Franklin v. Francis

• Decision Date: 27 February 1998
• Docket Number: No. C1-98-0136.,C1-98-0136.
• Citation: 997 F.Supp. 916
• Parties: Jennie FRANKLIN, et al., Petitioners, v. Rodney L. FRANCIS, Respondent.
• Court: U.S. District Court — Southern District of Ohio

Page 916

997 F.Supp. 916

Jennie FRANKLIN, et al., Petitioners, v. Rodney L. FRANCIS, Respondent.

No. C1-98-0136.

United States District Court, S.D. Ohio, Eastern Division.

February 27, 1998.

COPYRIGHT MATERIAL OMITTED

J. Joseph Bodine, Jr., Jonathan A. Woodman, Ohio Public Defender Com'n, Columbus, OH, Laurence E. Komp, Ohio Public Defender's Office, Columbus, OH, Randall Lee Porter, State Public Defender Office, Fed. Death Penalty Resource Center, Columbus, OH, for Petitioners.

Simon Barry Karas, Ohio Atty. Gen., Columbus, OH, for Respondent.

OPINION AND ORDER

MARBLEY, District Judge.

I. INTRODUCTION

Petitioners, Jennie Franklin and Elaine Quigley (together "Petitioners"), the birth mother and sister of Wilford Lee Berry ("Berry"), have filed with this Court a first petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2251, on behalf of Berry, who is presently scheduled to be executed by the State of Ohio at 9:00 p.m., Tuesday, March 3, 1998. In addition, Petitioners request this Court to issue a stay of the execution of Berry, and to hold an evidentiary hearing to determine Berry's competency to waive his right to federal post-conviction relief. Petitioners file these papers acting as "next friends" of Berry, pursuant to 28 U.S.C. § 2242.

This matter is before the Court on Petitioners' Motion for Stay of Execution (doc. 4), Petitioners' Motion for Evidentiary Hearing (doc. 5), Respondent's Memorandum in Opposition to Motion for Stay of Execution, and Petitioners' Reply Memorandum. The Court heard oral argument on these Motions on February 26, 1998 and took the matter under advisement to determine whether there is an adequate basis on which to stay the execution.

II. STATEMENT OF FACTS

A. Procedural Background

On December 13, 1989, the Cuyahoga County Grand Jury indicted Wilford Lee Berry, Jr. for aggravated murder, aggravated robbery and aggravated burglary in the death of Charles Mitroff, and the burglary of his bakery in Cleveland, Ohio, where Berry was employed. Berry was examined before trial by a court-appointed clinical psychologist, Dr. Robert W. Goldberg. After his examination, Dr. Goldberg determined that Berry was sane at the time of the killing and was competent to stand trial. Defense counsel therefore never raised the issue of Berry's competency, or the insanity defense.

On July 3, 1990, a jury found Berry guilty on all counts charged in the indictment. The mitigation phase of Berry's trial commenced on July 30, 1990. That morning, Berry's counsel raised for the first time the issue of his competency to proceed with the mitigation phase of his trial. In addition, defense counsel moved for a new trial on the basis of newly discovered evidence which he believed would enable him to pursue a defense of not guilty by reason of insanity. Specifically, defense counsel claimed that he had recently discovered that Berry had withheld information as to a possible motive for the murder of Mitroff and that this act raised a question regarding his sanity. According to defense counsel, Berry had previously maintained that he killed Mitroff for "no reason." Berry's sister, Elaine Quigley, however, had recently told defense counsel that Mitroff had nearly hit her and her daughter with a delivery van, sometime prior to Berry's employment at Mitroff's bakery. Berry was now claiming, according to his counsel, that that incident motivated him to kill Mitroff.

More importantly, defense counsel claimed that the court-appointed clinical psychologist, Dr. Goldberg, had considered this information and altered his opinion as to Berry's competency to proceed. In addition, Dr. Goldberg suggested that this new information reflected on Berry's competency during the culpability phase of the trial. Thus, defense counsel also stated that Berry might not be competent enough to proceed with the mitigation phase. The trial court denied Berry's motion for a new trial and did not order a competency hearing. The case then proceeded to verdict and sentence without Berry ever having been adjudicated competent to stand trial.

At the mitigation phase of Berry's trial, Berry specifically asked the jurors to sentence him to death because he would not be any better able to cope with the outside world after spending twenty or thirty years in prison and would kill again if released. The jury recommended a death sentence, and the trial court judge accepted the jury's recommendation and imposed a single death sentence. Berry's conviction and death sentence were affirmed by the Court of Appeals and the Supreme Court of Ohio. State v. Berry, 72 Ohio St.3d 354, 650 N.E.2d 433 (1995).

After his direct appeal, Berry represented to the state courts that he wished to forego any further challenges to his conviction and sentence and that he desired to submit to the execution of his death sentence. The Ohio Public Defender, who had mandatorily represented Berry in his direct appeal, claimed that he was not mentally competent to make such a decision. The State of Ohio filed a motion for a competency hearing with the Supreme Court of Ohio, and that Court ordered an evaluation of Berry's competence. It also appointed Dr. Phillip J. Resnick to conduct the evaluation, and ordered him to apply the following standard:

A capital defendant is mentally competent to abandon any and all challenges to his death sentence, including appeals, state post-conviction collateral review, and federal habeas corpus, if he has the mental capacity to understand the choice between life and death and to make a knowing and intelligent decision not to pursue further remedies.... The defendant must fully comprehend the ramifications of his decision, ... and must possess the `ability to reason logically,' i.e., to choose `means which relate logically to his ends.' ...

State v. Berry, 74 Ohio St.3d 1504, 659 N.E.2d 796 (1996).

Dr. Resnick examined Berry in April 1996. Berry was also examined by Dr. Robert W. Alcorn, who was agreed to by both the State and the Public Defender, and examined by Dr. Sharon Pearson, a psychologist who examined Berry on behalf of the Public Defender. Dr. Pearson spent 12 hours with Berry both interviewing and testing him. Dr. Alcorn interviewed Berry for 1½ hours but did not review any materials on Berry's mental health history. Dr. Resnick spent 2 ¾ hours interviewing Berry, reviewing his mental health history and reviewing Pearson's report. Drs. Resnick and Alcorn diagnosed a mixed personality disorder with schitzotypal, borderline and antisocial features. Subsequently, in June 1997, the Court of Common Pleas held a hearing on the issue of Berry's competence.

The State called Drs. Resnick and Alcorn at the competency hearing. Both of them found Berry to be competent. The Public Defender also called two witnesses at the competency hearing. Dr. Pearson, who found Berry incompetent to waive his rights, concluded that Berry suffered from schizotypal disorder, a rigid thought process, a tendency toward extreme isolation and withdrawal, and a tendency to have psychotic episodes under stress. Dr. Jeffrey L. Smalldon, a psychologist who never examined Berry and had no opinion as to his competence, testified generally regarding schizotypal personality disorder and its relevance in determining a person's competence.

After hearing the evidence, the trial judge issued an Order on July 22, 1997, which found that, while he suffers from a mixed personality disorder with schizotypal, borderline and antisocial features, Berry "is competent to forego any and all further legal challenges."¹ After reviewing the record and considering the arguments of the State and the Public Defender, the Supreme Court of Ohio, on December 3, 1997, also found that Berry was competent to forego all further reviews of his conviction and sentence. See State v. Berry, 80 Ohio St.3d 371, 686 N.E.2d 1097 (1997). The court ordered that the death sentence be executed on March 3, 1998.

On September 5, 1997, Berry was assaulted by inmates housed in his cell block who had gained control in a riot. Berry's jaw and facial bones were badly broken during the assault and required surgery and metal implants to repair the damage. Berry's right hand was also heavily damaged because he used it in an attempt to protect the back of his head from blows inflicted by a heavy padlock swung on a chain. Berry also suffered several broken ribs, bruised internal organs and required staples in his head. According to the Public Defender, Berry was rendered unconscious by the beating. None of the information related to the beating was considered by any of the mental health professionals who had examined Berry, and the Public Defender's request for an additional evaluation after the beating was denied by the Supreme Court of Ohio. State v. Berry, 80 Ohio St.3d 1402, 684 N.E.2d 335 (1997).

It has been more than eight months since the State's competency hearing at the trial court was held. It has been almost three months since the Supreme Court of Ohio's review and approval of the trial court's judgment of competency.

B. Berry's History of Mental Disturbances

Berry endured a childhood replete with physical and emotional trauma, some of which have evolved into more troublesome mental and physical illnesses. His mother, who once beat him with an extension cord out of frustration, was diagnosed with bipolar disorder. His father, who left the family when Berry was but a year old, was a diagnosed schizophrenic and passed away in a mental institution from a degenerative brain disease. Berry was also sexually molested at a young age by the teenage children of his babysitter, and his mentor in a Big Brother program made sexual advances toward him.

Berry has also suffered from blackouts and hallucinations from a young age. He has hallucinations of despair and dying, and fights to the death with a "lady in black," who represented Evil and defeated Berry. Berry is susceptible to auditory hallucinations,...