petitioner here did not have
such a "full awareness" of the
"consequences" of waiving his right not
to be interviewed in this context.

— See White, n. 5 above, at 1537: "If the 
defendant's statement is to be used against him 
in the penalty phase of a capital trial, then 
knowledge that the statement may be used for 
this purpose should be essential to a valid wai­
ver under Miranda. A capital defendant who 
lacks such knowledge will not be aware of the 
true nature of the adversary interests involved." 
Cf. Ford v. Strickland, 106 S.Ct. 2595 (1986).

16



An additional factor here is the
inherently compulsory nature of

interviews in this setting. This Court's
decision in Estelle did not

over-emphasize the custodial nature of

pre-trial psychiatric interviews— and
7/

perhaps purposely so. In the absence
of any warning to Smith, or any awareness 
at all of his rights, the custodial 
atmosphere in Estelle was a marginal 
issue at best. However, given some 
"warning" here— -however ineffective or 
inadequate— the coercive atmosphere of 
the custodial interview again becomes 
relevant.

- See White, n. 5 above, at 1532: "[T]he 
Court did not focus upon the potentially co­
ercive atmosphere involved, but rather upon 
the defendant's lack of awareness of the in­
criminatory dangers."

17



For all we know, Satterwhite may 
have mistakenly thought that his attorney 
had already approved of this interview
because of the earlier one and therefore 
may have been afraid to "refuse" to 

follow such non-existent advice.

In its amicus brief in Estelle, the 
American Psychiatric Associatioon 
expressed its view using an 

all-too-prophetic phrase:
[A] defendant should not be 

compelled to participate in a 
psychiatric examination on issues 
concerning the penalty phase.

It should be emphasized that 
recognition of a right to refuse 
participation in psychiatric 
examinations that could lead to 
testimony for capital sentencing 
purposes would not distort the "fair 
state-individual balance" that 
underlies the Fifth Amendment 
privilege.

...[T]he defendant should not be 
required to guess that he may refuse 
to participate in the psychiatric 
examination.

Brief amicus curiae for the

18



American Psychiatric Association 
in Estelle v. Smith above, at 
pp. 27-28 (emphasis added)

The effectiveness of any "right to
refuse" in the area of treatment depends
on full disclosure of side-effects as
well as potential benefits. Possible

life-threatening effects are clearly
included in the warnings given in this

£/
psychiatric context. Similarly,
here, there can be no effective "right to 
refuse" without a corresponding specific 
disclosure of risks and benefits to the 
defendant, particularly on the potential 
impact of the psychiatric interview on 
sentencing in capital cases.

8/ Cf., on 
and "informed 
procedures in 
cases, Anderson 
663 P .2d 570 (1980)
Col. ____, 705 P .2d 961 (1985)
Commissioner, 396 Mass. 489,

(1983) and Rivers v. Katz 
504 N .Y .S.2d 74 (Ct. App.

the "right 
consent" 

psychotropic 
v. State, 135 

People v

308
483,

to refuse" 
disclosure 

druggi ng 
Ariz. 578, 
. Medina,—  
; Rogers v.
458 N.E.2d 
, 67 N .Y .2d 
1986) .

19



B. The Failure to Notify
Petitioner's Counsel In Advance 
o f Dr. Grigson's Interview 
Violated the Sixth Amendment's 
Guarantee of Effective
Assistance of Counsel

The court below conceded that the 
failure to notify petitioner's counsel of 
Dr. Grigson's interview was error.

We therefore conclude that Dr. 
Grigson's testimony was improperly 
admitted into evidence in violation 
of appellant's Sixth Amendment right 
to assistance of counsel.

See Opinion, p. 21.
The court concluded, however, that 

this error was rendered harmless because 
of the allegedly unobjected-to admission 
of Dr. Schroeder's psychological report
on the same issue— the dangerousness of

. . 2/petitioner. Opinion, pp. 21-22 And,
for its part, the State now claims that
the sequence of the two motions for

2/
But see, as to 

Petition for Certiorari, 
objections by petitioner's

this issue, the 
p. 10 regarding 
counsel.

20



interviews and the first actual interview 
operated altogether as a kind of 

"constructive" notice to petitioner's 

counsel who thereby had "reasonable 
opportunity" to alert petitioner to his 
"right to refuse" Dr. Grigson's request, 

or at least to limit the use of the 
interview. RBO, p. 9. In the first 
place, this argument clearly fails the 
standard of Estelle requiring actual 
notice. Estelle v. Smith, 451 U.S. above 
at 471.

Moreover, all that really needs to be 
said about the sequence of these two 
interviews is that there are obviously 
great differences in degree(s) and kind 
between Dr. Grigson and Dr. Schroeder, 
whatever their testimonial

21



similarities. Without unduly be­
laboring the effects on the jury of their

respective medical versus psychological 
expertise, there can be little question 

that at least the prosecutor thought the 
distinction was worth mentioning— and 
emphasizing— in his summation. See,
Petition for Certiorari, at p. 13:

1 0 /

_10/ Earlier in its Brief amicus curiae 
in Barefoot v. Estelle, 463 U.S. above, 
at p. 16, the American Psychiatric 
Association made a similar distinction:

While adding little, if anything, to 
the factual evidence concerning the 
risk of future dangerousness, 
psychiatric opinions on this subject 
substantially prejudice the 
defendant....(P )sychiatric testimony 
is likely to be given great weight by 
a jury simply because it is, or 
purports to be, a statement of 
professional opinion. A psychiatrist 
comes into the courtroom wearing a 
mantle of expertise that inevitably 
enhances the credibility, and 
therefore, the impact of the 
testimony.

See also, Slobogin, n. 5 above, at p. 
147, n. 182 as to the effects of such 
"expert" testimony on judicial
decision-making.

22



The prosecution argued to the 
jury reminding them that Dr. 
Grigson is [a] "Dallas 
Psychiatrist and Medical Doctor 
as compared to a mere 
psychologist employed by Bexar 
County.["] See also, Dissenting 
Opinion, pp.2-3.

For all we know, even Satterwhite himself 

may have thought that a psychiatrist's 
interview was more "scientific" or 

medically therapeutic than the "mere" 
psychologist's tests he had already taken 
and therefore was more willing to be 
cooperative with Dr. Grigson in the 
absence of any advice from counsel 
regarding the dangers of the psychiatric 
interview in particular.

The real issue here is a very narrow 
one— can the government do through its 
psychiatric "agent", Dr. Grigson, what it 
may not do directly through its attorneys 
and other investigators? There can be no 

question as to the nature of the 
psychiatrist's role here:

23



That [defendant] was questioned 
by a psychiatrist designated by 
the trial court to conduct a 
neutral competency examination, 
rather than by a police officer, 
government informant, [or]
prosecuting attorney is
immaterial.

Estelle v. Smith, 451 
11

U.S. at 467. /

In addition, here, there also can be 
little doubt of counsel's likely reaction 
to notice that Dr. Grigson was going to

11/ White, n. 5 above, at p. 1533,
among others, has also noted this issue:

"There is no reason to suppose 
that the defendant in Smith 
viewed the examining 
psychiatrist as anything other 
than a government psychiatrist. 
Thus, based on its holding, the 
Court's language could be read 
to include only people known by 
defendant to be government 
agents. (emphasis added.)

24



conduct an interview of their client for 
12/

any purpose. Moreover, there can be
little doubt that counsel would also 

react far differently to notice that Dr. 

Grigson was planning to interview the
defendant, as opposed even to any other

13/
psychiatrist 0£ psychologist.

12/
See the Petition for 

Certiorari, at p. 9:
...Dr. James P. Grigson, is 
well-known to every practitioner 
in capital cases. It is this 
very same "expert witness' that 
has testified in several 
punishment phases of criminal 
proceedings in capital cases 
which has been noted in Smith v. 
Estelle....

See also, White, n. 5 above, at p. 1544, 
regarding the relevance of the known 
"propensities of the particular 
psychiatrist involved."

13/ Dr. Grigson's "national" 
reputation in this context is beyond 
arqument. See, e.g., "The Supreme Court, 
1980 Term," 95 Harv. L.R. 91, at 123 
(1981):

The state's attorney [in Estelle 
v. Smith, above] consulted a Dr. 
Grigson— known in some circles 
as "the killer shrink" because 
of his work for prosecutors in

25



The point here is that within the 
stricture of their ethical- obligation to 
avoid "professionally unreasonable" 
conduct, Messrs. Wood and Takas could 
not possibly have failed to counsel 

petitioner specifically regarding Dr. 
Grigson's known propensities had they but

(footnote continued)
capital cases....(citing Bloom, 
"Doctor for the Prosecution", 
Am. Law. Nov. 1979, at 25).

And, further, at p. 123, n. 9.
Dr. Grigson's work had induced 
at least one scholar to conclude 
that he operated "at the brink 
of quakery." Dix, "The Death 
Penalty, ’Dangerousness',
Psychiatric Testimony and 
Professional Ethics," 5 Am. J . 
Crim. L. 151, 172 (1977). And
regarding Dr. Grigson's
testimony in Smith, one Texas 
appellant judge wrote that he 
was 'unable to find that much of 
the testimony offered was from 
this side of the twilight zone.' 
Id. at 165 (quoting a dissent of 
Texas Criminal Appeals Judge 
Odom, which was withdrawn before 
publication in light of Jurek v. 
Texas, 428 U.S. 262 (1971)
(plurality opinion)

26



14/

been informed of the interview. See 

Strickland v. Washington, 466 U.S. 668,

(footnote continued)
See, for more on the same 

material, "The Supreme Court, 1982 Term," 
97 Harv. L♦R. 70, 123 at n. 11 (1983).
See also, Perlin, "Dulling the Ake in 
Barefoot1s Achilles Heel," 3 N.Y.L.S. 
Hum. Rts. Ann. 91, 103 n. 63 (1985);
Nethery v. State, 692 S.W.2d 686, 708 
(Tex. Ct. Crim. App. 1985) (Dr. Grigson 
has testified by his own count in 120 
capital cases and "in every - capital 
murder case in which he had testified 
about future dangerousness he had 
testified in the affirmative,") and 
Ewing, "'Doctor Death' and the Case for 
an Ethical Ban on Psychiatric and 
Psychological Predictions of
Dangerousness in Capital Sentencing 
Procedures," 8 Am. J. L. & Med. 407, 410 
(1983) (As of 1983, the jury had returned 
the death sentence in 69 of the 70 
capital cases in which Dr. Grigson had 
testified up to that time.); "They Call 
Him Dr. Death," Time, June 1, 1981 at 64; 
and Taylor, "Dallas' Doctor of Doom," 
Nat'1. L. J., Nov. 24, 1980 at 1 ed. 2.
~ IV

Even the American Psychiatric 
Association has taken pains to distance 
itself from this particular expert. See, 
Brief amicus curiae of the A.P.A. in 
Barefoot v. Estelle, above at p. 24:

Dr. Grigson also gave his own 
criteria for determining whether or 
not someone has an 'antisocial 
personality disorder.'

27



691, 104 S .Ct. 2052, 2066, 80 L. Ed
674 (1984), reh. den. 467 U.S. 1267,
S.Ct. 3562, 82 L.Ed. 2d 864 (1984
See also, United States v. Chronic, 466 

U.S. 648, 104 S.Ct. 2039, 75 L.Ed 2d 430 
(1984). Nothing that the State now 
argues regarding "constructive" notice to 

counsel or reasonable opportunity for 
counsel to warn petitioner based on the 
Schroeder interview could possibly excuse 
petitioner's counsel from their 
obligation to warn petitioner about the

(footnote continued)
Further, at p. 24, n. 19:

In Estelle v. Smith, supra, for 
example, Dr^ Gr igson concluded that 
defendant was "a severe sociopath" 
even though his only prior criminal 
conviction had been for possession of 
marijuana. 101 S.Ct. at 1870, n. 4, 

1871.
And finally, at p.25:

In sum, the inadequate procedures 
used in this case allow a 
psychiatrist to masquerade his 
personal preferences as "medical" 
views, without providing a meaningful 
basis for rebutting his conclusions.

28



reputation of Dr. Grigson in particular11/had they only been so notified.

Finally, there can be no real 
question here regarding the petitioner's 
need for counsel at this "critical stage" 
of the proceedings. As even the Texas 
Court of Criminal Appeals conceded:

As in Estelle v. Smith, appellant had 
already been indicted when this 
examination took place. Thus, his 
right to assistance of counsel had 
attached. Kirby v. Illinois, supra. 
While attachment of that right does 
not mean that appellant had a 
constitutional right to have counsel 
actually present during 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

15/
See White, n. 5 above, at 1542 

regarding the obvious requirement that 
counsel meet with his client to discuss 
the proposed psychiatric interview vel 
non.

29



indicate that appellant gave a 
knowing intelligent, and voluntary 
waiver of his right to counsel, and a 
waiver will not be presumed from a 
silent record.

Opinion, p. 21. See also,
Brewer v. Williams , 430 U.S. 387, 97
S.Ct. 1232, 51 L.Ed. 2d 424 (1977)

Then Associate Justice Rehnquist
specifically noted this requirement in
his concurring opinion in Estelle V .

Smith, above at 475: "Counsel was
entitled to be made aware of Dr.
Grigson's activities involving his client
and to advise and prepare his client
accordingly." Thus, even if there is a
disagreement about extending Miranda to
these interviews— and we acknowledge that
there may be based on the Justice's

16/
concurring opinion in Estelle — the

16/
See then Associate Justice 

Rehnquist's concurring opinion in Estelle 
v. Smith, above, at p. 475. See also in 
this regard, White, n. 5 above/ at p. 
1532.

30



petitioner's Sixth Amendment right to 
counsel clearly had attached in any event 
under the Estelle v. Smith holdings even 
as most narrowly interpreted.

It hardly seems necessary to mention 
in closing that this Court's recent 
opinion in Moran v. Burbine can be 
readily distinguished from this case 
because in Moran the right to counsel had 
not yet attached when the waiver and 

police "deception" of the attorney 
occurred. See Moran v. Burbine, 106 
S.Ct. above at 1138, 1142. Here, on the 
contrary, the right to counsel had 
clearly attached when the disputed 
interview by Dr. Grigson took place.

31



CONCLUSION
On the basis of the foregoing 

arguments and authorities, amicus curiae 
respectfully urges this Court to reverse 

and remand this case to the Texas Court 
of Criminal Appeals.

Michael L. Perlin 
Director, Federal 

Litigation Clinic 
Peter Margulies* 
Managing Attorney 
New York Law School 
57 Worth Street 
New York, NY 10013 
(212) 431-2183
♦Counsel of Record

32