LOCATION: Kings County Superior Court: Hanford Courthouse
DOCKET NO.: 85-5487
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Fourth Circuit
CITATION: 477 US 527 (1986)
ARGUED: Mar 04, 1986
DECIDED: Jun 26, 1986
James E. Kulp - on behalf of the respondent
J. Lloyd Snook, III - on behalf of the petitioner
Facts of the case
Media for Smith v. Murray
Audio Transcription for Oral Argument - March 04, 1986 in Smith v. Murray
Warren E. Burger:
We will hear arguments next in Smith against Murray.
Mr. Snook, I think you may proceed whenever you are ready.
J. Lloyd Snook, III:
Mr. Chief Justice, and may it please the Court, this case, Smith versus Murray, presents three issues that I would like to discuss briefly here.
The first is the issue of the Zant versus Stephens question on which the Fourth Circuit based its holding.
The second is the underlying merits issue of whether the prosecution can call a psychiatrist who has been appointed to assist the defense to prove its aggravating circumstance.
And third is whether the consideration of this issue is barred by the failure to appeal this issue after it had been raised at trial.
Now, turning very briefly to the first question, the Zant versus Stephens question, this Court, of course, in Zant versus Stephens specifically reserved the question presented here, and we contend that the Fourth Circuit quoted this Court's decision in Zant versus Stephens out of context.
Every statement of the issue as it was presented by this Court and as it was discussed by this Court specifically talked about the fact that the evidence that was being admitted was in fact admissible.
In fact, the Court endorsed the restriction that a different result might be reached in a case where evidence was submitted in support of the statutory aggravating circumstance which was not otherwise admissible and therefore the circumstance failed.
So, Zant does not control this case and it should not.
I would note that Zant was basically an Eighth Amendment case where the real question that this Court was confronting was whether to in essence federalize every state law violation.
If there was a violation of state law, evidence inadmissible for some reason, for state law reasons, whether that became converted into an Eighth Amendment kind of issue.
The Court basically said no.
We, of course, have a different situation here, where our claim is a Fifth Amendment claim.
There has never been any suggestion by this Court or any other Court that we are aware of that says that Zant versus Stephens takes Chapman versus California and the harmless error analysis away from capital cases.
There is not a case out there.
The basic problem is, this is a fifth amendment case, not an Eighth Amendment case.
Now, on the merits of the issue, I think in order to understand the dilemma that counsel in a capital case in Virginia would find him or herself, you have to picture yourself as that defense counsel.
You have just been appointed in a capital case.
Virginia law allows the prosecution to prove aggravation, to prove future dangerousness with prior criminal record, with psychiatric evidence, including after Barefoot versus Estelle even hypothetical questions based on instances where there has not even been an examination, and in fact can prove future dangerousness simply from the circumstances of the crime.
If there are enough stab wounds, the Court... the jury may infer from that something relating to future dangerousness.
The problem is, under state law, therefore, you have no notice.
The prosecution is not required to give you notice of what they intend to introduce in aggravation.
You as defense counsel are sitting there saying in order to prepare my case, not only to get into issues of mitigation, but even to mount a defense as to aggravation, I need to find out whether there is anything that a psychiatrist can say.
You are not a psychiatrist.
You don't have the ability to give that... to make that assessment initially.
In order to make that assessment initially, you have to call in a psychiatrist, a psychologist, some mental health professional to give you the expertise to tell you whether there is anything to go on.
Even before you decide to in fact mount some sort of psychiatric case or psychologically based defense, in order to make that initial assessment, you have to have an expert to assist you, and that, of course, is basically what Ake versus Oklahoma said in a slightly different context, that in such a situation where mental condition is fairly an issue, that it is a requirement of the due process clause that indigent defendants have an expert appointed to assist counsel.
The problem is, of course, the Virginia Supreme Court says in essence that is fine, but only if the prosecution can later call that person, that member of the defense team as their own witness.
In other words, Virginia says that you can't do you job without giving away your client's privilege against self-incrimination.