Granviel v. Estelle Brief of Amicus Curiae

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 79-1332

KENNETH GRANVIEL,
Petitioner-Appellant,

V.
W.J. ESTELLE, JR., Director, Texas. 
Department of Corrections, et al.,

Responder.ts-Appgliees . * 10

On Appeal from the United States District Court For the Northern District of Texas, ___________ Fort Worth Division_______________
BRIEF OF AMICUS CURIAE

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.
JACK GREENBERG JAMES M. NABRIT, III 
JOEL BERGER 
JOHN CHARLES BOGER DEBORAH FINS Suite 203010 Columbus Circle New York, New York 10019
ANTHONY G. AMSTERDAMStanford University Law School 

Stanford, California 94305
ATTORNEYS FOR THE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC.



TABLE OF CONTENTS

Page

STATEMENT OF INTEREST OF AMICUS CUR LAE NAACP LEGAL
DEFENSE AND EDUCATIONAL FUND, INC...............  1

ISSUE PRESENTED .....................................  2
STATEMENT OF THE CASE ...............................  3

I. COURSE OF PRIOR PROCEEDINGS .................. 3
II. STATEMENT OF FACTS .........................  4

SUMMARY OF ARGUMENT .................................  12
ARGUMENT

THE TEXAS DEATH SENTENCING STATUTE,
AS APPLIED IN THIS CASE, PRECLUDED 
THE JURY FROM CONSIDERING EVIDENCE 
OF PETITIONER'S MENTAL ILLNESS IN MITIGATION OF PUNISHMENT, AND THERE­
BY VIOLATED PETITIONER'S RIGHTS UNDER 
THE EIGHTH AND FOURTEENTH AMENDMENTS.

CONCLUSION 25



TABLE OF CITATIONS

Adams v. State, 577 S.W.2d 717 (Tex. Crim. App. 1979) -- 11
Blansett v. State, 555 S.W.2d 322, (Tex. Crim. App.

(1977) ............................................  16
Brandon v. State, ___S.W.2d ___  (No. 59,348, Tex. Crim.

App., April 25, 1979) ............................. 11
Burch v. State, 343 So. 2d 831 (Fla. 1977) .............  21
Coker v. Georgia, 433 U.S. 584 (1977)   2, 19
Davis v. Georgia, 429 U.S. 122 (1975) ................... 2
Furman v. Georgia, 408 U.S. 238 (1972) .................  2
Gardner v. Florida, 430 U.S. 349 (1977) ................  2
Gholson v. State, 542 S.W.2d 395 (Tex. Crim. App. 1975) . 11
Ex Parte Granviel, 561 S.W.2d 503, (Tex. Crim. App.

1978) .............................................  3, 23
Granviel v. State, 552 S.W.2d 107, (Tex. Crim. App.

1976) .............................................  3, 4, 7
Green v. Georgia, ___ U.S. ___, 47 U.S.L.W. 3774 (May 29,

1979) .............................................  15
Gregg v. Georgia, 428 U.S. 153 (1976)   19, 20
Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974)   14
Huckaby v. State, 343 So. 2d 29 (Fla. 1977) ..........  21
A. Hughes v. State, 562 S.W.2d 857 (Tex. Crim. App.

1978) .............................................  11
Jiminez v. Estelle, 557 F.2d 506 (5th Cir. 1977)   14
Jones v. State, 332 So. 2d 615 (Fla. 1976) .............. 21
Jurek v. State, 522 S.W.2d 934 (Tex. Crim. App. 1975) ... 24
Jurek v. Texas, 423 U.S. 262 (1976)  ..............  2, 24, 25

CASES Page

- ii -



Page

Livingston v. State, 542 S.W.2d 655 (Tex. Crim.
App. 1976) ........................................  11

Lockett v. Ohio, 438 U.S. 586 (1978) ...................  2, 14, 15,17, 23, 24
Miller v. State, Fla. S.C. No. 50,606 decided May 10,

1979 [1979] FLA. L. WEEKLY 200 ....................  21
Moore v. State, 542 S.W.2d 664 (Tex. Crim. App. 1976) ... 11
Morales v. Turman, 333 F.Supp. 53 (E.D. Tex. 1974),

remanded for further proceedings, 562 F.2d 993 (5th 
Cir. 1977) ........................................  8

Muniz v. State, 573 S.W.2d 792 (Tex. Crim. App. 1978) ... 11
People v. Davis, 43 N.Y.2d 17 (1977) ...... ............. 19
People v. Ibarra, 34 Cal. Rptr. 363, 386 P.2d 487 (Cal.

1963) .............................................  14
Roberts v. Louisiana, 428 U.S. 325 (1976) ..............  2
Sincox v. United States, 571 F.2d 876 (5th Cir. 1978) ... 14
Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978) . 21, 25
State v. Boulware, No. 74-1299-QK, Crim. Dist. Ct. No. 4,

Dallas Co., Tex.) .................................  11
State v. Hovila, No. C-74-465-QM, 194th Jud. Dist. Ct.

of Dallas Co., Tex.) ..............................  11
State v. White, 142 A.2d 65 (N.J. 1958) ................  17
Tezeno v. State, 484 S.W.2d 374 (Tex. Crim. App. 1972) .. 14
Witherspoon v. Illinois, 391 U.S. 510 (1968) ...........  14
Woodson v. North Carolina, 428 U.S. 280 (1976) .........  2, 17
STATUTES
Ala. Cede Tit. 13, §§ 13-11-7 (2 ) & (6 ) (1975 ) ..............  18
Ariz. Rev. Stat. Ann. §13-703 (G) (1) (1978) ..............  18
Ark. Stat. Ann. §§41-1304 (1) & (3 )(1977 ) .................  .13



18
18
19
18
19
19
18
18
18
18
18
18
18
18
18
18
18

18
19
13

Cal. Penal Code Ann. §§190.3(d)& (h)(Supp. 1979) ........
Conn. Stat. Ann. §53a-46a(f)(2)(Supp. 1979) ............
11 Del. Code Ann. §4209(c)(1)(Supp. 1978) ..............
Fla. Stat. Ann. §§ 921.141 (6 ) (b) & (f) (Supp . 1979) ........
Ga. Code Ann. §27-2534.1(b)(1978) ......................
Idaho Code §19-2515(c)(1979) ...........................
111. Stat. Ann. ch. 38, §9-1 (c) (2) (Supp. 1979) .........
Ind. Stat. Ann. §§35-50-2-9 (c) (2 ) & (6 ) (1979) ............
Ky. Rev. Stat. §§532.025 (2 ) (b) (2 ) & (7) (Supp . 1978) ......
La. Code Crim. Proc. Ann. Art. 905.5(b)& (e)(Supp. 1979) .
Md. Code Ann. Art. 27 §413(g)(4)(Supp. 1978) ...........
Miss. Code Ann. §§99-19-101(6)(b)&(f)(Supp. 1978) ......
Mo. Stat. Ann. §§565.012 (3 ) (2 ) & (6 ) (Supp. 1979) .........
Mont. Code Ann. §§46-18-304(2)&(4)(1978) ...............
Neb. Rev. Stat. §2 9-2523 (2 ) (c )&(g) (Supp. 1974) ........
Kev. Rev. Stat. §200.035(2)(1977) ........... ..........
N.H. Rev. Stat. Ann. §§630:5 II(b)(2)&(4)(Supp. 1977) ..
N.M. Stat. Ann. §§31-18-14(7)(C)&(D)(added by 1979 Laws 

of N.M. ch. 150, §§7(C)&(D), eff. July 1, 1979) ...
N.Y. Penal Law §§60.06, 125.27(i)(a)(iii) .............
N.C. Gen. Stat. §15A-2000(f)(2)&(6)(1978) .............

- IV



Page

Okla. Stat. Ann. Tit. 21, §701.10 (Supp. 1978) .........  19
Ore. Rev. Stat. §163.005 (2) (b) .........................  19
Pa. Consol. Stat. Tit. 18, §§1311(e)(2)&(3)(as amended
by Act. No. 1978-141, 1978 Purdon's Pa. Leg. Svc. 607). 18

S.C. Code §§16-3-20 (b) (2)&(6 ) (Supp. 1978) ..............  18
Laws of S.D. 1979, Sen. Bill No. 53, Sec. 7 (eff. July

1, 1979)..............................................  19
Tenn. Code Ann. §§39-2404 (j ) (2 )&(8) (Supp. 1978) .........  18
Tex. Code Crim. Proc. Art. 37.071(b) ...................  12,13

16,23
Texas Penal Code §§2.04, 8.01 ..........................  20
Utah Code Ann. §§76-3-207 (1) (b)&(d) (1978)..............  18
Va. Code Ann. §§19.2-264.4(B) (ii)& (iv) (Supp.1978).......  18
Wash. Rev. Code Ann. §§9A.32.045(2)(b)& (f)(Supp. 1978)... 18
Wyo. Stat. §§6-54.2(j)(ii)&(vi)(added by 1977 Wyo.

Sess. Laws Ch. 122).....................................  18
49 U.S.C. Ann.§1473 (6) (B) (1976).........................  18
OTHER AUTHORITIES
Bloom, Killers and Shrinks, The Texas Monthly, July

1978, p .64.............................................  11
Dix, Psychological Abnormality as a Factor in Grading 
Criminal Liability: Diminished Capacity, Diminished 
Responsibility and the Like, 62 J.Crim. L.C. & P.S.
313(1971)..............................................  20

A. Goldstein, The Insanity Defense (1967)...............  20
Kalven and Zeisel, The American Jury (1966)................ 20

y



Page

Liebman and Shepard, Guiding Capital Sentencing 
Discretion Beyond the "Boiler Plate";Mental 
Disorder As A Mitigating Factor, 66 Geo. L.J.
757 (1978) .........................................  18,20

- vi-



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT
________NO. 79-1332___________________
KENNETH GRANVIEL,

Petitioner-Appellant. 
v .

W. J. ESTELLE JR., Director, Texas 
Department of Corrections, et al.,

Respondents-Appellees.

On Appeal from the United States District Court 
For the Northern District of Texas, 

____________Fort Worth Division________________
BRIEF OF AMICUS CURIAS

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.
STATEMENT OF INTEREST OF AMICUS CURIAE NAACP LEGAL 
______ DEFENSE AND EDUCATIONAL FUND, INC._________

The NAACP Legal Defense and Educational Fund, Inc. submits 
a brief amicus curiae in this case for the following reasons:

(1) The Fund is a non-profit corporation established to 
assist black citizens in securing their constitutional rights. 
In 1967, it undertook to represent all condemned defendants in 
the United States, regardless of race, for whom adequate repre­
sentation could not otherwise be found. It has frequently re­
presented condemned defendants before the Supreme Court of the



United States. E .q.. Furman v. Georgia, 408 U.S. 238 (1972);
Jurek v. Texas, 428 U.S. 262 (1976); Woodson v. North Carolina.
428 U.S. 280 (1976); Roberts v. Louisiana. 428 U.S. 325 (1976); 
Davis v. Georgia. 429 U.S. 122 (1976) ; Gardner v. Florida. 430 
U.S. 349 (1977); Coker v. Georgia. 433 U.S. 584 (1977); and 
Lockett v. Ohio, 438 U.S. 586 (1978) .

(2) The Legal Defense Fund continues to provide legal assis­
tance to indigent condemned prisoners of all races and is now in­
volved as counsel in over one hundred death cases. It represents 
a substantial number of indigent death-sentenced inmates in Texas, 
Florida and Georgia who are at various stages of state and federal 
postconviction proceedings. Additionally, the Fund provides con­
sultative assistance to attorneys representing a large number of 
other capital defendants within and without this Circuit.

(3) This case presents an important issue of first impression 
concerning the constitutionality of the Texas death sentencing 
statute in one particular application. Because of the Fund's 
broad experience with the statute, we respectfully request the 
opportunity to present its views in the hope that they may be
of assistance to the Court.

ISSUE PRESENTED

Whether the Texas death sentencing statute, as applied 
in this case, precluded the jury from considering evidence of 
petitioner's mental illness in mitigation of punishment, and 
thereby violated petitioner's rights under the Eighth and 
Fourteenth Amendments.

2



STATEMENT OF THE CASE

I. COURSE OF PRIOR PROCEEDINGS

On October 24, 1975, at a jury trial in the 213th District 
Court of Tarrant County, Texas, petitioner was convicted of capital 
murder and sentenced to die. The Texas Court of Criminal Appeals 
affirmed the conviction and death sentence on November 10, 1976. 
Granviel v. State, 552 S.W.2d 107. Rehearing was denied on 
December 22, 1976.

On May 23, 1977, the Supreme Court of the United States 
denied certiorari (Justices Brennan and Marshall dissenting).
431 U.S. 933.

On February 1, 1978, the Texas Court of Criminal Appeals 
denied petitioner's application for a writ of habeas corpus. Ex 
Parte Granviel, 561 S.W.2d 503.

The instant federal habeas corpus proceeding was filed on 
March 15, 1978, in the United States District Court for the 
Southern District of Texas, Houston Division. On March 27, 1978, . 
that court (Hon. Robert O'Conor, Jr.) transferred the matter to 
the United States District Court for the Northern District of 
Texas, Fort Worth Division. On January 26, 1979, the district 
court (Hon. Eldon B. Mahon) dismissed the habeas corpus petition 
and issued a certificate of probable cause authorizing appeal to 
this Court.

3



II. STATEMENT OF FACTS

Petitioner was convicted and sentenced to die for the 
October 7, 1974 murder by stabbing of Natasha McClendon, a 
two year old child, in the course of raping two other persons. 
Altogether, petitioner killed three women and two children, 
and raped two of the women, during this occurrence. Four months 
later, on February 8, 1975, he stabbed two more women to death, 
raping one of them as well as a third woman. He then went to 
the police, turned himself in, and confessed to all of his 
crimes.

The details of petitioner's crimes are extremely brutal.
They are set forth in Granviel v. State, 552 S.W.2d 107, 110-12 
(Tex. Crim. App. 1976), and will no doubt be summarized in the 
briefs of. the parties herein. We will spare the Court another 
rendition in this amicus curiae brief.

This brief is concerned with a single constitutional issue: 
whether the Texas death sentencing statute, as applied in this 
case, unconstitutionally precluded the jury from considering sub­
stantial evidence of Kenneth Granviel's mental illness in miti­
gation of punishment. In connection with that question, a
description of the record relating to petitioner's extensive

1/history of mental illness is necessary.

1/ The testimony described below was adduced at the trial of 
guilt or innocence, at which petitioner interposed the defense of 
insanity. No additional evidence was presented at the penalty 
phase, as both sides chose to rely upon the record already made. 
See Statement of Facts of petitioner's appeal to the Texas Court 
of Criminal Appeals (hereinafter "SF") at 3259.

4



Dr. M. Jerold May, a psychologist of fifteen years1 ex­
perience, SF 2673-75, diagnosed Mr. Granviel as a paranoid 
schizophrenic. SF 2681-87, 2691-95. Dr. May had examined 
petitioner in three separate sessions, spending a total of 
thirteen hours with him and administering numerous psychological 
tests. SF 2676. The testing had revealed a "pattern ... usually 
found in paranoid schizophrenic individuals who have some ritu­
alistic or repetitive impulses in an attempt to control anxieties,' 
as well as "a great deal of suicidal disgust." SF 2631. Dr. May 
found that Mr. Granviel is a psychotic individual, SF 2694, who 
"believes he has been persecuted, controlled, basically mis­
treated and spied on by other people" and "is disgusted with life, 
haboring thoughts and/or acts of self destruction," SF 2691.
As a result, petitioner "is not able to control himself at times 
when under extreme pressure and he may feel very persecuted and 
controlled by outside forces." SF 2681. He suffers from "a 
severe mental, emotional illness." SF 2682.

Dr. May was of the opinion that at the time of the two 
series of rape-murders, Kenneth Granviel seemed to be "entirely 
out of control." SF 2693. "[I]t was like the things that were
happening in the killing were in another room, a large room and 
he could see what was happening, but the part of him that could 
think and control was in a very tiny closet and not able to con­
trol what was happening." Ibid. Mr. Granviel "found it difficult 
to believe after the first killings happened that it really 
happened. He felt as if it must have been a bad dream." SF 2695.



After the second occurrence he "finally convinced himself these 
things really did happen and at that time he sought some help in 
stopping himself. ... He wanted some help in controlling him­
self. He knew he couldn't do it by himself." Ibid.

On cross examination, Dr. May testified as follows:
Q. Doctor, do you not think this man 

is a dangerous individual?
A. I certainly do.

SF 2709. A few moments later, the prosecutor made the point 
once again:

Q. He is, is he not, a dangerous 
individual, is he not?

A. Definitely.
SF 2719.

Dr. May's diagnosis of Kenneth Granviel as a paranoid 
schizophrenic was complemented by the testimony of several lay 
witnesses, who recounted many incidents of abnormal behavior 
by petitioner and described some of the possible roots of his 
mental illness. During childhood, he had repeatedly been stripped 
nude, bound, and severely beaten by his mother with tree limbs, 
straps and cords. SF 2570, 2577, 2585, 2592, 2993-97. The 
mother was brutal to her other children as well, once having 
stuck an icepick to the threat of Kenneth's brother. SF 3004.
On several occasions, Kenneth had attempted to burn his mother's 
house down. SF 2577-80.

Kenneth Granviel's parents separated the day before he 
was born in 1950, and he grew up without a father. SF 2576.

6



His mother had many male friends who would stay at her house.
SF 2574. When Kenneth was about seven or eight, he saw his 
younger sister run over by a truck. SF 2547, 2561-62, 2991.
His mother remarried when he was young, but the marriage lasted 
only briefly. SF 2548, 2574. Kenneth's mother and stepfather 
fought repeatedly, and the mother would whip the children if 
they did not side with her in these fights. SF 3000. During 
one of these altercations, the stepfather put a gun to Kenneth's 
head and threatened to kill him. 2998-99. After the divorce, 
the mother resumed having relationships with other men who 
would stay at the house. SF 2575.

When Kenneth was about 15 or 16, he began to exhibit symptoms 
of abnormal sexual behavior. His younger brother, then about 
11 or 12, often observed him tying ud pillows with strips of 2/
rags and having sex with them as if they were a woman. SF 2551.
He also tried to force his brother to have homosexual relations 
with him, and became violent when the brother resisted. SF 2553. 
Finally, when he was 16 years old, he attempted to rape his mother. 
SF 2503, 2506.

Kenneth Granviel's sexual assault upon his mother occurred 
on the night of March 22, 1967. He crept into his mother's bed­
room, jumped onto her, and grabbed her by the neck. SF 2584-85.
He began beating and choking her and cursing about a whipping

2/ Most of Detitioner's victims were similarly bound. See 552 
S.W. 2d at 110-12.

7



she had administered when he was 4 or 5 years old because he 
had supposedly stolen an apple. SF 2585-86. He also began 
tearing her clothes off and pulling her panties down. SF 2586. 
During the incident he threatened to kill his mother, his younger 
brother and himself. SF 2503, 2586, 2824. He eventually re­
sponded to his mother's plea to stop, got on all fours like a 
dog, and started walking in this fashion down the hall; when he 
got to the front door, he passed out. SF 2387. His younger 
brother observed that at this point "his eyes was kind of back 
and you couldn't see his eyeballs and he still had veiny marks 
in his temple. ... [H]is teeth was still gritted and there was
still veins up in his forehead." SF 2558.

The police were called. They observed "visible signs of a 
struggle" and "torn undergarments on the floor." SF 2506-07. The 
mother told the police that she did not want the boy, SF 2507, and 
that "I don't care what you do with him," SF 2588. As the police 
were dressing him, he began cursing and tried to drink water from 
a goldfish bowl. SF 2589-90. The police brought him to a hospital 
mental ward, where he was placed under observation for ten days 
but diagnosed as sane. SF 2591, 2824. He was then taken'to 
Juvenile Court and committed to the Gatesville State School for

3/Boys, where he remained for two and one-half years. SF 2591-92.

3/ Most of petitioner's period of incarceration was spent at the 
Mountain View State School for 3ovs, the Texas Youth Council's 
maximum security unit at Gatesville. SF 3011-12. For a detailed 
description of conditions at Mountain View, see Morales v. Turman, 
333 F.Supp. 53, 72-77 (E.D. Tex. 1974), remanded for further pro­
ceedings, 562 F.2d 993 (5th Cir. 1977). The district court found 
that boys at this institution had been subjected to "widespread 
physical and psychological abuse." 383 F.Supp. at 77.

8



On May 22, 1969, petitioner was examined at Gatesville 
by Dr. Vernon Grove, Jr., then a resident in psychiatry. SF 
2738, 2831. Dr. Grove saw petitioner for about an hour or two,
SF 2833, during which the doctor was "very frightened and un­
comfortable." SF 2800. Petitioner was working at the time as 
a butcher in the school's kitchen, and described to the doctor 
his enjoyment at sticking knives into fresh meat and watching 
the blood squirt. SF 2800-02. Dr. Grove felt "my skin crawling" 
as petitioner described his pleasure at watching the blood flow. 
SF 2800. Dr. Grove diagnosed petitioner as sane, SF 2800, but 
found him "very hostile, very angry, and very threatening and 
at that time ... potentially very, very dangerous." 2819. He 
feared that petitioner "was going to kill somebody," SF 2842, 
and, recommended that the school "keep him there forever for his 
good and for society's." SF 2852.

Petitioner was released from Gatesville approximately three
months later. SF 2592. Shortly thereafter he began living with
Ms. Vivian Stevens, and they stayed together until he entered
the army nine months later. SF 2670. During this period he
would frequently beat Ms. Stevens with his fists. SF 2627. He
also hung her by her feet over a banister and threatened to droo

1/her. SF 2622. After his discharge from the army, he came 
looking for Ms. Stevens and threatened to kill her. SF 2623. * 18

4/ Mr. Granviel was drafted into the army in 1971, SF 2596, 3017-
18, and saw considerable combat in Viet Nam. SF 3020. He won a 
combat infantry badge, SF 3019-20, and was honorably discharged 
in April of 1972, SF 2601, 3024.

- 9



And about two weeks before the first set of murders, he took 
her to his apartment, beat her, stood on her stomach and raped 
her at gunpoint. SF 2628-33.

Petitioner's roommate around the time of the first murders 
testified that one night he was awakened by a woman screaming in 
the bathroom. He found petitioner forcibly giving the woman a 
bath, because "she had odors." SF 2862, 2871-72. The roommate 
reported that petitioner's behavior seemed normal after the first 
murders, except that sometimes his hands were trembling. SF 2870.
A foreman at petitioner's place of employment during this period 
testified that he had discussed the then unsolved killings with 
petitioner, who had stated that "[a]nybody that would do something 
like that to some kids ought to be hung." SF 2657.

On the night of the second set of murders, Kenneth Granviel 
walked into a Fort Worth police station with Reverend R. C. Spearman. 
SF 2510. He told the police that he was "tired of killing inno­
cent people," and wanted to be taken out of society. SF 2514.
He stated that he did not want a lawyer, SF 2541, and proceeded 
to confess to both sets of murders. SF 2513.

The prosecution presented the testimony of two expert wit­
nesses at petitioner's trial to rebut Dr. May's diagnosis of 
petitioner as a paranoid schizophrenic.

Dr. John Methner, a doctor of osteopathy, had examined peti­
tioner for about If to 2 hours on February 11, 1975. SF 2876,
2890. He testified that Kenneth Granviel had no major mental

10



illness but rather a severe antisocial personality disorder.
SF 2892-93, 2894-95, 2900. He contended, however, that peti­
tioner did exhibit "certain schizoid personality characteristics" 
and a "suicidal ideation" in which he spoke of "the possibility 
of setting himself on fire." SF 2893.

Dr. John T. Holbrook, a Dallas psychiatrist, had twice examined6/
petitioner at defense counsel's request for about 1? to 2 hours
on each occasion. SF 2967, 2970-72. Dr. Holbrook testified that
petitioner had an anti-social personality disorder and was not

7/
suffering from a major mental illness. SF 2975-77.

The jury convicted petitioner of capital murder, SF 3257, 
and the case proceeded to the penalty phase. Both sides declined

5/ Dr. Methner's only degree is in osteopathy, as he was denied 
admission to medical school. SF 2916-13. He stated that although 
he had examined several hundred people accused of murder, he had 
never once testified for the defense in a murder case. SF 2902-03.
6/ Dr. Holbrook was brought to see petitioner by defense counsel 
and was not appointed by court order to conduct the examinations. 
Defense counsel's motion to bar the doctor's testimony as prohibited 
by the attorney-client privilege was denied. SF 2960-66.
7/ Dr. Holbrook, along with fellow Dallas psychiatrist Dr. James 
P. Grigson, has made something of a specialty of diagnosing Texas 
capital defendants as having anti-social personality disorders.
See, e,g., Gholson v. State, 542 S.W.2d 395 (Tex. Crim. App. 1976) (diagnosis based in part on defendant's refusal, upon his counsel's 
advice, to speak to the doctor; see No. A-8078, 70th Jud. Dist. Ct. 
of Ector Co., Tex., trial transcript at 841-42); Livingston v.
State. 542 S.W.2d 655 (Tex. Crim. App. 1976); Moore v. State,
542 S.W.2d 664 (Tex. Crim. App. 1976); State v. Boulware, No. 
74-1299-QK, Crim. Dist. Ct. No. 4, Dallas Cc. , Tex.; State v.
Hovila. No. C-74-46 5-QM, 194th Jud. Dist. Ct. of Dallas Co., Tex.;
A. Hughes v. State, 562 S .W.2d 857 (Tex. Crim. App. 1978); Muniz_ v. State, 573 S.W.2d 792 (Tex. Crim. App. 1978); Adams v. State,
577 S.W.2d 717 (Tex. Crim. App. 1979); Brandon v. State, __S.W.2d __
(No. 59,348, Tex. Crim. App.*, April 25, 1979). See also Bloom, 
Killers and Shrinks, The Texas Monthly, July 1978, pp. 64, 65.

11



to produce additional evidence and relied solely upon the record
made at the trial of guilt or innocence. SF 3259.

In summation at the penalty phase, the prosecution asserted
that "insanity is no longer an issue." SF 3268. Noting that
the jury in a Texas capital case is asked to determine whether
"there is a probability that the Defendant would commit criminal
acts of violence that would constitute a continuing threat to

8/society," the district attorney reminded the jurors that
Dr. May, their own psychiatrist, said 
this man is dangerous.

SF 3291. The prosecutor observed that the state's psychiatrists
had reached the identical conclusion, ibid♦, and emphasized that

all of these men, every one of them 
who are concerned with dealing with 
people and looking into their mind 
as much as we can —  say this man 
is dangerous.

SF 3292.
The jury, after 25 minutes of deliberation, returned a verdict 

of death. SF 3295-96.

SUMMARY OF ARGUMENT

The Texas capital sentencing statute, as applied in the case 
of Kenneth Granviel, unconstitutionally precluded the jury from 
even considering in mitigation evidence of Mr. Granviel's mental 
illness.

Texas law effectively constricted the inquiry at sentencing 
solely to consideration of whether petitioner presents a threat

8/ Tex. Code Crim. Proc. Art. 37.071(b)(2). See also the trial 
court's charge to the jury on punishment, SF 3264.

12



of probable future dangerousness to society. Tex. Code Crim.
Proc. Art. 37.071(b)(2). The answer to that question is indis­
putably "yes'-." But by limiting the sentencing inquiry to this 
question, Texas impermissibly prevented the jury from according 
any independent mitigating weight to extensive testimony it had 
heard concerning Mr. Granviel's mental illness. Under the 
Eighth and Fourteenth Amendments, the state may not preclude 
consideration of a substantial mitigating history of mental 
illness simply because that illness also renders the defendant 
"dangerous."

There was evidence in this case that Kenneth Granviel is 
a psychotic individual, a paranoid schizophrenic who often is 
unable to control his acts. For centuries, Anglo-American 
law has considered such evidence an important factor in sen­
tencing. It is well accepted that mental illness renders a 
defendant less morally culpable, less reprehensible, and hence 
less deserving of the penalty of death. And since juries are 
extremely reluctant to acquit by reason of insanity in cases 
of horrible crimes, the penalty phase of a capital case is the 
principal time for meaningful consideration of evidence of 
mental illness.

Under Texas law, however, the jury in this case was required 
to ignore the evidence it had heard of Kenneth Granviel a mental 
abnormality. Petitioner’s obvious dangerousness automatically 
terminated the sentencing inquiry, permitting no opportunity 
for the jurv even to consider in mitigation evidence thai_ his

13



dangerousness resulted from a severe mental disorder. To execute 
Mr. Granviel based upon such a narrow, limited inquiry violates 
the Eighth and Fourteenth Amendments.

2/ARGUMENT

THE TEXAS DEATH SENTENCING STATUTE,
AS APPLIED IN THIS CASE, PRECLUDED THE JURY FROM CONSIDERING EVIDENCE OF 
PETITIONER'S MENTAL ILLNESS IN MITIGATION OF PUNISHMENT, AND THEREBY VIOLATED PETI­
TIONER'S RIGHTS UNDER THE' EIGHTH AND 
FOURTEENTH AMENDMENTS.

In Lockett v. Ohio, 438 U.S. 586, 604 (1978)(plurality 
opinion), the Supreme Court of the United States held that the 
sentencing authority in a capital case may "not be precluded 
from considering as a mitigating factor, any aspect of the de­
fendant's character or record ..." (emphasis in original). The 
Court concluded that the sentencer must be permitted to accord 
"independent mitigating weight to aspects of the defendant's

2/ Although amicus is limiting its brief to one of the several 
issues briefed by petitioner, we do wish to note our concern 
about an additional issue. It is clear that at the time of peti­
tioner's trial, Texas law did not require a contemporaneous ob­
jection to preserve for review error under Witherspoon v. Illinois, 
391 U.S. 510 (1968). See Tezeno v. State, 484 S.W.2d 374, 383 n.2 
(Tex. Crim. App. 1972). And petitioner's court-appointed attorneys 
maintain that they had no intention of waiving petitioner's 
Witherspoon rights. Should the Court nonetheless determine that 
a waiver or deliberate bypass has taken place here, it is evident 
to amicus that such a finding would inevitably lead to the corollary 
conclusion that petitioner was given ineffective assistance of 
counsel at trial. For if counsel did not intend to waive but is nonetheless held to have waived petitioner's constitutional rights 
because he did not understand applicable principles of law requiring trial objections, ineffective assistance of counsel is manifest.
See Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974) ; People v. 
Ibarra, 34 Cal. Rptr. 863, 386 P.2d 437 (Cal. 1963)(Traynor, C.J.). 
See also S ir.cox v. United States, 571 F.2d 876 (5th Cir. 1978) ;
Jiminez v. Esrelle, 557 F.2d 5 06 (5th Cir. 1977) .



character and record," id. at 605, because the failure to do

... creates the risk that the 
death penalty will be imposed 
in spite of factors which may 
call for a less severe penalty.
When the choice is between life 
and death, that risk is unaccep­
table and incompatible with the 
commands of the Eighth and Four­
teenth Amendments.

i<ylb id.
The Texas death sentencing statute, as applied to the case

11/of Kenneth Granviel, violated the dictates of Lockett.
Despite a record replete with evidence of Mr. Granviel's mental 
illness, the statute served to preclude the jury from even con­
sidering that evidence in mitigation. Accordingly, the death 
sentence in this case must be set aside.

I

The sentencing process at petitioner's trial was effectively 
constricted by Texas law to a single statutory question:

10/ See also Green v. Georgia, ___ U.S. ___, 47 U.S.L.W. 3774
(May 29, 1979).
11/ We do not here contend that the statute is unconstitutional 
on its face or that it is being generally applied in an unconsti­
tutional fashion. See pp. 24-25/ infra.

15



whether there is a probability 
that the defendant would commit 
criminal acts of violence that 
would constitute a continuing 
threat to society. 12/

Tex. Code Crim. Proc. Art. 37.071(b)(2). The answer to that 
question obviously is "yes," and it is hardly surprising that 
the jury took only 25 minutes to answer it. SF 3295. With the 
sentencing inquiry limited to such a question, the record simply 
precluded consideration of any sentence other than death.

The constitutional infirmity in this procedure is that 
Article 37.071(b)(2), by its very terms, prevented the jury from 
according any mitigating consideration to the extensive testimony 
it had heard concerning Mr. Granviel's mental illness. In many 
cases, the mitigating evidence available to a Texas capital defen­
dant tends to establish that he is not dangerous (e .a., lack of 
prior record, duress, coercion, relatively minor participation 
in the crime). But here, the statute worked at cross-purposes 
with the most compelling mitigating evidence in petitioner's be­
half, and converted that evidence into an automatic ground for

12/ Article 37.071(b) poses two additional questions which are 
irrelevant to this case. Under Art. 37.071(b)(1), the jury is 
asked "whether the conduct of the defendant that caused the 
death of the deceased was committed deliberately and with reason­
able expectation that the death of the deceased or another would 
result." A "yes" answer to this question automatically follows 
from a verdict finding the defendant guilty of capital murder, 
and the Texas Court of Criminal Appeals has so held. Blansett 
v. State, 556 S.W.2d 322, 327 n.6 (Tex. Crim. App. 1977). The 
question asked by Art. 37.071(b)(3) —  "if raised by the evidence, 
whether the conduct of the defendant in killing the deceased was 
unreasonable in response to the provocation, if any, by the de­
ceased" —  was not submitted to the jury at Mr. Granviel's trial.

16



condemning him to die. The record provided ample basis to con­
clude both that Mr. Granviel is sick, and that he is dangerous. 
The Eighth and Fourteenth Amendments require that the sentencer 
weigh both of these factors, according due consideration to all 
"compassionate or mitigating factors stemming from the diverse 
frailties of humankind." Woodson v. North Carolina, 428 U.S.
280, 304 (1976)(plurality opinion). The state may not preclude 
consideration of evidence of an extensive history of mental 
illness "as an independently mitigating factor," Lockett v. Ohio, 
supra, 438 U.S. at 607, simply because that illness also renders 
the defendant "dangerous."

II

The reasons for according mitigating weight to evidence of
mental disease or defect in a death case are obvious, and need
not be belabored here. Society's moral outrage at the conduct
of a mentally ill individual may be significantly less that the
revulson engendered by the calculating killer who murders in cold
blood. Mental illness renders a defendant less morally culpable,

13/less reprehensible, less deserving of retribution.

iy See, e.q., State v. White. 142 A.2d 65, 79-80 (N.J. 1958)(Francis, 
J., concurring):

"The mental status or capacity or condition of 
an accused is an integral part of the act of killing.
Although he may not escape a verdict of guilt because 
the disability of his mind does not reach the point of 
insanity within the legal definition, the ordinary 
dictates of a humane society demand that in formulation 
of the moral judgment as to the degree of responsibility 
for purposes of punishment, the evidence of such disability 
or departure from the normal ought to be considered rele­
vant and material."

17



Since the medieval period, Anglo-American law has treated 
mental illness as a significant mitigating factor in the sen­
tencing of criminal defendants. This universally accepted notion 
dates from the eleventh century, and has continued to develop to 
the present. The history is fully set forth in Liebman and Shepard, 
Guiding Capital Sentencing Discretion Beyond The "Boiler Plate": 
Mental Disorder As A Mitigating Factor, 66 Geo. L.J. 757, 791-94

w(1978).
Today, of 34 American jurisdictions retaining the death 

penalty, 27 specify that the sentencer must give mitigating con­
sideration to evidence of the defendant's mental or emotional 
disturbance, or of impairment of his capacity to appreciate the 
wrongfulness of his conduct or to conform his conduct to the^ 
requirements of law as a result of mental disease or defect.

IV The above-cited passage of the article by Liebman and Shepard 
is reproduced as Appendix A, infra.
W  Ala. Code Tit. 13, §§13 -11-7 (2 ) & (6 ) (1975) ; Ar iz. Rev.. Stat.
Ann. § 13-703 (G) (1) (1978) ; Ark. Stat. Ann. §§41-1304(1)&(3)(1977) ;
Cal. Penal Code Ann. §§190.3(d)& (h)(Supp. 1979); Conn. Stat. Ann. 
§53a-46a(f) (2) (Supp. 1979); Fla. Stat. Ann. §§921.141 (6) (b)&(f)(Supp. 1979); 111. Stat. Ann. ch.38, §9-1 (c) (2) (Supp. 1979); Ind.
Stat'. Ann. §§35-50-2-9 (c) (2 ) & (6 ) (1979) ; Ky. Rev. Stat. §§532.025(2) (b) (2T&(7) (Supp. 1978); La. Code Crim. Proc. Ann., Art. 905.5(b)&(e, 
(Supp. 1979); Md. Code Ann., Art. 27, §413(g)(4)(Supp. 1978); Miss. Code Ann. §§99-19-101(6)(b)&(f)(Supp. 1978); Mo. Stat. Ann. §§565.012
(3) (2)&(6)(Supp. 1979); Mont. Code Ann. §§46-18-304(2)&(4)(1978);
Neb. Rev. Stat. §§29-2523(2)(c)&(g)(Supp. 1974); Nev. Rev. Stat. 
§200.035(2)(1977); N.H. Rev. Stat. Ann. §§630:5 II(b)(2)&(4)(Supp. 
1977); N.M. Stat. Ann. §§31-18-14(7) (C)St(D) (added by 1979 Laws of 
N.M. ch.15 0, §§7(C)&(D), eff. July 1, 1979); N.C. Gen. Stat.§§15A-2000(f)(2)&(6)(1978); Pa. Consol. Stat. Tit. 18, §§1311(e)(2)&(3 
(as amended by Act. No. 1978—141, 1973 Purdon's Pa. Leg. Svc. 607); 
S.C. Code §§16-3-20 (b) (2)&(6) (Supp. 1978); Tenn. Cede Ann. §§39-2404
(j)(2)&(8)(Supp. 1978); Utah Code Ann. §§76-3-207(1)(b)&(d)(1978);
Va. Code Ann. §§19.2-264.4(3)(ii)&(iv)(Supp. 1978); Wash. Rev. Code 
Ann. §§9A.32.045(2)(b)&(f)(Supp. 1978); Wyc. Stat. §§6-54.2(j)(ii)&
(vi)(added by 1977 Wyo. Sess. Laws ch.122); 49 U.S.C. Ann. §1473 
(6) (3) (1976)'.

18



Five additional states do not so specify but require the sen-
tencer to consider whatever mitigating evidence may be available

36/ XL/to the defendant. Only the Texas statutory model is con­
structed in a manner that precludes consideration of mental

W
illness as mitigating.

Thus, a virtually unanimous consensus has developed among 
American jurisdictions that evidence of mental illness should be 
considered in mitigation in capital cases. The "objective indicia
that reflect the public attitude," Grecg v. Georgia, 428 U.S. 153,19/
173 (1976), so crucial to Eighth Amendment analysis, all point
to overwhelming acceptance of this concept. The states have
adopted the notion, succinctly stated by the drafters of the
Model Penal Code, that

substantial impairment of capacity, 
even though insufficient in degree to establish irresponsibility, should 
be regarded as a factor favorable to 
mitigation of capital punishment.

W  11 Del. Code Ann. §4209(c)(1)(Supp. 1978); Ga. Code Ann. 
§27-2534.1(b)(1978); Idaho Code §19-2515(c)(1979); Okla. Stat.
Ann. Tit. 21, §701.10(Supp. 1978); Laws of S.D. 1979, Sen. Bill 
No. 53, Sec. 7 (eff. July 1, 1979).
17/ Only one other state has adopted the Texas model. See Ore.
Rev. Stat. § 163.005 (2) (b)
]̂ / we except from this analysis the mandatory death sentencing 
statute of New York, which is directed solely at murders committed 
by prisoners serving life sentences. N.Y. Penal Law §§ 60.06,125.27 (1) (a) (iii) [see People v. Dayis, 43 N.Y.2d 17, 34 n.3 (1977)] .
13/ See also Coker v. Georgia, 433 U.S. 534, 592 (1977).

19



American Law Institute, Model Penal Code § 402.2 Comment (Tent.
20/

Draft No. 4, 1955).
The reluctance of juries to find defendants not guilty by

reason of insanity has been well documented. See Liebman and
Shepard, supra. 66 Geo. L. J. at 811 n. 247. Indeed, the most
comprehensive and respected study of jury behavior reports that
"insanity cases mark the most extreme form we have of jury revolt
in favor of greater severity." Kalven and Zeisel, The American
Jury 405 (1966). See also A. Goldstein, The Insanity Defense 63
(1967) ("public attitudes regarding crime and mental illness
limit the practical utility of the insanity defense"); id. at
24, 42, 115. Juries faced with evidence of horrible murders
simply balk at the thought of exonerating the perpetrator of

21/
criminal responsibility. In such cases, the principal time 
for meaningful consideration of the defendant's mental illness 
is the penalty phase. See Kalven and Zeisel, The American Jury, 
supra. 439-41; Dix, Psychological Abnormality as a Factor in 
Grading Criminal Liability: Diminished Capacity, Diminished 
Responsibility and the Like, 62 J. Crim. L.C. & P.S. 313, 333- 
34 (1971).

20/ As adopted in 1962, the Model Penal Code places heavy emphasis 
on consideration of mental illness as mitigating. See Gregg v. 
Georgia. 428 U.S. 153, 193-94 n. 44 (1977).
21/ Insanity in Texas is an affirmative defense that the defendant 
must prove by a preponderance of the evidence, see Texas Penal Code 
§§ 2.04, 8.01, and the jury in this case was so instructed, SF 3167.

20



In Florida, for example, juries have on several occasions 
rejected insanity defenses in capital cases but then recommended 
leniency based upon evidence of mental illness. See, e.g., Jones 
v. State, 332 So. 2d 615 (Fla. 1976)(defendant raped his victim 
and then murdered her by stabbing her 28 times); Burch v. State,
343 So. 2d 831 (Fla. 1977)(defendant murdered his victim by 
stabbing her over 30 times after an unsuccessful rape attempt); 
Huckaby v. State, 343 So. 2d 29 (Fla. 1977)(defendant forcibly * Ill
raped three of his children on numerous occasions). See also 
Miller v. State. Fla. S.C. No. 50,606, decided May 10, 1979,
[1979] FLA. L. WEEKLY 200, 201-02 (defendant stabbed his victim 
nine times and then raped her while she was dying or already 
dead). These defendants' lives were spared because in Florida, 
as in virtually every other state, evidence of mental illness 
can be considered in mitigation even if the perpetrator is 
obviously rendered dangerous by his mental condition. Gf. 
Spinkellink v. Wainwright, 578 F.2d 582, 603 n. 25 (5th Cir. 1978). 
Yet in Texas, once Kenneth Granviel failed to prevail on the 
defense of insanity the death-sentencing statute left no room for 
the jury to find that his mental condition rendered him deserving 
of mercy. Since he is indisputably "dangerous," the jury had 
no choice but to impose a sentence of death.

Ill

In petitioner's case, this statutory deficiency worked a 
severe injustice. A reputable, experienced, psychologistwho had 
examined him during three separate sessions totalling thirteen 
hours, diagnosed him as paranoid schizophrenic. SF 2673-77,

21



2681-87, 2691-95. That diagnosis was bolstered by the testimony 
of numerous lay witnesses who recounted an extensive history of 
abnormal, indeed bizzare, behavior by Kenneth Granviel as well 
as some of its possible causes. As a child, he had on many 
occasions been stripped naked, tied down and severely beaten by 
his mother with tree limbs, straps and cords. SF 2570, 2577, 2585, 
2592, 2993-97. On several occasions during childhood he had at­
tempted to burn his mother's house down. SF 2577-80. His younger 
brother often had observed him tying up pillows with strips of 
rags and having sex with them as if they were a woman. SF 2551-52.
He had tried to force his brother to have homosexual relations with 
him. SF 2553. At age sixteen he had attempted to rape his mother, 
threatening to kill her, his younger brother and himself. SF 2503, 
2506-07, 2557-58, 2586, 2824. After this incident he had been com­
mitted to a state training school, where he worked in the kitchen 
and enjoyed sticking meat with knives in order to watch the blood 
squirt. SF 2800-01, 2807. A few years after his release, he had 
hung his girlfriend by her heels over a banister and threatened 
to drop her. SF 2622. He had subsequently stood on this woman's 
stomach and raped her at gunpoint. SF 2628-33. Yet after the second 
set of murders he had gone to the police, confessed, stated that 
he was tired of killing innocent people, and asked to be taken 
out of society. SF 2514, 2695, 2705. Even one of the prosecution's 
expert witnesses, while contending that Kenneth Granviel was 
sane, conceded that he had "certain schizoid personality charac­
teristics" and a "suicidal ideation" in which he spoke, of setting 
himself on fire. SF 2893.

22



The defense psychiatrist who diagnosed Mr. Granviel as para­
noid schizophrenic readily conceded that he is a dangerous indivi­
dual, SF 2709, 2719, and the prosecution stressed that concession 
in summation at the penalty trial. SF 3291-92. Hut in a fair, 
rational, constitutionally adequate capital sentencing proceeding, 
the inevitable finding of dangerousness should not have been the 
sole determinant of life or death for Kenneth Granviel. In vir­
tually every state other than Texas, it would not have been.

In this case, the jury was required to ignore the extensive 
record of mental abnormality in weighing petitioner's fate.
Kenneth Granviel's obvious dangerousness automatically terminated 
the inquiry, permitting no opportunity for the jury to accord 
independent mitigating weight to evidence that his dangerousness 
resulted from a severe mental disorder. To execute Mr. Granviel
based upon such a narrow, limited inquiry clearly violates the

22/
Eighth and Fourteenth Amendments. Lockett v. Ohio, suora.

22/ The Texas Court of Criminal Appeals, in rejecting petitioner's state habeas corpus petition, stated that Art. 37.071(b) "does not 
prevent the jury from considering a defendant's mental condition 
as a mitigating factor." Ex Parte Granviel. 561 S.W.2d 503, 516 
(Tex. Crim. App. 1978). However, as demonstrated in Part I, supra, 
there is simply no room in the statute for such consideration.
The jury is asked only whether the defendant is dangerous; a "yes" 
answer to that question controls, even if the defendant's dangerous- 
ness is the result of mental illness.

We emphasize that the constitutional defect here was precluding 
the jury from even considering evidence of mental illness as miti­
gating. Since two prosecution experts had diagnosed petitioner as 
sane, SF 2892-95, 2975-77, the jury in a constitutionally adequate 
sentencing proceeding would still have been free to weigh the evidenc 
submitted by both sides. But the Texas statutory scheme prevented 
the sentencing inquiry from even reaching that stage in this case, 
by impermissibly rendering petitioner's evidence of mental illness 
totally irrelevant as a factor in mitigation of punishment.

23



IV

Although the Supreme Court of the United States has upheld 
the constitutionality of the Texas death sentencing statute, Jurek 
v. Texas, 428 U.S. 262 (1976), it has never passed upon the ap­
plication of that statute to the issue presented here. Since 
Jerry Lee Jurek did not attempt to establish in mitigation that 
he was insane or otherwise mentally ill, the Court simply had no 
occasion to consider the problem. The present record, on the
other hand, starkly demonstrates the shortcomings of the statute23/
in its application to this particular defendant.

Thus, a reversal in this case is entirely consistent with
Jurek. Petitioner does not here Question the constitutionality

’ 24/
of the Texas death sentencing statute on its face, nor does he

23/ As the Court noted in Jurek. a Texas capital defendant may 
argue that he is not dangerous by showing that the killing resulted 
from extreme mental or emotional pressures which were "more than 
the emotions of the average man, however inflamed, could withstand." 
Jurek v. Texas, supra. 428 U.S. at 273 (1976) (plurality opinion), 
quoting Jurek v. State, 522 S .W.2d 934, 940 (Tex. Crim. App. 1975). 
That observation, of course, is totally irrelevant to this case. 
Petitioner's mental illness does not render him non-dangerous; it 
makes him dangerous.
2_4/ But see Lockett v. Ohio. supra, 438 U.S. at 623 (dissenting 
opinion of Mr. Justice White)("the plurality strains very hard and 
unsuccessfully to avoid eviscerating its handiwork in ... Jurek 
v. Texas") ; id. at 630 (dissenting opinion of Mr. Justice Rehnquist). 
In view of the Lockett plurality's stress upon according "inde­
pendent mitigating weight" (id.. at 6 05) to "independently mitigating 
factor [s]" (id., at 607), a system that channels all consideration of mitigation into a single statutory question concerning probable 
future aangercusness may indeed be constitutionally suspect.

24



contend that the statute is being applied generally in an arbi-25/
trary and capricious manner. Our point is simply that the
statute's application in the case of Kenneth Granviel cannot 
survive scrutiny under the Eighth and Fourteenth Amendments.

In Jurek v. Texas, supra. 428 U.S. at 271 (plurality opinion), 
the Supreme Court held that "[a] jury must be allowed to consider 
on the basis of all relevant evidence not only why a death sen­
tence should be imposed, but also why it should not be imposed."
In this case, Texas precluded the jury from even considering the 
principal reason why the penalty of death should not be imposed. 
That reason is deeply rooted in Anglo-American jurisprudence, and 
is considered significant by the sentencing authority in virtually 
every state other than Texas. Under these circumstances, the 
sentence imposed upon Kenneth Granviel cannot stand.

CONCLUSION

This Court should reverse the order below dismissing ap­
pellant's habeas corpus petition and should grant habeas corpus

25/ cf. Spinkellink v. Wainwright, 578 F.2d 582, 604-05 (5th Cir. 
1978) .



relief vacating the unconstitutional sentence of death imposed 
upon him.

Dated:

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT, III 
JOEL BERGER 
JOHN CHARLES BOGER 
DEBORAH FINS

10 Columbus Circle Suite 2030
New York, New York 10019

ANTHONY G. AMSTERDAM
Stanford University Law School Stanford, California 94305

ATTORNEYS FOR THE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC.

New York, New York 
June 14, 1979

26



CERTIFICATE OF SERVICE

I, JOEL BERGER, hereby certify that on June 14, 1979, I 
served a copy of the within Brief of Amicus Curiae NAACP Legal 
Defense and Educational Fund, Inc., upon counsel for respondents- 
appellees by depositing same in the United States mail, first 
class mail, postage prepaid, addressed as follows: Hon. Mark
White, Attorney General of the State of Texas, Supreme Court 
Building, P.0. Box 12548, Austin, Texas 78711 (Attention: Anita
Ashton, Esq., Assistant Attorney General); and upon counsel for 
petitioner-appellant by depositing same in the United States mail, 
first class mail, postage prepaid, addressed as follows: Frank
Sullivan, Esq., 807 Mallick Tower, One Summit Avenue, Fort Worth 
Texas 76102.



1978] Capital Sentencing 791

PUBLIC ATTITUDES
Early History of the Law of Mitigation. In the July 2 Cases,
“history and traditional usage” provided significant source material 
for the interpretation of the eighth amendment.133 The inattention of 
early commentators to the role of mental abnormality as a mitigating 
factor in capital cases135 136 and the limited data available for 
reconstructing that role,137 however, restrict any historical analysis. 
Nonetheless, clear evidence indicates that, since the medieval period, 
Anglo-American law has accepted special treatment, and often has 
permitted mitigation, when a criminal is afflicted with a mental 
abnormality.

As early as the eleventh and twelfth centuries, English law treated 
mad “felons” with a leniency not accorded ordinary offenders.138 
When trial by petit jury became the usual method of determining 
guilt, mad offenders were subject to conviction, but could be declared 
mad to facilitate a grant of pardon or a reduction of punishment.139 
Bracton’s thirteenth century commentary justified this mitigation of 
punished by his madness.140 By the reign of Edward I, mitigation of

135. Woodson v. N'orth Carolina. 428 U.S. at 288, 239-93 (history and traditional usage 
important measures of social values regarding mandatory death sentences); see Gregg v. 
Georgia, 428 U.S. at 173. 176-89 (history and precedent major considerations in determining 
whether capital punishment is per se unconstitutional). For a general delineation of the sources 
of public attitudes recognized in the July 2 Cases, see notes 35-39 supra and accompanying text.

136. See 1 N. Walker. Crime and Insanity in England 17-18, 26 (1968).
137. See E. Powers. Crime and Punishment in Early Massachusetts 529 (1966) (court 

records provide inadequate information). The primitive state of the psychological profession 
before the twentieth century precludes inquiry into the early categorization of mentally 
disordered offenders beyond the general groupings of madmen and lunatics.

138. Madmen who committed serious offenses were spared from trial by ordeal because they 
were believed to be morally blameless. 1 N. W A L K E R , supra note 136, at 18. Instead, the 
madman's family was required to restrain him and to pay compensation to the victim. Id. at 26.

139. Id  at 26-27. Because juries and judges believed they lacked sufficient authority to 
interfere with the normal course of the law, only the King could mitigate the prescribed 
punishment by excusing the deranged "felon” from mandatory penalties. Id. at 24. 26; cf. 3 W. 
Holds worth. H istory of English Law 371 (3d ed. 1923) (the canon law imposed liability for 
all acts, unless the act itself clearly demonstrated absence of moral responsibility).

140. Henerici de Bracton excused children from punishment because they lacked the intent 
to commit a crime, but excused madmen from punishment because of the misfortune of their 
fate. 2 11. Bracton. On the Laws ami Customs of England 384 (P. Thorne trans. 1968). 
Hracton’s views are premised on two different theories of justice: that justice exists in each 
individual as his moral conscience; and that God, as the source of all justice, will grant each 
person his just deserts. See id. at 23 ljustice is disposition by God to each person according to 
merit and by will of just man to do right). Although arguably inconsistent with moral notions of 
responsibility and intent, the rise in England of the expiatory justification for mitigation based on 
mental disorder coincided with the development of the morally based requirement of intent 
for criminal liability. See 1 N. Walker, supra note 136, at 27. Moreover, the expiatory 
view for a time became dominant and replaced earlier moralistic justifications for mitigation. See 
id. (mentioning the reappearance of expiatory view in writings of Fleta, Coke, and Hunte); note 
138 supra; notes 227-37 infra and accompanying text.

A 1



792 The Georgetown La w Journal [Vol. 66:757

punishment for madmen had become commonplace.141
As England’s criminal justice system formalized, the defendant’s 

abnormal mental condition eventually became an absolute defense to 
criminal punishment—first in pardon proceedings and later in the 
initial determination of guilt.142 Although the procedural form of 
applying differential treatment changed, and its theoretical justifica­
tion shifted from the expiatory notion that the madman was punished 
by his madness to the moral and utilitarian views that the madman 
cannot be blamed or deterred,143 the proposition of special treatment 
retained vitality through the seventeenth and eighteenth centuries in 
the writings of Coke,144 145 Sir Matthew Hale,143 and Blackstone.146

Unrestricted by the narrow application of the insanity defense in 
English courts,147 148 the Scots, led by Sir George Mackenzie, sought a 
more rational procedure for according differential treatment. 
Mackenzie proposed that lesser forms of mental disorder that 
impaired the defendant’s reason but did not warrant the absolute 
defense of insanity should moderate punishment proportionately.14®

141. N. Hi 'rnaro, Thf. Kings P ardon for Homicide Before A.D. 1307 159, 161 (1969). 
Insanity was not viewed as an excuse for crime, but deranged criminals were protected from 
punishment for felonious actions. Id. at 170; see 3 W. Holdsworth. supra note 139, at 372 (by 
the reign of Edward I (1272-1307), infancy, lunacy, misadventure, and self-defense merited 
mitigation of punishment). By 1300, pardons were so common that pretrial release of accused 
madmen was a regular feature of the criminal justice system. N. HURNARD. supra at 161.

142. Holdsworth places the advent of the insanity defense during the reign of Edward III 
(1327-77). 3 W. Hoi.iisworth. supra note 139, at 372 & n.9; cf. Kennvs Outline of Criminal 
Law 75 n.5(!7th ed. 1958) (citing a 1313 case in which the acts of deranged offender found not 
to constitute a felony). Walker places the first clear acquittal on grounds of insanity at 1505. 1 N. 
Wai.kf.r. supra note 136, at 25-26.

143. See 1 N. Walker, supra note 136, at 247. Adherents of the utilitarian and moral views 
differed on the justification for special treatment of the mad offender. The former felt that 
deterrence was inapposite; the latter believed that the madman was guiltless. Compare 3 E. COKE. 
Institutes of the Laws of England 6 (E. Brooke & R. Brooke ed. 1797) (execution of mad 
offenders cannot deter others) with 4 W. BLACKSTONE. Commentaries *24 (madmen suffer 
defective or vitiated understanding, which excuses them from guilt).

144. See 3 E. COKE, supra note 143, at 6.
145. See 1 M. Hale. Histohia P i.acitorum CoronaK *30 (total alienation of the mind, or 

perfect madness, excuses the offender from guilt).
146. See 4 W. BLACKSTONE. supra note 143 , at *24 . Although Blackstone stated the principle 

of law as furiosus furore solum punitur (a madman is punished by his madness alone), his 
explanation indicates that he did not adhere solely to an expiatory view. He also believed that 
the madman's impaired or defective understanding excused him from guilt. Id.

147. See Kenny's Outline of Criminal Law. supra note 142, at 76 (as late as 1724, English 
courts refused to apply formal insanity defense unless offender s understanding and reason 
equivalent to that of brute or wild beast); 1 N. VValKKR. supra note 136. at 38 (same).

148. 2 G. Mackenzie. Works 58 (Edinburgh 1722) ("|S|ince the law grants a total immunity 
to such as are absolutely furious therefore it should by the rule of proportions lessen and 
moderate the punishment of such, as though they are not absolutely mad yet are Hypochondrick 
and Melancholy to such a degree, that it clouds their reason . . .."). Mackenzie s proposal was

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1978] Capital Sentencing 793

In Scotland, Mackenzie’s view developed into the practice of 
requiring the judge or jury to determine the defendant’s state of mind 
after conviction so that the appropriate punishment would be 
imposed.149 This practice gradually evolved into the more formal 
doctrine of “diminished capacity,” which was incorporated into the 
jury charge on determination of guilt.150 Although the English law did 
not incorporate Scotland’s expeditious mitigatory procedure of 
diminished responsibility until 1957,151 Mackenzie’s proposal was 
avidly discussed.132 And even so ardent a supporter of capital 
punishment as Sir James Stephen admitted that “the ends of justice” 
often required judicial discretion to reduce sentences on the basis of 
mental disorder.153

Similarly, in American law strong sentiment existed for mitigated 
punishment when defendants suffered from mental disorders that did 
not constitute legal insanity. In the colonial period, the criminal law in 
practice accepted milder forms of derangement as mitigatory fac­
tors.134 By the turn of the twentieth century, moreover, several state * 136

premised on the Roman expiatory view that the madman was punished by his madness. See 1 N. 
Walker, supra note 136. at 139-40. Thus, Mackenzie reasoned that offenders suffering from less 
severe derangements should be excused from punishment in proportion to the suffering that 
resulted from their mental condition. Id.

149. See A. Alison. Principles OF the Criminal Law of Scotland 652 (Edinburgh 1832) (a 
defendant completely deprived of reason will be excused from all punishment; defendant 
suffering from a mixture of guilt and madness should receive recommendation for royal mercy); 1 
B. Hume. Commentaries on the Law of Scotland Respecting the Description and 
PUNISHMENT OF CRIMES ch. 1 (Edinburgh 1797) (by eighteenth century, courts mitigated 
punishment sua sponte without requiring application for royal pardon); 1 N. Walker, supra note
136, at 140-42 (sentencing for crimes for which courts could control severity of punishment 
could be reduced without resort to pardon process).

150. See H.M. Advocate v. Dingwall, 5 Irvine 466, 479 (1867) (jury could return verdict on 
murder charge or could find culpable homicide only if defendant's mental state warranted it); 1 
N. Walker, supra note 136, at 144-45 (diminished capacity defense first applied in 1844; 
unclear whether doctrine applied to mitigation of punishment, to reduction of offense, or to 
both). See generally notes 244-46 infra and accompanying text.

151. See The Homicide Act, 1957, 5 & 6 Eliz. 2, c. 11, § 2 (person suffering from abnormality 
of mind that impairs mental responsibility for acts shall not be convicted of murder).

152. See 1 N. WaI.kf.R. supra note 136. at 147 (early twentieth century commissions studying 
reform of English criminal law discussed diminished responsibility as alternative to defense of 
insanity); cf. 8 VV. HoI.dswokth. supra note 139, at 441 (advances in medical science by 1923 
require more merciful treatment of insane persons by the law).

153. 2 J. Stephen. A Histohy of the Criminal Law of England 89 (1883) (citing case of 
woman who suffered epileptic fits that permanently impaired her powers though not constituting 
legal insanity).

154. See E. Powers, supra note 137, at 529 (mentally disturbed offenders were allowed 
special allowances and dispensations in Massachusetts Bay Colony); H. Rankin. Criminal T rial 
Proceedings in the General Court of Colonial Virginia 113 n.60 (1965) (Virginia Council 
recommended pardon when madman was convicted).

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794 The G eorgetown La w Journal [Vol. 66:757

supreme courts allowed introduction of evidence concerning the 
defendant’s mental state in determining the grade of offense.135

Contemporary Anglo-American Positive Law of Mitigation. These
historical antecedents help to explain why the contemporary positive 
law of the United States and many other countries recognizes mental 
disorder as a circumstance in mitigation of the death penalty. 
Several statutory reform commissions, most notably the American 
Law Institute in its Model Penal Code, suggest not only that a 
defendant’s mental disorder should qualify as one item on statutory 
lists of mitigating factors, but that mental disorder should be 
considered in death penalty decisions even if other factors are 
ignored.154 The position of these law reform commissions has received 
increasing acceptance among drafters of capital sentencing systems. 
Of the thirty-one American jurisdictions that have retained or 
redrafted death penalty statutes since the July 2 Cases,151 twenty-four 
have explicitly listed mitigatory factors that must be considered by 
the sentencing authority, including some form of mental disorder.158

155. See Andersen v. State, 43 Conn. 514, 526 (1876) (failure in murder trial to admit 
evidence of defendant's maniacal behavior for determining degree of crime held erroneous); 
Hempton v. State. 111 Wis. 127, 135. 85 N.W. 596, 598 (1901) (same). A jury charge in an 1873 
Connecticut case permitted the jury to acquit a mentally disordered defendant if it found him 
incapable of fully controlling his actions. State v. Richards, 39 Conn. 591, 595 (1873).

156. See Moukl Penal Cook § 210.6(4)(g) (Proposed Official Draft 1962) (including mental 
disease or defect impairing capacity to appreciate criminality of act in list of mitigatory 
circumstances); id. § 4.02(2) (Proposed Official Draft 1962) (special section specifying only 
evidence of mental disease or defect admissible to support reduction of death sentence); Royal 
Commission on Capital Punishment Report 121-22 (1953) (special treatment of mentally 
defective offenders should be extended to capital cases; question whether to make such 
extension discretionary reserved).

157. See notes 158-59 infra and accompanying text tlisting statutes currently in effect). In late
1977 the statutes of two jurisdictions were ruled unconstitutional by state supreme courts. See 
State v. Duren, 547 SAV.2d 476, 480 (Mo. 1977) (death sentence provision of Mo. Rev. Stat.

5509.05, 550.009 iSupp. 1975) held unconstitutional); Commonwealth v. Moody, 22 ClilM. 
L. Rep (BNA) 2249, 2249 (Pa. Sup. CL Nov. 30, 1977) (18 Pa. Cons. Stat. Ann. § 1311(d)(2) 
(Purdon Supp. 1977) held unconstitutional). Recently, the Maryland legislature enacted a new 
death penalty statute. 1978 Md. Laws ch. 3 (to be codified as Ml). Ann. Code art. 27, § 412).

158. 49 U.S.C. S 1473(c)(6) (Supp. V 1975); Ala. Cope tit. 13, § 11-7 (1975); Amz. Rev. 
Stat. § 13-454 (1956 & Supp. 1977), transferred and renumbered as § 1.3-902 by 1977 Ariz. 
Sess. Laws. ch. 142, § 58; Ark. Stat. Ann. § 41-1304 (1977); 1977 Cal. I.egis. Serv. ch. 316 
(West), (amending Cal. Penal Code § 190.3 (West Supp. 1976)); Colo. Rev Stat. § 16-11- 
103(5) (Cum. Supp. 1976); Conn. Gen. Stat. Ann. § 532-462(0 (West Supp. 1978); Fla. Stat. 
Ann. § 921.141(4) (West Supp. 1976); III. Ann. Stat. ch. 38, § 9- 1(c) (Smith-Hurd Supp. 
1977); Lnd. CODE Ann § 35-50-2-9(c) (Bums Cum. Supp. 1977); Ky. Rev. S'I’AT. 
§ 532.025(2)(b) (Interim Supp. 1977); La. Code Chim. P ro. Ann. art. 905.5 (West Supp. 1977);
1978 Md. Laws ch.3 (to be codified as Ml). Ann. Code art. 27, § 413(G)); 1977 Mo. Laws Act 11. 
§ 5.3 (amending Mo. Ann. Stat. i?§ 559 (Vernon Supp. 1975)); Neb. Rev. Stat. § 29-2525(2) 
(1975); 1977 N.H. Laws ch. 440.2; N.C. Gf.N. Stat. § 15A-2000 (Cum. Supp. 1977); Ohio Rev.

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