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http://laws.findlaw.com/6th/04a0195p.html |
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0195P (6th Cir.)
File Name: 04a0195p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Gregory Thompson, Petitioner-Appellant, v. Ricky Bell, Warden, Respondent-Appellee. |
No. 00-5516 |
Appeal from the United States District Court
for the Eastern District of Tennessee at Chattanooga.
No. 98-00006—R. Allan Edgar, Chief District Judge.
Decided and Filed: June 23, 2004
Before: SUHRHEINRICH, MOORE, and CLAY, Circuit Judges.
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COUNSEL
ARGUED: Dana C. Hansen Chavis, FEDERAL DEFENDER SERVICES, Knoxville, Tennessee, for Appellant. Jennifer L. Smith, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. ON BRIEF: Dana C. Hansen Chavis, FEDERAL DEFENDER SERVICES, Knoxville, Tennessee, for Appellant. Jennifer L. Smith, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.
MOORE, J., delivered the opinion of the court, in which CLAY, J., joined. SUHRHEINRICH, J. (pp. 7-105), delivered a separate opinion concurring in part and dissenting in part.
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OPINION
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KAREN NELSON MOORE, Circuit Judge. Eighteen months ago, this panel in a split decision producing three different opinions affirmed the decision of the district court granting summary judgment to respondent in this habeas corpus action. Judge Suhrheinrich later conducted sua sponte a second, thorough review of the record and came to the conclusion that the facts as adduced in deposition testimony not part of the district court record supported the granting of the writ. See infra (Suhrheinrich, J., concurring). Upon reviewing the deposition of Dr. Faye Sultan, and investigating the procedural complications of this case, it is clear that this extremely probative testimony requires that we vacate the district court’s grant of summary judgment in favor of respondent.
Judge Suhrheinrich summarizes most effectively the Sultan deposition and its value in assessing Gregory Thompson’s mental state at the time of the crime. Where his opinion goes too far is in its accusations of fraud on the court; while his explanation for the omission of the Sultan deposition from the official record before the court is possible in the narrowest sense, the power of this court should not be used to make such accusations without more definite proof than the factual record of this case reveals.
Dr. Sultan’s deposition was taken by trial counsel for respondent, but was not included with the evidence submitted as part of Bell’s motion for summary judgment. Slightly more than one year later, contemporaneous with the preparation of this appeal, appellate habeas counsel made a Rule 60(b) motion in the district court asking to include the Sultan deposition as part of the record. At the same time, Thompson’s counsel submitted that deposition to this court as part of his motion to hold this appeal in abeyance during the pendency of the Rule 60(b) motion. Applying the principle of Occam’s razor, we conclude that more than likely, a genuine mistake was made, one which was not realized until a different attorney looked at the case. To conclude otherwise is to disbelieve sworn testimony by an officer of the court, and to assume that habeas counsel conspired to conceal evidence beneficial to their client, for no discernible reason — evidence loses power, rather than gains it, by being revealed on the “eve of execution” in a second habeas petition. Reading Judge Suhrheinrich’s opinion, one might conclude that this court had only recently unearthed the Sultan deposition, when in fact it was submitted to the panel prior to oral argument as part of the abeyance motion.
We did not consider it, however, in rendering our decision, believing ourselves to be bound by the record created in the district court. Upon reflection, and after reviewing Judge Suhrheinrich’s forceful assessment of the probity of the Sultan deposition, we believe it is appropriate to use our inherent equitable powers to expand the record on appeal to consider the deposition. Ordinarily, a court of appeals should only consider evidence made part of the district court record. Where through error or accident material matters are omitted or misstated, Federal Rule of Appellate Procedure 10(e) allows correction of the appellate record to include the corrected material. See Inland Bulk Transfer Co. v. Cummins Engine Co., 332 F.3d 1007, 1012 (6th Cir. 2003). While some circuit courts have held that Rule 10(e) allows the inclusion of material the district court did not consider, see In re Capital Cities/ABC, Inc.’s Appl. for Access to Sealed Trs., 913 F.2d 89, 97 (3d Cir. 1990) (citing inconsistent circuit precedent); United States v. Aulet, 618 F.2d 182, 187 (2d Cir. 1980), the rule in this circuit has consistently been that Rule 10(e) does not allow such inclusion. See, e.g., Inland Bulk, 332 F.3d at 1012; S & E Shipping Corp. v. Chesapeake & Ohio Ry. Co., 678 F.2d 636, 641 (6th Cir. 1982). We adhere to our previous interpretation that Rule 10(e) does not allow inclusion in the appellate record of material that the district court did not consider.
Although Rule 10(e) is thus unavailable, we recognize that a number of our sister circuits have held that the courts of appeals have the inherent equitable power to supplement the record on appeal, where the interests of justice require. See United States v. Kennedy, 225 F.3d 1187, 1192 (10th Cir. 2000) (“[U]nder some circumstances, we have an inherent equitable power to supplement the record on appeal. However, we conclude the present case” does not present those circumstances.); Ross v. Kemp, 785 F.2d 1467, 1474 (11th Cir. 1986) (relying on Dickerson, infra, and exploring circumstances under which exercise of that power is appropriate); Gibson v. Blackburn, 744 F.2d 403, 405 n.3 (5th Cir. 1984) (“Although a court of appeals will not ordinarily enlarge the record to include material not before the district court, it is clear that the authority to do so exists.”); Dickerson v. Alabama, 667 F.2d 1364, 1368 (11th Cir. 1982) (relying on court’s inherent equitable powers to supplement the record in habeas case); Turk v. United States, 429 F.2d 1327, 1329 (8th Cir. 1970) (“[I]n the interest of justice, this court may order the record enlarged.”); Gatewood v. United States, 209 F.2d 789, 792-93 & n.5 (D.C. Cir. 1953) (sua sponte ordering preparation of transcript for record “in the interest of both parties, and of the due administration of justice”); see also Charles Alan Wright et al., Federal Practice & Procedure § 3956.4, at 349-51 (3d ed. 1999 & Supp. 2003) (“In special circumstances, however, a court of appeals may permit supplementation of the record to add material not presented to the district court.”); 20 Moore’s Federal Practice, § 310.10[5][f], at 310-19 (3d ed. 2000) (“In extraordinary situations, the circuit court may consider material not presented to the district court when it believes the interests of justice are at stake.”). Although recent Sixth Circuit cases indicate that we have not yet “embraced the notion that the record can be supplemented under an appellate court’s equitable authority,” see Inland Bulk, 332 F.3d at 1012, in at least one earlier state habeas case we have so supplemented the record, citing to Dickerson, 667 F.2d at 1367. See Prather v. Rees, 822 F.2d 1418, 1420 n.1 (6th Cir. 1987) (“Although the parties did not provide the court with copies of the state court briefs, this court may supplement the record when necessary.”); see also Adams v. Holland, 330 F.3d 398, 405-06 (6th Cir. 2003) (recognizing exception to Rule 10(e) in habeas cases: “where substantial portions of [the state trial transcript] were omitted before the District Court, a habeas case should be remanded to the District Court for consideration in light of the full record.”). Because the evidence here was apparently negligently omitted, because the evidence is so probative of Thompson’s mental state at the time of the crime, because there is no surprise to respondent as it was his counsel who took the deposition, and because this is a capital case, we believe that the circumstances of this case merit consideration of the Sultan deposition pursuant to our equitable power to supplement the record on appeal, despite the omission of the deposition from the District Court record. We therefore vacate the grant of summary judgment, and remand the case to the District Court for a full evidentiary hearing.
It remains to be explained the source of our power to so reconsider our earlier opinion, as we do not join in Judge Suhrheinrich’s allegation of fraud on the court. Instead, we rely on our inherent power to reconsider our opinion prior to the issuance of the mandate, which has not yet issued in this case. Although a court of appeals should withdraw an already-issued mandate only to prevent a miscarriage of justice, see Calderon v. Thompson, 523 U.S. 538 (1998), at least two of our sister circuits have reconsidered opinions where the mandate has not yet issued. See Wilson v. Ozmint, 357 F.3d 461, 464 (4th Cir. 2004) (“The mandate of the court has not yet issued in this case, and, therefore, we may, at our discretion, ‘amend what we previously decided . . . .’” (quoting Alphin v. Henson, 552 F.2d 1033, 1035 (4th Cir. 1980)); First Gib. Bank v. Morales, 42 F.3d 895, 898 (5th Cir. 1995) (relying on Alphin, 552 F.2d at 1035, to reconsider decision where mandate had not yet issued). We therefore rely on our inherent power over a case until our mandate issues in reconsidering our opinion in this case.
The judgment of the district court is therefore VACATED, and the case is REMANDED for further proceedings not inconsistent with this opinion. Thompson’s execution is also STAYED for 180 days to permit the district court to proceed.
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CONCURRING IN PART, DISSENTING IN PART
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SUHRHEINRICH, Circuit Judge, concurring in part and dissenting in part.
I. Introduction
Petitioner-Appellant Gregory Thompson (“Thompson” or “Petitioner”) was convicted of first degree murder and sentenced to death by the State of Tennessee. In a previous decision, this Court affirmed the district court’s denial of his request for a writ of habeas corpus. See Thompson v. Bell, 315 F.3d 566 (6th Cir. 2003), cert. denied, 124 S. Ct. 804 (2003). The Supreme Court denied Thompson’s petition for writ of certiorari. On February 25, 2004, the State of Tennessee granted the State’s motion to set an execution date and has ordered that the Warden of the Riverbend Maximum Security Institution or his designee execute the sentence of death on August 19, 2004, “unless otherwise ordered by this Court or other appropriate authority.” This matter is now before this Court on its own motion.
Essential to our conclusion that Thompson was not denied effective assistance of counsel due to counsel’s failure to introduce evidence that he suffered from schizophrenia at the time of the offense was our finding that Thompson “has never submitted to any court any proof that he suffered from severe mental illness at the time of the crime.” Thompson, 315 F.3d at 590. Subsequent to the issuance of our decision on January 9, 2003, information has come to the attention of the Court which requires us to determine whether our decision to affirm the district court’s denial of Thompson’s petition for writ of habeas corpus relief from his death sentence was improvident.
While reviewing various Sixth Circuit death penalty cases in preparation of a law review article on the subject, an intern in my chambers, who also happens to be a board-certified psychiatrist, expressed concern as to why Thompson’s post-conviction expert, Gillian Blair, Ph.D., and Thompson’s habeas experts, Barry Crown, Ph.D. and Faye Sultan, Ph.D., had not directly addressed the question as to whether Thompson did or did not exhibit symptoms of a major mental illness at the time of the crime or sentencing, and, if he did, whether the symptoms were sufficient at that point to support a diagnosis of mental illness which should have been presented as mitigating evidence at the sentencing hearing. I then conducted my own review of the entire certified record, in addition to my prior review of the joint appendix. As a result of my review of the entire certified record, I feel that it is incumbent upon me, as a judicial officer sworn to uphold the Constitution, and as authoring judge of the initial opinion, to reverse that ruling and issue this opinion. Although I am now merely a concurring/dissenting judge in this matter, I wish it to be known that the initiative for this decision came from my chambers. The majority’s ruling is based upon their review of my draft opinion, prepared after my discovery, and the hundreds of hours of work that followed, reviewing the entire record, researching the law, and drafting this opinion.
The question thus is whether our prior ruling was mistaken, because there is, and was, in fact available proof that Thompson was suffering from a serious mental disease or defect at the time of the 1985 offense which would have substantially impaired his ability to conform his conduct to the requirements of law.(1) Also at issue, and integral to the primary question, is whether the federal habeas counsel in this case committed fraud on the court by intentionally or recklessly failing to present critical evidence on the question, of which they had knowledge, to the district court. For the reasons that follow, we vacate our prior ruling and conditionally grant the writ.
II. Background
The facts are set forth in great detail in our prior opinion. See id. However, because the present inquiry involves voluminous facts and procedural history not presented to us on appeal as part of the joint appendix, it is necessary to revisit much of the case, and to review and present the new materials. To the extent possible, I have attempted to present the relevant facts in chronological and procedural order.
A. State Court Proceedings
1. Trial Court
Brenda Lane was murdered on January 1, 1985. Thompson was apprehended the next day. On January 29, 1985, the trial court appointed counsel. On February 26, 1985, less than two months after the murder, counsel filed a notice of insanity defense and also requested a mental or psychological evaluation of Thompson to determine (1) whether Thompson was competent to stand trial, and (2) his mental capacity at the time of the crime. On March 25, 1985, less than three months after the murder, trial counsel filed a supplementary motion for a psychiatric examination and a neurological examination to determine (1) whether Thompson was competent to stand trial and assist counsel with his defense, (2) whether Thompson was suffering from a mental illness on the date of the offense, and (3) whether Thompson was in need of hospitalization for further psychiatric treatment and evaluation. The affidavit in support stated that Thompson had previously suffered two concussions, one when he was sixteen years old from a car accident, and the second while in the Navy, when he was beaten in the head with a hammer by three fellow servicemen.
On March 28, 1985, less than three months from the date of the offense, the trial court ordered that Thompson be referred to the Multi-County Mental Health Center for a forensic evaluation to determine (1) his competency to stand trial and to assist in his own defense, and (2) his mental capacity at the time of the crime. On April 4, 1985, the trial court entered another order directing Thompson to undergo a forensic evaluation at a state facility, Middle Tennessee Mental Health Institute (“MTMHI”), for a maximum of thirty days. A team of forensic psychologists at MTMHI evaluated Thompson and found him to be competent.
Trial counsel questioned the state team’s impartiality and requested funds to secure further psychiatric evaluations. On July 29, 1985, the trial court granted counsel funds to hire an independent psychiatrist. Instead, counsel used the funds to hire Dr. Copple, a clinical psychologist. Trial counsel stated that the effort to hire a psychiatrist “was not successful.” Id. at 573. Also as part of their trial preparation, counsel traveled to Thompson’s home town where they interviewed various family members and acquaintances of Thompson.
Thompson did not present a defense at trial, and the jury convicted him of the first degree murder of Brenda Lane. At the sentencing phase, Thompson’s former girlfriend, Arlene Cajulao, testified that she knew Thompson from 1980 until June 1984. She described Thompson as caring and sensitive. On cross-examination, she testified to incidents concerning Thompson’s violent behavior while in the Navy. Thompson’s sister, Nora Jean Walton, testified about his activities in Georgia upon his return from Hawaii after his discharge from the Navy. Dr. Copple also testified. He stated that he spent roughly eight hours examining Thompson over several sessions. Copple stated that during the first session, he was basically looking at what things Thompson would be capable of doing in a prison setting. Copple testified that, in his opinion, Thompson had an unusually strong need to nurture other people that had impelled him to some unwise actions. Copple felt that Thompson did not have an adult anti-social personality disorder. On cross-examination Copple stated that he did not think Thompson was suffering from any mental illness.
The State presented in rebuttal the deposition testimony of Dr. Robert Glenn Watson, who had participated in the staff evaluation of Thompson at MTMHI. Watson found no intellectual impairment. Watson also testified that they found no real evidence of organicity or brain damage. Watson also administered the Minnesota Multiphasic Inventory-II (“MMPI”), but determined that the tests results reflected malingering. Watson further stated that on May 24, 1985, at a staff conference, based on all the data, the staff concluded that:
[Thompson] exhibited none of the signs of an affective illness. His judgment and insight are rather poor. Psychological testing revealed him to be functioning in the average range intellectually, to exhibit no signs of organicity or brain damage on the Bender-Gestalt Test and the Bender Interference Procedure. Personality profiles revealed no evidence of a psychosis, but indicated malingering in the mental illness direction. (For example, the schizophrenic score was at T 120, while clinical observations revealed no evidence of a thought disorder.)
The staff at MTMHI diagnosed Thompson as Axis 1, Adult Antisocial Behavior, 071.01. The forensic team therefore concluded that Thompson was mentally competent to stand trial and was not suffering from a mental disease or defect.
The jury imposed the death penalty at the conclusion of the penalty phase, and the trial court entered judgment sentencing Thompson to death by electrocution. Thompson thereafter pursued his direct appeals to no avail.
2. Post-Conviction
On October 16, 1990, Thompson filed a petition for post-conviction relief, claiming in relevant part that trial counsel failed to investigate adequately Thompson’s background and personal and medical history for the existence of mitigating evidence. See Thompson, 315 F.3d at 576. On February 1, 1991, post-conviction counsel filed an ex parte, sealed motion seeking “funds to hire a licensed psychologist or psychiatrist and an investigator to assist in the preparation of his case for post-conviction relief.” Id. at 577. In support, counsel attached the affidavit of Dr. Gillian Blair, a clinical psychologist. Blair noted that Thompson’s post-incarceration medical records indicated that Thompson had been variously diagnosed as having bipolar affective disorder, schizo-affective disorder, and schizophrenia, paranoid type, and was taking Lithium, Haldol, and Cogentin. Id. Blair opined that “[i]f Mr. Thompson is found to be suffering from neurological or psychological impairment as described above, it is likely that some degree of such impairment would have existed at the time of the offense and would have been a significant factor in determining whether or not Mr. Thompson was able to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law when he committed the homicide of which he stands convicted.” Id. Blair indicated that Thompson needed a full psychological evaluation. Id.
The state trial post-conviction court held an evidentiary hearing on March 27 and March 29, 1995. At the hearing Blair testified that she reviewed Thompson’s institutional records, beginning with the 1985 MTMHI assessment. She also interviewed Thompson in March and April 1992, and at that time administered “a basic psychological battery of tests with some additional . . . neuropsychological tests because of the history of head injuries that Mr. Thompson had received and that were well documented in his medical record.” Id. at 578-79. Blair then articulated the following opinion:
The Riverbend medical record indicated that since 1985, Mr. Thompson had shown a deteriorating mental status. He had become psychotic. He had been treated with anti-psychotic medication at that time. He was treated with Haldol, Cogentin, and Lithium, and three different treating physicians at that time: Dr. Dyner [sic], Dr. Deal, and Dr. Humble had all over the years from 1985 to 1990 had diagnosed him as either having bipolar disorder or a schizo affective disorder or schizophrenia. They described his agitated behavior. They described his hostility. They described his inappropriate affect, his experience of auditory hallucinations, his delusions, his paranoia, his thoughts of persecution. He had attempted suicide of a couple of occasions. He had set fire to his cell burning both his hands and his face. They had certainly–two of those psychiatrists and maybe all three of them had considered the possibility that he was malingering, that he was faking mental illness and throughout their Riverbend records, it was clear that those psychiatrists had discounted the possibility of malingering because they didn’t feel that it accounted for all of the psychotic symptoms they saw in him.
Id. at 579.
Blair was also asked what other facts would be necessary for her to develop an opinion as to Thompson’s condition at the time of the offense. She stated that “the most important thing that would be necessary would be a full history and full medical records of Mr. Thompson prior to the commission of the offense.” Id. She added that:
From the records I was able to review, it was clear that the social history was very sketchy in terms of his remote history, his childhood and his upbringing, and also family history of mental illness. There seemed to be a [sic] strong evidence to suggest that there was mental illness in his family, probably in his father who committed suicide and was known to be extremely violent and possibly in his mother but none of those records were available.
Id. Blair therefore stated that she did not have an opinion about Thompson’s diagnostic
status in 1985. Id.
On cross-examination, Blair stated that she had reviewed all of the records included in the files from MTMHI. This included daily progress notes, medication sheets, the report of psychological testing, the discharge summary, the admission summary, the staff conference report, and the social worker’s history. Id. When asked whether she thought MTMHI’s testing procedure was unreliable, she averred that it was not unreliable, but simply “not extensive enough.” Id. Blair further testified that from her own testing,(2) she did not believe that Thompson was faking or attempting to fake mental illness.
On May 15, 1995, the post-conviction court denied Thompson’s claims. The court found that defense counsel had made an adequate investigation into their client’s background and prior medical history. The court stated that state post-conviction counsel had presented no proof of mental problems that would have provided Thompson with a defense or shielded him from the death penalty. Id. at 580. The Tennessee Criminal Court of Appeals held that Thompson had failed to establish that any type of psychological impairment in general may have existed which would have been mitigating evidence.” Id. That court specifically noted that “Dr. Blair declined to give an opinion on these important issues, and the evidence does not preponderate against the trial court’s finding that the defense attorneys were not ineffective.” Id. (quoting Thompson v. State, 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997)).
B. Federal Habeas Proceedings
1. District Court
On January 23, 1998, Thompson filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (DCTR 1).(3) He also filed a motion and application for appointment of counsel to investigate, prepare and file the petition, pursuant to 21 U.S.C. § 848(q)(4)(B). (DCTR 2). On January 29, 1998, the court granted Thompson’s motion for appointment of counsel and designated the Federal Defender Services of Eastern Tennessee, Inc., to provide Thompson with an attorney to prepare and file a petition for a writ of habeas corpus and “to prepare for and participate in all proceedings in connection therewith.” (DCTR 3).
On March 9, 1998, the district court held a scheduling conference. Attorney Stephen M. Kissinger was present representing Thompson. Assistant Tennessee Attorney General John H. Baker III was present on behalf of the State. (DCTR 6). On March 11, 1998, the district court entered a scheduling order. The court required, in relevant part, that disclosure of anticipated use of any expert witness and disclosure of information regarding the expert and the expert’s expected testimony was to be completed by Thompson by October 30, 1998. The court directed the Warden to disclose his expert witnesses by December 31, 1998. The scheduling order also provided that the Warden’s answer to the petition for writ of habeas corpus was to be filed on or before July 17, 1998, and that the parties file a joint schedule of needed discovery by July 24, 1998.
On May 26, 1998, Assistant Attorney General Glenn R. Pruden became counsel of record for the Warden.
a. The Petition
As required by the scheduling order, Thompson filed his petition for writ of habeas corpus on June 12, 1998. Thompson alleged in relevant part that his trial counsel were ineffective for failing to: (1) perform a reasonable investigation of his background and mental health history; (2) secure adequate expert assistance regarding his mental health; (3) discover available evidence of mental illness caused by two serious head injuries; and (4) investigate and challenge Thompson’s competency to stand trial as well as his competency at the time of the offense.(4) He also claimed that he was denied funding for mental health and investigative experts during the state trial and post-conviction proceedings. The petition was signed by Stephen M. Kissinger.
On August 25, 1998, the district court entered an order granting Respondent’s motion for extension of time for filing a discovery schedule, moving the deadline to September 2, 1998.
On October 22, 1998, Thompson filed an amended petition for writ of habeas corpus. Thompson contended, in pertinent part, that the state courts denied him funding for mental health and investigative experts at trial and during state post-conviction proceedings, implicating his fundamental rights to due process, equal protection, and effective assistance of counsel. (DCTR 17). Thompson also complained that he was denied expert funding, in violation of his Fifth, Sixth, Eighth and Fourteenth Amendment rights. He alleged in relevant part:
a. Both trial and post-conviction counsel knew Petitioner’s mental state was an important issue but without assistance from a competent investigator and mental health expert, counsel was unable to explain and overcome the state mental hospital’s initial findings.
b. Attorney Parsons was aware of Petitioner’s history of head injuries and “the significant [sic] of those head injuries and what that can do to somebody.” P.C. Vol. I, p.38. Later, counsel also witnessed “a period when he [Petitioner] got sick mentally.” P.C. Vol. I, p.83. Trial counsel requested funds for a mental health expert but were denied. Instead, Petitioner was sent to Middle Tennessee Mental Health Institute (MTMHI) for a competency evaluation. Although MTMHI found Petitioner to be competent, Mr. Parsons continued to believe further evaluation was needed. . . .
c. Records from Riverbend Maximum Security Institution reflect that several different treating psychiatrists have diagnosed Petitioner as having either a bipolar affective disorder, cyclic mood disorder, schizo-affective disorder or schizophrenia. All of the psychiatrists described Petitioner’s agitated behavior, hostility, inappropriate affect, auditory and visual hallucinations, delusions, paranoia, and thoughts of persecution. Psychiatrists considered the possibility of Petitioner’s malingering and all discounted that possibility. State examiners at Riverbend ruled out malingering noting that it did not explain all psychotic features. Test results indicating schizophrenia were found consistent with Petitioner’s psychotic disorder even at his then current “stable” level of functioning. Since his incarceration, Petitioner has been heavily medicated. For example, Petitioner has taken Lithium and Klonopin, both indicated for bipolar disorder; Depakene and Depakote indicated for epileptic conditions and rapid cycling bipolar disorder due to brain disease; the anti-psychotic drugs Haldol, Haloperidol, Mellaril, Navane, Thioridazine, and Trilafon; Cogentin/Benztropine to minimize the effect of such drugs; the sedative Vistaril; and, Ativan/Lorazepam and Valium to reduce agitation.
d. Post-conviction counsel repeatedly requested funds for a mental health expert. The prosecutor argued that post-conviction counsel were not entitled to experts at state expense. P.C. Vol. 1, p.16. In support of the motion for funding, counsel submitted the affidavit of Dr. Gillian Blair. Dr. Blair’s affidavit and post-conviction testimony reflected her need for a complete social history, additional testing and interviews before she could render an opinion on Petitioner’s mental status at the time of the crime, at trial, and at the present time. See generally P.C. Vol. I, pp. 199-219. Dr. Blair opined that based on the Riverbend records, her test results from 1992, and the brief social history available, further investigation and examination of Petitioner was required. Dr. Blair testified that since 1985 Petitioner had shown a deteriorating mental status. P.C. Vol. II, p. 209. Petitioner had been diagnosed with bipolar disorder, schizo affective disorder or schizophrenia. Id. She further testified that schizophrenia and bipolar disorder, indeed all forms of psychosis, generally begin in early adulthood, Id. at 215, which coincides with the timing of the instant offense. Dr. Blair stated that Petitioner’s troubles in the Navy, just prior to the crime, would suggest that he was becoming mentally ill at that time. Id. at 216. However, further information was needed to render an opinion and diagnosis of Petitioner at that time. Dr. Blair also stated that further evaluation of Petitioner was necessary to determine his present competency. Id. at 207.
e. The court denied funding for expert assistance at the post-conviction hearing. The court reasoned that funds were unnecessary because Petitioner had not shown a “need,” further funding would result in a delay of the proceedings and the issue was a matter of record. . . .
f. Although the court found no “need” for further expert assistance, the court later used the fact that Dr. Blair could not express an opinion as to the issues of Petitioner’s mental health to limit Dr. Blair’s testimony and, subsequently, to deny Petitioner relief from his unconstitutional conviction and sentence. For example, throughout Dr. Blair’s testimony, the prosecutor made repeated objections on the basis that Dr. Blair did not have an ultimate opinion. See e.g. P.C. Vol. II, pp. 208, 215, 216, 220, 259. Although the court allowed most of Dr. Blair’s answers, it did so remarking that the weight of the testimony was specious. See id. The court, however, did not allow Dr. Blair to testify about mitigating circumstances.
(Footnotes omitted.).
Thompson further alleged ineffective assistance of counsel, for the following non-exclusive reasons:
1. Counsel at all critical stages failed to reasonably investigate Mr. Thompson’s background and mental health history. Had counsel done so, they would have discovered that Petitioner had, in the years following his graduation from high school, intermittently demonstrated bizarre and delusional thought patterns. They would have also discovered that members of Petitioner’s family, e.g., his father, had a long pervasive history of severe mental illness. Trial counsel, however, failed to perform a reasonable investigation, failed to find such evidence, and consequently failed to present the following evidence to the jury, both during the guilt phase and during the sentencing phase of the trial.
2. Counsel was ineffective for failing to fully investigate and present relevant evidence of Mr. Thompson’s mental health history, and to secure adequate expert assistance to defend Mr. Thompson including psychologists, neuropsychological, and/or neurological experts to establish valid mitigating factors including, but not limited to, three statutory mitigation factors under Tennessee law, i.e., that Mr. Thompson suffered from substantial disorders and demonstrable physical brain damage which made him unable to conform his behavior to the law; left him under the influence of extreme mental or emotional disturbance, substantially impaired his ability to appreciate the wrongfulness of his conduct at the time of the offense, and non-statutory mitigation under both Tennessee and federal law. As importantly, had counsel secured such mental health history, the result of any professionally adequate pre-trial competency and insanity examination (including, if indeed it was, or had been, professionally adequate, the pre-trial competency examination actually performed in Mr. Thompson’s case) would have been different. Specifically, but not exclusively:
i. Counsel failed to discover and interview pertinent, available witnesses who could have testified and/or informed appropriate mental health experts of Mr. Thompson’s descent into intermittent and delusional behavior following high school.
. . . .
. . . Had counsel been informed, they would have recognized that witness accounts, of Petitioner’s bizarre change in behavior signaled the onset of mental illness. The lingering question would have been answered. The outcome of Petitioner’s capital conviction and sentence probably would have been different.
(DCTR 17; footnotes omitted). The amended petition for writ of habeas corpus was signed by Stephen M. Kissinger.
b. Discovery
On November 2, 1998, the magistrate judge held three telephone conferences with Attorney Kissinger and Assistant Attorney General Jennifer Smith regarding Thompson’s request for discovery regarding those matters alleged in the petition, to which Respondent objected. The court’s order states that, during the hearing, Kissinger advised that he needed to obtain the depositions of three mental health expert personnel who had seen and treated Thompson during his period of incarceration. Respondent maintained his objection that the allegations before the court did not establish good cause for discovery as required under Rule 6(a) of the Rules Governing Section 2254 Cases in the United States District Court. That same day the court entered an order allowing Thompson to take the depositions of Dr. Michael Rutter, Dr. Robert Hoen, and Dr. John Pruett, mental health experts. The order further allowed Respondent the right to take the depositions of Thompson’s two experts, neuropsychologist Barry Crown, Ph.D, and psychologist Faye Sultan. (DCTR 18). The magistrate judge noted that the execution of Thompson would violate the Eighth Amendment due to Thompson’s incompetence. The order also noted a Brady claim.(5)
Also on November 2, 1998, Thompson filed his initial witness list. His “[e]xpert witnesses and testimony” included the following:
a. Dr. Barry Crown, Penthouse Ste 310, Red Road, South Miami, FL 33143, will provide foundation testimony to establish himself as an expert in neuropsychology. He will testify that he has been provided with background information regarding Petitioner’s medical and social history, that he has interviewed, and administered a battery of indicated neuropsycholgical tests to the Petitioner. He will testify that the results of those tests indicate that Petitioner suffers from organic brain damage. He will testify that the brain damage observed, as well as Petitioner’s social and medical history, is consistent with schizophrenia. He will testify that Petitioner’s brain damage substantially impaired the ability of the Petitioner to distinguish between right and wrong and/or to conform his conduct to the requirements of the law and/or prevented Petitioner from doing the same. He will testify that Petitioner’s brain damage prevented Petitioner from meaningfully assisting in his own defense at trial and during state post-conviction proceedings and/or from fully comprehending the nature of those proceedings. He will further testify that arguments regarding Petitioner’s mental state made by counsel for the State of Tennessee during state post-conviction proceedings were both outside the scope of a lay person’s knowledge and that the prosecutor’s statements misrepresented Petitioner’s prison medical records.
b. Dr. Faye Sultan, 8430 University Executive Park Drive, Suite 690, Charlotte, NC 28262, will provide foundation testimony to establish herself as an expert in clinical and forensic psychology. She will testify that she has been provided with background information regarding Petitioner’s medical and social history, that she has interviewed, and administered a battery of indicated psychological tests to the Petitioner. She will testify that, on the basis of her examination, it is her expert opinion that Petitioner suffers from schizophrenia and did so at the time of the offense and at the time of trial. She will testify that Petitioner’s mental illness was severe and that it substantially impaired the ability of the Petitioner to distinguish between right and wrong and/or to conform his conduct to the requirements of the law and/or prevented Petitioner from doing the same. She will testify that Petitioner’s mental illness prevented Petitioner from meaningfully assisting in his own defense at trial and during state post-conviction proceedings and/or from fully comprehending the nature of those proceedings. She will further testify that arguments regarding Petitioner’s mental state made by counsel for the State of Tennessee during state post-conviction proceedings were both outside the scope of a lay person’s knowledge and that the prosecutor’s statements misrepresented Petitioner’s prison medical records.
(DCTR 19) (emphases added).
On November 30, 1998, Respondent appealed the magistrate judge’s discovery order. The district court affirmed the ruling. Significantly, the district court stated the following:
Additionally, if the facts are developed to show that petitioner’s mental health should have been introduced as mitigating evidence, petitioner may be entitled to relief. The magistrate judge heard argument of counsel and then ruled that certain specific discovery would be allowed. . . . Not only has Thompson raised the issue of ineffective assistance of counsel for failure to fully explore his mental health for mitigating purposes at his sentencing, which trial counsel testified he should have explored Thompson’s mental health further . . . ; the record also includes factual allegations that there was some mental health evidence that could have been introduced as mitigating evidence. Furthermore, Thompson alleges he did not receive a full and fair post-conviction hearing in state court because he was denied funds to hire a mental health expert to prove his incompetency/insanity at trial and at execution. If the fact are fully developed, he may be able to demonstrate he is entitled to relief.
After a cursory review of the numerous volumes of state documents[] involved in this case, it appears that Thompson has alleged a factual basis for some of his claims and the magistrate judge so found. For example, petitioner claims trial counsel failed to properly investigate his mental health history and present mitigating evidence at trial and sentencing. Petitioner contends he had two serious head injuries and intermittent bizarre and delusional thought patterns and witnesses to testify to such, and this mitigating evidence should have been introduced. Furthermore, petitioner contends that his institutional records reveal a diagnosis of schizophrenia with problems of auditory and visual hallucinations and paranoid ideation. If petitioner proves these factual allegations, he may be entitled to relief.
(Footnote omitted) (DCTR 22).
On December 24, 1998, Respondent filed his initial expert witness list disclosure. It listed simply Dr. Theodore H. Blau, who would “testify as an expert in the area of forensic neuropsychology. Dr. Blau will be called, if necessary, to rebut the testimony of petitioner’s expert witnesses, Dr. Barry Crown and Dr. Faye Sultan, as disclosed in petitioner’s initial witness list of October 30, 1998.” (DCTR 24).
On December 29, 1998, Attorney Kissinger moved to appear pro hac vice. (DCTR 25).
On February 3, 1999, the district court granted Thompson’s request for an extension of time to conduct discovery. The court set the discovery date at June 11, 1999, and the dispositive motion cutoff at July 2, 1999. (DCTR 32).
On February 12, 1999, Thompson filed an ex parte motion for a temporary mandatory restraining order, for preliminary and permanent injunctive relief, and for an order finding Thompson incompetent to proceed, continuance, and to toll. (DCTR 34). In support, Thompson alleged in part as follows:
1. Petitioner suffers from schizophrenia. During the vast majority of his incarceration Respondent has medicated Petitioner in order to treat his mental illness.
2. On or about September 1998, Respondent stopped providing Petitioner with appropriate psychiatric medication.
3. Petitioner’s mental health thereafter radically declined. Petitioner is now unable to meaningfully assist counsel or understand the nature of the proceedings in which he is being required to participate. Moreover, because of the severe nature of Petitioner’s mental illness, Respondent’s refusal to provide appropriate psychiatric care is tantamount to subjecting Petitioner to physical torture. See, Exhibit A, Declaration of Faye Sultan PhD. attached.
. . . .
6. Petitioner has no remedy at law. . . . Given the Petitioner’s incontrovertible right both to receive proper psychiatric care and to seek federal habeas corpus relief the likelihood that he will prevail on the merits of his motion are great. Should Respondent be allowed to continue to deprive Petitioner of proper psychiatric care Petitioner will suffer irreparable injury. Not only is he being rendered incompetent, he is, for all intents and purposes, being tortured.
(Footnotes omitted.). The motion was signed by Attorney Kissinger (by permission). (DCTR 34).
Attached to the February 1999 motion is the declaration of Faye Sultan, Ph.D, a clinical psychologist. Sultan stated in relevant part that
At the request of attorneys at the Federal Defender Services of Eastern Tennessee, I initiated a psychological evaluation of Mr. Gregory Thompson in August, 1998. Formal psychological testing and extensive clinical interview were conducted with Mr. Thompson at the Riverbend Maximum Security Prison in Nashville, Tennessee on 8-20-98. This interview was conducted as a “Contact Visit”, with no physical barrier between this examiner and Mr. Thompson, and Mr. Thompson was not physically restrained in any way.
In addition to the data gathered during this examination, I was asked to review extensive documentation about Mr. Thompson’s psychiatric, military, and legal history. These data also serve as bases for the opinions rendered here. These data include psychiatric records and examinations regarding Mr. Thompson for approximately the past fifteen years, administrative and medical records from the Tennessee Department of Corrections, and legal and police documents relating to the original offenses for which Mr. Thompson is currently incarcerated. In total, hundreds of pages of records and documents have been reviewed for the purpose of this evaluation.
(DCTR 34). Dr. Sultan also stated that in August 1998 Thompson met all of the diagnostic criteria for the major mental illness schizophrenia, episodic, with interepisode residual symptoms. She further indicated that Thompson’s condition had rapidly deteriorated between August 1998 and February 1999. In Dr. Sultan’s opinion, Thompson was experiencing a severe psychiatric crisis, making him unaware of his surroundings, and requiring immediate emergency attention. (Id).
On April 7, 1999, Thompson moved to withdraw his ex parte motion for injunctive relief and for an order finding him incompetent to proceed, principally because on April 6, 1999, Dr. Sultan saw Thompson and concluded that his condition had improved, due to an adjustment in his medication. Thus, the factual basis for the motion no longer existed. (DCTR 64). On April 29, 1999, the court granted the motion to withdraw the ex parte motion. (DCTR 67).
On June 28, 1999, the district court entered an order extending the discovery deadline to July 30, 1999. The court extended the deadline to allow Respondent to depose Thompson’s expert witnesses, Drs. Crown and Sultan, and to allow Petitioner to depose Respondent’s expert witness, Dr. Theodore Blau. On July 9, 1999, Respondent filed a motion for summary judgment as to all claims raised in the amended petition for writ of habeas corpus. (DCTR 81-82). On July 15, 1999, Thompson deposed Respondent’s expert, Dr. Blau. On July 20, 1999, Respondent deposed Petitioner’s expert. Dr. Crown.(6) On July 29, 1999, Thompson filed his response to Respondent’s motion for summary judgment.
On August 2, 1999, Respondent filed a motion for reimbursement of deposition expenses. (DCTR 87). Respondent claimed that Dr. Crown’s deposition testimony was considerably different than that represented in Petitioner’s initial witness list. Specifically, Respondent alleged that, based on Petitioner’s initial disclosure concerning Dr. Crown’s testimony, particularly as to Petitioner’s mental state at the time of the offense, “i.e., his ability to distinguish between right and wrong and/or to conform his conduct to the requirements of law, competency at the time of trial,” counsel for Respondent traveled to Miami, Florida to depose Dr. Crown. Respondent further claimed that, at the beginning of the deposition, he was presented “for the first time” with an affidavit indicating Dr. Crown’s proposed testimony, which was significantly different from the October 30, 1998, initial witness list disclosure. The affidavit indicated no opinion as to Thompson’s mental state at the time of the offense or at trial, no opinion indicating that brain damage substantially impaired Thompson’s ability to conform his conduct to the requirements of law and/or to distinguish between right and wrong, and no opinion concerning Thompson’s ability to assist counsel in his defense at trial or comprehend the nature of that proceeding.
Respondent alleged that, “contrary to representations in Petitioner’s initial expert disclosure, Dr. Crown testified in his deposition that he had not rendered, nor had he been asked to render, an opinion concerning Petitioner’s mental status at the time of the offense in this case.” (DCTR 87). The motion stated that Dr. Crown testified that he was also not asked to render an opinion concerning Petitioner’s competence at the time of trial. The motion further alleged that “Dr. Crown testified that he had seen petitioner on one occasion, June 12, 1998, and was prepared to render an opinion concerning petitioner’s competence and mental status on that day.” Thus, in Respondent’s view, “Dr. Crown offered no testimony pertinent to any claim presented in the amended petition for writ of habeas corpus.” Respondent therefore claimed that, had he been advised of the precise nature of Dr. Crown’s testimony, as required under Fed. R. Civ. P. 26(a)(2)(B) and by the district court’s order of March 11, 1998, he likely would not have deposed Dr. Crown. Respondent contended that, given the clear representations in his October 1998 expert disclosure statement, Petitioner had a duty to disclose the nature of Dr. Crown’s testimony. Respondent sought an order requiring Petitioner to reimburse Respondent in the amount of $2,768.71 for expenses incurred in connection with the July 20, 1999, deposition of Dr. Crown.
On August 4, 1999, Petitioner filed a motion in limine, seeking to exclude Dr. Blau’s testimony on the grounds that Dr. Blau neither formed an opinion nor was asked to form an opinion regarding any of the issues raised in the petition: “Despite all issues being clearly framed by the allegations in the petition, Respondent never sought, nor did Dr. Blau render, any opinion contrary to such allegations.” (Footnote omitted.). (DCTR 88). Also on August 4, Petitioner filed a motion for costs incurred in deposing Dr. Blau. Petitioner alleged in pertinent part:
2. On July 15, 1999, undersigned counsel conducted the deposition of Dr. Blau in order to discover the substance of his testimony at the evidentiary hearing. At that time Dr. Blau testified that he had been asked to render an opinion only in regard to Mr. Thompson’s competency to proceed in the instant action . . . ; that he had not reached any opinion other than that reflected in his report on the competency to proceed . . . ; and that in order to render additional opinions he would require further interviewing and testing of Mr. Thompson. . . .
3. It is clear that although Respondent was on notice of Petitioner’s mental health claims which are detailed in his habeas petition and was on notice regarding Petitioner’s anticipated expert’s testimony, Respondent either instructed Dr. Blau not to render any opinion during deposition regarding the issues in the petition or Dr. Blau failed to formulate such opinions. It appears that Respondent made the strategic decision to limit Dr. Blau’s testimony to Mr. Thompson’s competency to proceed given Dr. Blau’s sworn testimony that his opinion was limited to Mr. Thompson’s competence to proceed, the fact that Dr. Blau only evaluated Mr. Thompson on one occasion for the specific purpose of competency to proceed, and that Respondent did not provide a copy of Petitioner’s habeas petition to Dr. Blau.
4. Undersigned counsel relied upon Respondent’s representation that Dr. Blau would rebut Petitioner’s expert witnesses. Had undersigned known that Dr. Blau’s opinion was limited to Mr. Thompson’s competency to proceed, an issue which is no longer before this court, he would not have taken Dr. Blau’s deposition and incurred expenses totaling $4,097.01.
(DCTR 89) (emphasis added) (footnote omitted). Petitioner requested a court order requiring Respondent to pay those costs. The motion for costs is signed by Stephen M. Kissinger.
On August 5, 1999, Thompson filed a response opposing Respondent’s motion for reimbursement of deposition expenses. In it he contended that the opinions Dr. Crown expressed in his deposition were materially consistent with Thompson’s initial witness list. In response to Respondent’s contention that Dr. Crown failed to provide an opinion at deposition regarding Thompson’s mental condition at the time of the offense, Thompson stated that “[t]his allegation is untrue or irrelevant for at least two reasons.” First,
5. Insofar as Respondent’s complaint relates to Dr. Crown’s response to the Assistant Attorney General Pruden’s very few questions which Respondent elected to attach to his motion, Dr. Crown was not asked whether he had an opinion regarding Petitioner’s mental condition at the time of the offense or at trial. Instead Mr. Pruden chose to focus on the communication between Dr. Crown and Respondent’s counsel.[(7)]
. . . .
7. Not one of these questions asked whether Dr. Crown had an opinion on the issue of mental state at the time of the offense, at trial, or at any other time for that matter. They queried only regarding the communications between Dr. Crown and undersigned counsel. As a matter of fact, only once in the excerpts attached to Respondent’s motion does Mr. Pruden ask any question which could reasonably be interpreted as seeking Dr. Crown’s opinions on these issues.
8. On that occasion, Dr. Crown responded that he was unable to render such an opinion because he could not be certain whether he had been provided all relevant information. Crown deposition at Page 9, lines 4-15. Rather than show that he had no opinion on a material issue, Dr. Crown’s answer demonstrated that he would not carelessly issue an opinion until counsel for Respondent defined the facts upon which counsel wished Dr. Crown to base that opinion. Despite Dr. Crown’s qualified response, counsel for Respondent never asked Dr. Crown whether, assuming that Dr. Crown had all relevant information, he had an opinion regarding Mr. Thompson’s mental state at the time of the offense and/or at trial, nor did counsel provide Dr. Crown with supplemental fact which Respondent deemed relevant and then ask him whether, based upon the combined information, he held an opinion on those regards.
9. The reasons Respondent failed to discover Dr. Crown’s opinions in these areas were not because Dr. Crown held no such opinions. Respondent’s counsel either made a strategic decision to focus on the conduct of counsel (or perhaps to attempt to create the illusion that Dr. Crown’s opinions regarding these areas will come as a complete surprise to the Respondent when they are stated at hearing), or he simply neglected to ask the relevant questions.
(DCTR 90).
Thompson articulated a second reason, namely that Dr. Crown’s deposition did substantially conform to the information contained in his initial witness list because Crown stated during his deposition “that Petitioner suffers from bipolar disorder of a schizo-affective type and that the onset of this affliction was prior to the alleged offense. Crown deposition at Pages 32-34, in passim.” Thompson added that “[u]nless Respondent can seriously maintain that it is material in this case whether Dr. Crown found that Petitioner suffered from one severe schizotypal mental illness at the time of the offense as well as his state court trial rather than another severe schizotypal mental illness, Dr. Crown’s deposition testimony is clearly consistent with the information contained in Petitioner’s Initial Witness List.” Thompson also alleged that Respondent was not in a position to complain that Dr. Crown’s testimony did not make the connection between Petitioner’s mental illness and competency at the time of the offense, because Respondent “with full knowledge that Dr. Crown was of the opinion that Petitioner was severely mentally ill at the time of the offense, either chose not to inquire regarding the afore-described connection or forgot to do so.” (DCTR 90) (emphasis added). Thompson therefore claimed that he had demonstrated that the information in his initial witness list was consistent with Dr. Crown’s testimony. He further claimed that even if it was materially inconsistent, Respondent could not complain because he had previously made this allegation to the magistrate judge, who granted Respondent the right to depose both Drs. Crown and Sultan before Respondent ever contacted Dr. Blau. Thus, Thompson claimed that Respondent had been granted the opportunity to determine the exact opinions of Dr. Crown before Dr. Blau was ever contacted. (DCTR 90).
Next, Thompson asserted that Dr. Blau stated during his deposition that he was contacted by Respondent’s counsel, Pruden, on November 2, 1998, to retain him as a psychological expert and that he was asked simply “to review records in respect to competence to proceed regarding Mr. Thompson, and possible questions were whether Mr. Thompson is competent to act as a party participant in habeas corpus proceedings,” and also whether he “could determine psychologically his mental condition and status with respect to his capacity to understand his legal position and his options.” (DCTR 90 (quoting Deposition of Theodore H. Blau, Ph.D., July 15, 1999, Page 5, lines 8-19). Thompson further alleged that Dr. Blau was asked whether he had been asked to examine Thompson regarding any area other than competency and that “[h]is response clearly demonstrated that not only had he not examined and/or reached any opinions in any area other than Petitioner’s present competency, the only neuropsychological examination he had conducted was ‘at best’ . . . a screening examination.” (DCTR 90 ¶ 6). Thompson therefore moved for an order denying Respondent’s motion for reimbursement of deposition expenses. (DCTR 90).
In his reply, Respondent stated simply that the documents attached to its motion for reimbursement plainly demonstrated that Thompson’s October 1998 disclosure was materially different from the testimony offered at Dr. Crown’s deposition and in his affidavit. (DCTR 91). Attached as an exhibit was a complete copy of Dr. Crown’s July 20, 1999, deposition. Much of it bears repeating here:
Q: Specifically, what issues regarding Mr. Thompson and his case have you been asked to review and render expert opinions on, sir?
A: At this point, I have been asked to consider his competency and also his mental status.
Q: Okay. Let’s take them one at a time, then. Competency, are you talking strictly about his present competency in the habeas corpus proceedings?
A: I am talking about his competency at the time that I saw him.
Q: Have you been asked to render any determination about whether or not he was competent to stand trial at his criminal trial?
A: No.
Q: Has anything been said to you that would lead you to believe that you might be asked at a future date prior to the evidentiary hearing to render such an opinion?
A: It hasn’t been suggested or asked of me.
Q: So if I understand you correctly then, you were only asked to make a competency determination at the time you met Mr. Thompson?
A: That is correct.
Q: And when was that, sir?
A: June 12th of 1998.
Q: All right. His mental status. Please elaborate for me, what about his mental status have you been asked to opine?
A: I have been asked to evaluate it.
Q: His mental status at present?
A: Well, it was his status as of the time that I saw him. I haven’t seen him since June 12th of 1998.
Q: Have you been asked to render any opinions concerning Mr. Thompson’s mental status at the time of the murder of Brenda Lane?
A: Not specifically, no.
Q: Not specifically. Does that mean that you have not been asked that specific question?
A: That is correct.
Q: Have you rendered an opinion, though, in that regard?
Q: No, not as of this time.
Q: So you have not rendered an opinion to Mr. Kissinger yet one way or another regarding Mr. Thompson’s ability to distinguish between right and wrong or conform his conduct to the requirements of the law at the time of Ms. Lane’s murder?
A: That is correct.
Q: Has Mr. Kissinger, or anyone else representing Mr. Thompson, represented to you that they would like you to render such an opinion during the course of your employment?
A: No.
Q: Just so I am clear then, your mental status evaluation of Mr. Thompson is only to evaluate his mental status at present?
A: I have only seen him on one occasion, June 12th of 1998. So what I have to say would be related to that examination. I have looked at other records, but I don’t know they are necessarily complete, and I couldn’t render an opinion based on the lack of completeness, or what I assume is the lack of completeness.
Q: So you don’t feel that based on the materials that you have reviewed to date that you could, based on your professional experience, render an opinion about Mr. Thompson’s mental state say back in 1985 at the time of the murder?
A: As I sit here today, I could not.
Q: So you are not prepared to render any opinion in that regard today?
A: That is correct.
Q: What materials have you been provided to review concerning Mr. Thompson?
A: I have seen what I believe to be his Department of Corrections file from it’s [sic] inception.
Q: And when you say his Department of Corrections file, do you mean his medical/mental health file?
A: It’s his medical file, as well as his general file, including disciplinary reports, including adjustment reports.
Q: Have you reviewed any other records?
A: I have seen the depositions of three of the employees of Prison Health Services. I have seen the reports of the mental health facility that Mr. Thompson spent thirty days in prior to his original trial. I have seen the testimony of the mental health professions at his trial, Dr. Kogley.
Q: Cobley?
A: Cobley. I have seen the materials from Dr. Blaire.
Q: How about Dr. Watson?
A: Watson. I have seen Dr. Watson.
Q: When you say materials from Dr. Blaire, does that simply mean her testimony, or have you seen other--
A: I have seen the raw data, or parts of raw data. Actually, the entire raw data are not in the materials that were provided to me. And then I have seen Dr. Blau’s report and Dr. Blau’s raw data.
Q: And you just received Dr. Blau’s--
A: Correct.
(DCTR 91).
Dr. Crown also indicated that he had reviewed Thompson’s medication portfolio from his records at Riverbend Maximum Security Institution. When asked, Dr. Crown stated that he had not read, and not been asked to read, the trial transcript, but that he had asked Mr. Kissinger “to provide me with whatever materials he wished.” (DCTR 91). Dr. Crown acknowledged that he had not given Kissinger a specified list of items he wished to review, but was “relying on whatever it is Mr. Kissinger” gave him.
Dr. Crown also stated that he met with Thompson on June 12, 1998, at Riverbend for about two and one half hours. Dr. Crown indicated that, at that time, he took a brief history, a standard basic demographic clinical interview, and administered a group of tests.(8) Dr. Crown testified that the only written record of his evaluation was his July 20 affidavit; that he would only prepare a written report if Kissinger asked. He also indicated that Kissinger had not at that time asked him to do so.
Dr. Crown opined that Thompson suffers from an auditory processing deficit. He further indicated that Thompson has some sort of organic brain damage, but that he did not pinpoint it to a specific portion of the brain. Dr. Crown stated that he did not intend to make any further evaluation of Thompson’s organic brain damage unless asked. Dr. Crown indicated that he knew that Thompson had suffered traumatic head injuries. He testified that he had not seen Thompson’s military medical records. Dr. Crown testified that the organicity was secondary to other mental impairments, namely schizo-affective disorder, bipolar subtype, with organic components. Dr. Crown stated that he reached this conclusion
from looking at the reports of the treating physician, the psychiatrists, and psychiatric nurses, and nurse practitioners that have had the opportunity to monitor him over the last fourteen years, that I have concluded that he’s best treated with anti-psychotic medication, that schizo-affective disorder is a disorder that affects thoughts related to reality and results in distortions of reality.
It also results in distortions of affect, meaning, the way that behavior is expressed. And