Smith v. Estelle

• Decision Date: 27 March 1978
• Docket Number: No. CA3-77-0544-F.,CA3-77-0544-F.
• Parties: Ernest Benjamin SMITH v. W. J. ESTELLE, Jr., Director, Texas Department of Correction, and Warden, Ellis Unit, Texas Department of Corrections.
• Court: U.S. District Court — Northern District of Texas

445 F. Supp. 647

Ernest Benjamin SMITH v. W. J. ESTELLE, Jr., Director, Texas Department of Correction, and Warden, Ellis Unit, Texas Department of Corrections.

No. CA3-77-0544-F.

United States District Court, N. D. Texas, Dallas Division.

December 30, 1977.

New Trial Denied March 27, 1978.

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John F. Simmons, Dallas, Tex., Joel Berger, New York City, Anthony G. Amsterdam, Stanford, Cal., for petitioner.

Joe B. Dibrell, Jr., Asst. Atty. Gen., Chief, Enforcement Div., Anita Ashton, Asst. Atty. Gen., Austin, Tex., for respondents.

MEMORANDUM OPINION

ROBERT W. PORTER, District Judge.

During the early morning hours of September 28, 1973, Ernest Benjamin Smith and Howie Ray Robinson entered a Schepps Grocery in Dallas County, Texas, intending to rob the store. Robinson placed a package of lunch meat and a jar of mustard on the counter while Smith held a gun on the cashier and said "This is a holdup". The cashier moved suddenly as if to reach for something and Smith yelled either "Get him Howie" or "Look out Howie." Robinson then fatally shot the cashier. Smith and Robinson removed the money from the register and a gun from underneath the counter and left for the home of a friend where they divided the money.

Robinson and Smith were apprehended and charged with the offense of murder with malice aforethought in the course of a robbery. Judge R. T. Scales of the 195th Judicial District Court of Dallas County appointed John Simmons to represent Smith and, one year later, appointed attorney Howard G. Wilson to assist Mr. Simmons. A motion to sever Smith's case from his co-defendants' was granted.

Robinson's case went to trial and he was convicted. However, on April 20, 1977, this conviction was overturned by the Texas Court of Criminal Appeals which held that admission of testimony that a state's witness had taken and passed a lie detector test was reversible error. Robinson v. State, 550 S.W.2d 54 (Tex.Cr.App.1977). Robinson was retried and again convicted. On December 2, 1977, however, Texas District Court Judge Richard Mays granted Robinson a new trial and the case is currently pending. State of Texas v. Howie Ray Robinson, No. C-74-3195-PNQ.

In the Smith case the grand jury returned a bill of indictment on December 28, 1973 and the state gave notice that it intended to seek the death penalty. Some time prior to February 18, 1974, Judge Scales instructed the state's attorney Doug Mulder to arrange a psychiatric examination of Smith by Dr. James P. Grigson, a psychiatrist.¹ Dr. Grigson was asked to determine whether Smith was competent to stand trial.

"In all cases where the State has sought the death penalty," Judge Scales testified in this proceeding, "I have ordered a mental evaluation of the Defendant to determine his competency to stand trial. I have done this for my benefit because I do not intend to be a participant in a case where the Defendant receives the death penalty and his mental competency remains in doubt."

Dr. Grigson visited Smith on February 18, 1974 and after a ninety minute examination concluded that the defendant was competent to stand trial. In a letter to Judge Scales Dr. Grigson wrote: "It is my opinion that Ernest Benjamin Smith, Jr. is aware of the difference between right and wrong and is able to aid an attorney in his defense." This conclusion approximates the test for competency.² Dr. Grigson's letter was filed among the court papers.

This competency evaluation was ordered even though Mr. Simmons and Mr. Wilson had not put into question Smith's competency to stand trial or the related psychiatric issue of Smith's sanity at the time of the offense. Judge Scales' practice of ordering competency hearings in death penalty cases, however, cannot be faulted in the least even when the issue has not been previously raised. The Court has authority to protect the integrity of the judicial system by making certain only mentally competent defendants stand trial.

It is also Judge Scales' practice to notify defense counsel that the psychiatric examination will be conducted. However, inexplicably in this case that notification was never received by either Mr. Simmons or Mr. Wilson. No formal order of appointment was entered and possibly due to the heavy workload of the Court, less formal notification was not accomplished. Dr. Grigson never filed a written report of his evaluation³ but did send a letter summary of his conclusions to Judge Scales. Again, through some mixup, Mr. Simmons and Mr. Wilson never received a copy of this letter and first discovered it while reviewing the court papers after picking the jury in Smith's trial which commenced on March 11, 1974. This was their first notice that a psychiatrist had been appointed and had examined the defendant. Mr. Simmons testified that "although I had not known of the letter or the visit before seeing the letter in the file, I attached no significance to it. From the contents of the letter I just assumed that Judge Scales wanted to be satisfied in his own mind that the defendant was competent to stand trial. He had never asked me that question but if he had I would have answered affirmatively. Ernest had never had any mental problems and was above average intelligence in my opinion."

Logically Dr. Grigson's appointment should not have concerned Mr. Simmons. A motion to discover the state's list of witnesses had been granted and Dr. Grigson's name did not appear. There was therefore no danger that possibly incriminating statements made by Smith to Dr. Grigson would be used at the guilt or innocence stage of the trial. There was also no reason to believe Dr. Grigson would be used at the punishment stage. The question of competency or sanity had never been raised, no prospective juror was questioned on this issue and absolutely no evidence at the guilt or punishment stage was introduced by the defense as to Smith's competency, sanity or any other potential personality disorder.

The capital murder trial in Texas is held in two stages. In the first stage the jury determines whether the defendant is guilty or innocent of the offense. The jury found Smith guilty as alleged in the indictment. Once guilt has been established the trial moves into the punishment phase. After hearing evidence in this proceeding, the jury must determine on the basis of all the evidence it has heard whether the Defendant should be put to death or given a life sentence. The death penalty may be imposed only if the jury answers "yes" to each of three special issues submitted to it.⁴

The state has the burden of proving beyond a reasonable doubt that these answers should be "yes". If the state fails in its proof or if the jury answers "no" on any one of these three issues the death penalty may not be imposed.⁵ Because the state has the burden of proof it introduces testimony first in the punishment proceeding followed by the defense.

In this case, however, the state took the unusual step of resting subject to reopening.⁶ Judge Scales permitted this procedure after making clear on the record that the state had the right to go first.

Mr. Simmons called three witnesses, one of whom testified, in effect, that Smith's gun was broken and would not fire on the night of the robbery. Smith's step-mother, the second witness, testified that the defendant had graduated from high school, that he was a truthful person and that he had received an honorable discharge from the military service. Smith's aunt, the third witness, corroborated the step-mother's testimony. The defense rested. Mr. Mulder then announced his intention to call Dr. Grigson. Mr. Simmons objected and this objection was overruled. When this occurred Mr. Simmons asked that the prosecution not be permitted to tell the jury that Dr. Grigson was appointed by the court. Judge Scales initially granted this motion but, after hearing additional argument from Mr. Mulder, reversed his ruling. The jury was informed that Dr. Grigson was the court appointed psychiatrist. They were not told he was appointed for the sole purpose of determining Smith's competency to stand trial. Mr. Simmons was permitted to take Dr. Grigson on voir dire out of the presence of the jury and it was established that Mr. Mulder had contacted Dr. Grigson the previous Thursday and said that his testimony would be needed in the Smith case. Dr. Grigson, who does much court related work,⁷ responded that he would be available when needed.

Dr. Grigson's psychiatric testimony may be summarized as follows. On direct examination he testified (1) to his credentials as a psychiatrist; (2) to the types of examinations administered by him to Smith; (3) to the results of those examinations; (4) that Smith is medically and legally sane; (5) that Smith has a sociopathic personality disorder; (6) to the characteristics of the sociopath; (7) that there are degrees of sociopathy and Smith is on the very severe end of that scale; (8) that the prognosis is Smith will continue his previous behavior or get worse; (9) that Smith has no regard for other persons' property or lives; (10) that no treatment to improve his condition exists; (11) that Smith will commit criminal acts of violence that will constitute a continuing threat to society if given the opportunity to do so; (12) that Smith is a leader. On cross examination Dr. Grigson testified (1) that it is not known what causes a person to be a sociopath; (2) that for the basis of his diagnosis, he spent approximately an hour and one-half examining Smith but did not interview friends and relatives who knew Smith with the exception of Howie Robinson whom he examined in connection with Robinson's criminal trial arising out of the same incident; (3) that he is certain that Smith is a severe sociopath; (4) that his diagnosis of sociopathic personality was based on Smith's failure to show any guilt feelings or remorse with respect to the commission of the offense for...