Correspondence from Lani Guinier to Chambers, Williams, Schnapper, Hair, Karlan, Ellis, Patrick, Reed, and Berger Re Fourth Circuit Decision, Collins v. City of Norfolk

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 82-2324

RANDY GLENN GREEN,
Petitioner-Appellant,

versus
W.J. ESTELLE, JR., Director,
Texas Department of Corrections,

Respondent-Appellee.

On Appeal from the United States District Court for the 
Southern District of Texas 

Houston Division

BRIEF FOR PETITIONER-APPELLANT

JACK GREENBERG 
JOEL BERGER 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

ANTHONY G. AMSTERDAM
New York University School of Law 
40 Washington Square South 
New York, New York 10012

ATTORNEYS FOR PETITIONER-APPELLANT



STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Rule 13.6.4 of the Rules of this Court, petitioner- 
appellant requests oral argument of this appeal.

This is an appeal from the denial of a habeas corpus petition 
in a death case. The District Court below found that petitioner's 
Fifth and Sixth Amendment rights under Estelle v. Smith, 451 U.S.
454 (1982), had been violated by the prosecution's use of the 
results of a routine pretrial competency and sanity evaluation at 
the penalty phase of petitioner's trial, but nonetheless denied 
relief on grounds of procedural forfeiture. Petitioner believes 
that under the facts and circumstances of this case, considered in 
light of the applicable decisions of the Supreme Court, this Court 
and the Texas Court of Criminal Appeals, no procedural forfeiture 
may be imposed.

The resolution of this issue is obviously of the utmost im­
portance to Mr. Green, as his very life depends upon it. Accordingly, 
petitioner respectfully requests oral argument.



TABLE OF CONTENTS

Page

STATEMENT OF JURISDICTION .................................. 1

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

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

SUMMARY OF ARGUMENT ..................................     20
ARGUMENT ...................................................  21

PETITIONER'S OBVIOUSLY VALID CLAIM UNDER 
ESTELLE V. SMITH, 451 U.S. 454 (1981),
MAY NOT BE REJECTED ON GROUNDS OF
PROCEDURAL FORFEITURE ................    21

CONCLUSION .....................................;........... 34

- ii -



TABLE OF CITATIONS

CASES PAGE

Adams v. Texas, 448 U.S. 38 ( 1980) ..........................  30
Anderson v. State, 381 So. 2d 1019 (1980) ...................  23
Armstrong v. State, 502 S.W.2d 731 (Tex. Crim. App. 1973) .... 29
Barr v. State, 359 So. 2d 334 (1978) ............ ............ 23
Battie v. Estelle, 655 F . 2d 692 ( 5th Cir. 1931) .............  32
Beck v. Alabama, 447 U.S. 625 (1980) ........................  30,32,33
Bell v. Ohio, 438 U.S. 637 (1978) ...........................  30
Brandon v. State, ___ S.W.2d ___, No. 59,348 (Tex. Crim.

App. June 2, 1982) .................................... 20,25,26
Braxton v. Estelle, 641 F.2d 392 ( 5th Cir. 1981) ............  26
Bullington v. Missouri, 451 U.S. 430 (1981) .................  30
Burns v. Estelle, 592 F.2d 1297 (5th Cir. 1979), adhered to en

banc, 626 F. 2d 396 (5th Cir. 1980) .....................  26
Cessna v. State, 381 So. 2d 173 (1980) ......................  23
Chapman v. California, 386 U.S. 18 (1967) ...................  27
Clark v. State, 627 S.W.2d 693 (Tex. Crim. App. 1981) .......  24
Collins v. State, 361 So. 2d 333 ( 1978) ......................  23
Davis v. Georgia, 429 U.S. 122 (1976) ........................  30
Eddings v. Oklahoma, ___ U.S. ___, 71 L.Ed.2d 1 (1982) ......  30,33
Engle v. Isaac, ___ U.S. ___, 71 L.Ed.2d 783 (1982) .........  29,30
Enmund v. Florida, __ U.S. ___, 73 L.Ed.2d 1140 (1982) ......  30
Estelle v. Smith, 451 U.S. 454 (1981)   passim
Ex Parte Demouchette, 633 S.W.2d 879 (Tex. Crim. App. 1982) .. 26
Ex Parte English, __ S.W.2d ___  No. 68,953 (Tex. Crim. App.

Sept. 15, 1982) ......................................... 26

- iii -



CASES PAGE

Gardner v. Florida, 430 U.S. 349 (1977) ...................  30,32,33
Gator v. State, 402 So. 2d 316 (1981)  ..................  23
Gholson v. Estelle, 675 F . 2d 734 (5th Cir. 1982) ............  32,33
Gholson v. State, 542 S.W.2d 395 (Tex. Crim. App. 1976) ___ 29
Godfrey v. Georgia, 446 U.S. 420 (1980) ....................  30
Gray v. State, 375 So. 2d 994 (1979) ........................ 23
Green v. Georgia, 442 U.S. 95 (1979) .......................  30
Green v. State, 587 S.W.2d 167 (Tex. Crim. App. 1979) ....... 3,17
Harrison v. United States, 392 U.S. 219 (1968) ............  24
Henry v. Wainwright, ___ F.2d ___, No. 80-5184 (5th Cir.

Sept. 20, 1982) ....................................... 26,27
Hollins v. State, 340 So. 2d 438 (1976) ......... .......... 23
Huffman v. Wainwright, 651 F.2d 347 (5th Cir. 1981) .......  27
Kirby v. Illinois, 406 U.S. 682 (1972) ....................  23
Livingston v. State, 542 S.W.2d 655 (Tex. Crim. App. 1976) . 29
Lockett v. Ohio, 438 U.S. 586 ( 1978) ........... ........... 30,32
May v. State, 398 So. 2d 1331 (1981) ......................  23
Miller v. Estelle, 677 F.2d 1080 (5th Cir. 1982) ..........  26
Moore v. Illinois, 434 U.S. 220 (1977) ....................  23
Moran v. Estelle, 607 F.2d 1140 (5th Cir. 1979) ............ 26
Presnell v. Georgia, 439 U.S. 14 (1978) .............. . 30
H. Roberts v. Louisiana, 431 U.S. 633 (1977) ............. 30
S. Roberts v. Louisiana, 428 U.S. 325 (1976) ........... 30
Schneckloth v. Bustamonte, 412 U.S. 218 ( 1973) ............  30

IV



CASES PAGE

Shippy v. State, 556 S.W.2d 246 (Tex. Crim. App. 1977) .....  29
Smith v. Estelle, 602 F.2d 694 (5th Cir. 1979) .............  21,28,30,

31,32
Spivey v. Zant, 661 F.2d 464 ( 5th Cir. 1981) ............ . 24
Thompson v. Estelle, 642 F.2d 996 (5th Cir. .1981) ..........  26
Thompson v. State, 621 S.W.2d 624 (Tex. Crim. App. 1981) .... 29
Von Byrd v. State, 569 S.W.2d 883 (Tex. Crim. App. 1978) .... 29
Wilder v. State, 583 S.W.2d 349 (Tex. Crim. App. 1979) .....  29
Williamson v. State, 330 So. 2d 272 (1976) ....... -.......... 23
Woodson v. North Carolina, 428 U.S. 280 (1976) .............  30,32

STATUTES

Tex. Code Crim. Pro. Art. 37.01 ............................. 4
28 U.S.C. §2253 .................. ..........................  1

v



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 82-2324

RANDY GLENN GREEN,
Petitioner-Appellant,

versus
W.J. ESTELLE, JR., Director,
Texas Department of Corrections,

Respondent-Appellee.

On Appeal from the United States District Court for the 
Southern District of Texas 

Houston Division

BRIEF FOR PETITIONER-APPELLANT

STATEMENT OF JURISDICTION

The Court's jurisdiction to hear this appeal from the denial of 
habeas corpus relief in the District Court rests upon 28 U.S.C. 
§2253. The requisite certificate of probable cause was granted by 
the District Court on August 3, 1982 (R. 2).~

1/ Numbers preceded by "R." refer to pages of the Record on Appeal 
to this Court.



ISSUE PRESENTED

Whether petitioner's obviously valid claim under Estelle v. 
Smith, 451 U.S. 454 (1981), may be rejected on grounds of pro­
cedural forfeiture.

2



STATEMENT OF THE CASE

COURSE OF PRIOR PROCEEDINGS

On November 14, 1977, at a jury trial in the 178th Judicial 
District Court of Harris County, Texas, petitioner was convicted of 
capital murder. On November 18, 1977, the jury answered "yes" to 
the special issues determinative of sentence in Texas capital cases, 
and petitioner was sentenced to die. The Texas Court of Criminal 
Appeals affirmed petitioner's conviction and death sentence on 
October 3, 1979. Green v. State, 587 S.W.2d 167. Certiorari was 
denied on June 29, 1981. 453 U.S. 913.

On October 20, 1981, petitioner filed a petition for a writ of 
habeas corpus in the 178th Judicial District Court of Harris County, 
Texas. The following day that court certified that in its view 
there were no issues of fact requiring an evidentiary hearing, and 
transmitted the matter to the Texas Court of Criminal Appeals. On 
October 26, 1981, the Court of Criminal Appeals denied habeas corpus 
relief.

The instant federal habeas corpus petition, raising issues 
identical to those contained in the state habeas corpus proceeding, 
was filed on October 26, 1981. By Memorandum and Order filed June 
15, 1982, the District Court (Hon. Robert J. O'Conor, Jr.) denied 
relief (R. 43-56). Rehearing was denied on July 6, 1982 (R. 25).

On August 3, 1982, the District Court granted a certificate of 
probable cause to appeal and leave to appeal in forma pauperis (R. 
2), and stayed petitioner's execution pending appeal (R. 1).

3



STATEMENT OF FACTS

Petitioner was convicted and sentenced to die for the murder of 
a Baytown, Texas tavern owner. The victim died of injuries sustained 
when he was beaten in the course of a robbery of his tavern on the 
night of June 28, 1976.

Immediately following petitioner's conviction on November 14,
1977, a penalty trial was conducted before the same jury pursuant to

„ . 2/Tex. Code Crim. Pro. Art. 37.071.“ At the outset of this proceeding
the prosecution established that on November 5, 1976, petitioner had
pleaded guilty to the murder of a woman in Mississippi and had been

3/sentenced to life imprisonment (SF 2959-66).“ The Mississippi 
offense was committed in Yazoo City, petitioner's home town, approxi­
mately one month after the Baytown, Texas offense (SF 2963). The 
penitentiary packet introduced by the prosecution as proof of the

2/ In this proceeding, the State had the burden of proving beyond a 
reasonable doubt that the answer to each of the following questions was "yes":

(1) whether the conduct of the defendant that 
caused the death of the deceased was com­
mitted deliberately and with the reason­
able expectation that the death of the de­
ceased or another would result;

(2) whether there is a probability that
the defendant would commit; criminal acts 
of violence that would constitute a conti­
nuing threat to society.

A "yes" answer to both questions results in a mandatory death sentence.
3/ Numbers preceded by "SF" refer to pages of the statement of 
facts of the state trial court record in this case. Page references 
are to numbers stamped in the lower left hand corner of each page.

4



Mississippi conviction reflects that petitioner had no criminal 
record prior to the Mississippi offense. (State's Exhibit 121, 
second page, admitted into evidence at SF 2966, reproduced in the 
record at SF 3419.)

Other than the Mississippi offense, the State's entire case at 
the penalty phase consisted of the testimony of Dr. Donald C. Guild, 
a psychiatrist (SF 2990-3029), and Dr. Charlton S. Stanley, a psy­
chologist (SF 3030-3114). These two doctors, employees of a 
Mississippi state mental hospital (SF 2994, 3059-60), had interviewed 
petitioner at that hospital pursuant to the order of a Mississippi 
court requesting an evaluation of petitioner's competency to stand 
trial in the Mississippi case and his sanity at the time of that 
offense (SF 3086-89, 3105, 3422). The interviews took place between 
August 30, 1976 and October 14, 1976, the period of petitioner's 
confinement in the hospital (SF 3033). At this time petitioner was
already under indictment in the Baytown, Texas case, the indictment

4/having been filed on August 11, 1976 (SF 6).-
Pstitioner has alleged in the instant habeas corpus proceeding, 

and the State has not denied, that prior to the interviews Doctors 
Guild and Stanley did not advise petitioner that he had a right to

4/ Petitioner was arrested in Yazoo City, Mississippi on August 1,
1976 (SF 2982, 2984), and charged with the Mississippi offense 
shortly thereafter. Detectives from Baytown, Texas arrived in Yazoo 
City on August 3, 1976, and obtained a statement from petitioner 
that evening (SF 2686, 2715, 2750). A felony complaint in the 
Baytown case was filed on August 3, 1976 (SF 5, 124, 2785), and the 
indictment was returned eight days later (SF 6). However, petitioner 
apparently was not released to Texas authorities until after disposition 
of the Mississippi case in November 1976. His first recorded appea­
rance in a Texas court on the Baytown case took place on March 4,
1977 (SF 124-25); the first recorded appearance of counsel in the case also occurred on that date (ibid.).

5



remain silent, that anything he said to the doctors might be used
against him at the penalty phase of a capital trial, and that he had
a right to consult with counsel before submitting to the interviews

5/(R. 157-58, 98, 86-87, 77).“
Dr. Guild testified that he interviewed petitioner on at least

four occasions during petitioner's confinement in the hospital (SF
3005), that petitioner was "cooperative" with him (SF 3018), and
that he asked petitioner "questions that would be pertinent to a
courtroom about incidents that occurred" including questions about
"the facts of the crime in Mississippi" (SF 2993, 3028). The doctor
concluded that petitioner has an "anti-social personality" (SF 3007,
3022), a diagnosis which he defined as follows:

anti-social personality is a person who again 
comes in repeated contact with the law, has dif­
ficulty with having morals, allegiance or al­
liance with any group or organization, a per­
son who sort of doesn't have a conscience in 
the usual sense that we think of a conscience 
to sort of tell us what's right and wrong, a 
sense of values, religious principals, ethics, 
scruples, ... people who more or less operate on a day-to-day basis, more self-centered....
... they generally look out for themselves quite 
a bit more than the average person does.

(SF 3008).

5/ The State's Motion to Dismiss and Answer, while never alleging 
affirmatively that petitioner received such warnings, stated that 
Dr. Stanley had testified that "he was conscious of the Fifth Amend­
ment" and that "there was an attorney present during his interview 
with petitioner" (R. 98). Reference to Dr. Stanley's testimony 
establishes that the attorney in question was from the State Board 
of Mental Health, sent to provide legal guidance to the hospital 
staff (SF 3049), and that at no time did Dr. Stanley claim to have 
administered any Fifth or Sixth Amendment warnings to petitioner 
(ibid). The State did not claim in opposition to petitioner's 
motion for summary judgment that any such warnings were given (R.
77, 79); and the District Court found no evidence in the record that 
petitioner received such warnings (R. 46).

6



Dr. Guild testified, based upon "what I know from my evaluation 
personally" (SF 3011) together with the prosecutor's description of 
the Baytown, Texas offense, that petitioner had committed the of­
fense deliberately (ibid.) and that "there's just no reason to believe
that acts like this or similar or violent acts are not going to

6/happen again" (SF 3012). The doctor further stated that peti­
tioner "did not display remorse or guilt as most people would expect 
[of] a normal person.... [T]his is tantamount to an anti-social 
personality" (SF 3019).

Doctor Stanley, the psychologist, testified that he interviewed 
petitioner personally and evaluated a series of psychological tests 
administered to petitioner under the doctor's "direct and personal 
supervision" (SF 3032, 3033). Petitioner resisted the examination 
at first, but later became cooperative after being told by the 
examiner administering the tests that his resistance "wouldn't get 
him anywhere" (SF 3035).

The doctor concluded, based upon his evaluation of the tests, 
that petitioner is "an unquestionably dangerous man" (SF 3048). He 
diagnosed petitioner as "an anti-social or psychopathic personality 
with some traits of a paranoid personality.... He is in no way 
psychotic" (ibid.).

6/ Defense counsel objected to this testimony, stating as follows: 
"In the first place, that's a matter for the jury to determine. In 
the second place, the question fails to include all of the facts as 
shown by the evidence. Furthermore, he didn't ask the doctor his 
opinion based on reasonable medical certainty. He didn't take into 
consideration that Randy Green had been drinking beer all day and 
there at the lounge. He left that out and that's material, Your 
Honor" (SF 3012). The objection was overruled (ibid.).

7



Dr. Stanley elaborated upon his findings in far greater detail 
than Dr. Guild. He found petitioner to be "relatively free of the 
constraints on his actions that we normally call conscience" (SF 
3036). He accused petitioner of being "a profoundly oppositional 
and negativistic person" (SF 3038) with "tremendous hostility"
(SF 3039). "He generally does not act out in blind and helpless 
rage, but rather any aggressive acting out would be the result of 
deliberate actions on his part" (SF 3039). Dr. Stanley believed 
that petitioner "seems unwilling or unable to accept personal re­
sponsibility for those things in his life that he regards as per­
sonal failures" (SF 3040), and that "[pjersons like this do not 
learn from their experiences that they cannot engage in bad behavior 
and avoid punishment. It will always be that it was someone else's 
fault" (SF 3041).

Dr. Stanley testified that one of the tests showed "a typical 
anti-social personality pattern" (SF 3043), which he defined as a 
person who

doesn't have the usual controls on their beha­
vior that most of us do. They aren't bothered 
by what other people's feelings might be. The 
attitude of the anti-social personality or psycho­
path is that it's me first and to hell with the rest.

(SF 3043). He stated that if petitioner "couldn't get anything 
fairly quickly by being nice" to people, he would "probably get ugly 
with them" and have "no pity for them" (SF 3044). He reported that 
on one of the tests petitioner "frankly admitted to having committed 
a murder ... when he was asked about it" (SF 3047), and that on 
another test petitioner had answered "true" to the question "[some­
times I feel I must injure either myself or others" (SF 3046). The

8



psychologist concluded that petitioner "is shown to be immature, is 
hostile, is aggressive, and perfectly in control of his thinking"
(SF 3048), and is a dangerous anti-social or psychopathic personality 
(ibid.).

At this point in Dr. Stanley's testimony, the prosecutor elicited 
a rendition of specific statements made by petitioner to the doctor 
concerning the Mississippi offense (SF 3050-52). Defense counsel 
objected and moved

to strike ail this testimony out in view of the 
fact that this was a confidential relationship 
between a patient and his psychologist, and this 
defendant was sent to the hospital under a Court 
order, and this is nothing more than a viola­
tion of the Fifth Amendment of the [C]onstitution, 
telling this defendant to testify against him­
self, and this came in the nature of a confi­
dential consultation, and we move to strike all 
of this testimony and ask the Court to instruct 
the jury to disregard it.

(SF 3052)(emphasis added). The prosecutor then offered the following: 
"If the Court would strike from the record at the point where he 
started going into the details [of the Mississippi offense], I will 
withdraw my question at that point and go on to something else" (SF 
3053). However, defense counsel did not accept this offer and stated 
that "[w]e again renew our motion to instruct the jury to disregard 
all the testimony from the witness" (SF 3053), stressing that peti­
tioner's communications with a doctor conducting an examination 
pursuant to court order were confidential (SF 3053-54). The trial 
court overruled the objection (SF 3054), instructing the jury only 
that "the State has withdrawn the last question asked of the witness 
as to responses of the defendant and any other question asked by this 
witness of the defendant concerning his actions as to any other

9



offense. Those matters are all withdrawn from your consideration 
and are not to be considered by the jury for any purpose whatsoever 
in arriving at your verdict" (SF 3054-55).

Dr. Stanley then testified that "[b]asea on the psychological 
report and in reviewing the record in its totality, ... I do not see 
any hope of change in Mr. Green's behavior" (SF 3055), and that 
"[r]ehabilitation of a person with this particular personality pat­
tern is not reported in the scientific literature, to my knowl­
edge.... I have looked but I have never come across it" (ibid.).
He concluded, based upon his evaluation of petitioner together with 
the prosecutor's description of the Baytown, Texas offense (SF 3056- 
58), that petitioner "knew exactly what he was doing" when he com­
mitted the offense and that "he understood the nature and conse­
quences of his acts at that moment in time. It's my opinion that he 
could tell the difference between right and wrong and could have 
followed the right had he so chosen" (SF 3058). The doctor further 
testified, again on the basis of both his evaluation and the facts 
of the crime (SF 3058), that "[t]he probability is overwhelming that 
such acts could be expected in the future" (SF 3059).

On cross examination, defense counsel asked Dr. Stanley whether 
petitioner could conform his conduct to rules and regulations in a 
structured environment (SF 3082-83). The psychologist responded 
that "if ... we could get one of the tackles from the Astros [sic] 
to stand at his elbow, he could conform I think but I don't see that 
as very likely" (SF 3083). Defense counsel then confronted the 
doctor with Dr. Guild's case notes, introduced in evidence as De­
fendant's Exhibit 3 (SF 3094), reflecting that "[d]uring his course

10



in the hospital, Mr. Randy Green has been quiet and well behaved at 
all times and caused no difficulty to anyone. He has associated 
with other patients and interacted quite well causing no difficulty 
and demonstrating an ability to interact with others in a structured 
environment quite well" (SF 3090, 3423). Dr. Stanley at first tried 
to explain this statement by claiming that his hospital has superior 
security arrangements (SF 3091-93), but ultimately conceded that he 
agreed with Dr. Guild's position (SF 3094, 3097). He added, how­
ever, that while petitioner had conformed well during his six weeks 
at the hospital, "I don't know what he. would do over a seven-week 
period, eight-week period, a year, I don't know" (SF 3097).

When asked on re-direct whether petitioner would be a threat to 
persons smaller than him in prison, Dr. Stanley replied that "based 
on primarily my psychological tests and the history I have been 
given, which we all know contains episodes of violent acting out 
when he's annoyed or frustrated, I would think that other prisoners 
would have reason to have some concern for their welfare" (SF 3107- 
OS) .

* * * *

The defense at the penalty trial called petitioner's wife, 
mother, father, aunt, former common-law wife, and former common-law 
wife's sister, all of whom testified that petitioner had suffered 
from chronic alcoholism for the past several years. Several of 
these witnesses also testified that petitioner had been drinking 
very heavily on the day of the Baytown offense.

Mrs. Sharon Ann Green, petitioner's wife, testified that on the 
day in question petitioner consumed twelve bottles of beer and a

11



fifth of Seagrams V-0 whisky before noon (SF 3120-25, 3133). He
left the house at noon and returned around 3-4 P.M., at which time

7/he drank another fifth of whisky (SF 3126, 3134). Mrs. Green 
testified that petitioner had been drinking at this pace (between a 
fifth and a half-gallon of whisky per day) nearly every day from the 
date of their marriage on October 23, 1975 to the date of the Baytown 
offense on June 28, 1976 (SF 3127-29, 3134-35, 3138). The couple 
had lived together during this entire period except for a one month 
separation (SF 3132, 3135). Mrs. Green stated that petitioner rarely 
ate food, because "most of the time he was drinking so he didn't 
eat" (SF 3138).

Mrs. Jeanne Parnell, the sister of petitioner's former common-
law wife, corroborated Mrs. Green's testimony concerning the extent
of petitioner's consumption of alcohol on the date of the offense
(SF 3181-82), and added that she had given petitioner approximately

8/six additional beers at her house on that date (SF 3287). Mrs. 
Parnell had seen petitioner several times on that date, and every 
time she saw him he had been intoxicated (SF 3283-84, 3287-88).
During her three months of being a neighbor of Mr. Green in Baytown, 
she had seen petitioner every day (SF 3280); on each occasion peti­
tioner "was drinking from the time he got up until the time he went 
to bed" (SF 3283) .

Ms. Haroline Hester, petitioner's former common-law wife, had 
lived with him in Baytown during the period of his brief separation

7/ At the guilt trial, a prosecution witness testified that peti­
tioner additionally consumed between three and six beers just before 
and during commission of the offense that night (SF 2554-55).
8/ Petitioner and Mrs. Green lived in a garage apartment 30 feet 
behind the house in which Mrs. Parnell resided with her husband in 
Baytown (SF 3280).

12



from Mrs. Green; they were together until only three weeks before 
the date of the offense (SF 3162). Ms. Hester corroborated the 
testimony of Mrs. Green and Mrs. Parnell as to petitioner's chronic 
drinking, stating that he had consumed one to two fifths of liquor 
every day during this period and was drunk each day (ibid.). She 
added that petitioner had also been drinking to this extent when she 
lived with him in Yazoo City, Mississippi in 1974 (SF 3162-64).

Mrs. Gloria Hearne, petitioner's aunt, testified that she had 
known him for 18 years and had become very close with him after 
moving to Yazoo City in 1971 (SF 3268-69); they lived only a mile 
apart, and visited each other frequently (SF 3770). Mrs. Hearne 
stated that petitioner began drinking heavily after Christmas of 
1973, when he went through a divorce from his first wife (SF 3270). 
From then on he would drink over a fifth of hard alcohol every day 
in the afternoon and evening, as well as beer (SF 3270-71). When 
drunk, petitioner would "fly off the handle very easily over very 
minor things" (SF 3272). However, when not drinking he was "a very 
congenial and lovable person" (SF 3271).

Petitioner's mother and father similarly testified to petitioner's 
heavy drinking (SF 3159, 3276-77). Mr. James Green, the father, 
agreed with Mrs. Hearne that the drinking began after petitioner's 
separation from his first wife (SF 3276). Mr. Green stated that 
when petitioner was drinking he'd be "quick-tempered" and "high 
strung," and it would take "just a very little to upset him" (SF 
3277); but "[w]hen he's sober, he's friendly, a gentleman" (ibid.).

Defense testimony at the penalty phase established that petitioner 
has two boys from his first marriage, ages 5 and 4, and that both

13



have been adopted by petitioner's parents (SF 3144-45). He also has 
a boy, age 3, from his relationship with Haroline Hester; the boy 
lives with Ms. Hester in Yazoo City, and petitioner contributes 
support for him (SF 3144-45, 3161, 3164). In addition, petitioner 
has a two year old boy and a one year old girl from his present 
marriage; both live with Mrs. Green in Yazoo City, and petitioner 
has helped support them (SF 3131).

To refute the testimony of Doctors Guild and Stanley, the 
defense called two psychologists. One of these psychologists, Dr. 
David Gerard Ross Pascal, had examined petitioner at age 13 when 
petitioner had developed emotional problems as a child (SF 3155-56, 
3178-80); after this 3-hour interview in 1968, Dr. Pascal had not 
seen petitioner again except for a brief conversation just prior to 
his testimony (SF 3184-85, 3196). Dr. Pascal testified that exces­
sive consumption of alcohol had triggered petitioner's commission of 
the Baytown offense (SF 3189), and that petitioner had not acted 
deliberately (SF 3193). He further stated that if petitioner were 
to be confined in a structured environment and denied access to 
alcoholic beverages, petitioner would not be prone to commit cri­
minal acts of violence in the future (SF 3190-91, 3195). Dr. Pascal 
disagreed with the diagnosis of Doctors Guild and Stanley, stating 
that "I wouldn't call Randy a sociopath" (SF 3198).

Dr. Richard G. Jones, also called by the defense, had inter­
viewed petitioner the month before trial and had administered a 
series of psychological tests (SF 3217-18, 3243-44). Dr. Jones 
concluded that petitioner had not acted deliberately at the time of 
the offense because he had been in a severe state of intoxication 
(SF 3228-32). The doctor further believed that the probability of

14



petitioner committing future criminal acts of violence would be 
"minimal" if he were to be denied the use of alcohol (SF 3239-40), 
that petitioner's alcoholism could be cured in prison (SF 3240-41) 
and that petitioner would behave properly in a structured, institu 
tional environment (SF 3242). Dr. Jones tentatively diagnosed pet 
tioner as an "explosive personality" (SF 3237), a person whose 
"general behavior is mild in manner and appropriate" (SF 3241) but 
who tends to lose control under conditions of extreme fatigue or 
extreme frustration and especially under conditions of extreme 
intoxication (SF 3239). The doctor explained that "explosive per­
sonality" is a recognized diagnostic term (SF 3237). He disagreed 
with the diagnosis of Doctors Guild and Stanley, stating that peti 
tioner is not a sociopath because his conduct is not sufficiently 
calculated to fit within that diagnosis:

He does have some behavioral characteristics 
that fit the anti-social personality, but the 
thing that strikes me about his history is the 
tendency, even from very early years, of being 
erratic, unpredictable, changeable, very, very 
nice guy, easy to get along with, happy one 
moment and then blowing up, firing up, getting 
angry, getting into fights at school, or com­
mitting some impulsive act. Now from a diag­
nostic viewpoint, this particular type of per­
sonality structure is described as an explosive 
personality.

(SF 3237) .

* * * *

During summation at the penalty phase, the prosecutors relied 
extensively upon the testimony of Doctors Guild and Stanley:

[T]he doctors have told you [he] is an anti­social personality, has no feelings of guilt, has no remorse, cannot be rehabilitated, that

15



he's going to do it again whether it's in pri­
son —  remember the doctor [Stanley] said the 
other prisoners in that society would be in 
danger.... The only person that he won't kill 
is someone bigger than he is...

(SF 3320) ;
He has no feelings. They [the doctors] told 
you that. He has no mercy. He has no compas­
sion. He has no remorse. He has no guilt, 
and ... he will do it again.

(SF 3321);
Dr. Guild and Dr. Stanley had this man under 
hospital testing for six weeks. They studied 
him. They ran every test they know about, 
mental, physical, neurological, and Dr. Guild 
and Dr. Stanley came back and told you based 
on their tests ... that Randy Green, in the 
words of Dr. Guild, [is] a firecracker, a man 
who has no conscience, who is anti-social, a 
sociopath, has no feelings at all ...

(SF 3328);
Dr. Guild and Dr. Stanley had no doubt. They 
told you. They told you that although he uses 
alcohol, that alcohol is not what made Randy 
Glenn Green do these acts, that Randy Glenn 
Green is the sort of person who is careful about 
his acts, he is the sort of person who is deli­
berate about his acts.... Also they told you 
that Randy Green can't learn from experience. 
Remember Dr. Stanley telling you that he has 
done extensive research into the sort of psycho­
logical make-up that this man has, and through­
out ail his research and all his reading, there 
is not one reported case of any rehabilitation 
of a person like Randy Glenn Green. It can't 
be done with his sort of person ... [W]e asked 
the two doctors is there a probability that 
this defendant would commit criminal acts of 
violence which would constitute a continuing 
threat to society. Dr. Guild told you there was 
definitely a probability and Dr. Stanley told 
you there was an overwhelming probability.

(SF 3329) ;

16



... Dr. Guild and Dr. Stanley spent so long 
and were so careful and did so many tests, so 
they could come in and say positively in their 
opinion based on scientific evidence.

(SF 3330) .
The jury, after deliberating for a total of 7 hours and 15 

minutes (SF 137), answered the special sentencing issues "yes" and 
petitioner was sentenced to die (SF 94, 101, 114).

* * ★ *

On appeal to the Texas Court of Criminal Appeals, petitioner 
was represented by Kenneth R. Valka, one of his trial attorneys, by 
appointment of the trial court (SF 120). Mr. Valka did not argue on 
appeal that the introduction of the testimony of Doctors Guild and 
Stanley at the penalty phase violated petitioner's rights under the 
Fifth and Sixth Amendments to the Constitution of the United States.
On October 3, 1979, the Court of Criminal Appeals affirmed petitioner's 
conviction and death sentence. Green v. State, 587 S.W.2d 167 (Tex. 
Crim. App. 1979) .

After the decision of the Court of Criminal Appeals, Mr. Valka 
declined to continue representing petitioner. On certiorari peti­
tioner was represented by Charles W. Mealin, a volunteer attorney.
Mr. Medlin's certiorari petition, filed 44 days out-of-time, did not 
challenge the admissibility of the testimony of Doctors Guild and 
Stanley on Fifth and Sixth Amendment grounds. Certiorari was denied 
on June 29, 1981. 453 U.S. 913.

Subsequent to the denial of certiorari, the state trial court 
set an execution date of October 28, 1981. On October 20, 1981, Mr. 
Mediin filed a state habeas corpus petition alleging, inter alia,

17



that the doctors' testimony violated petitioner's Fifth and Sixth 
Amendment rights (R. 157-58, 160-63). The petition further alleged 
that petitioner's Sixth Amendment right to effective assistance of 
counsel had been violated by several derelictions of duty by his 
former attorneys (R. 158-59, 165-66). On October 21, 1981, the day 
after the petition was filed, the state trial judge certified that 
in his view there were no issues of fact requiring an evidentiary 
hearing. Five days later, on October 26, 1981, the Texas Court of 
Criminal Appeals denied habeas corpus relief. Later that same day 
Mr. Medlin filed a federal habeas corpus petition, raising issues 
identical to those advanced in the state petition, and the District 
Court granted a stay of execution (R. 151).

The District Court's order staying petitioner's execution 
scheduled a hearing for January 4, 1982 (R. 151). The hearing was 
subsequently rescheduled for April 5, 1982 (R. 115). However, on 
March 22, 1982, Mr. Medlin filed a motion for summary judgment in 
which he contended that no genuine issues of fact existed as to any 
of the claims raised in the habeas corpus petition and that petitioner 
was entitled to judgment as a matter of law (R. 86-92). The motion 
contended that as to the issue challenging the admissibility of the 
testimony of Doctors Guild and Stanley on Fifth and Sixth Amendment 
grounds, petitioner was entitled to relief under the recent decision 
of the Supreme Court of the United States in Estelle v. Smith, 451 
U.S. 454 (1981) (R. 86-87). The State's response to the motion 
argued that summary judgment was inappropriate on both the Estelle 
v. Smith and ineffective assistance of counsel issues (R. 77, 81).

18



On June 15, 1982, the District Court issued a Memorandum and 
Order denying habeas corpus relief (R. 43-56). The Court stated at 
the outset that "[b]y agreement of the parties," the petition would 
be decided on cross-motions for summary judgment (R. 43). The Court 
agreed with petitioner's contention that the testimony of the State's 
doctors had violated petitioner's Fifth and Sixth Amendment rights 
(R. 44-46), but held that trial counsel's failure to interpose a 
contemporaneous objection precluded the granting of federal habeas 
corpus relief (R. 46-50). The Court further held that petitioner 
had not been denied the effective assistance of counsel (R. 52-54).

In support of a petition for rehearing, Mr. Medlin filed a 
statement confessing that he "did not realize that the record alone 
... would be insufficient to support a finding ... of ineffective 
assistance of counsel" (R. 28). Mr. Medlin relied upon numerous 
decisions of this Court, not previously cited by him, holding that a 
federal habeas corpus petitioner has a right to a hearing on a claim 
of ineffective assistance of counsel (R. 28). Mr. Medlin stated 
that, "[i]n light of current counsel of record's failure to cor­
rectly perceive this issue, he feels that other counsel would better 
represent RANDY GLENN GREEN" (ibid.). He urged that rehearing be 
granted to allow new counsel to pursue the issue of ineffective 
assistance at an evidentiary hearing (R. 29).

On July 6, 1982, the District Court denied rehearing without 
opinion (R. 25). On August 3, 1982, the Court granted a certificate 
of probable cause and leave to appeal in forma pauperis (R. 2), and 
stayed petitioner's execution during the pendency of the appeal (R.
1) .

19



SUMMARY OF ARGUMENT

Petitioner's Fifth and Sixth Amendment rights under Estelle v. 
Smith, 451 U.S. 454 (1981), were violated when Doctors Guild and 
Stanley testified for the prosecution at the penalty phase, on the 
basis of pretrial interviews they conducted with petitioner without 
first advising him that he had a right to remain silent, that any­
thing he said might be used against him at the penalty phase of a 
capital trial, and that he had a right to consult with counsel be­
fore submitting to the interviews.

The District Court erred in rejecting petitioner's Smith claim 
on grounds of procedural default, because 1) under Brandon v. State,
___ S.w.2d ___, No. 59,348 (Tex. Crim. App. June 2, 1982), Texas has
no "contemporaneous objection" rule with respect to Smith error; 2) 
defense counsel did preserve a Fifth Amendment objection to all of 
Dr. Stanley's testimony; and 3) to execute petitioner despite vio­
lation of the fundamental rights declared in Smith, and despite the 
fact that a successful objection at trial was totally foreclosed by 
repeated decisions of the Texas Court of Criminal Appeals, would 
result in a manifest injustice.

20



ARGUMENT

PETITIONER'S OBVIOUSLY VALID CLAIM UNDER 
ESTELLE V. SMITH, 451 U.S. 454 (1981),
MAY NOT BE REJECTED ON GROUNDS OF 
PROCEDURAL FORFEITURE

I

In Estelle v. Smith, 451 U.S. 454 (1981), the Supreme Court of 
the United States dealt with a Texas prosecutor's use of the very 
same sort of psychiatric testimony employed in this case to secure a 
'sentence of death. Ernest Benjamin Smith, Jr., had submitted to a 
routine pretrial competency evaluation by a psychiatrist without 
being first warned by the doctor that his statements could form the 
basis of testimony to be used against him at the penalty phase, or 
that he had a right to remain silent. Also, as in this case, Smith 
had been deprived of the opportunity to have the advice of counsel 
in determining whether or not to submit to such an interview, even 
though he was under indictment at the time the doctor conducted the 
examination. A unanimous Supreme Court, affirming this Court's 
decision in Smith v. Estelle, 602 F.2d 694 (5th Cir. 1979), held 
that the use of psychiatric testimony obtained in this manner vio­
lated Smith's rights under the Constitution of the United States.

The Supreme Court's opinion in Smith, written in exceedingly 
blunt and uncompromising judicial language, squarely condemned the 
Texas practice of utilizing the accused's unwarned and uncounseled 
interviews with psychiatrists to meet the State's burden of proof at 
the penalty phase of capital trials. Those words of condemnation

21



bear repeating here, because they describe equally well what the 
State of Texas did to Randy Glenn Green in this case and why it was 
so fundamentally unjust. Here, as in Smith, Mr. Green was made the 
"'deluded instrument' of his own execution." 451 U.S. at 462. His 
responses to the questions of Doctors Guild and Stanley, "unwittingly 
made without an awareness that he was assisting the State's efforts 
to obtain the death penalty," id. at 466, were used by the prosecution 
to meet its statutory burden of proving deliberate conduct and pro­
bable future dangerousness at the penalty trial. When the doctors 
"went beyond simply reporting to the court on the issue of competence 
and testified for the prosecution at the penalty phase ..., [their] 
role changed and became essentially like that of an agent of the 
State recounting unwarned statements made in a post-arrest custodial 
setting." I_d. at 467. Since petitioner "did not voluntarily con­
sent to the pretrial psychiatric examination[s] 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" without violating his 
rights under the Fifth Amendment. Id. at 468.

Furthermore, as in Smith, Mr. Green was not accorded the assis­
tance of counsel "in making the significant decision of whether to 
submit to the examination[s]" of Doctors Guild and Stanley, and was 
deprived of the opportunity for consultation with counsel concerning 
"to what end the psychiatrist[s'] findings could be employed." Id. 
at 471. Because a capital defendant already under indictment may 
not be denied the "'guiding hand of counsel'" on such a crucial 
"'life or death matter'" as the decision whether or not to talk to

22



doctors like Donald C. Guild and Charlton S. Stanley,- their testi-
10/mony also violated petitioner's Sixth Amendment rights. Ibid.

The State argued in the District Court that by calling two 
psychologists to refute the testimony of Doctors Guild and Stanley,

9/ As employees of a state mental hospital, Doctors Guild and Stanley 
testify regularly for the State in Mississippi criminal proceedings. 
See Gator v. State, 402 So. 2d 316 (1981); May v. State, 398 So. 2d 
1331 (1981); Anderson v. State, 381 So. 2d 1019 (1980); Cessna v. 
State, 381 So. 2d 173 (1980); Gray v. State, 375 So. 2d 994, 1003 
(1979)(capital case); Collins v. State, 361 So. 2d 333 (1978); Barr 
v. State, 359 So. 2d 334 (1978); Hollins v. State, 340 So. 2d 438 
(1976); Williamson v. State, 330 So. 2d 272 (1976)(testimony as to 
any inculpatory statements made by defendant to doctor deemed inad­
missible) .
10/ Petitioner was indicted in the instant case on August 11, 1976 
(SF 6), nearly a month before the doctors began their evaluation.
The Supreme Court in Smith explicitly held that a defendant is en­
titled to counsel at this stage of a criminal proceeding. See 
Estelle v. Smith supra, 451 U.S. at 469-70 and cases cited therein.
As the Court stated in Kirby v. Illinois, 406 U.S. 682, 689-90 
(1972)(plurality opinion), one of the cases relied upon in Smith:

The initiation of judicial criminal pro­
ceedings is far from a mere formalism. It is 
the starting point of our whole system of ad­
versary criminal justice. For it is only then 
that the government has committed itself to 
prosecute, and only then that the adverse posi­
tions of government and defendant have solidi­
fied. It is then that a defendant finds him­
self faced with the prosecutorial forces of 
organized society, and immersed in the intri­
cacies of substantive and procedural criminal 
law. It is this point, therefore, that marks 
the commencement of the "criminal prosecutions" 
to which alone the explicit guarantees of the 
Sixth Amendment are applicable.

This is why the Court has repeatedly held that the Sixth Amendment 
right to counsel "attaches . . . 'at or after the initiation of 
adversary judicial criminal proceedings —  whether by way of formal 
charge, preliminary hearing, indictment, information, or arraign­
ment.'" Moore v. Illinois, 434 U.S. 220, 226 (1977), quoting Kirby 
v. Illinois, supra, 406 U.S. at 689.

23



petitioner rendered the testimony of the prosecution's doctors harm­
less as a matter of "settled state law" (R. 106). However, Texas 
law requires precisely the opposite result. In Clark v. State, 627 
S.W.2d 693 (Tex. Crim. App. 1981), the Court of Criminal Appeals 
held, under identical circumstances, that a capital defendant's 
presentation of psychiatric testimony after the prosecution's doctor 
has testified in violation of Smith does not render Smith error 
harmless. The Court declared that "the introduction of evidence 
seeking to meet, destroy or explain erroneously admitted evidence 
does not waive the error or render the error harmless." Id. at 696. 
The rule in the Supreme Court of the United States is the same. 
Harrison v. United States, 392 U.S. 219 (1968). And this Court has 
recently held that even where the State's doctor ultimately testi­
fies in rebuttal, after the defense has gone forward with expert 
testimony, Smith is still violated if the defendant was denied his 
Sixth Amendment right to the assistance of counsel at the time of
the State's doctor's examination. Spivey v. Zant, 661 F.2d 464,

11/473-76 (5th Cir. 1981).—

II

The District Court recognized the validity of petitioner's 
Smith claim (R. 44-46), but nonetheless rejected it upon the sole

11/ The State also contended below that the testimony of Doctors 
Guild and Stanley was harmless because petitioner's psychological 
experts essentially agreed with their testimony. Nothing could be 
farther from the truth. As demonstrated in the Statement of Facts, 
pp. 14-15, supra, the psychologists called by petitioner disagreed 
with Doctors Guild and Stanley as to the correct clinical diagnosis 
and also disagreed with them as to the correct answers to the statu­
tory sentencing questions which determined under Texas law whether 
petitioner would live or die.

24



ground that the claim had not been properly preserved by a contem­
poraneous objection. This holding was incorrect for at least three 
separate reasons.

First and foremost, the Texas Court of Criminal Appeals has 
expressly held, in plain and unambiguous language, that defense 
counsel's failure to interpose an objection does not result in a
waiver of the rights recognized in Smith. In Brandon v. State, ___
S.W.2d ___, No. 59,348, slip op. at pp. 1-2 (Tex. Crim. App. June 2,
1982), that Court stated:

Judgments of death will be reversed when 
the appellate record shows that the defendant's 
Fifth or Sixth Amendment objections to ...
[psychiatric testimony at the penalty phase 
of a capital prosecution] were overruled despite 
the State's failure to show that the proper warnings 
had been given and that the assistance of counsel 
had been made available. Fields v. State, 627 
S.W.2d 714 (Tex. Cr. App. 1982); Clark v. State,
627 S.W.2d 693 (Tex. Cr. App. 1981); Thompson v.
State, 621 S.W.2d 624 (Tex. Cr. App. 1981).
Even when the appellate record does not show 
such an objection, relief from judgments of 
death will be granted in cases in which such 
testimony was used when it is shown by post­
conviction proceedings that the proper warnings 
were not given or that the assistance of counsel 
was not made available. Estelle v. Smith, 451 
U.S. 454 (1981); Battie v. Estelle, 655 F.2d 
692 (5th Cir. 1981); Ex parte Demouchette, [633]
S.W.2d [879, 881 n.1] (Tex. Cr. App., No. 68940,
May 26, 1982).

12/(emphasis added). Since, as Brandon establishes, there is no
"contemporaneous objection" rule in Texas with respect to Smith 
error, the absence of an objection at petitioner's trial obviously 
would not bar the granting of federal habeas corpus relief pursuant

12/ For the Court's convenience, the full text of the as-yet un­
published Brandon opinion is annexed to this brief as Appendix A.

25



to Smith. See Miller v. Estelle, 677 F.2d 1080, 1084 (5th Cir.
1982); Thompson v. Estelle, 642 F.2d 996, 998 (5th Cir. 1981); 
Braxton v. Estelle, 641 F .2d 392, 394 (5th Cir. 1981); Moran v. 
Estelle, 607 F .2d 1140, 1141-42 (5th Cir. 1979); Burns v. Estelle, 
592 F.2d 1297, 1301-02 (5th Cir. 1979), adhered to en banc, 626 F.2d 
396 (5th Cir. 1980).

This Court has only recently held that even where a state
supreme court's decisions are ambiguous concerning application of
contemporaneous objection rules, this Court wiil presume that the
merits are being reached in the absence of express holdings to the
contrary. Henry v. Wainwright, ___ F.2d ___, No. 80-5184, slip op.
at 15617 (5th Cir. Sept. 20, 1982)(on remand from the Supreme Court
of the United States). Here, given Texas' unequivocal declaration
in Brandon that it does not apply a contemporaneous objection rule
to defeat Smith claims, the District Court clearly erred in finding

13/a procedural forfeiture.
Secondly, defense counsel at petitioner's trial did object to 

the testimony of Dr. Stanley on Fifth Amendment grounds. Counsel 
stated that Dr. Stanley's testimony was "nothing more than a vio­
lation of the Fifth Amendment of the [C]onstitution, telling this

13/ The rule articulated in Brandon has also been applied by the 
Court of Criminal Appeals to invalidate death sentences pursuant to 
Smith in Ex Parte Demouchette, 633 S.W.2d 879, 881 n.l (Tex. Crim.
App. 1982), and Ex Parte English, ___ S.W.2d ___, No. 68, 953 (Tex.
Crim. App. Sept. 15, 1982)(although the Court's opinion does not 
mention the absence of a contemporaneous objection, the trial 
court's Findings of Fact clearly state (finding #23, p.3) that no 
such objection was raised; for this Court's convenience, the as-yet 
unpublished opinion in English and the trial court's Findings of 
Fact are annexed to this brief as Appendix B).

26



defendant to testify against himself" (SF 3052). And a moment later 
counsel asked the trial judge to strike "all the testimony from this 
witness" on the basis of the objection just stated (SF 3053). Al­
though the defense attorney's objection to Dr. Stanley's testimony 
was also based on the doctor-patient privilege and the fact that the 
doctor's examination of petitioner had been ordered solely to exa­
mine his competency, the Fifth Amendment clearly was mentioned as 
one of the grounds for the objection.

This Court recently held in another death case, where counsel
totally failed to object to a constitutional defect but had registered
a proper objection to a similar defect earlier in the trial, that no
procedural forfeiture had occurred. Henry v. Wainwright, supra,
slip op. at 15616. Surely, where counsel interposes an objection
that specifically encompasses the appropriate constitutional provision
as one of the grounds for relief, habeas corpus should not be denied.
See Huffman v. Wainwright, 651 F.2d 347 (5th Cir. 1981), and cases 

14/cited therein.

14/ Concedely, counsel in this case did not object on constitu­
tional grounds to the testimony of the State's other psychiatrist,
Dr. Guild. But if Dr. Stanley's testimony is held violative of 
Smith, Dr. Guild's testimony hardly renders the constitutional error 
harmless. Dr. Stanley's testimony was by far the more detailed of 
the two, running nearly twice the transcript length of Dr. Guild's. 
And in summation the prosecution relied heavily upon the fact that 
both doctors had reached the identical conclusion (SF 3328-30).
(They had actually differed in one crucial respect: only Dr. Stanley
testified that petitioner would behave violently in prison, SF 3090- 
97, 3107-08, 3320.) Petitioner's own two expert witnesses testified 
in diametric opposition to Doctors Guild and Stanley on the critical 
issues. (See p. 24 n. 11, supra.) The State could not seriously 
contend in any case of conflicting expert testimony, let alone a 
death case in which the jury deliberated at sentencing for 7 1/4 
hours (SF 137), that Dr. Guild's testimony alone would render the 
unconstitutional admission of Dr. Stanley's testimony harmless 
beyond a reasonable doubt. Chapman v. California, 386 U.S. 18 
(1967).

27



Finally, even if Texas had a contemporaneous objection rule 
with respect to Smith error, and even if defense counsel had totally 
failed to object, Randy Glenn Green could not be sent to his death 
on the basis of a procedural forfeiture of the fundamental rights 
declared in Smith. In Smith itself there was no contemporaneous 
objection on any constitutional ground, yet both this Court and the 
Supreme Court held that the federal habeas corpus petitioner in that 
case was entitled to relief. This Court expressly stated that the 
failure of Smith's attorney to object did not constitute a procedural 
default, and gave three "sufficient" answers to the State's waiver 
argument. One of those answers, that a successful objection was 
foreclosed under existing state law, Smith v. Estelle, 602 F.2d 694, 
708 n.19, suffices to establish that the District Court erred in its 
finding of a waiver in the present case. The Supreme Court'expressly 
ratified the reasoning of footnote 19 of this Court's Smith decision. 
451 U.S. at 468 n.12. .

The manifest injustice that would follow from holding petitioner 
to have waived Smith error here is especially apparent from analysis 
of the decisions of the Texas courts during the period surrounding 
his trial. While as a general proposition contemporaneous objections 
may encourage state courts to re-examine prior decisions (see Respon­
dent's Supplemental Motion to Dismiss in the District Court below,
R. 66), that concept has iittle meaning when measured against the 
reality of the Texas Court of Criminal Appeals' decisions of 1973-79 
upholding the practice ultimately invalidated in Smith. During that 
period the Court of Criminal Appeals repeatedly rejected the claims 
of Texas capital defendants that the prosecution's use in penalty

28



trials of psychiatric testimony based upon routine pretrial 
examinations violated the Fifth and Sixth Amendments. See, e.g., 
Armstrong v. State, 502 S.W.2d 731, 734-35 (Tex. Crim. App. 1973); 
Livingston v. State, 542 S.W.2d 655, 661-62 (Tex. Crim. App. 1976); 
Gholson v. State, 542 S.W.2d 395, 399-401 (Tex. Crim. App. 1976);
Shippy v. State, 556 S.W.2d 246, 254 (Tex. Crim. App. 1977); Von 
Byrd v. State, 569 S.W.2d 883, 897 (Tex. Crim. App. 1978); Wilder v. 
State, 583 S.W.2d 349, 358 (Tex. Crim. App. 1979). Only after Smith 
was finally decided by the highest court in the land did the Court 
of Criminal Appeals finally relent, and then only because "the 
Supreme Court, in its role as the ultimate expositor of the United 
States Constitution, ha[d] spoken otherwise." Thompson v. State,
621 S.W.2d 624, 626 (Tex. Crim. App. 1981). Thus, it is clear that 
constitutional challenges to prosecutorial psychiatric testimony at 
the penalty phase were totally foreclosed in the courts of Texas -- 
no matter how many times the Court of Criminal Appeals might be 
afforded an opportunity to re-examine its decisions.

In Smith, a unanimous Supreme Court categorically held that 
constitutional rights basic to the fairness of a capital sentencing 
proceeding had been violated by the Texas practice of using routine 
pretrial psychiatric examinations against capital defendants. Surely 
petitioner should not now be sent to his death "the 'deluded instru­
ment' of his own execution," Estelle v. Smith, supra, 451 U.S. at 
462, solely because his trial lawyer failed to interpose a ritualistic 
objection which under Texas law the trial court was required to
reject summarily. In Engle v. Isaac, ___ U.S. ___, 71 L.Ed.2d 783,
805 (1982), the case primarily relied upon by the District Court

29



below (R. 48-49), the Supreme Court noted that "principles of comity
and finality[,] ... [i]n appropriate cases ...[,] must yield to the
imperative of a fundamentally unjust incarceration." In death cases,
where the Supreme Court has consistently demanded especially ex-

15/acting standards of fairness, those principles must yield to the 
imperative of a fundamentally unjust death sentence brought about by 
the defendant's unwarned and uncounseled cooperation with the pro­
secution's psychiatrists. Estelle v. Smith, supra, 451 U.S. at 466-
71. 16/

As this Court declared in its Smith opinion:
If the state is entitled to compel a defen­

dant 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 under­
standing. It can coerce him in any way that 
does not make his statements less useful to 
the interrogating psychiatrist. Psychologi­
cal pressure, sharp practices, and deceit are 
likely to be, in effect, the means of compel-

1 5 / Enmund v. Florida, U.S. , 73 L.Ed.2d 1140 (1982); Eddinqs
v. Oklahoma, ___ U.S. ___, 71 L.Ed.2d 1 (1982); Estelle v. Smith,
supra; Bullington v. Missouri, 451 U.S. 430 (1981); Adams v. Texas,
448 U.S. 38 (1980); Beck v. Alabama, 447 U.S. 625 (1980); Godfrey v. 
Georgia, 446 U.S. 420 (1980); Green v. Georgia, 442 U.S. 95 (1979); 
Presnell v. Georgia, 439 U.S. 14 (1978); Lockett v. Ohio, 438 U.S.
586 (1978); Bell v. Ohio, 438 U.S. 637 (1978); H. Roberts v. Louisiana, 
431 U.S. 633 (1977); Gardner v. Florida, 430 U.S. 349 (1977); Davis 
v. Georgia, 429 U.S. 122 (1976); Woodson v. North Carolina, 428 U.S.
280 (1976); S. Roberts v . Louisiana, 428 U.S. 325 (1976).
16/ The State certainly cannot rely upon one of the other major 
policy considerations underlying Isaac, i.e., that limiting federal 
habeas corpus litigation will encourage a prisoner to accept his 
sentence and "look forward to rehabilitation and becoming a con­
structive citizen." Engle v. Isaac, supra, 71 L .Ed. 2d at 800 n.
31, quoting Schneckloth v. Bustamonte, 412 U.S. 218, 262 (1973)
(Powell, J., concurring). Id. at 800 n. 32. That concept obviously 
has no applicability to capital cases, in which the condemned habeas 
petitioner faces death rather than rehabilitation if he is foreclosed 
by rules of procedural forfeiture from raising a valid constitutional claim.

30



ling examinations. These tactics are inhe­
rently discriminatory. A knowledgeable de­
fendant, or one with vigilant attorneys, will 
either simply refuse to submit to an examina­
tion or will bargain with the state to have 
the examination conducted by a psychiatrist 
who is more likely to favor the defense. Only 
defendants who do not know better will allow 
themselves to be examined by psychiatrists 
antecedently favorable to the state.

We have every reason, therefore, to give 
effect to the apparent command of the fifth 
amendment and to hold that a defendant may not 
be compelled to speak to a psychiatrist who 
can use his statements against him at the 
sentencing phase of a capital trial. If a 
state wishes to prove a defendant's propensity 
to commit future crimes of violence by using 
evidence gathered at a psychiatric examination, 
the defendant must voluntarily consent to the 
examination. It follows that Judge Porter 
was correct when he held that if a defendant 
indicates that he wishes to remain silent,
"he may not be questioned by the psychiatrist 
for the purpose of determining dangerousness."
Judge Porter also held that the defendant must 
be warned that he had a right to remain silent; 
since Smith was in custody when he was inter­
viewed, this holding too was correct.

602 F.2d 707-708 (footnote omitted);
[The decision whether or not to submit to a 
psychiatric examination in a capital case] is 
a vitally important decision, literally a life 
or death matter. It is a difficult decision 
even for an attorney; it requires a knowledge 
of what other evidence is available, of the 
particular psychiatrist's biases and predilec­
tions, of possible alternative strategies at 
the sentencing hearing. For a lay defendant, 
who is likely to have no idea of the vagaries 
of expert testimony and its possible role in 
a capital trial, and who may well find it dif­
ficult to understand, even if he is told, 
whether a psychiatrist is examining his compe­
tence, his sanity, his long-term dangerousness 
for purposes of sentencing, his short-term 
dangerousness for purposes of civil commit­
ment, his mental health for purposes of treat­
ment, or some other thing, it is a hopelessly

31



difficult decision. There is no reason to 
force the defendant to make it without "the 
guiding hand of counsel." Powell v. Alabama,
287 U.S. 45, 57, 53 S.Ct. 55, 77 L .Ed. 158 
(1933).

Id. at 708-09. This Court has consistently adhered to the funda­
mental principles of Smith in its subsequent decisions, rejecting 
numerous arguments presented by the Texas Attorney General in an 
effort to limit and weaken Smith1s safeguards. See Battie v. 
Estelle, 655 F.2d 692 (5th Cir. 1981); Gholson v. Estelle, 675 F.2d 
734 (5th Cir. 1982).

To hold that petitioner may be executed merely because his 
attorney failed to interpose a meaningless objection would seriously 
undermine the policies articulated by this Court and by the Supreme 
Court's equally sweeping, unanimous holding in Smith. Use of such 
a super-technical rule of procedural forfeiture' to defeat an ob­
viously valid Smith claim would also run contrary to the basic 
policy underlying all Supreme Court decisions in capital cases 
since 1976:

the penalty of death is qualitatively dif­
ferent from a sentence of imprisonment, 
however long. Death, in its finality, 
differs more from life imprisonment than 
a 100-year prison term differs from one 
of only a year or two. Because of that 
qualitative difference, there is a corre­
sponding difference in the need for reli­
ability in the determination that death 
is the appropriate punishment in a speci­fic case.

Woodson v. 
opinion). 
(plurality 
(plurality

North Carolina, 428 U.S. 280, 305 (1976) (plurality 
See also Gardner v. Florida, 430 U.S. 349, 357-58 (1977) 
opinion); Lockett v. Ohio, 438 U.S. 586, 604 (1978) 
opinion); Beck v. Alabama, 447 U.S. 625, 637-38 (1980);

32



Eddings v. Oklahoma, ___ U.S. ___, 71 L.Ed. 2d 1, 9 (1982).—
That policy was eloquently restated by this Court only recently in 
Gholson v. Estelle, supra, 675 F.2d at 737, a case decided on the 
basis of Smith:

There is no doubt this Court and the 
Supreme Court recognize the death penalty 
as a qualitatively different form of punish­
ment than any other that can be imposed.
[Citations omitted] ... It is different 
from all other punitive measures in that 
it is the most severe and exacting disci­
plinary mechanism available to a society 
that considers itself civilized and decent.
In addition, the termination of human life 
is the most final and decisive method for 
inflicting a penalty that can be conceived.
It is precisely the inflexible and terminal 
nature of the death penalty that makes it 
a matter of exceeding consequence to assure 
that before such a condemnation is made 
the individual receives the full force of 
the protections and safeguards guaranteed by the Constitution.

To send petitioner to his death on the basis of his statements 
to Doctors Guild and Stanley, unwittingly made without the guidance 
of counsel and without the slightest awareness that he was assisting 
the State's effort to take his life, simply cannot be squared with 
these concepts. The judgment of the District Court should be reversed.

17/ The Supreme Court has several times declined in recent years 
to dishonor valid constitutional claims against sentences of death 
on grounds of procedural forfeiture. In addition to Smith itself 
(see p. 28, supra), see Gardner v. Florida, 430 U.S. 349, 361 
(1977)(trial counsel's failure to request access to full pre-sentence 
report did not waive constitutional error in State's failure to 
disclose its contents), and Eddings v. Oklahoma, U.S. , 71
L.Ed.2d 1, 14 & n. 1 (dissenting opinion of the Chief Justice)(relief 
granted on Eighth Amendment claim not raised in the State trial 
court); cf. Beck v. Alabama, 447 U.S. 625, 647-48 (1980)(dissenting 
opinion of Justice Rehnquist)(relief granted on Due Process and 
Eighth Amendment claim not preserved before State Supreme Court).

33



CONCLUSION

This Court should reverse the judgment below and grant habeas 
corpus relief vacating the unconstitutional sentence of death imposed 
upon petitioner.

Respectfully submitted,

JOEL BERGER 
Suite 2030 
10 Columbus Circle 
New York, New York 10019

ANTHONY G. AMSTERDAM
New York University School of Law 
40 Washington Square South 
New York, New York 10012

ATTORNEYS FOR PETITIONER-APPELLANT
Dated: October/?, 1982

34



CERTIFICATE OF SERVICE

I, JOEL BERGER, hereby certify that on October/?, 1982, I 
served a copy of the within Brief for Petitioner-Appellant upon 
counsel for Respondent-Appellee 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,
P.0. Box 12548, Capitol Station, Austin, Texas 78711 (Att: Leslie 
A. Benitez, Esq., Assistant Attorney General).



APPPENDIX A



+..̂
i

THELETTE BRANDON, Appellant

NO. 59,348 v. - - - Appeal from MCLENNAN County
THE STATE OF TEXAS, Appellee

O R D E R

The trial court entered a judgment that the appellant 
was guilty of capital murder and that he be put to death. We 
affirmed. Brandon v. State, 599 S.W.2d 567 (Tex.Cr.App. 1980) .
The United States Supreme Court vacated our judgment and remanded 
the case for further consideration in light of Estelle v. Smith,
451 U.S. 454 (1981). Brandon v. Texas, 453 U.S. ___, 101 S.Ct.
3134 (1981).

In Smith, the Court held that a defendant’s Fifth 
Amendment rights were violated by the admission of a psychiatrist's 
testimony at the punishment stage of a capital trial when the 
defendant had not been advised before the pretrial psychiatric 
examination that he had a right to remain silent and that any 
statement he made could be used in the capital punishment deter­
mination, and that his Sixth Amendment rights were violated 
by the admission of the testimony when he had been denied the 
assistance of counsel in deciding whether to submit to the exam­
ination and to what end the psychiatrist's findings could be 
employed. Judgments of death will be reversed when the appellate 
record shows that the defendant's Fifth or Sixth Amendment ob­
jections to such testimony were overruled despite the State's 
failure to show that the proper warnings had been given and that 
the assistance of counsel had been made available. Fields v.
State, 627 S.W.2d 714 (Tex.Cr.App. 1982); Clark v. State, 627 
S.W.2d '693 (Tex.Cr.App. 1981); Thompson v. State, 621 S.W.2d 
624 (Tex.Cr.App. 1981). Even when the appellate record does 
not show such an objection, relief from judgments of death will 
be granted in cases in which such testimony was used when it is



BRANDON - 2

shown by post-conviction proceedings that the proper warnings 
were not given or that the assistance of counsel was not made 
available. Estelle v. Smith, 451 U.S. 454 (1981); Battie v. 
Estelle, 655 F .2d 692 (5th Cir. 1981); Ex parte Demouchette,
____S.W.2 d _____ (Tex.Cr.App., No. 68,940, May 26, 1982).

In the case now before us on appeal, the appellant
made no Fifth or Sixth Amendment objections to the psychiatrists'

1/testimony at the punishment stage of the trial. While these
failures to object will not necessarily prevent a reviewing

2/
court from reaching the constitutional issues, they have left 
the record silent on the facts which are necessary to a resolu­
tion of those issues. Those facts must be developed. Since this

3/
court has no effective procedures for fact-finding, it is 
necessary to abate this appeal so that the trial court can use 
the fact-finding procedures of a motion for new trial to develop 
the facts on the Fifth and Sixth Amendment issues.

For the purposes of the appellate procedures set out 
in Chapter 40 of the Code of Criminal Procedure, the appellant 
shall be deemed to have filed, on the day our mandate of abate­
ment issues, a motion for new trial raising the Fifth and Sixth 
Amendment issues discussed in Estelle v. Smith, 451 U.S. 454 
(1981). If the trial court grants a new trial, its order shall 
be transmitted to this court in a supplemental transcript and 
this appeal will be dismissed. If the trial court denies a new 
trial, a supplemental transcript of these proceedings shall be 
added to the appellate record in this court. The parties then 
may file their appellate briefs on those issues in this court.

1/
The appellant made Fifth Amendment objections to the 

psychiatrists' testimony at the guilt stage of the trial, but 
he made only statutory objections to their testimony at the 
punishment stage.

y See Estelle v. Smith, 451 U.S. 454, 468 n. 12 (1981). 
3/

See Ex parte Young, 418 S.W.2d 824, 826 (Tex.Cr.App.
1967) .



BRANDON - 3

The appeal is abated.

DELIVERED: June 2, 1982
PER CURIAM

EN BANC



APPPENDIX B



EX PARTE SAMMIE NORMAN ENGLISH Habeas Corpus Application 
From HARRIS CountyNO. 68,953

O P I N I O N

!

*

)

This is a post-conviction application for habeas corpus 
relief pursuant to Article 11.07, V.A.C.C.P. The applicant was 
convicted of the offense of capital murder with the penalty of 
death. The conviction was affirmed by this Court; English v. 
State, 592 S.W.2d 949 (Tex.Cr.App. 1980), cert, denied 449 U.S. 
891, 101 S.Ct. 254, 66 L.Ed.2d 120 (1981).

The applicant now asserts that his privilege against self­
incrimination and the right to effective assistance of counsel 
were violated when psychiatric testimony was admitted at the 
punishment stage of his trial. The trial court has made specific 

-findings of fact, which are supported by the record, that the 
applicant before a pretrial psychiatric examination was not 
informed that he did not have to participate and that he could 
remain silent, that his statements and the psychiatric testimony 
based on the examination could be used at the punishment, stage 
of his trial. Also, the applicant's counsel were not notified 
in advance that the psychiatric examination was being made to 
prepare the psychiatrist to testify on the issue of the applicant's 
dangerousness.

The Supreme Court's holding in Estelle v. Smith, 451 U.S.
454, 101 S.Ct. 1866, 69 L.Ed.2d 359(1981) requires the reversal 
of the judgment in this case. See also Ex parte Demouchette,
633 S.W.2d 879 (Tex.Cr.App. 1982); Clark v. State, 627 S.W.2d 
693 (Tex.Cr.App. 1982) affirmed on rehearing following the 
Governor's commutation of sentence; Thompson v. State, 621 S.W.2d
624 (Tex.Cr.App. 1981); Fields v. State, 627 S.W.2d 714 (Tex.Cr. 
App. 1982).



ENGLISH

The psychiatrist's testimony and opinion in this case was 
based on his examination of the applicant. The hypothetical 
questions propounded to the witness also incorporated the 
witness' own examination and findings concerning the applicant. 
Cf. Vanderbilt v. State, 629 S.W.2d 709 (Tex.Cr.App. 1981)

The relief sought will be granted.
It is so ordered.

DALLY, Judge
Delivered September 15, 1982
En Banc



EX PARTE § IN THE DISTRICT COURT OF
§ HARRIS COUNTY, TEXAS

SAMMIE NORMAN ENGLISH 
Applicant

§ 230TH JUDICIAL DISTRICT

FINDINGS OF FACT

TO THE HONORABLE JUDGE OF SAID COURT:
NOW COME SAMMIE NORMAN ENGLISH, Applicant in the above

entitled and numbered cause by and through his court appointed 
attorney of record and the State of Texas by and through its 
Assistant District Attorney and present the following proposed 
findings of fact applicable to Smith v. Estelle, 79-11^7 (May 18, 

1981) :
1. Applicant was charged in Cause No. 263368, with the 

felony offense of capital murder and assessed the death penalty.
2. Tom Stansbury and Bob Montgomery were appointed to 

represent Applicant at his trial.
3. A Motion for Sanity/Competency Examination of Sammie 

Norman English was filed jointly by Assistant District Attorney Andy 
Tobias and defense counsel Thomas Stansbury on July 19, 1977.

4. On July 19, 1977, the Court signed an Order authorizing 
■t-b— Harris County Forensic Psychiatric Unit to conduct a competency/ 

sanity examination of Applicant.
5. Applicant was subsequently examined in August, 1977, 

by Jerome B. Brown, Ph.D. and Jose G. Garcia, M.D. of the Harris 
County Forensic Psychiatric Unit. Each prepared written reports 

concerning Applicant's competency and sanity which were distributed 
to the Court, defense counsel and the attorney for the State prior 

to trial.
6. On August 15, 1977, Applicant was examined by Dr.

Jerome Brown.
7. Neither the Court, Dr. Brown or the Applicant's

attorney advised Applicant prior to the psychological examination 
that he had a right not to participate in the examination.



8. Jerome Brown and Jose Garcia told Applicant at the 
beginning of their respective interviews that he did not have to 
answer any question he did not want to. Jerome Brown further told 
him that if there was something he did not want to talk about, he 

did not have to discuss it.
9. Dr. Brown advised Applicant that he did not have to 

answer any particular question during the examination.
10. Dr. Brown never advised Applicant that anything he 

said might be used against him during the punishment phase of his 

trial.
11. Dr. Brown never advised Applicant that he could 

consult with his attorney during the examination.
12. Prior to trial, Dr. Brown never discussed^the results 

of his examination nor obtained background information concerning 
the Applicant from Applicant's attorney.

13. At the time of Applicant's examination by Brown and 
Garcia, no one requested that they evaluate him as to the proba­
bility that Applicant would commit future acts of violence.

14. Dr. Brown was approached by Andy Tobias, the prosecutor 
h*r.~—gr -'-ip case, after his examination of Applicant, requesting 
Dr. Brown's evaluation as to the probability Applicant would commit 

further arts of violence.
15. October 3, 1977, the State prosecutors issued their 

firsr srrpoena for Dr. Jerome Brown and Dr. Jose Garcia as witnesses. 
Defense counsel was aware that this subpoena was issued.

16. Andy Tobias never formally notified Applicant's 
attorneys that he intended to present psychiatric testimony at the 
punishment phase of Applicant's capital murder trial on the issue 
of Applicant's propensity to commit further acts of violence.

17. Applicant's attorneys suspected that the prosecutors 
intended to use psychiatric testimony at the punishment phase of 

the capital murder trial.
18. Applicant's attorneys prepared for the possibility that 

psychiatric testimony was going to be used at Applicant's trial.

2



19. On October 3, 1977, defense counsel Thomas Stansbury 
filed and had granted " Defendant's Motion for Psychological 
Examination", requesting the Court to order an independent examin­
ation of Applicant by Dr. Richard G. Jones with regard to mental 
competency and "any other issues deemed necessary by said doctor".

20. In filing their motion, defense counsel expected Dr. 
Richard G. Jones to include in his evaluation an opinion regarding 
the probability that Applicant would commit further acts of violence.

21. Applicant was examined by the defense psychologist

while the jury was being selected.
22. Jose Garcia did not testify at trial as to the prob­

ability that Applicant would commit future acts of violence.
Jerome Brown was asked his opinion, through the form o£. a hypothetical 
question, whether a person who had committed certain specific acts 
(drawn from evidence at trial) would probably commit criminal acts 
of violence in the future that would constitute a continuing threat 
to society. (R.p. 1464 - 1465) The question was modified following 
defense objection, to ask Brown to assume he had an occasion to 
examine the said individual, as he had an occasion to examine 
Applicant. Brown indicated in response that such a person would 
have a greater than average propensity to commit such acts of _ 
violence but declined to issue an opinion in the language of prob­

ability. (R.p. 1481)
23. Applicant's attorneys did not object to Dr. Brown's 

appearance as a witness at the punishment hearing.
24. Applicant was not. advised by either of his attorneys 

that he had a right to remain silent and a right to refuse to partic­

ipate in the August, 1977 examinations.

never advised by his attorneys that Dr. Brown might testify against 
him at the punishment phase of his capital murder trial.

25. Prior to the August, 1977, examinations Applicant was

APPROVED this the day of 1981.

STANLEY'-®. SCHNEIDER, ATTORNEY FOR 
APPLICANT

3



--RICHARD MCGONIGLE, ATTORNEY £OR 
APPLICANT

SUSAN SPRUCE, ATTORNEY FOR THE STATE

day of
Adopted as this court's Findings of Fact on this the 

rt= __________________, 1981.

4



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