Harper v. Parker

• Decision Date: 24 May 1999
• Docket Number: No. 99-5686,99-5686
• Citation: 177 F.3d 567
• Parties: Eddie Lee HARPER, Jr., Petitioner-Appellant, v. Phil PARKER, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 567

177 F.3d 567

Eddie Lee HARPER, Jr., Petitioner-Appellant, v. Phil PARKER, Warden, Respondent-Appellee.

No. 99-5686.

United States Court of Appeals Sixth Circuit.

Submitted May 22, 1999.

Decided May 24, 1999.

Randall L. Wheeler, Susan M.J. Martin (briefed), Kentucky Capital Litigation Resource Center, Frankfort, Kentucky, for Appellant.

David A. Smith, Dana M. Todd (briefed), Office of the Attorney General, Frankfort, Kentucky, for Appellee.

Before: SILER, BATCHELDER, and MOORE, Circuit Judges.

OPINION

BATCHELDER, Circuit Judge.

Edward Lee Harper, Jr., was convicted and sentenced to the death penalty for the 1982 murder of his adoptive parents. Harper had been evaluated by a psychiatrist before trial; based on the psychiatrist's testimony, the trial court found Harper competent to stand trial.

In June 1985, a different psychiatrist, Dr. Richard Edelson, evaluated Harper to determine his competence in response to Harper's stated desire to waive his remaining post-conviction proceedings. Dr. Edelson concluded that Harper was schizophrenic and that he was incompetent to assist in his defense.

The Kentucky Supreme Court affirmed Harper's conviction and death sentence on May 2, 1985, and the United States Supreme Court denied certiorari on June 9, 1986. Harper filed a motion on August 27, 1986, to vacate his conviction and death sentence under Kentucky Rules of Criminal Procedure 11.42; he filed a supplemental motion on June 28, 1996. The trial court denied the motion to vacate the conviction on December 6, 1996. The denial was upheld by the Kentucky Supreme Court on September 3, 1998, and the United States Supreme Court denied certiorari on April 5, 1999. On April 20, 1999, the Governor of Kentucky signed a warrant scheduling Harper's execution for May 25, 1999.

On April 13, 1999, the Kentucky Department of Public Advocacy (DPA), which has

represented Harper since 1982, filed a consolidated motion for Harper to proceed in forma pauperis and requesting pre-petition appointment as federal habeas counsel for Harper. The district court granted the motion for appointment on April 22, 1999.

The Commonwealth of Kentucky filed a memorandum on April 25, 1999, opposing the motion for appointment on the basis that Harper had received the benefit of continuous representation by the DPA throughout his appeal and state post-conviction proceedings. Therefore, Harper was not within the scope of 21 U.S.C. § 848(q)(4)(B). Harper wrote Judge McKinley personally, on April 28th and May 3rd, to express his desire to waive all further proceedings.

On May 5, 1999, the DPA filed a Motion for Stay of Execution and a Motion to Disqualify the Attorney General and the Department of Corrections from participating in Harper's case. The Motion for Stay noted the issue of Harper's competence to waive his habeas corpus remedy, and the possibility that either a habeas petition or a next friend petition would be filed on his behalf.

On May 7, 1999, following a telephonic conference, the district court entered an order setting an evidentiary hearing for May 18, 1999, "to determine if there is reasonable cause to believe that Petitioner is presently suffering from a mental disease or defect rendering him mentally incompetent." At the commencement of the hearing, the court reiterated that the purpose of the hearing was

to determine if there is reasonable cause to believe that Mr. Harper is incompetent such that we would have to have another hearing about his competency. Mr. Harper has expressed his desires not to proceed with his petition that has been filed. That was communicated to the Court through letters and at a telephonic conference which was held last week sometime. The Department of Public Advocacy wishes to proceed with that petition advocating the position that there is reasonable cause to believe that the petitioner is incompetent and not--does not have the capacity to make that decision, correct?

At the court's request, the DPA then detailed the evidence and testimony it intended to present at the hearing, concluding "I think that what we do have would give you an overview of what could be put on in a full evidentiary hearing."

The evidence presented by the DPA counsel in support of their claim that Mr. Harper is not competent to waive his right to bring a federal habeas action included the testimony of Dr. Edelman, a neuropsychologist, who had examined Harper in 1985 at the request of the DPA when Harper had expressed his desire not to continue his appeals. Dr. Edelman testified that in 1985, he had been asked to determine whether Harper was brain-damaged; that he had reviewed Harper's records, including the records of psychological examinations performed by others, had interviewed Harper, and had concluded that although Harper did not have any brain damage, he was not competent to assist in his own defense, and he was at that time schizophrenic. Dr. Edelman further testified that he had again examined Harper in September 1998, again at the request of the DPA. As a result of that examination, Dr. Edelman concluded that Harper did not evidence brain damage; however, Dr. Edelman further concluded that Harper was neither incompetent nor schizophrenic. Dr. Edelman also testified that he had not been given nor made aware of any specific information relating to the mental health history of Harper's biological family, and that it was possible that information indicating that Harper's biological family had extensive history of depression and other forms of mental illness could have enhanced the accuracy of his findings.

The DPA also presented the testimony of three "mitigation specialists" who had worked on Harper's case, including Valerie Bryan, with whom the DPA claims Harper is obsessed, as well as the testimony of Ms. Martin, one of the DPA counsel appointed by the district court to represent Harper. Harper himself was given the opportunity to and did cross-examine each of these witnesses. In addition, the DPA presented numerous records, including adoption records of Harper and mental health records of numerous individuals whom the DPA identified as members of Harper's biological family, demonstrating varying types and degrees of mental problems. ¹ During the course of the hearing, the DPA renewed their motion, made initially during the telephonic conference, for funds to obtain the evaluation of Harper by an expert; the DPA also orally renewed their earlier filed motion to disqualify both the Attorney General and the Department of Corrections on the ground that attorneys who had been involved in Harper's defense in the state court proceedings were now employees of those offices. The district court deferred ruling on those motions until the close of the hearing.

The State presented the testimony of Ken Thomas, the resident clinical psychologist at the Kentucky State Penitentiary for six years, and Dr. Lloyd Bentley, the institutional psychiatrist at the Penitentiary. Each of these individuals testified to having had recent and current contact with Harper; Thomas testified to having had almost daily contact with Harper over the past several weeks; each of them testified that in their professional opinions, he is competent and that his determination to have counsel discharged and not to proceed with filing an habeas petition is based on his desire not to have to live in prison for the rest of his natural life. Each of these witnesses opined that Harper's decision did not appear to be based on his feelings for any woman or on the loss of privileges resulting from a crackdown on the entire death row population.

The State also presented testimony of the Warden of the Penitentiary and the death row supervisor, neither of whom pretends to be a mental health professional, but both of whom testified to their impressions of Harper over their long acquaintance with him. These witnesses also indicated that Harper is, in their judgment, competent. Harper also questioned each of the State's witnesses.

Finally, the district court permitted Harper to testify on his own behalf. Harper denied that he seeks to end the postconviction litigation because of his love for Valerie Bryan--although he acknowledged that he does love her--or because he believes that only by agreeing to being executed will he have the opportunity to actually see her once more. He further denied that he seeks to end this litigation because of the loss of his prison privileges. He explicitly proclaimed that he seeks to end this litigation because he does not believe that he has any realistic chance of having his conviction overturned, and he does not want to live out his natural life in prison. Harper also explained that he believed that the DPA had not been honest with him when they convinced him to file the affidavit supporting an application to proceed in forma pauperis, and in their explanation of why he needed to file an habeas petition, and that when he realized that the DPA had not been honest, he sent his letter to Judge McKinley advising that he did not wish to have counsel appointed or to proceed any further with litigation.

At the conclusion of the hearing, the district court ruled that the DPA had failed to present evidence that raised a reasonable doubt about Harper's competence; the court therefore discharged the DPA and dismissed the...