The Supreme Court/The Supreme Court.iso/pc/ascii/1990/90_8370/90_8370.zd

Text File | 1992-06-21 | 22.1 KB | 411 lines

SUPREME COURT OF THE UNITED STATES
--------
No. 90-8370
--------
TEOFILO MEDINA, Jr., PETITIONER v. CALIFORNIA
on writ of certiorari to the supreme court
of california
[June 22, 1992]

  Justice Blackmun, with whom Justice Stevens joins,
dissenting.
  Teofilo Medina, Jr., may have been mentally incompetent
when the State of California convicted him and sentenced
him to death.  One psychiatrist testified he was incompe-
tent.  Another psychiatrist and a psychologist testified he
was not.  Several other experts testified but did not express
an opinion on competence.  Instructed to presume that
petitioner Medina was competent, the jury returned a
finding of competence.  For all we know, the jury was
entirely undecided.  I do not believe a Constitution that
forbids the trial and conviction of an incompetent person
tolerates the trial and conviction of a person about whom
the evidence of competency is so equivocal and unclear.  I
dissent.

                            I
  The right of a criminal defendant to be tried only if
competent is -fundamental to an adversary system of
justice,-  Drope v. Missouri, 420 U. S. 162, 172 (1975).  The
Due Process Clause forbids the trial and conviction of
persons incapable of defending themselves-persons lacking
the capacity to understand the nature and object of the
proceedings against them, to consult with counsel, and to
assist in preparing their defense.  Id., at 171.  See also
Pate v. Robinson, 383 U. S. 375, 378 (1966).
  The right to be tried while competent is the foundational
right for the effective exercise of a defendant's other rights
in a criminal trial.  -Competence to stand trial is rudimen-
tary, for upon it depends the main part of those rights
deemed essential to a fair trial, including the right to
effective assistance of counsel, the rights to summon, to
confront, and to cross examine witnesses, and the right to
testify on one's own behalf or to remain silent without
penalty for doing so.-  Riggins v. Nevada, 504 U. S. ___, ___
(1992) (slip op. 2) (Kennedy, J., concurring in the judg-
ment).  In the words of Professor Morris, one of the world's
leading criminologists, incompetent persons -are not really
present at trial; they may not be able properly to play the
role of an accused person, to recall relevant events, to
produce evidence and witnesses, to testify effectively on
their own behalf, to help confront hostile witnesses, and to
project to the trier of facts a sense of their innocence.-  N.
Morris, Madness and the Criminal Law 37 (1982).
  This Court's cases are clear that the right to be tried
while competent is so critical a prerequisite to the criminal
process that -state procedures must be adequate to protect
this right.-  (Emphasis added.)  Pate, 383 U. S., at 378.
-[T]he failure to observe procedures adequate to protect a
defendant's right not to be tried or convicted while incompe-
tent to stand trial deprives him of his due process right to
a fair trial.-  Drope, 420 U. S., at 172.  In other words, the
Due Process Clause does not simply forbid the State from
trying and convicting a person who is incompetent.  It also
demands adequate anticipatory, protective procedures to
minimize the risk that an incompetent person will be
convicted.  Justice Frankfurter recognized this in a related
context: -If the deeply rooted principle in our society against
killing an insane man is to be respected, at least the
minimum provision for assuring a fair application of that
principle is inherent in the principle itself.-  Solesbee v.
Balkcom, 339 U. S. 9, 23 (1950) (dissenting opinion).
Anticipatory protective procedures are necessary as well
because -we have previously emphasized the difficulty of
retrospectively determining an accused's competence to
stand trial.-  Pate, 383 U. S., at 387.  See also Drope, 420
U. S., at 183; Dusky, 362 U. S., at 403.  See generally Miller
& Germain, The Retrospective Evaluation of Competency to
Stand Trial, 11 Int'l J. Law and Psych. 113 (1988).
  This Court expressly has recognized that one of the
required procedural protections is -further inquiry- or a
hearing when there is a sufficient doubt raised about a
defendant's competency.  Drope, 420 U. S., at 180; Pate, 383
U. S., at 385-386.  In my view, then, the only question
before the Court in this case is whether-as with the right
to a hearing-placing the burden of proving competence on
the State is necessary to protect adequately the underlying
due process right.  I part company with the Court today,
because I believe the answer to that question is in the
affirmative.
                           II
  As an initial matter, I believe the Court's approach to this
case effectively asks and answers the wrong doctrinal
question.  Following the lead of the parties, the Court
mistakenly frames its inquiry in terms of whether to apply
a standard it takes to be derived from language in
Patterson v. New York, 432 U. S. 197 (1977), or a standard
based on the functional balancing approach of Mathews v.
Eldridge, 424 U. S. 319 (1976).  Ante, at 4-7.  The Court is
not put to such a choice.  Under Drope and Pate, it need
decide only whether a procedure imposing the burden of
proof upon the defendant is -adequate- to protect the
constitutional prohibition against trial of incompetent
persons.
  The Court, however, chooses the Patterson path, an-
nouncing that there is no violation of due process unless
placing the burden of proof of incompetency upon the
defendant -`offends some principle of justice so rooted in the
traditions and conscience of our people as to be ranked as
fundamental.'-  Ante, at 7 (quoting Patterson, 432 U. S., at
202).  Separating the primary right (the right not to be
tried while incompetent) from the subsidiary right (the
right not to bear the burden of proof of incompetency), the
Court acknowledges the primary right to be fundamental in
-our common-law heritage,- but determines the subsidiary
right to be without a -settled tradition- deserving of
constitutional protection.  Ante, at 8.  This approach is
mistaken, because it severs two integrally related procedur-
al rights that cannot be examined meaningfully in isolation.
The protections of the Due Process Clause, to borrow the
second Justice Harlan's words, are simply not -a series of
isolated points pricked- out in terms of their most specific
level of historic generality.  Poe v. Ullman, 367 U. S. 497,
543 (1961) (dissenting opinion).  Had the Court taken the
same historical-categorical approach in Pate and Drope, it
would not have recognized that a defendant has a right to
a competency hearing, for in neither of those cases was
there any showing that the mere denial of a hearing where
there is doubt about competency offended any deeply rooted
traditions of the American people.
  In all events, I do not interpret the Court's reliance on
Patterson to undermine the basic balancing of the govern-
ment's interests against the individual's interest that is
germane to any due process inquiry.  While unwilling to
discount the force of tradition and history, the Court in
Patterson did not adopt an exclusively tradition-based
approach to due process analysis.  Relying on Morrison v.
California, 291 U. S. 82 (1934), the Court in Patterson
looked to the -convenience- to the government and -hard-
ship or oppression- to the defendant in forming its alloca-
tion of the burden of proof.  432 U. S., at 203, n. 9, and 210.
-`The decisions are manifold that within limits of
reason and fairness the burden of proof may be lifted
from the state in criminal prosecutions and cast on a
defendant.  The limits are in substance these, that the
state shall have proved enough to make it just for the
defendant to be required to repel what has been proved
with excuse or explanation, or at least that upon a
balancing of convenience or of the opportunities for
knowledge the shifting of the burden will be found to be
an aid to the accuser without subjecting the accused to
hardship or oppression.  Cf. Wigmore, Evidence, Vol. 5,
2486, 2512, and cases cited.'-  Id., at 203, n. 9,
quoting Morrison v. California, 291 U. S., at 88-89
(emphasis added).

See also Speiser v. Randall, 357 U. S. 513, 524 (1958)
(same).
  In Morrison v. California, the historical cornerstone of
this Court's decisions in the area of due process and
allocation of the burden of proof, the Court considered the
constitutionality of a California criminal statute forbidding
aliens not eligible for naturalization to farm.  The statute
provided that, once the State proved the defendant used or
occupied farm land, the burden of proving citizenship or
eligibility for naturalization rested upon the defendant.  See
291 U. S., at 84.  At the time, persons of Asian ancestry
were generally not eligible for naturalization.  See id., at
85-86.  The Court observed that in the -vast majority of
cases,- there would be no unfairness to the distribution of
the burden, because a defendant's Asian ancestry could
plainly be observed.  Id., at 94.  But, where the evidence is
in equipoise-as when the defendant is of mixed blood and
his outward appearance does not readily reveal his Asian
ancestry--the promotion of convenience from the point of
view of the prosecution will be outweighed by the probabili-
ty of injustice to the accused.-  Ibid.  Thus, the Court
concluded: -There can be no escape from hardship and
injustice, outweighing many times any procedural conve-
nience, unless the burden of persuasion in respect of racial
origin is cast upon the People.-  Id., at 96.
  Consistent with Morrison, I read the Court's opinion
today to acknowledge that Patterson does not relieve the
Court from evaluating the underlying fairness of imposing
the burden of proof of incompetency upon the defendant.
That is why the Court not only looks to -the historical
treatment of the burden of proof in competency proceedings-
but also to -the operation of the challenged rule, and our
precedents.-  Ante, at 8.  That is why the Court eventually
turns to determining -whether the rule [placing upon the
defendant the burden of proof of incompetency] transgresses
any recognized principle of `fundamental fairness' in
operation.-  Ante, at 10.
  Carrying out this inquiry, the Court points out that the
defendant is already entitled to the assistance of counsel
and to a psychiatric evaluation.  Ante, at 12.  It suggests as
well that defense counsel will have -the best-informed view-
of the defendant's ability to assist in his defense.  Ibid.
Accordingly, the Court concludes: -[I]t is enough that the
State affords the criminal defendant on whose behalf a plea
of incompetence is asserted a reasonable opportunity to
demonstrate that he is not competent to stand trial.-  Ante,
at 13.  While I am unable to agree with the Court's conclu-
sion, it is clear that the Court ends up engaging in a
balancing inquiry not meaningfully distinguishable from
that of the Mathews v. Eldridge test it earlier appears to
forswear.
  I am perplexed that the Court, while recognizing -the
careful balance that the Constitution strikes between
liberty and order,- ante, at 5 (emphasis added), intimates
that the apparent -expertise- of the States in criminal
procedure and the -centuries of common-law tradition- of
the -criminal process- warrant less than careful balancing
in favor of -substantial deference to legislative judgments.-
Ante, at 7.  Because the Due Process Clause is not the Some
Process Clause, I remain convinced that it requires careful
balancing of the individual and governmental interests at
stake to determine what process is due.
                           III
  I believe that requiring a possibly incompetent person to
carry the burden of proving that he is incompetent cannot
be called -adequate,- within the meaning of the decisions in
Pate and Drope, to protect a defendant's right to be tried
only while competent.  In a variety of other contexts, the
Court has allocated the burden of proof to the prosecution
as part of the protective procedures designed to ensure the
integrity of specific underlying rights.  In Lego v. Twomey,
404 U. S. 477 (1972), for example, the Court determined
that when the prosecution seeks to use at trial a confession
challenged as involuntary, -the prosecution must prove at
least by a preponderance of the evidence that the confession
was voluntary,- because the defendant is -entitled to a
reliable and clear-cut determination that the confession was
in fact voluntarily rendered.-  Id., at 489.  See also Colora-
do v. Connelly, 479 U. S. 157, 167-169 (1986) (burden on
prosecution to show defendant waived Miranda rights); Nix
v. Williams, 467 U. S. 431, 444, and n. 5 (1984) (burden on
prosecution to show inevitable discovery of evidence
obtained by unlawful means); United States v. Matlock, 415
U. S. 164, 177-178, n. 14 (1974) (burden on prosecution to
show voluntariness of consent to search).  Equally weighty
concerns warrant imposing the burden of proof upon the
State here.
  The Court suggests these cases are distinguishable
because they shift the burden of proof in order to deter
lawless conduct by law enforcement and prosecutorial
authorities, while in this case deterrence is irrelevant.
Ante, at 13-14.  If anything, this distinction cuts against
the Court's point of view.  Deterrence of official misconduct
during the investigatory stage of the criminal process has
less to do with the fairness of the trial and an accurate
determination of the defendant's guilt than does the
defendant's ability to understand and participate in the
trial itself.  Accordingly, there is greater reason here to
impose a trial-related cost upon the government-in the
form of the burden of proof-to ensure the fairness and
accuracy of the trial.  Compare United States v. Alvarez-
Machain, ___ U.S. ___, ___ (1992) (slip op. 5-6) (official
misconduct in the form of forcible kidnaping of defendant
for trial does not violate defendant's due process rights at
trial).  Moreover, given the Court's consideration of non-
trial-related interests, I wonder whether the Court owes
any consideration to the public interest in the appearance
of fairness in the criminal justice system.  The trial of
persons about whose competence the evidence is inconclu-
sive unquestionably -undermine[s] the very foundation of
our system of justice-our citizens' confidence in it.-
Georgia v. McCollum, ___ U.S. ___, ___ (1992) (slip op. 7).
  -In all kinds of litigation it is plain that where the burden
of proof lies may be decisive of the outcome.-  Speiser v.
Randall, 357 U. S., at 525.  To be sure, the requirement of
a hearing (once there is a threshold doubt as to competency)
and the provision for a psychiatric evaluation, see Ake v.
Oklahoma, 470 U. S. 68, 81 (1985), do ensure at least some
protection against the trial of incompetent persons.  Yet in
cases where the evidence is inconclusive, a defendant
bearing the burden of proof of his own incompetency now
will still be subjected to trial.  In my view, this introduces
a systematic and unacceptably high risk that persons will
be tried and convicted who are unable to follow or partici-
pate in the proceedings determining their fate.  I, therefore,
cannot agree with the Court that -reasonable minds may
differ as to the wisdom of placing the burden of proof- on
likely incompetent defendants.  Ante, at 12.
  The Court suggests that -defense counsel will often have
the best-informed view of the defendant's ability to partici-
pate in his defense.-  Ibid.  There are at least three good
reasons, however, to doubt the Court's confidence.  First,
while the defendant is in custody, the State itself obviously
has the most direct, unfettered access to him and is in the
best position to observe his behavior.  In the present case,
Medina was held before trial in the Orange County jail
system for more than a year and a half prior to his compe-
tency hearing.  Tr. Vol. 3, pp. 677-684.  During the months
immediately preceding the competency hearing, he was
placed several times for extended periods in a padded cell
for treatment and observation by prison psychiatric person-
nel.  Id., at 226, 682-684.  While Medina was in the padded
cell, prison personnel observed his behavior every 15
minutes.  Id., at 226.
  Second, a competency determination is primarily a
medical and psychiatric determination.  Competency
determinations by and large turn on the testimony of
psychiatric experts, not lawyers.  -Although competency is
a legal issue ultimately determined by the courts, recom-
mendations by mental health professionals exert tremen-
dous influence on judicial determinations, with rates of
agreement typically exceeding 90%.-  Nicholson & Johnson,
Prediction of Competency to Stand Trial: Contribution of
Demographics, Type of Offense, Clinical Characteristics,
and Psycholegal Ability, 14 Int'l J. Law and Psych. 287, 287
(1991) (citations omitted).  See also S. Brakel, J. Parry, &
B. Weiner, The Mentally Disabled and the Law 703 (3d ed.
1985) (same).  While the testimony of psychiatric experts
may be far from infallible, see Barefoot v. Estelle, 463 U. S.
880, 916 (1983) (Blackmun, J., dissenting), it is the experts
and not the lawyers who are credited as the -best-in-
formed,- and most able to gauge a defendant's ability to
understand and participate in the legal proceedings
affecting him.
  Third, even assuming that defense counsel has the -best-
informed view- of the defendant's competency, the lawyer's
view will likely have no outlet in, or effect on, the compe-
tency determination.  Unlike the testimony of medical
specialists or lay witnesses, the testimony of defense
counsel is far more likely to be discounted by the factfinder
as self-interested and biased.  Defense counsel may also be
discouraged in the first place from testifying for fear of
abrogating an ethical responsibility or the attorney-client
privilege.  See, e.g., ABA Criminal Justice Mental Health
Standards 7-4.8(b), Commentary Introduction, p 209, and
Commentary, pp. 212-213 (1989).  By way of example from
the case at hand, it should come as little surprise that
neither of Medina's two attorneys was among the dozens of
persons testifying during the six days of competency
proceedings in this case.  Tr. Vol. 1, pp. 1-5 (Witness List).
  Like many psychological inquiries, competency evalua-
tions are -in the present state of the mental sciences . . . at
best a hazardous guess however conscientious.-  Solesbee v.
Balkcom, 339 U. S., at 23 (Frankfurter, J., dissenting).  See
also Ake v. Oklahoma, 470 U. S., at 81; Addington v. Texas,
441 U. S. 418, 430 (1979); Drope, 420 U. S., at 176.  This
unavoidable uncertainty expands the range of cases where
the factfinder will conclude the evidence is in equipoise.
The Court, however, dismisses this concern on grounds that
-`[d]ue process does not require that every conceivable step
be taken, at whatever cost, to eliminate the possibility of
convicting an innocent person.'-  Ante, at 13 (quoting
Patterson, 432 U. S., at 208).  Yet surely the Due Process
Clause requires some conceivable steps be taken to elimi-
nate the risk of erroneous convictions.  I search in vain for
any guiding principle in the Court's analysis that deter-
mines when the risk of a wrongful conviction happens to be
acceptable and when it does not.
  The allocation of the burden of proof reflects a societal
judgment about how the risk of error should be distributed
between litigants.  Cf. Santosky v. Kramer, 455 U. S. 745,
755 (1982) (standard of proof).  This Court has said it well
before: -The individual should not be asked to share equally
with society the risk of error when the possible injury to the
individual is significantly greater than any possible harm
to the state.-  Addington v. Texas, 441 U. S., at 427.  The
costs to the State of bearing the burden of proof of compe-
tency are not at all prohibitive.  The Court acknowledges
that several States already bear the burden, ante, at 9-10,
and that the allocation of the burden of proof will make a
difference -only in a narrow class of cases where the
evidence is in equipoise.-  Ante, at 11.  In those few difficult
cases, the State should bear the burden of remitting the
defendant for further psychological observation to ensure
that he is competent to defend himself.  See, e.g., Cal.
Penal Code Ann. 1370(a)(1) (West Supp. 1992) (defendant
found incompetent shall be -delivered- to state hospital or
treatment facility -which will promote the defendant's
speedy restoration to mental competence-).  See also
Jackson v. Indiana, 406 U. S. 715, 738 (1972) (Due Process
Clause allows State to hold incompetent defendant -for
reasonable period of time necessary to determine whether
there is a substantial probability- of return to competency).
In the narrow class of cases where the evidence is in
equipoise, the State can reasonably expect that it will
speedily be able to return the defendant for trial.
                           IV
  Just this Term the Court reaffirmed that the Due Process
Clause prevents the States from taking measures that
undermine the defendant's right to be tried while fully
aware and able to defend himself.  In Riggins v. Nevada,
supra, the Court reversed on due process grounds the
conviction of a defendant subjected to the forcible adminis-
tration of antipsychotic drugs during his trial.  Rejecting
the dissent's insistence that actual prejudice be shown, the
Court found it to be -clearly possible- that the medications
affected the defendant's -ability to follow the proceedings,
or the substance of his communication with counsel.-  Slip
op. 9 (emphasis added).  See also id., at ___ (slip op. 3)
(Kennedy, J., concurring in the judgment) (prosecution
must show -no significant risk that the medication will
impair or alter in any material way the defendant's capacity
or willingness to react to the testimony at trial or to assist
his counsel-) (emphasis added).
  I consider it no less likely that petitioner Medina was
tried and sentenced to death while effectively unable to
defend himself.  That is why I do not share the Court's
remarkable confidence that -[n]othing in today's decision is
inconsistent with our longstanding recognition that the
criminal trial of an incompetent defendant violates due
process.-  Ante, at 14.  I do not believe the constitutional
prohibition against convicting incompetent persons remains
-fundamental- if the State is at liberty to go forward with
a trial when the evidence of competency is inconclusive.
Accordingly, I dissent.