Kordenbrock v. Scroggy, Nos. 88-5467

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtBefore MERRITT, Chief Judge, KEITH, KENNEDY, MARTIN, JONES, KRUPANSKY, WELLFORD, MILBURN, GUY, NELSON, RYAN, BOGGS, and NORRIS; MERRITT; BOYCE F. MARTIN, Jr.; KRUPANSKY; WELLFORD; RALPH B. GUY, Jr.; DAVID A. NELSON; RYAN
Citation919 F.2d 1091
PartiesPaul KORDENBROCK, Plaintiff-Appellant, v. Gene SCROGGY, Warden, Kentucky State Penitentiary, et al., Defendants-Appellees.
Decision Date30 January 1991
Docket NumberNos. 88-5467,89-5107

Page 1091

919 F.2d 1091
Paul KORDENBROCK, Plaintiff-Appellant,
v.
Gene SCROGGY, Warden, Kentucky State Penitentiary, et al.,
Defendants-Appellees.
Nos. 88-5467, 89-5107.
United States Court of Appeals,
Sixth Circuit.
Argued En Banc June 13, 1990.
Decided Nov. 21, 1990.
Rehearing and Rehearing En Banc
Denied Jan. 30, 1991.

Edward C. Monahan (argued), Timothy T. Riddell (argued), Dept. of Public Advocacy, Frankfort, Ky., for plaintiff-appellant.

Frederic J. Cowan, Atty. Gen., Michael L. Harned, Asst. Atty. Gen., Carol C. Ullerich (argued), Cicely Lambert, [NTC ret] Administrative Office of Courts, Frankfort, Ky., for defendants-appellees.

Before MERRITT, Chief Judge, KEITH, KENNEDY, MARTIN, JONES, KRUPANSKY, WELLFORD, MILBURN, GUY, NELSON, RYAN, BOGGS, and NORRIS, Circuit Judges.

MERRITT, Chief Judge, announced the judgment of the Court in part VIII granting the Writ of Habeas Corpus as to both criminal liability and sentence, a judgment in which seven of the thirteen members of the en banc Court concur (Circuit Judges MERRITT, KEITH, BOYCE F. MARTIN, Jr., NATHANIEL R. JONES, MILBURN, DAVID A. NELSON, and RYAN), and in which one member concurs as to the sentence (Circuit Judge ALAN E. NORRIS).

As in many death penalty, habeas corpus cases, the problem presented here is not whether the prisoner is innocent of a homicide--the killing is conceded--but rather

Page 1094

whether he received the full benefit of fair rules of constitutional procedure and a fair opportunity to offer to the jury mitigating circumstances that might dissuade them from imposing a sentence of death.

It is not the Court's duty to determine whether Kordenbrock deserves or does not deserve the death sentence for his crime. The Court's duty is to insist upon the observance of constitutional norms of procedure. The District Court, and the panel decision of our Court which has now been vacated by the grant of en banc review (see 6th Cir.R. 14), held that petitioner was not entitled to habeas relief. Because a majority of the en banc Court finds that the introduction and use of Kordenbrock's confession was in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and was not harmless error, we now reverse.

I. Facts

Petitioner Kordenbrock and co-defendant Michael Kruse agreed to steal guns from an auto parts store in Florence, Kentucky. For two days before the robbery, they visited the store to observe the layout. The night before the robbery they stayed with a friend in Cincinnati where they drank alcohol, smoked marijuana, and snorted cocaine. The next morning at 8:00 Kordenbrock drank two beers and took two Quaaludes.

After leaving the apartment, the two stopped to buy more Quaaludes. From there they proceeded to the auto parts store and arrived around 9:30 a.m. Kordenbrock, who was holding a gun, ordered the owner of the store, Mr. Thompson, and an employee, Mr. Allen, to lie face down on the floor in the back of the store. Just then a customer came in with his son. Kruse pretended he was an employee and told the customer the store did not have what he wanted.

Kruse then broke the glass gun case. Immediately following that Mr. Allen either moved or attempted to get up. Petitioner shot both men. Mr. Allen later died, but Mr. Thompson survived. When Kruse had assembled the guns the two left the store.

They stopped at two different places to sell some of the guns. One of the men to whom they sold the guns recognized Kordenbrock's picture which appeared on the local news and cooperated with police in bringing about his arrest. Upon his arrival at the police station a group of police began to question him after giving him Miranda warnings. The interrogation began around 11:30 p.m. Joint App. at 1057; see also id. at 71-110.

A. The Miranda Warnings Violation

From the beginning of the interrogation, Kordenbrock was reluctant to talk with police, repeating the phrase, "I don't know what to say." Id. at 72, 75, 80. The officers, who already suspected that Kordenbrock had shot the two men, encouraged him repeatedly to relate details of the crime, saying, "you've got a conscience Paul." Id. at 73, 82, 83. After further coaxing petitioner admitted some aspects of the crime such as what type of car he drove the day of the shooting and where he had disposed of the gun.

In an effort to persuade Kordenbrock to give them more details of the actual shooting, the officers threatened him, saying that if he would not cooperate they were going to "book that girl 1.... for accessory to murder ... and put her in jail." Id. at 86. The officers continued: "Anybody that you have been with since yesterday morning, we can go out and arrest." Id. at 87. Still he resisted questioning, and indicated he wanted the questioning to stop: "I can't say nothing," id. at 91, "[c]an't talk, right now I can't talk." Id. at 92. Instead of ceasing questioning, the officers continued with their threats: "Their ass is going to jail.... [I]n Ohio, they can keep them in jail for about three days without even charging them.... they're going to be put through an ordeal they may not forget for

Page 1095

a long time Paul and you can stop it, right now...." Id. at 93.

After these threats, Kordenbrock stated: "I did it.... [t]hat's all I can tell you is that I did it." Id. at 94. He then asked to call the girls to see if they were all right and wanted "to know that those girls aren't going to be arrested" before he gave any more details. Id. However, when pressed further Kordenbrock made another attempt to cut off questioning: "I told you all I can stand tonight.... Sir, I can't talk about it no more tonight." Id. at 98. When the officers told petitioner they were going to write out his confession as he dictated it, he again responded: "Sir, I can't tell you no more tonight." Id. at 100. The officers, growing impatient, gave him "one more chance," id., and he finally gave in: "I'll tell you what you need to know, I don't want you to go bother them girls...." Id. at 101.

Only then did Kordenbrock make the damning statements that undermined his defense of diminished capacity. The officer who was transcribing the statement said, "Paul, what I'm going to write here is--I, Paul Kordenbrock pulled the trigger aiming and firing the weapon into the two men's heads--is that correct?" Id. at 105. That statement was included in the signed confession. The confession did not include the statements made during the interrogation that his "eyes were half closed," and that he didn't aim at any particular spot. Apparently, in order to get the ordeal over with, he told the officers to "[p]ut [the fact that he aimed at their heads] in there." Id. The confession edited out facts that might support a defense of lack of premeditation and diminished capacity and simply read, "I then, Paul Kordenbrock, pulled the trigger, aiming and firing at their heads so they wouldn't get up." Id. at 112.

B. The State's Refusal to Provide a Psychiatric Expert for the Defense

Kordenbrock pled guilty to first degree robbery and was then tried for capital murder and attempted murder. His defense was diminished capacity due to drugs and alcohol and emotional disturbance. 2 His lawyers, employed by the Office for Public Advocacy of the State of Kentucky, sought to enlist the aid of a psychiatrist to help prove these and other mitigating factors. At the request of the trial judge, one of Kordenbrock's lawyers wrote to the Secretary of the Department of Human Resources to ascertain whether a state psychiatrist could perform this service. Joint App. at 161. The Secretary responded by letter that Department psychiatrists could only evaluate criminal defendants for their competency to stand trial and for the existence of mental disease or defect at the time the crime took place. The letter stated: "These evaluations are provided pursuant to court order and are supplied as a service to the court, and not to either the prosecution or the defense." Id. at 162. The Secretary characterized these evaluations as "objective" and "determined that this Department will not be able to assist you with your request." Id.

This letter made it clear that a state psychiatrist could not be used as a defense expert. The trial judge then entered an order stating that defense counsel could employ at state expense a psychiatrist, psychologist and a psycho-pharmacologist. Id. at 59. When the chief executive officer of the county in which the trial was to be held received the order, he refused to authorize

Page 1096

payment: "The Boone County Fiscal Court will resist by all appropriate means the payment of any bill relative to the KORDENBROCK.... murder trial[ ]." Id. at 170. Apparently the county took the position that the state should pay for a defense expert, but the state had already refused, and continued to refuse, to pay for a psychiatric expert for the defendant.

Despite the fact that responsibility for payment was in dispute, defense counsel hired Dr. Nizny as a defense expert. Dr. Nizny examined Kordenbrock and made a report on his diagnosis and assessment of petitioner. However, Dr. Nizny, who was aware of problems other psychiatrists had encountered getting paid, refused to file his report until he received some sort of assurance that payment would be forthcoming. Once again the trial judge ordered the county to pay Dr. Nizny's fees. When the county continued to refuse payment, the trial court, over defense counsel's objection, ordered that petitioner be examined by a state psychiatrist. In response, the Director of Forensic Psychiatry Services wrote that "we will not be able to assist only the defense in this case. I will inform Judge Neace of our services to both the defense and the prosecution." Id. at 165. Despite this letter, the trial judge again ordered that a state psychiatrist examine petitioner.

Dr. Bland, a state psychiatrist, met with Kordenbrock, but could not form an accurate...

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101 practice notes
  • Williams v. Anderson, No. 04-3515.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 28 Agosto 2006
    ...right to a fair trial when they are contrary to state law and undermine the reliability of a verdict. See Kordenbrock v. Scroggy, 919 F.2d 1091, 1120-21 (en banc) (Kennedy, J., dissenting, but writing for eight out of thirteen judges on this issue). In Brooks, 661 N.E.2d at 1041, the Ohio S......
  • U.S. v. Gabrion, Nos. 02–1386
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 17 Noviembre 2011
    ...this statement as a holding in Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); accord Kordenbrock v. Scroggy, 919 F.2d 1091, 1102 (6th Cir.1990) (en banc). The fact that Michigan law does not allow for the death penalty is not an aspect of Gabrion's character or ......
  • Hill v. Mitchell, Case No. 1:98-cv-452
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 29 Marzo 2013
    ...trial judge improperly described the jury's role under state law in order to 'water down' its responsibility."); Kordenbrock v. Scroggy, 919 F.2d 1091, 1101 (6th Cir. 1991) (same). Accordingly, in Buell, the Sixth Circuit found that the trial court's instruction to the jury that its sentenc......
  • Turner v. Calderon, No. CIV. F-91-153-REC-P.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 27 Junio 1997
    ...for its consideration of mitigating factors. The same issue raised in Turner's case was presented to the court in Kordenbrock v. Scroggy, 919 F.2d 1091 (6th Cir.1990). In that case, a majority of the panel members concurred that an instruction requiring unanimous agreement for aggravating f......
  • Request a trial to view additional results
101 cases
  • Williams v. Anderson, No. 04-3515.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 28 Agosto 2006
    ...right to a fair trial when they are contrary to state law and undermine the reliability of a verdict. See Kordenbrock v. Scroggy, 919 F.2d 1091, 1120-21 (en banc) (Kennedy, J., dissenting, but writing for eight out of thirteen judges on this issue). In Brooks, 661 N.E.2d at 1041, the Ohio S......
  • U.S. v. Gabrion, Nos. 02–1386
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 17 Noviembre 2011
    ...this statement as a holding in Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); accord Kordenbrock v. Scroggy, 919 F.2d 1091, 1102 (6th Cir.1990) (en banc). The fact that Michigan law does not allow for the death penalty is not an aspect of Gabrion's character or ......
  • Hill v. Mitchell, Case No. 1:98-cv-452
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 29 Marzo 2013
    ...trial judge improperly described the jury's role under state law in order to 'water down' its responsibility."); Kordenbrock v. Scroggy, 919 F.2d 1091, 1101 (6th Cir. 1991) (same). Accordingly, in Buell, the Sixth Circuit found that the trial court's instruction to the jury that its sentenc......
  • Turner v. Calderon, No. CIV. F-91-153-REC-P.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 27 Junio 1997
    ...for its consideration of mitigating factors. The same issue raised in Turner's case was presented to the court in Kordenbrock v. Scroggy, 919 F.2d 1091 (6th Cir.1990). In that case, a majority of the panel members concurred that an instruction requiring unanimous agreement for aggravating f......
  • Request a trial to view additional results

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