Saturday, January 2, 2010

Refusing to Present Evidence of Mental Retardation in an Effort to Preserve a Claim to a Jury Trial - Dangerous Gamble or a Strategic Masterpiece? Kevin Foley guest post

The following is a guest blog post by Kevin Foley, a regular contributor to the ICDP blog.  The court decision discussed in this post, Bracey v. Pennsylvania (2009), has been posted to the Court Decisions section of the blog and is thus available for viewing and downloading. Please note that some of the original formatting provided by Kevin Foley in the original Word file sent to the blog (italic fonts, etc.) has been lost during copying and pasting from the file to the blog editor. 

A reminder and invitation.  All guest posts are published "as is" and do not necessarily reflect the opinion of the blog master. Also, I encourage others to submit guest blog post for possible publication .

Refusing to Present Evidence of Mental Retardation in an Effort to Preserve a Claim to a Jury Trial - Dangerous Gamble or a Strategic Masterpiece?  Guest Post:  Kevin Foley.

     Edward Bracey was convicted in 1992 of murdering a Philadelphia police officer and sentenced to death. As is typically seen in death penalty litigation, after the conviction and sentence were affirmed on direct appeal, a claim was filed in the trial court alleging that the conviction should be overturned on the grounds of ineffective assistance of counsel. This type of collateral attack is often referred to as a claim for Post-Conviction Relief (PCR).  Bracey’s PCR claim was denied, and the PCR claim was affirmed on appeal in 2001, prior to Atkins being decided.  At the original PCR hearing, Bracey “presented the testimony of Drs. Carol Armstrong, Neil Blumberg and Barry Krop, who examined [him] five and six years after the shooting, and essentially concluded that [he] has suffered from long-standing organic brain damage.”[1]  However, also testifying at the PCR hearing was a psychiatrist hired by the defense for the original murder trial, who “testified that he had not seen any evidence of organicity or any indication that [Bracey] had organic brain damage or a major mental illness during his evaluation of [him].”[2] Moreover, two mental health evaluations conducted seven and nine years before the murder “did not give rise to the conclusion that [Bracey] was brain damaged or mentally ill.” In a later proceeding, the state argued “that all three of appellant’s experts agreed at [this] PCRA hearing that appellant was not mentally retarded”.[3]

    In August, 2002, Bracey filed a second PCR claim, this time asserting that he was mentally retarded.  He also maintained that he was entitled to have a jury decide his Atkins claim.  The court scheduled a 3-day non-jury hearing for the Atkins claim, which did not sit well with Bracey’s attorneys. They wrote to the judge and “declared that ‘in order not to prejudice Mr. Bracey’s jury trial argument, we will not be presenting further evidence for the court itself. Instead, we will rely on the evidence of record” . . .  The letter also asked that the court certify the jury trial issue immediately for appeal.”[4]

    At the hearing, Bracey continued to demand recognition of a constitutional right to a jury determination on the Atkins question, and his attorneys “alleged a ‘fear’ that ‘if we proceed to a court hearing in a case such as this, it would be either held against us in terms of the assertion of the 6th Amendment jury trial right, or it would be something that would be detrimental to the jury trial right.’”5  Consequently, Bracey’s attorneys refused to present any evidence, beyond what had already been presented during the first PCR hearing, bearing on the issue of whether he was mentally retarded.

    In response to this ploy, the PCR “court concluded that appellant’s refusal to present any new and relevant evidence in support of his Atkins claim rendered it meritless and that fact, in turn, rendered the request for a jury trial moot.”[6]

    Bracey’s attorneys took what appears at first glance to have been an inappropriate gamble.  First, Bracey did not have to refuse to present any evidence in order to preserve his right to appeal the jury issue. Simply making the jury demand, and after the request was denied, then stating that they were proceeding under a preservation of the right to appeal the jury issue would seem to be more than adequate to protect the issue for a later appeal. Second, Bracey relied on an appellate case which dealt with a trial court refusing to allow an expert to testify;[7] however, the Pennsylvania Supreme Court pointed out that the PCR court’s ruling did not prevent Bracey from presenting mental retardation evidence. Bracey “was not barred by the PCRA court from presenting evidence; rather, he strategically declined to produce evidence.” Third, betting on the right to a jury trial, turned out to be misplaced. The U.S Supreme Court in Schriro v. Smith, 546 U.S. 6 (2005) held that it was up to the states to determine if they wanted to allow a jury right on Atkins claims – implying that there is no federal constitutional right to a jury determination on such claims.

    Thus, at this point, one could easily argue that the PCR court was correct; that Bracey did not have a right to a jury trial; and that he waived any claim to present evidence on mental retardation beyond what had been presented in the first PCR hearing, which apparently included testimony by his own experts that he was not mentally retarded[.[8] In other words, he had his chance and lost. If he wanted any further review, he would have to file for habeas corpus review in the federal court system, which is supposed to involve a narrow and deferential standard of review.  But this may have been exactly what Bracey’s attorneys wanted. According to the Pennsylvania Supreme Court,
“The Commonwealth hypothesizes that such a facially risky position suggests that appellant and his counsel have their strategic sights set on de novo habeas corpus review in the local federal courts, which appellant’s federal lawyers view as a more sympathetic forum in capital matters. Luring this Court into finding the Atkins claim waived, the Commonwealth argues, ‘would offer them their best long-term prospect for relief,’ since ‘if no Atkins  hearing is held in state court, defense counsel will argue on habeas review that defendant is entitled to such a hearing in federal court. And, since it has been decades since the federal courts have upheld a sentence of death with respect to any Philadelphia prisoner who did not consent to be executed, they will find themselves in a remarkably favorable forum for that argument.’ The Commonwealth argues that this Court should reject this illegitimate strategy, and order a bench hearing on the mental retardation claim.”[9]

    Interestingly, the Pennsylvania high court seemed to agree with the Commonwealth. “We note that the Commonwealth’s concerns are not entirely implausible, as the Third Circuit has frequently declined to respect the procedural defaults this Court has employed in capital PCRA cases.”[10] In the end, the Pennsylvania Supreme Court did not fall for the bait; it called Bracey’s attorneys’ efforts “a game of capital ‘chicken’” and described the attorneys’ position as one which “was obviously risky and tenuous”. The court remanded the case to the trial court for a non-jury hearing on the Atkins claim.

    In this circumstance, despite the Pennsylvania Supreme Court’s dissatisfaction with the “obduracy” of the defense counsel and the failure of the PCR court to take the “bull by the horns”, the potentially risky strategy did not backfire. Bracey almost ended up with a his apparently sought after de novo review in the federal court, and he still gets a full hearing on the Atkins claim in state court. And if he loses in state court and on subsequent appeal, the federal habeas route is still open to him, although whether he gets an evidenciary hearing on the Atkins claim will have to wait to be seen.  In a different state, in a different federal circuit, however, Bracey’s strategy could have easily  backfired.


1  Commonwealth v. Bracey, 568 Pa. 264, 277, 795 A.2d 935 (Pa. 2001).
2  Id.
3  Commonwealth v. Bracey, ___ Pa. __, slip op. No. 565-CAP (Dec. 28, 2009), at pg. 3.
4  Id. at pg. 4.
5  Id. at pg. 5.
6  Id. at pg. 7.
7  Commonwealth v. Banks, 943 A. 2d 230 (Pa. 2007).
8  In what might have been an effort to deal with this negative evidence, Bracey requested that the Pennsylvania Supreme Court remand the matter to allow an assessment using “the new Wechsler Adult Intelligence Scale, Fourth Edition (“WAIS-IV”) test. . . Appellant produces written declarations from the three experts who testified at the 1998 PCRA hearing, stating that the WAIS-IV is an improved and updated test, which would greatly aid the Court in making a mental retardation determination.”  Commonwealth v. Bracey, ___ Pa. __, slip op. No. 565-CAP (Dec. 28, 2009), at pg. 11, n. 6.
9 Id. at pg. 13-14 (record citation omitted).
10  Id. at n.7

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