July 9, 1985
I want to thank Father Walsh for his
spiritual help. I want to thank Bob Ray (Sanders) and Steve
Blow for their friendship. What I want people to know is
that they call me a cold-blooded killer when I shot a man
that shot me first. The only thing that convicted me was
that I am a Mexican and that he was a police officer. People
hollered for my life, and they are to have my life tonight.
The people never hollered for the life of the policeman that
killed a thirteen-year-old boy who was handcuffed in the
back seat of a police car. The people never hollered for the
life of a Houston police officer who beat up and drowned
Jose Campo Torres and threw his body in the river. You call
that equal justice. This is your equal justice. This is
Americaís equal justice. A Mexicanís life is worth nothing.
When a policeman kills someone he gets a suspended sentence
or probation. When a Mexican kills a police officer this is
what you get. From there you call me a cold-blooded murderer.
I didnít tie anyone to a stretcher. I didnít pump any poison
into anybodyís veins from behind a locked door. You call
this justice. I call this and your society a bunch of cold-blooded
murderers. I donít say this with any bitterness or anger. I
just say this with truthfulness. I hope God forgives me for
all my sins. I hope that God will be as merciful to society
as he has been to me. Iím ready, Warden.
Henry Martinez PORTER
On the morning of November 29, 1975,
tragedy struck. Henry Martinez Porter of San Antonio, 43, shot
Officer Henry Paul Mailloux, 28, after officer Mailloux had asked
Martinez to pull his car over.
Martinez was shot in the side during the struggle
and then shot Mailloux claiming that he pulled the trigger in self-defense.
Martinez claimed that Mailloux said that he was going to kill him
for the robberies that had taken place in that area. ďI want people
to know that they called me a cold-blooded murderer, and I shot a
man who shot me first,Ē Porter said moments before his execution on
July 9, 1985.
Porter appealed twice in the state courts, first
on March 28, 1979 and then on October 21, 1981, and once in the
Supreme Court on May 14, 1984.
Porter had two previous execution dates, which
were stayed because of these appeals. However, as his third
execution date approached, he instructed his lawyer, A. Deniz Tor,
not to try any last minute legal attempts to stop his execution.
Calmly awaiting his death, Porter visited and
joked with family and friends including his daughter, Imelda
Cortinas, and his brother Edward Porter.
He dined on steak, refried beans, tossed salad,
jalapenos, tortillas, chocolate cake and iced tea. He expressed his
anger at society and blamed his Mexican ancestry as the cause of his
punishment. ďIím Mexican, and he was a police officer. They call it
equal justice, but it is your equal justice. A Mexican life is worth
nothing,Ē Porter said. Porter was pronounced dead at 12:31 a. m. on
July 9, 1985.
466 U.S. 984
104 S.Ct. 2367
80 L.Ed.2d 838
Henry Martinez PORTER
Dan V. McKASKLE, Acting Director, Texas Department of Corrections.
Supreme Court of the United States
May 14, 1984.
On petition for writ of certiorari
to the United States Court of Appeals for the Fifth Circuit.
The petition for writ of
certiorari is denied.
Justice MARSHALL, with whom
Justice BRENNAN joins, dissenting.
This case presents a recurring
question concerning the standard for determining when a trial
judge has a constitutional obligation to order a psychiatric
examination to determine a defendant's competency to stand trial.
Especially because the correct answer to that question
determines whether petitioner lives or dies, I would grant the
In 1976, petitioner, Henry
Martinez Porter, was tried in Texas for the murder of a
policeman. He was convicted and sentenced to death. However, the
Texas Court of Criminal Appeals overturned his conviction on the
ground that petitioner's constitutional right to confront
witnesses against him had been violated by the introduction into
evidence of materials from a file pertaining to petitioner's
conduct while on federal parole during 1973 and 1974. Porter v.
State, 578 S.W.2d 742 (Tex.Cr.App.1979).
Among those materials were
various reports that cast doubt on petitioner's sanity and
capacity to understand legal proceedings. For example, the
director of a drug abuse treatment center described petitioner's
debilitating and apparently incurable heroin addiction. The
director went on to cite petitioner's " 'serious mental and
emotional handicaps,' " concluding that petitioner's " '[r]ehabilitative
rating is very poor.' " Id., at 745. Another report quoted
unnamed psychologists to the effect that petitioner had " 'a
psychopathic personality' " and had manifested " 'paranoid
schizophrenic behavior.' " Id., at 744.
Petitioner was retried before
the same judge who had presided over his first trial. After the
jury had been selected but before it was empaneled, the
prosecutor for the first time discovered a presentence report,
prepared in 1959, that described a psychiatric episode in
petitioner's past. The report revealed that, while incarcerated
on a robbery charge, petitioner was sent from a reformatory to a
psychiatric hospital, "because he had hallucinations of seeing
his father and speaking to him." After being held at the
hospital for a month, petitioner escaped.
After receiving this report
from the prosecutor, petitioner's counsel informed the trial
judge that he was concerned about the bearing of the newly
revealed evidence on petitioner's competency to stand trial and
requested the judge to order a psychiatric examination of
petitioner. Counsel also asked for a ruling that the results of
such an examination would be admissible only for the purpose of
assessing petitioner's competency, and would be excluded from
the penalty phase of the trial.
The prosecutor acceded to the
request for an exam but objected to the proposed limitation on
the admissibility of the results thereof. The trial judge ruled
with the prosecutor on this issue, indicating that he would
grant the request for a psychiatric exam only if the material
disclosed thereby were admitted into the record and could be
used by either side for any purpose. In the face of this ruling,
defense counsel withdrew his request for a competency exam.
At the conclusion of the
second trial, petitioner was once again convicted and sentenced
to death. The Texas Court of Criminal Appeals affirmed, Porter
v. State, 623 S.W.2d 374 (Tex.Cr.App.1981), and this Court
denied certiorari, 456 U.S. 965, 102 S.Ct. 2046, 72 L.Ed.2d 491
After exhausting his state
remedies, petitioner brought this suit in Federal District Court,
seeking a writ of habeas corpus on the ground, inter alia, that
the trial judge's ruling on his request for a psychiatric
examination violated the Due Process Clause. The District Court
denied relief without oral argument or an evidentiary hearing.
No. C-82-159 (SD Tex., Oct. 28, 1982). The Court of Appeals for
the Fifth Circuit affirmed. Porter v. Estelle, 709 F.2d 944
As the Court of Appeals
acknowledged, if petitioner's competency was questionable, the
trial judge erred in refusing to order a psychiatric examination
unless its results could be admitted by the prosecution in the
penalty phase of the trial. See id., at 951. It is settled that,
if evidence available to a trial judge raises a bona fide doubt
regarding a defendant's ability to understand and participate in
the proceedings against him, the judge has an obligation to
order an examination to assess his competency, even if the
defendant does not request such an exam. Drope v. Missouri, 420
U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson,
383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).
It is equally clear that
statements made by a defendant in the course of a court-ordered
competency exam cannot be used against him in either the
liability phase or the penalty phase of his trial unless the
defendant makes an intelligent and voluntary waiver of his
privilege against self-incrimination. Estelle v. Smith, 451 U.S.
454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). A trial judge may
not put a defendant to the choice of forgoing either his right
to a competency exam or his right to limit the admissibility of
statements he makes during such an exam. Cf. Simmons v. United
States, 390 U.S. 377, 393-394, 88 S.Ct. 967, 975-976, 19 L.Ed.2d
Nevertheless, the Court of
Appeals upheld the denial of habeas relief in this case on the
ground that the evidence available to the trial judge at the
time he made his ruling was insufficient to cast doubt on
petitioner's competency. The Court of Appeals made two points in
support of this conclusion. First, the trial judge had had an
opportunity to observe petitioner in the course of his first
trial and in the preliminary stages of the second trial, and
petitioner had participated competently in those proceedings.
Second, the psychiatric episode that had recently come to the
parties' attention had occurred when petitioner was 17, 20 years
before the time of the second trial, and thus had little
In my view, the factors relied
upon by the Court of Appeals are insufficient to support its
conclusion. In Drope v. Missouri, supra, 420 U.S., at 180, 95
S.Ct., at 908, we described as follows the standard to be
applied by trial judges in situations of this sort:
"The import of our decision in
Pate v. Robinson is that evidence of a defendant's irrational
behavior, his demeanor at trial, and any prior medical opinion
on competence to stand trial are all relevant in determining
whether further inquiry is required, but that even one of these
factors standing alone may, in some circumstances, be sufficient.
There are, of course, no fixed or immutable signs which
invariably indicate the need for further inquiry to determine
fitness to proceed; the question is often a difficult one in
which a wide range of manifestations and subtle nuances are
At the time he was called upon
to assess defense counsel's motion, the trial judge in this case
was aware of several reports describing petitioner's "paranoid"
and "schizophrenic" behavior. The judge was also aware that
petitioner had a serious and seemingly ineradicable heroin
addiction. Petitioner's probation records contained reports from
psychiatrists regarding petitioner's "psychopathic personality."
Finally, the judge had just
been informed that petitioner had been confined in a mental
hospital at the age of 17 because of hallucinations. In sum, a
substantial body of both medical evidence and evidence
pertaining to petitioner's behavior cast doubt upon petitioner's
ability to comprehend the proceedings against him.
Surely the Court of Appeals erred in concluding that the
cumulation of these data was insufficient to entitle petitioner
to a competency exam.
The foregoing conclusion is
reinforced by the fact that both the prosecutor and the state
trial judge agreed that petitioner should have been given an
examination. In response to defense counsel's motion, the
prosecutor conceded that, "the way the case law is," both the
trial court and defense counsel had an obligation to have
petitioner examined. Tr. 1865.
The judge thereupon expressed
his willingness to order an examination; he simply refused to
limit the admissibility of statements made by petitioner during
that exam. Id., at 1866.
In short, the persons best situated to assess petitioner's state
of mind were unanimous in their view that a competency
examination was warranted.
In elaborating its argument
rejecting petitioner's constitutional claim, the Court of
Appeals relied in part on this Court's refusal hitherto to
"prescribe a general standard with respect to the nature or
quantum of evidence necessary to require resort to" a competency
exam, Drope v. Missouri, supra, at 172, 95 S.Ct., at 904. See
709 F.2d, at 950, n. 3.
If our failure to clarify this area of the law has the effect of
defeating claims as substantial as that made by petitioner, it
is time we reconsidered the issue of a defendant's entitlement
to a competency exam and set a standard that would provide lower
courts better guidance.
I would grant the petition and
set the case for argument.