602 F.2d 694 (5tht Cir. 1979), 78-1839, Smith v. Estelle

Docket Nº:78-1839.
Citation:602 F.2d 694
Party Name:Ernest Benjamin SMITH, Petitioner-Appellee, v. W. J. ESTELLE, Jr., Director, Texas Dept. of Corrections, Respondent-Appellant.
Case Date:September 13, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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602 F.2d 694 (5tht Cir. 1979)

Ernest Benjamin SMITH, Petitioner-Appellee,


W. J. ESTELLE, Jr., Director, Texas Dept. of Corrections,


No. 78-1839.

United States Court of Appeals, Fifth Circuit

September 13, 1979

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Anita Ashton, Asst. Atty. Gen., Austin, Tex., for respondent-appellant.

Joel I. Klein, Rogivin, Stern & Huge, Washington, D. C., for the American Psychiatric Assn.

James M. Nabrit, III, Joel Berger, Jack Greenberg, John C. Boger, New York City, Anthony G. Amsterdam, Stanford University Law School, Stanford, Cal., for petitioner-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before WISDOM, GOLDBERG and VANCE, Circuit Judges.

GOLDBERG, Circuit Judge:

Ernest Benjamin Smith, Jr., the appellee in this case, participated in an armed robbery in which a person was killed. He was indicted for capital murder and convicted by a jury in Dallas County, Texas. Texas law provides that when a defendant is convicted of a capital crime, the court must immediately hold a hearing, before the same jury, to decide whether the defendant is to be sentenced to life imprisonment or put to death. The jury answers "yes" or

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"no" to each of three questions; if it answers all the questions in the affirmative, the judge must impose a death sentence. The second question 1 the only one involved in this appeal is

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

Tex.Code Crim.Proc.Ann. art. 37.071 (Vernon Supp.1978).

At the sentencing hearing in Smith's case, a psychiatrist who had examined Smith testified for the state and strongly urged that Smith would commit acts of violence and would constitute a continuing threat to society. Smith was sentenced to death. After appealing through the state courts he petitioned for federal habeas corpus. Judge Porter of the United States District Court for the Northern District of Texas held that several particular aspects of the psychiatrist's testimony violated Smith's constitutional rights. He did not disturb Smith's conviction but he ordered that the death sentence not be carried out. The state appeals. We affirm.


Smith and Howie Ray Robinson robbed a convenience store in Dallas on September 28, 1973. Both carried guns. During the robbery, the clerk in the store "reached for something." Smith called out to Robinson; one prosecution witness testified that Smith said "Watch out, Howie," but another asserted that Smith had later recalled saying, "Get him, Howie." Robinson shot and killed the clerk. Smith never fired his gun. There was testimony that Smith knew it was defective and could not be fired; there was also testimony that he had attempted unsuccessfully to fire it during the robbery. Smith and Robinson were both arrested and indicted for capital murder.

Approximately six weeks later, while Smith was awaiting trial, the state trial judge asked the prosecutor to have Smith examined by a psychiatrist named James P. Grigson. The judge wanted Dr. Grigson to decide whether Smith was competent to stand trial. No one had ever questioned Smith's competence; the trial judge ordered the examination entirely on his own motion. He later testified that he always ordered such an examination in a capital case. Dr. Grigson spoke to Smith for ninety minutes. Smith was never told that Dr. Grigson was assessing anything but his competence to stand trial, and he cooperated fully. Dr. Grigson did conclude that Smith was competent to stand trial, but he filed no formal report; instead he wrote a letter notifying the trial judge of his conclusion. Judge Porter found that Smith's attorneys were never told that Dr. Grigson had examined their client. 2

At the beginning of the sentencing hearing, after Smith had been tried and convicted, the prosecution announced that it was resting "subject to reopening." Smith presented three witnesses his stepmother, his aunt, and the owner of the gun he used in the robbery and rested. The prosecution then called Dr. Grigson. By this time, the defense attorneys had seen, in the court's file of the case, Dr. Grigson's letter advising the trial judge that Smith was competent, but they did not know that Dr. Grigson was connected to the case in any other way. In fact, before the trial the defense attorneys had obtained an order requiring the prosecution to disclose all the witnesses it planned to use in its case in chief. The state presented a list of witnesses, and the defense successfully moved that the prosecution be prohibited from presenting the testimony of any witnesses not on

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the list. Dr. Grigson's name was not on the list.

When Dr. Grigson was called at the sentencing hearing, the defense objected and asked that the jury be excused. Defense counsel then conducted a voir dire examination of Dr. Grigson, in which he testified that he had never told the defense attorneys about his interview with their client. He acknowledged, however, that he had discussed his conclusions with the prosecution. He testified that at some time between his examination of Smith and the trial, one of the prosecutors had told him that he might be called to testify against Smith. Then five days before the sentencing hearing, at the very beginning of the trial, the prosecution told him that his testimony would be needed within the week. App. 122. At this point in the voir dire defense counsel moved that Dr. Grigson not be allowed to testify because his name had not been included on the prosecution's witness list. The trial judge denied the motion. The trial judge also agreed that the jury could be told that it was he who had asked Dr. Grigson to examine Smith. The jury was so informed but was never told that the judge had appointed Dr. Grigson only to determine Smith's competence to stand trial, not to decide if he was prone to commit acts of violence.

Dr. Grigson's testimony was extremely damaging to the defendant. He described his extensive qualifications and detailed the five phases of his ninety-minute interview with Smith. He had had no other contact with Smith or with any of Smith's relatives, but on the basis of the interview he concluded that Smith was "a sociopathic personality . . . a very severe sociopath." App. 135, 136. He was "(a)bsolutely . . . convinced that (Smith) is a severe sociopath on the far end of the sociopathic scale." App. 141. Sociopaths, he said, "do not have a conscience that most of us develop at an early age." App. 135. "They will tell the truth if it serves their purpose. If it's harmful, whatever distortion of the truth is necessary is what they will use." App. 136. And then:

Q No conscience, no remorse, no guilt feelings?

A No. He has none.

Q Now, Dr. Grigson, what is your prognosis in this case?

A Oh, he will continue his previous behavior that which he has done in the past. He will again do it in the future.

Q All right. So, were he released into society, I take it, then, you would not expect his behavior to differ from what it has been?

A No. If anything it would only get worse.

Q Now, Dr. Grigson, this sociopathic personality that Smith has is this a condition that will improve with time? I guess what I'm asking you is this: Is this a stage that he is passing through that he will grow out of?

A No. This is not what you would consider a stage. This is a way of life. Just as you work every day, well his personality comes out in his behavior, but it is not a stage he is going through. It's only something he will continue.

Q You said get worse?

A Yes.

Q If it can?

A Right.

A . . . (I)t's my opinion that really, Mr. Smith does not have any regard for another human being's property or for their life, regardless of who it may be. This is what makes him such a very severe sociopath. He has complete disregard for another human being's life.

Q Dr. Grigson, does the field of medicine perhaps psychiatric treatment and/or hospitalization of some sort does that have anything beneficial to offer someone like Ernest Benjamin Smith?

A We don't have anything in medicine or psychiatry that in any way at all modifies or changes this behavior. We don't have it. There is no treatment, no medicine. Nothing that's going to change this behavior.

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Q Now, Dr. Grigson, do you have an opinion as to whether or not there is a probability that the Defendant, Ernest Benjamin Smith, will commit criminal acts of violence that will constitute a continuing threat to society?

A Yes, sir. I have an opinion as to that.

Q And what is that opinion?

A That certainly Mr. Smith is going to go ahead and commit other similar or same criminal acts if given the opportunity to do so.

Q Now, Dr. Grigson, I believe you have stated that this man has no remorse or sorrow for what he has done?

A No. He has none.

App. 136-39.

The prosecution called no other witnesses at the sentencing hearing. The jury answered "yes" to all three questions and Smith was sentenced to death.

The Texas Court of Criminal Appeals affirmed Smith's conviction and sentence. Smith v. State, 540 S.W.2d 693 (Tex.Cr.App.1976). The United States Supreme Court, over the dissent of three justices, denied certiorari. 430 U.S. 922, 97 S.Ct. 1341, 51 L.Ed.2d 601 (1977). On federal habeas corpus, Judge Porter held that Dr. Grigson's testimony violated Smith's sixth and fourteenth amendment right to the effective assistance of counsel, his eighth amendment right to present mitigating circumstances, and his fifth amendment right not to be forced to incriminate himself. Smith v. Estelle, 445...

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