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Gerald M. SMITH





Classification: Murderer
Characteristics: Revenge
Number of victims: 2
Date of murders: 1981 / 1983
Date of birth: October 7, 1958
Victims profile: Karen Roberts  / Man (fellow death-row inmate)
Method of murder: Beating with a metal bar / Stabbing with homemade knife
Location: Missouri, USA
Status: Executed by lethal injection in Missouri on January 18, 1990

State of Missouri v. Gerald Smith

649 SW 2d 417 (Mo.banc 1983)

Gerald Smith was executed on January 18, 1990

Case Facts:

Smith and his girlfriend at the time were driving around in the girlfriend’s car. After an hour or so, Smith announced that his intentions were to visit a person whom he said was his cousin. Smith told his girlfriend that he was going to hurt this person because she had once given him “the clap”.

At approximately 9:30pm, Smith and his girlfriend drove to the home of Karen Roberts, the victim. After some time, the girlfriend went home and Karen was persuaded to stay by Smith. Sometime after the girlfriend’s departure, Smith left his house to walk Karen home. During the walk they argued as to whether she had given him a venereal disease.

At one point, Karen cursed him and Smith pushed her to the ground. When she got up, Karen was holding a heavy metal bar which she swung at Smith. Smith blocked the blow and jerked the bar away. When Karen started to run, Smith chased her. He finally caught her and bludgeoned her to death with the metal bar.

An autopsy revealed massive head injuries. The back of her skull was caved in; she suffered six head lacerations, skull fractures “too numerous to count”, and multiple contusions and bruises of the brain.


Missouri Executes Man in Slaying of His Girlfriend

The New York Times

January 18, 1990

A man who was convicted of killing his girlfriend was executed by injection early today, becoming the the 121st nationwide since 1976, when the Supreme Court allowed states to restore the death penalty.

The prisoner, Gerald Smith, 31- years old, had asked that his death sentence be carried out. He was pronounced dead at 12:09 A.M., said Dick Moore, director of the state Department of Corrections.

It was Missouri's second execution since 1965.

Mr. Smith had no last words and refused an opportunity to write a last statement, a prison spokesman, Dale Riley, said.

Mr. Smith said in a letter to a newspaper that he chased and killed the victim, Karen Roberts because she gave him a venereal disease. ''I wanted her to feel some pain so I beat her little lousy head in,'' he said. ''If she were living now I would do it all over to her again.''

He signed the letter: ''Gerald Smith, the cold blooded killer.''

Opponents of the death penalty made a last-ditch effort to save Mr. Smith's life by filing a motion Wednesday afternoon with the Supreme Court, but the court voted 7-2 to reject the appeal.

Gov. John Ashcroft also declined a reprieve to block the execution, his spokesman said.

Mr. Smith met Wednesday evening with his court-appointed lawyer, C. John Pleban, Mr. Riley said. Mr. Pleban had conceded earlier that few, if any, legal angles remained to spare his client, who has wavered in the past on his claim that he wanted to die.

A Second Death Sentence

Mr. Smith was also sentenced to death for the slaying in 1985 of a fellow death-row inmate.

He Smith had been sentenced to die a week ago, but Mr. Pleban won a stay from Associate Justice Harry A. Blackmun until the Court could review more arguments. The Court lifted the stay by a 6-to-3 vote Tuesday, and the Missouri Supreme Court moved quickly to set the new execution date.



MO: Beat ex-girlfriend to death, 1980; stabbed prison inmate.

DISPOSITION: Condemned on both counts; executed Jan. 18, 1990.


812 F.2d 1050

COMMISSION and Joseph W. Downey, Public Defender
for the Twenty-second Judicial Circuit
of Missouri, as Next Friends, Appellants,
William ARMONTROUT, Appellee.

No. 86-1457.

United States Court of Appeals,
Eighth Circuit.

Submitted Nov. 10, 1986.
Decided March 2, 1987.
Rehearing and Rehearing En Banc Denied April 8, 1987.

Before ARNOLD, JOHN R. GIBSON, and FAGG, Circuit Judges.

ARNOLD, Circuit Judge.

Appellants Missouri Public Defender Commission and Joseph W. Downey1 seek to present a next-friend petition for habeas corpus under 28 U.S.C. Sec. 2254 on behalf of Gerald M. Smith, a death-row inmate at the Missouri State Penitentiary who declared that he wished to cease pursuit of post-conviction relief and proceed to his execution.

The District Court2 dismissed the next-friend petition for lack of standing, ruling that under Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966) (per curiam), Smith possessed the requisite mental competence to abandon his post-conviction remedies, and that his decision to do so was voluntary. 632 F.Supp. 503 (W.D.Mo.1986). We affirm.3



In 1981, Gerald Smith was convicted and sentenced to death for the 1980 slaying of Karen Roberts in St. Louis, Missouri. Since Smith's conviction, a direct appeal and several state- and federal-court collateral proceedings attacking the conviction and sentence have been filed by Smith or by his brother, Eugene Smith, Jr., acting as a next friend. From the time of the conviction to the filing of the present habeas corpus petition, Smith changed his mind about the desirability of post-conviction relief at least eight times.

Smith shifted his position on this question several times during the course of his direct appeal. However, the Missouri Supreme Court ruled that the appeal was mandatory; it went on to affirm Smith's capital murder conviction and death sentence. State v. Smith, 649 S.W.2d 417 (Mo.1983) (en banc). Smith approved the filing of a petition for a writ of certiorari, but the Supreme Court denied his petition. Smith v. Missouri, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983).

Smith initially opposed pursuing collateral review, then relented and permitted his attorney to file for relief in a Missouri circuit court under Mo.S.Ct.R. 27.26, and then moved that the petition be dismissed. In October 1984, the state circuit court granted Smith's motion, ruling that Smith was competent to abandon the proceeding, though it held no formal adversarial hearing on competence.4 Days later, the Missouri Supreme Court affirmed the dismissal and set Smith's execution for November 9, 1984.

Eugene Smith then filed a next-friend petition in the District Court, which stayed Smith's execution pending a competency hearing. 604 F.Supp. 840 (1984). Gerald Smith thereafter elected to resume pursuit of his remedies, and was substituted for Eugene Smith as sole petitioner.

However, the District Court determined that Smith had not exhausted his state-court remedies, and dismissed his claims without prejudice pursuant to Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982). Then, because Gerald Smith had again recanted and decided to abandon further attacks on his conviction, Eugene Smith filed a next-friend petition in the state circuit court. See Mo.S.Ct.R. 27.26 and 52.02.

The Missouri Supreme Court, however, refused to stay Smith's execution, holding that the Rule 27.26 petition was a nullity on the ground that the October 1984 state circuit court determination that Smith was competent barred further inquiry into the matter; the Court stated that it would grant no further extensions of Smith's execution date.

Eugene Smith returned to the District Court, filing the petition now before us, in which he alleged that his brother was not competent and that his decision was not voluntary. As grounds for overturning Gerald Smith's conviction and sentence, Eugene Smith alleged, inter alia, that Missouri's death-penalty procedures violate the Eighth and Fourteenth Amendments, and that Smith did not have effective assistance of counsel at trial.

The District Court stayed Smith's execution pending an up-to-date evaluation of his competence, and ordered him transferred to the Federal Medical Center in Springfield, Missouri, for examination and testing.


A person generally lacks standing to prosecute a federal habeas corpus petition on behalf of another unless he or she can show a reasonable excuse as to why the detainee did not sign and verify the petition, and a sufficient relationship and interest linking the would-be next friend to the detainee. Weber v. Garza, 570 F.2d 511, 513-14 (5th Cir.1978); see Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976); 28 U.S.C. Sec. 2242 ("[a]pplication for writ of habeas corpus shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf.")

The sufficiency of Eugene Smith's relationship with his brother was, of course, undisputed, so the District Court hearing, which began February 18, 1986, focused upon Smith's decision to waive further proceedings.

This inquiry resolved into two questions: first, whether Smith had the capacity to appreciate his position and make a rational decision, or was suffering from a mental disease, disorder, or defect that substantially affected his capacity, see Rees v. Peyton, 384 U.S. at 314, 86 S.Ct. at 1506; and second, whether the conditions of Smith's confinement rendered his decision involuntary. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Groseclose ex rel. Harries v. Dutton, 594 F.Supp. 949, 953, 957, 961 (M.D.Tenn.1984).

Gerald Smith testified in the District Court that the reason for his decision to acquiesce in the imposition of his death penalty was that he hated confinement and preferred death to life imprisonment. Smith observed that the most he could hope to gain through post-conviction proceedings would be a new trial, that in a new trial he would have no realistic chance of avoiding a guilty verdict, and that the lightest sentence he could receive would be life imprisonment without parole for 50 years. See R.S.Mo. Sec. 565.008.

Besides Smith's testimony, the Court received a variety of evidence that assisted it in evaluating his decision and the rationale he articulated for it. There was evidence from a number of sources concerning Smith's life and medical history.

The Court heard live or videotaped expert testimony from six psychiatrists who had examined Smith to evaluate his competency; it also received these witnesses' written reports, as well as those of two psychiatrists and one psychologist who did not testify. Finally, Missouri prison officials and two death-row inmates testified about Smith's behavior and prison conditions.

Smith's childhood and adolescence were chaotic and disruptive. The District Court noted, inter alia, that Smith, who was born October 7, 1958, suffered serious head injuries and was treated for lead poisoning as a child, that Smith's father was an alcoholic given to beating his wife and children, and that Smith began using drugs and alcohol by age 13.

Further, Smith had begun petty thievery by age ten, and was placed in a Missouri juvenile-detention center at age 15. After his release from this center, Smith had no steady job, and instead continued to steal to support himself. Smith had a girlfriend whom he abused physically; she gave birth to their daughter in July 1979.

On September 8, 1980, Smith killed Karen Roberts, bludgeoning her with a heavy iron bar. Smith stated that he did this because Roberts gave him a venereal disease, which caused his girlfriend to take their child and leave him. A few months later, after Smith's arrest for the murder, Smith's lawyer and the prosecutor were on the verge of entering a plea-bargain agreement for a second-degree murder plea when the St. Louis Globe-Democrat published a letter from Smith.

Smith signed the letter "Gerald Smith, the cold-blooded killer," and claimed in it that he had planned the murder for four months, and that, though he had a gun with him, he bludgeoned Roberts so that she would feel more pain. As a result, the prosecutor ended plea negotiations, and Smith was tried and convicted for capital murder.

Smith testified in the competency hearing that he had not, in fact, planned the murder or carried a gun at the time. Though Smith has told psychiatrists that he wrote the Globe-Democrat letter because he wished to die, he testified in the District Court that he did not know why he had written the letter.

Before the murder, Smith had attempted suicide three times. On the last such occasion, Smith was admitted to Alexian Brothers Hospital in St. Louis; he was diagnosed as suffering from depression and a personality disorder, but was released from the hospital.

In 1981 and 1982, after his imprisonment, Smith on several occasions engaged in self-mutilation, such as the infliction of multiple lacerations on his wrist and forearm. In May 1983, Smith attempted suicide a fourth time, overdosing on Elavil, an antidepressant.

As discussed above, Smith has frequently shifted his position on the desirability of post-conviction proceedings. When he has opposed ongoing proceedings, he has written a number of letters to the courts involved, calling them vulgar names, and urging and daring them to permit his execution.

Smith has also threatened to kill his attorneys and prison guards if his wish to be executed is not respected. On the other hand, when he has favored pursuing relief, Smith has apologized profusely for his statements and behavior.

Smith's latest change of position before the District Court hearing, a change to opposition to relief, came in June 1985, while the first federal habeas petition was pending. Smith was then incarcerated on death row. The District Court received "considerable evidence that life on death row was dismal," including testimony concerning lack of exercise, the back-up of raw sewage into cells, infestation of pests, and a lack of ventilation. 632 F.Supp. at 512 n. 24, 515.

In November 1985, Smith was transferred to MSP's maximum-security area, the Special Management Unit (SMU). The Court heard testimony that SMU was more depressing than death row because SMU inmates were more isolated, but also heard testimony that SMU was a more humane environment than death row because it had bigger cells and better lighting, security, and supervision.


The psychiatrists and psychologist who examined Smith were, the District Court noted, 632 F.Supp. at 511, largely agreed as to the nature and severity of his psychological problems. All concurred that Smith suffered from neither a "mental disease" nor a "mental defect," see Rees, 384 U.S. at 314, 86 S.Ct. at 1506, and the District Court so found. 632 F.Supp. at 514.5

Yet, all or most of the experts also agreed, and the District Court found, id., that Smith does suffer from three conditions that are "mental disorders," as that term is used in Rees. These are: a "borderline personality disorder"; an "antisocial personality disorder"; and chronic mild-to-moderate depression.6

These disorders are linked to three salient aspects of Smith's personality: impulsive and erratic behavior, low self-esteem, and presentation of "a macho image, one that is invulnerable to fear, compassion or remorse," 632 F.Supp. at 510 (footnote omitted), in an effort to mask perceived weaknesses. Smith's borderline personality disorder, described by the District Court in Freudian terms as an inability to control the "Id," is marked by his impulsive, erratic behavior, lack of self-control, dependence on others for guidance, and guilt over these shortcomings. Id. at 511.

Smith's antisocial-personality disorder produces in him a feeling that he is not bound by society's rules, and a compulsion to break them. Id. Finally, Smith's depression is linked to his low self-esteem and reflected in his suicide attempts and self-multilation. Id.

Although the expert witnesses generally shared this analysis of Smith's mental disorders, they divided into two camps in appraising the relationship between his disorders and his decision to abandon post-conviction proceedings.

Drs. Daniel and Harry, who examined Smith in 1983 after his last suicide attempt, concluded in their written reports that Smith's opposition to pursuing his remedies was a direct result of his mental disorders, rather than a product of rational decisionmaking. This conclusion was shared by Drs. Perlswig and Ratner, who examined Smith near the time of the hearing and testified for Eugene Smith.

On the other side, the State's experts, Dr. Ajans, who examined Smith in October 1984 and February 1986, and Dr. Parwatikar, who examined Smith four times, most recently in 1985, concluded that despite Smith's mental disorders, his decision was the product of a rational thought process and appreciation of his circumstances. Drs. Foster and Pettipiece, independent experts who examined Smith during his stay at the Federal Medical Center, also concluded that Smith's decision was rational.

These psychiatrists emphasized that Smith, who scored above average on intelligence tests administered at the Federal Medical Center, possessed a good cognitive awareness of his situation and legal prospects, and that he values freedom highly and finds his physical confinement intolerable.

Dr. Foster observed that Smith's certainty of and commitment to his decision was evidenced by his willingness to undergo the spectacle and humiliation of a competency hearing; this contrasts sharply with Smith's usual efforts to mask his weaknesses through presentation of a macho persona. Hence, these four psychiatrists concluded that when Smith explained his decision by stating that he preferred death to life imprisonment, he accurately reported his thought processes.

The District Court, in evaluating the evidence before it, found Dr. Foster's testimony particularly helpful; the Court noted that Dr. Foster was not associated with either party, had spent far more time on Smith's case than any of the other experts, had wrestled long with the competency question, and had candidly acknowledged the uncertainties inherent in resolving this question. 632 F.Supp. at 513 n. 28, 514.

The Court concluded that unlike many of Smith's past irrational and self-destructive decisions, his decision to forego further legal proceedings was based on a reasonable assessment of his position and an evaluation of his own best interests that the Court, whatever its own view of his choice, could not say was irrational. 632 F.Supp. at 514-15.

The District Court also found that Smith's decision was voluntary. The Court assumed, without deciding, that death-row conditions violated the Eighth Amendment. Id. at 512 n. 24.

However, it found that this did not render Smith's decision involuntary because Smith had adhered to his decision after his transfer to SMU, where conditions were much better than on death row, and because it was the fact, and not the conditions, of his confinement that Smith found most oppressive. Id. at 515. Thus, finding Gerald Smith's decision competent and voluntary, the District Court dismissed Eugene Smith's next-friend petition.


Before addressing the merits of this appeal, we must first consider whether a development since the District Court issued its decision has rendered this case moot. In a letter to this Court dated August 25, 1986, Gerald Smith states that he now desires to prosecute his habeas petition. Smith indicates that he has just been transferred back to death row, where conditions have improved, and attributes his earlier opposition to habeas proceedings to the conditions of his confinement in SMU, despite his District Court testimony to the contrary.

We note first that notwithstanding Smith's new stance, the controversy over his competency remains live, in that, were it accepted that he is incompetent, the petitioners would be prejudiced if they were deprived of the opportunity to vindicate their position in this Court. Incompetence could cause Smith to prosecute his case in a manner that would actually subvert his claims.

Indeed, it is conceivable that Smith's recent statements were a ploy through which Smith, seeking to effectuate an incompetent decision to forego post-conviction proceedings, hoped to ensure that this case was dismissed; see Rumbaugh v. Procunier, 753 F.2d 395, 398 (5th Cir.), cert. denied, 473 U.S. 919, 105 S.Ct. 3544, 87 L.Ed.2d 668 (1985), in which a death-row inmate employed a similar strategem.

In any case, it is also our view that Smith's past inconstancy on this question indicates that it is likely that Smith will change his mind yet again and resume his opposition to post-conviction proceedings. Consequently, we conclude that Smith's frequent about-faces bring this case within the "capable of repetition, yet evading review" exception to the mootness doctrine. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 602-03, 102 S.Ct. 2613, 2617-18, 73 L.Ed.2d 248 (1982); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). Accordingly, we take up the issues raised by the petitioners.


The petitioners contend that the District Court misinterpreted and misapplied Rees v. Peyton's competency standard. They also attack the District Court's factual findings that Smith was competent and that his decision was voluntary. Finally, the petitioners maintain that the District Court "improperly sanctioned Smith's state-aided suicide by allowing him to waive his post-conviction appeals in violation of the Eighth and Fourteenth Amendments." Appellants' Brief at 42.


Rees v. Peyton concerned a death-row inmate who sought to withdraw his petition for certiorari to review the denial of his federal habeas corpus petition. The Supreme Court stated the standard for determining the inmate's competence to do so as:

whether he has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.

384 U.S. at 314.7

The petitioners assert that the District Court misinterpreted this standard when it proceeded to determine whether Smith's waiver decision was in fact a product of his mental disorders. Rees, they maintain, indicates through its use of the word "may" that an inmate must be found incompetent where the evidence establishes even a mere possibility that a mental disorder substantially affected the decision. See Rumbaugh v. Procunier, 753 F.2d at 409-10 n. 8, 412 (Goldberg, J., dissenting).

The petitioners cite a number of Supreme Court opinions supporting the proposition that, because of the final and irrevocable nature of the death penalty, "the Eighth Amendment requires a heightened degree of reliability in any case where a State seeks to take the defendant's life." Darden v. Wainwright, --- U.S. ----, 106 S.Ct. 2464, 2476, 91 L.Ed.2d 144 (1986) (Blackmun, J., with Brennan, Marshall, and Stevens, JJ., dissenting) (citation omitted); see id. at n. 1 (collecting cases); Turner v. Murray, --- U.S. ----, 106 S.Ct. 1683, 1688, 90 L.Ed.2d 27 (1986) (plurality opinion of White, J., joined by Blackmun, Stevens, and O'Connor, JJ.).

Corollary to this in the present context, the petitioners contend, is a requirement that a prisoner under a death sentence not be permitted to waive his or her post-conviction remedies if there is any possibility that the decision is a product of a mental disease, disorder, or defect. Cf. Ford v. Wainright, --- U.S. ----, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (Eighth Amendment prohibits executing insane prisoners).

We do not agree with this interpretation of the Rees per curiam. While there is no Supreme Court decision applying Rees, see note 7 supra, and, indeed, a dearth of other caselaw addressing the issue, we note that the only other circuit court opinion applying Rees supports the District Court's interpretation. See Rumbaugh v. Procunier, supra, 753 F.2d at 398-99; see also Hays v. Murphy, 663 F.2d 1004 (10th Cir.1981).

More importantly, the petitioner's literal interpretation of the half of the Rees test which asks whether the prisoner suffers from "a mental disease, disorder, or defect which may substantially affect his capacity," would conflict with a similarly literal interpretation of the other half of the test, which asks whether the prisoner has, rather than absolutely, certainly, or undoubtedly has, the capacity to appreciate his position and make a rational choice.

Though Rees recites these two portions of the standard as disjunctive alternatives, there is necessarily an area of overlap between the category of cases in which at the threshhold we see a possibility that a decision is substantially affected by a mental disorder, disease, or defect, and that of cases in which, after proceeding further, we conclude that the decision is in fact the product of a rational thought process.

Furthermore, we think it very probable, given the circumstances that perforce accompany a sentence of death, that in every case where a death-row inmate elects to abandon further legal proceedings, there will be a possibility that the decision is the product of a mental disease, disorder, or defect. Yet, Rees clearly contemplates that competent waivers are possible, see also Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976), and there is little point in conducting a competency inquiry if a finding of incompetency is virtually a foregone conclusion.

The petitioners also assert that the District Court erred by construing Rees's requirement that Smith have the capacity to appreciate his position and to make a rational choice to require only that he be cognizant of his factual circumstances, and that his choice be logical, the product of a process of reason.

The problem with this, they explain, is that in evaluating competency, it is necessary not only to test the individual's ability to reason, but also to determine whether he or she is reasoning from premises or values that are within the pale of those which our society accepts as rational. Logic employed in the service of irrational premises does not produce a rational decision.

We agree with the petitioners that it is not sufficient simply to determine whether a waiver decision has been arrived at logically, but we conclude that the District Court did not limit its inquiry in this manner.

The District Court's opinion does not articulate such a constricted view of the question, see, e.g., 632 F.Supp. at 508-09, 514-15, and, moreover, the Court examined the rationality of the values and beliefs underlying Smith's decision, including his aversion from confinement, and his conclusion that, in any case, he will be unable to avoid a life sentence, see, e.g., id. at 513 & n. 26, 514 & n. 29; 515 & n. 31.

The petitioners launch a number of assaults upon the factual findings underlying the District Court's competency determination, arguing, inter alia, that the District Court erred in relying upon the psychiatrists who found Smith competent rather than those who found him incompetent, and in failing to find that Smith irrationally failed to consider all his values and alternatives.

We review these factual findings under the clearly erroneous standard. Rumbaugh, 753 F.2d at 322; Walker v. Lockhart, 726 F.2d 1238, 1249 (8th Cir.1984) (en banc), vacated on other grounds, 763 F.2d 942 (8th Cir.1985) (en banc), cert. denied, --- U.S. ----, 106 S.Ct. 3332, 92 L.Ed.2d 738 (1986); Hoefelman v. Conservation Comm'n of Missouri, 718 F.2d 281, 285 (8th Cir.1983) (assessment and evaluation of the strengths and weaknesses of conflicting expert testimony are particularly within the factfinder's province and are to be reviewed under the clearly erroneous standard). Our review of the transcript and the other evidence before the District Court persuades us that there is ample support in the record for its findings.

The District Court applied itself thoughtfully and conscientiously to the resolution of a difficult, morally troubling question. We are further bolstered in this conclusion by the fact that the District Court, unlike any other court that has considered the question, placed the burden of proof upon the State, rather than the would-be next friend. See Rumbaugh, 753 F.2d at 414-15 & n. 15 (Goldberg, J., dissenting); compare Groseclose ex rel. Harries v. Dutton, 594 F.Supp. 949, 951-52 (M.D.Tenn.1984); Rumbaugh v. Estelle, 558 F.Supp. 651, 652 (N.D.Tex.1983), aff'd, 753 F.2d 395 (5th Cir.), cert. denied, 473 U.S. 919, 105 S.Ct. 3544, 87 L.Ed.2d 668 (1985).8

As the District Court frankly acknowledged, "[n]ecessarily, this issue cannot be resolved with absolute certainty: no one can be sure of what goes on in the human mind." 632 F.Supp. at 514. While we have to be mindful of this uncertainty, we also have to resolve the question before us, and we must do so by reference to the only sort of evidence we can ever have about the mental state of another human being--evidence of that person's behavior in the world.

Here, it is true, that evidence could have convinced a trier of fact that Smith was not competent; but it is also true that the District Court was cognizant of the limits on human knowledge in this milieu, and reached a conclusion that does not rest on a cramped view of the evidence, much less one that is clearly erroneous.

We therefore affirm the District Court's conclusion that Gerald Smith's decision to forego further struggle against the imposition of his death sentence was competent.


We are also unable to agree with the petitioners' assertion that the District Court erred in finding that Smith's decision was voluntary.9 The record, particularly the testimony of Dr. Foster, Tr. 2:124-26, supports the District Court's conclusion that conditions on SMU were not coercive.

We think that the District Court was justified in concluding that, even if death row's conditions were in violation of the Eighth Amendment, the fact that Smith continued to adhere to his decision over the months between his transfer to SMU and the District Court hearing negated any inference of coercion.

The petitioners make much of Smith's recent letter to this Court, in which he asserts that, notwithstanding his District Court testimony, the conditions of his confinement did affect his decision. However, this letter obviously was not before the District Court, nor is it properly part of the record here; the statements in it were not made under oath, nor have they been subjected to cross-examination.

Moreover, we are not convinced that Smith's letter alters matters; the evidence concerning the actual conditions that obtain in the SMU remains unchanged, and the District Court found them not coercive. We therefore affirm the District Court's conclusion that Smith's decision was voluntary.


The petitioners' final argument is that the Eighth and Fourteenth Amendments prohibit permitting a capital defendant to waive his right to post-conviction review of his death sentence. They maintain that to allow such a waiver constitutes "state-aided suicide," which is fundamentally unfair and inconsistent with our society's "evolving standards of decency," Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion), and that it is irreconcilable with the respect for life embodied in the Eighth Amendment. The petitioners conclude that they have standing on this basis to proceed as Smith's next friends.

We believe that this argument is foreclosed by Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976) (per curiam), in which the Supreme Court terminated a stay of execution upon ascertaining that Gilmore's decision to waive review of his death sentence was made competently, knowingly, and intelligently, and that his mother therefore lacked standing to contest the sentence.

Justice White, joined by Justices Brennan and Marshall, dissented, arguing that "the consent of a convicted defendant in a criminal case does not privilege a State to impose a punishment otherwise forbidden by the Eighth Amendment." 429 U.S. at 1018, 97 S.Ct. at 439.10

However, that five justices concluded that Gilmore's mother lacked standing makes clear at the very least that, even if there is some such bar to waiving review, it does not serve to confer standing upon a next friend in the absence of some other basis for standing. See id. at 1016-17, 97 S.Ct. at 439 (Burger, C.J., joined by Powell, J., concurring) (expressly declining to decide whether review is waivable, since, in any case, there is no next-friend standing); id. at 1017, 97 S.Ct. at 439 (Stevens, J., joined by Rehnquist, J., concurring) (no next-friend standing).

We also think that this proposition is implicit in Rees itself; an inquiry into competency in death-penalty cases would be superfluous if next-friend standing could be predicated upon an Eighth Amendment bar to waiving review.


We affirm the District Court's conclusion that Smith was competent to forego pursuit of federal habeas corpus review, and that his decision to do so was voluntary. Accordingly, we also affirm the District Court's dismissal of the petitioners' next-friend petition for lack of standing.



Eugene Smith, Jr., who is Gerald Smith's brother, originally filed this petition. During the pendency of this appeal, the District Court granted Eugene Smith's request to be relieved of his duties as next friend, and we granted the current appellants' request to be substituted as next friends for Gerald Smith


The Hon. Scott O. Wright, Chief Judge, United States District Court for the Western District of Missouri


After this appeal was filed, Smith wrote a letter to the Clerk of this Court stating that he now wishes to prosecute his habeas corpus petition. This letter and its effect on the issues before us are discussed later in this opinion


The circuit court did have before it the report of one psychiatrist who believed Smith competent, and also heard Smith testify in response to his own attorney's questions. Not before the court were two other then-extant psychiatrists' reports which concluded that Smith was incompetent. 632 F.Supp. at 505 n. 1


We are told that a "mental disease" is a mental condition, such as schizophrenia, that causes one to lose contact with reality and be unable to cope with day-to-day life. Whether a condition constitutes a mental disease is largely a matter of how severely it disorients one from reality. 632 F.Supp. at 511 n. 19. A "mental defect," on the other hand, is a condition, such as mental retardation, that is directly linked to physical brain abnormalities. Id. at 511 n. 20


The various experts disagreed about the degree and permanence of Smith's depression, but several of them supported the District Court's finding of chronic mild-to-moderate depression


The Supreme Court retained jurisdiction of Rees while directing the District Court to evaluate Rees's competence, 384 U.S. at 313-14, 86 S.Ct. at 1506, and later ordered the petition for certiorari held without action until it issued further orders, 386 U.S. 989, 87 S.Ct. 1310, 18 L.Ed.2d 333 (1967). No further orders have been reported, and the case is still pending as item S-2 on the Supreme Court's Special Docket


Since the District Court found that the State had met this burden, and since we affirm its findings, we need not reach the propriety of this allocation of the burden of proof


We reject the State's argument that the petitioners could not raise this claim; as the District Court made clear, 632 F.Supp. at 515 n. 32, were it true that a next-friend cannot raise the voluntariness issue, no one could raise it, since, by hypothesis, the inmate may be unable to do so as a result of coercion. See Groseclose, 594 F.Supp. at 956-62


Justice Marshall also filed a separate dissent, arguing the inadequacy of the procedures through which Gilmore was determined to be competent. 429 U.S. at 1019, 97 S.Ct. at 440. Justice Blackmun also dissented, but did not join Justice White's opinion, arguing instead simply that there were substantial questions regarding Gilmore's mother's standing, meriting plenary Supreme Court review. 429 U.S. at 1020, 97 S.Ct. at 440


865 F.2d 1502

Gerald Smith, Appellant,
William Armontrout, Appellee.,

Docket number: 88-2359

Federal Circuits, 8th Cir.

December 8, 1988

Before LAY, Chief Judge, and HEANEY, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL, and BEAM, Circuit Judges, en banc.

ARNOLD, Circuit Judge.

This is a habeas corpus case initially brought by Gerald Smith, a Missouri state prisoner under sentence of death. On September 29, 1988, a panel of this Court denied a certificate of probable cause, thus effectively dismissing the appeal from the judgment of the District Court, which had dismissed the habeas petition on its merits. Smith v. Armontrout, 692 F.Supp. 1079 (W.D.Mo.1988) (Wright, C.J.). Our panel took this action because Smith himself had asked for it, and the panel was convinced of his legal capacity to make that decision. Smith v. Armontrout, 857 F.2d 1228 (8th Cir.1988) (per curiam).

The Missouri Public Defender Commission and Terry Brummer, Director of the Office of the State Public Defender, who had been acting as next friends to try to prevent Smith's execution, then filed a petition for rehearing by the panel, with suggestions for rehearing en banc. This petition was filed on September 30, 1988. Smith's execution had been set by the Supreme Court of Missouri for October 4, 1988, and no stay of execution was in effect.

While the petition for rehearing was pending, and before we had ruled on it, three Members of this Court, acting as individual circuit judges, granted an emergency temporary stay of the execution. They did so to afford themselves time to study the record in order to determine how to cast their votes on the petition for rehearing en banc. Smith v. Armontrout, No. 88-2359 (order of Lay, C.J., Heaney and McMillian, JJ., filed October 3, 1988).

A motion of the respondent to vacate this stay was denied by the Court en banc, two judges (Fagg and Magill, JJ.) dissenting, and the Supreme Court also declined to set aside the three-judge stay. Armontrout v. Smith, --- U.S. ----, 109 S.Ct. 200, 102 L.Ed.2d 170 (1988). Thus, the execution did not take place on October 4, and the stay remained in effect pending our decision on the petition for rehearing. A supplement to the petition has also been filed and considered by the Court.

We now deny the petition for rehearing en banc. A brief summary of the history of this case will suffice to explain our reasons.

The murder of Karen Roberts took place in 1980. Smith was convicted of this crime and sentenced to death in 1981. The conviction was upheld on direct appeal and on collateral review in the state courts. From time to time, Smith changed his mind about pursuing efforts to have his conviction set aside. By the time the habeas corpus petition now before us was filed in the District Court, Smith had decided he did not want to pursue his remedies.

A series of next friends attempted to press them on his behalf, however, claiming that Smith was not competent, and that his decision to accept the death sentence was not voluntary. Accordingly, the District Court held an extensive and searching evidentiary hearing, including testimony from psychiatric experts on both sides of the issues.

After this hearing, at which the burden of proof was placed on the State to show that Smith's decision was both competent and voluntary, the District Court found as a fact that Smith had the capacity to make his own decision, and that he had made it voluntarily. Smith v. Armontrout, 632 F.Supp. 503 (W.D.Mo.1986).

On appeal by the next friends, we affirmed. 812 F.2d 1050 (8th Cir.1987). After carefully studying1 the entire record, we held that the District Court's findings were not clearly erroneous.2 The next friends filed a petition for rehearing, with suggestions for rehearing en banc. The petition was denied. Not a single judge voted to grant it. In fact, no Member of the Court even requested a poll on the petition.3 The Supreme Court denied certiorari. --- U.S. ----, 107 S.Ct. 3277, 97 L.Ed.2d 781 (1987). No Member of that Court indicated a desire to review the case.

In the meantime, Smith had changed his mind, apparently, in part at least, because he had gotten married. He decided to prosecute his habeas petition, and the District Court proceeded to hear and determine the merits of the petition. As we have noted, the District Court dismissed the petition on the merits. Smith then reverted to a determination to acquiesce in his sentence, and asked that the case be dropped.

His court-appointed counsel, acting out of a commendable abundance of caution, filed a notice of appeal anyway, which we treated, in accordance with Fed.R.App.P. 22(b), as an application for a certificate of probable cause. Smith then wrote the Clerk of this Court to ask that the appeal be dismissed.

Since we had previously affirmed his competence to make such a decision, we knew of no reason why his wish should not be granted, but, because life was at stake, we did not simply deny the application out of hand, but instead entered a show-cause order indicating our intention to do so if no good reason to the contrary could be shown. Smith v. Armontrout, 858 F.2d 1303 (8th Cir.1988) (per curiam).

As a result of this order, the current set of next friends entered their appearance, alleging certain facts that, they contended, required a new evidentiary hearing on Smith's competence. The following facts were alleged:

The Commission and Brummer are aware of several events in Smith's life which need to be examined at a new competency hearing to determine their effect on Smith's present "waiver" decision. The events are:

A. Gerald Smith's marriage to Lyn [sic] Smith.

B. Gerald Smith's decision to change his mind about waiving his appeals reflected in his filing of a federal habeas corpus petition in the federal District Court which is the subject of this appeal.

C. The litigation concerning Smith's federal habeas corpus petition in the District Court.

D. After the District Court's decision to deny Smith's federal habeas corpus petition, Smith's apparent decision, reflected in his September 23, 1988 letter, to change his mind again, abandon his appeals, and acquiesce in his execution.

5. Lyn [sic] Smith's recent decision to encourage her husband to abandon his appeals and acquiesce in his execution.

In the panel opinion which gave rise to the present en banc proceedings, we held these allegations legally insufficient. The Court en banc now adopts the panel opinion. We repeat, for the reasons given in that opinion, that the facts alleged by the next friends, even if fully established by evidence, do not amount, in law, to a sufficient reason to reexamine the previous finding, which is now the law of this case. Conspicuously absent are any allegations of new psychiatric examinations or new conduct by Smith, other than the facts of his marriage and his changes of mind. As we said in the panel opinion:

We think these allegations, assuming their truth for present purposes, are legally insufficient to create a genuine issue of material fact as to Smith's present mental capacity. Subparagraph C is simply a factual recitation that habeas litigation has occurred in the District Court. Subparagraphs B and D accurately state that Smith has changed his mind in the past ..., but competent people do change their minds, even about very important matters, and past changes of mind were among the arguments that we considered and rejected when we considered the question of Smith's capacity last year.

Subparagraphs A and E merely recount Smith's marriage and his wife's decision to encourage him to abandon his appeals. We have not heard from Mrs. Smith,4 but we assume that the motion is accurate in this respect. Even so, no genuine issue of her husband's capacity is raised. It is not at all unnatural for someone to consult with his or her spouse about important matters and to be influenced by the spouse's advice. Nor do we have any reason to suppose that Mrs. Smith is exercising any undue influence, or that she is acting for any reason other than her own sincere belief as to her husband's best interests.

857 F.2d at 1229-30.

In their petition for rehearing, the next friends make the same arguments that were before the panel. In addition, they have submitted the affidavits of three psychiatrists, none of whom has ever examined Smith, but all of whom think we should order a new evidentiary hearing.5 The affidavits are substantially similar.

They opine that the new facts alleged by the next friends, allegations we have set out above, show that "a medical presumption exists that Smith has experienced a chronicity of stress factors which could provide marked psychic disorganization in Mr. Smith." Affidavit of Moisy Shopper, M.D., p 7(A). In addition, Smith's marriage is said to be "a very significant psychological event" and "not an ordinary marriage" (Smith being on death row). Id. p 7(B).

These opinions are insufficient to require a new mental examination. In the first place, they are carefully hedged and tentative. It is not said, for example, that Smith is exhibiting "marked psychic disorganization," but only that "a medical presumption exists ... which could" create such a condition.

In the second place, the issue is more one of common sense and good moral judgment (fields in which the competence of judges should equal that of psychiatrists) than of medical expertise. In expressing these views we mean no disrespect or deprecation of the three physicians who have come forward to express their views. They have done so in all good faith to be of assistance to us and to the public interest in fair adjudication. We simply do not believe that their opinions come up to the required legal threshold.

It is important to remember that the issue of legal decisionmaking capacity that the next friends now urge is not before us now for the first time. We are not writing, as the phrase goes, on a clean slate. Rather, we must take the prior determination of competence as a given, a sort of benchmark, the correctness of which we are entitled to presume unless some substantial reason to the contrary appears.

Any other approach would make meaningless prior determinations of mental condition, because it is always possible for a next friend, acting at the last minute, to request a new evidentiary hearing on a prisoner's competence to waive his remedies, just as it is possible for a prisoner himself, at the last minute, to request a new evidentiary hearing with respect to his own sanity for purposes of Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), which holds that the Eighth Amendment does not permit the execution of a prisoner who is "insane."In this regard, we take our cue from the concurring opinion of Justice Powell in Ford. Once a finding as to mental condition has been fairly and properly made, "[t]he State ... may properly presume that petitioner remains sane at the time sentence is to be carried out, and may require a substantial threshold showing of insanity merely to trigger the hearing process." Ford v. Wainwright, supra, 477 U.S. at 426, 106 S.Ct. at 2611 (opinion of Powell, J., concurring in part and concurring in the judgment) (footnote omitted).

This remark, made in the context of the Ford insanity-at-the-time-of-execution issue, is just as valid in the present context, in which the issue is a prisoner's present capacity to waive his remedies. See also Johnson v. Cabana, 818 F.2d 333, 339-40 (5th Cir.) (per curiam), cert. denied, 481 U.S. 1061 , 107 S.Ct. 2207, 95 L.Ed.2d 861 (1987); Evans v. McCotter, 805 F.2d 1210, 1213-14 (5th Cir.1986).

Language in Johnson is particularly apposite in the present situation. There, a psychologist concluded that the prisoner's present condition "may" impair his relations with his counsel, and the Court remarked that such a showing did "not come close to establishing that Johnson lacks a sufficient understanding to know what facts might help his case or the requisite intelligence to discuss them with his counsel." Johnson, 818 F.2d at 340.

It may well be that Smith suffers from one or more mental disorders. Such a showing, without more, is wholly insufficient to meet the legal standard that the Supreme Court has laid down for this kind of case. The rule of that Court is that defendants may waive their remedies if they have the capacity to appreciate their position and make a rational decision, and if they do not suffer from a mental disease, disorder, or defect that may substantially affect this capacity. See Rees v. Peyton, 384 U.S. 312, 314, 86 S.Ct. 1505, 1506, 16 L.Ed.2d 583 (1966) (per curiam).

The statement in one of the dissenting opinions, post, p. 1513, that "[i]t is ... fundamental that a person ... who manifests a state of mental disorder or disease demonstrating mental instability should not be allowed to waive their legal rights" is not consistent with this standard. More than mental disorder must be shown. The disorder must be one that substantially affects the prisoner's capacity.

Both of the dissenting opinions emphasize Smith's history of mental disorder and family instability. In addition, large and selective excerpts from the testimony at the evidentiary hearing on Smith's competence are quoted. The controlling point for legal purposes, though, is this: all of this testimony was considered by the trier of fact more than two years ago, and a finding in favor of competence was made.

When the three-judge stay was entered on October 3, the stay order was careful to emphasize that "[w]e do not suggest a collateral attack may be made on" the prior findings affirmed by this Court. Order of Lay, C.J., Heaney and McMillian, JJ., p. 2. It seems to us that the dissenting opinions fail to live up to this statement.

* * *

* * *

In sum, for the reasons stated, we hold that the new allegations of fact made by the next friends, even when supplemented by the three new psychiatric affidavits, are not sufficient to raise a genuine issue of material fact requiring a new evidentiary hearing. The prior finding of competence therefore remains in effect.

The whole presupposition of the criminal law is that most people, most of the time, have free will within broad limits. They are capable of conforming their actions to the requirements of the law, and of appreciating the consequences of failing to do so. Without this fundamental moral and legal assumption, punishment, one of the principal purposes of the criminal law, would be an irrational exercise. The watchword of the law is individual responsibility.

By the same token, individuals who are responsible for their acts continue to be responsible for their decisions and continue to be in charge of their own fate, to the extent permitted by law. If someone decides that he or she prefers to acquiesce in a presumptively lawful judgment of a court, this decision should be respected, unless that person's mental condition is so abnormal that it does not meet accepted legal requirements. Mr. Smith decided to commit murder in the first place. He has now decided to suffer the consequences of this action. We believe the law allows him to make this decision.

Accordingly, the petition for rehearing en banc is denied, and the petition for rehearing by the panel is also denied. The stay of execution previously entered by three individual circuit judges is hereby dissolved. We direct that our mandate issue forthwith.

It is so ordered.6


LAY, Chief Judge, with whom HEANEY and McMILLIAN, Circuit Judges, join, dissenting.

The sole issue involved in this petition is whether or not the district court should be required to hold an evidentiary hearing to determine whether Gerald Smith is legally competent at the present time to make a decision to abandon his appeal from the denial of his petition for a writ of habeas corpus entered by the district court on August 11, 1988. Smith is under sentence of death for capital murder. His sentence was scheduled to be carried out according to the order of the Supreme Court of Missouri on October 4, 1988.

A panel of this court, on September 29, 1988, refused to stay the execution of Smith on the basis that Smith himself has written to this court stating that he does not wish to pursue an appeal of the denial of his petition for a writ of habeas corpus; that he wants the appeal dismissed; and that he wants the sentence carried out without further review. The Missouri Public Defenders Commission and the Director of the State Public Defender filed a petition for a rehearing by the panel with the suggestion for rehearing en banc.

On October 3, 1988, three judges of this court, myself, Judge Heaney and Judge McMillian, entered an order staying the execution pending our study of the record and the petition for rehearing en banc.

There can be little question that the petition for habeas corpus filed by Smith's appointed counsel in the federal district court states substantial issues concerning the validity of Smith's death sentence. There is little question that this court would grant a certificate of probable cause to allow the appeal to proceed on the grounds that the petition for writ of habeas corpus contains several arguable issues that would, if decided favorably to Smith, invalidate his death sentence rendered by the state court.

Included in this challenge are substantial issues relating to alleged ineffective assistance of counsel Smith received during the trial, the constitutionality of the Missouri death penalty statute and death penalty proceedings, the constitutionality of the petit jury that rendered the death penalty, and the denial of due process in the trial itself. It is clear that this court would grant a certificate of probable cause for Smith to proceed to challenge the denial of the writ of habeas corpus and that the only issue now before us is whether Smith is competent to waive these rights and whether undue influence has been exercised on Smith in his weakened mental condition to cause Smith to waive these rights. We note this is the first and only appeal that has ever been filed on behalf of Smith in this habeas corpus proceeding.

The panel's opinion relies upon the federal district court's determination that Smith was competent and capable of making a rational decision. This decision was entered by the district court on April 5, 1986, and that determination was affirmed by the court in Smith v. Armontrout, 812 F.2d 1050 (8th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 3277, 97 L.Ed.2d 781 (1987). The panel found that the district court's finding continued to be controlling and that there was no evidence or reason suggesting that Smith's mental condition has materially changed for the worse in the intervening time.

I would respectfully disagree with that finding. The determination by the district court was made some two and one-half years ago. Examination of that record reveals that there was substantial disparity between the psychiatric expert witnesses testifying for the state and the psychiatric expert witnesses produced by Smith.

Furthermore, the Missouri Public Defender Commission's petition for rehearing en banc contains affidavits of three psychiatrists who have given their opinion, within a reasonable degree of medical and psychiatric certainty, that based upon intervening events the evaluation of Smith that took place during the hearing in February, 1986, should not be used as the dispositive determination of Smith's present mental condition to determine whether Smith is free from mental disease and defect and therefore capable of being executed under laws of Missouri and the Constitution of the United States.1

At the time that the state court first held a competency hearing to determine whether Smith was capable to waive the appeal of his death sentence and was legally competent to be executed in 1983, it is revealed in the petition for habeas corpus that pursuant to the statute in the State of Missouri, the warden of the Missouri Penitentiary in 1983 sought psychiatric opinions of three different psychiatrists.

At the hearing before the St. Louis Circuit Court in 1983, the state produced only one of those psychiatric examinations, that being the expert opinion of Dr. Pettipiece. Not produced at the state court hearing and not disclosed to Smith's trial counsel at that time were two other psychiatric reports, one being Dr. Daniel's report dated June 13, 1983, who at that time was a staff psychiatrist at the Mid-Missouri Mental Health Center at the University of Missouri School of Medicine, and the other being Dr. Bruce Harry's report dated June 10, 1983, who was Assistant Professor of Psychiatry at the University of Missouri at Columbia. Both of these doctors would have testified that Smith was not competent to be executed in 1983. Yet these reports were not disclosed to the state court.

These reports were later discovered by Smith's trial counsel and were produced for expert witness to review at the competency hearing in 1986. The relevancy of the non-disclosure of these reports casts continued doubt regarding the full disclosure by the state as to Smith's competency at the present time. It is clear that Smith has not ever had a valid competency hearing in the state court. But of equal significance is the revealing testimony of the state's psychiatric and psychological experts who, while finding Smith to be competent at the 1986 hearing, were willing to concede that Smith did suffer from a mental disorder and that depending on the time, place, and circumstances under which Smith was examined, Smith's mental stability fluctuated from various degrees of competency to severe degrees of depression and instability.

For example, Dr. Clayton Pettipiece, psychiatrist at the United States Medical Center for Federal Prisoners in Springfield, Missouri, who had observed Smith in states of great depression, commented on what he considered Smith's improved condition in early 1986:

Q. Now, in December of 1984, did Mr. Smith indicate to you that he was depressed?

A. No sir.

Q. Not at all?

A. He never talked about being depressed, no.

Q. But in your report you state--in the report you recently prepared dated February 13, you state: "Affect and Mood: Patient's affect was appropriate at all times. His mood was no longer despondent nor did he indicate any depression as he has previously." Now, that seems to indicate that at one time he did tell you he was depressed.

A. He didn't tell me he was depressed. He was in a better mood than he was previously so obviously he's in a better mood at this time than he was previously.

Q. But you say in there that he did not indicate any depression as he had previously.

A. He did not indicate any--he never did tell me that he was depressed.

Q. Why did you use that particular phraseology that he did not indicate this time any depression where he had previously?

A. I guess I just don't know how to use good English all the time. It's just a poor sentence structure maybe.

Q. Well, how would you compose that sentence if you could recompose it?

A. I'd have to look at it and see.

Q. What would you want to say in that sentence?

A. I simply would like to say that he's not as depressed--he feels better than he did on the time when we saw him previously.

Q. And you said that one of the results of a personality disorder like Mr. Smith has is that he's unable to delay gratification.

A. That's--

Q. He's impatient.

A. That's true.

Q. He's impulsive.

A. I believe Mr. Smith has been impulsive in the past.

Q. And is that because he can't tolerate the anxiety of delayed gratification?

A. I don't know why, it's just that that's the way he does.

Q. Is Mr. Smith able to deal with his anxieties?

A. To some extent.

Q. Does he have a history of dealing with his anxieties in anything other than violent outbursts, suicide attempts?

A. Sure.

Q. And what is that history?

A. I'm sure he's anxious right now and he's not violent, he's not outbursting, he's not attempting suicide.

Competency Hrg. Transcript at 2-69 to -71.

Dr. David V. Foster, a psychologist at the facility in Springfield, while diagnosing Smith as competent, admitted that this issue was "hazy" and he was not certain of his position:

Now, a problem there for me is on the rational side. In the past some courts have interpreted that as an affective component that's a lot more subjective. It could vary. If you had five different professionals sitting up here that could give you five different answers because it would be a professional opinion but it would be a very subjective professional opinion. On that level again in my determination, Mr. Smith is competent. Okay. But it's a hazey [sic] area, it's a fuzzy area. I'm not sure that person who is facing death, who is condemned to die, who experiences hopelessness anyway, who does have some lack in social skills, in terms of coping skills, I'm not sure that that allows a person to be "fully rational." I don't know what the standard is or what the ideal is there. That's a gray area for me.

Id. at 2-118. Dr. Foster also noted a long history of severe depression as well as "self-damaging impulsity" and a "pattern of intense and unstable inter-personal relationships." Id. at 2-114:

I'm not completely convinced given say for instance the borderline characteristics that Mr. Smith has, I'm not completely convinced how robust his capacity is as far as to make a rational decision in a number of areas. His impulsivity and potential for self destruction are clearly documented.

* * *

* * *

[H]e's also aware of the ups and downs and the potential length of time that the whole appellate procedure can be stretched out, even here in the federal courts. He's cognitively aware. I don't know how emotionally aware he really is.

Id. at 2-120 to -121. As for the possibility of Smith's susceptibility to undue influence, Dr. Foster stated:

A. In my opinion emotional pains are more severe than physical pains and in my opinion, yes, he does fear--with the people he's already close with he doesn't want to cause any more pain to himself or to them and to me it would make sense that one way he would do that is just to avoid the whole arena, tell them just leave me alone. That would be easier for him than the ongoing and periodic pain that he has no outlet for.

Q. Now in this ongoing and periodic pain I also assume that there may be some concern on Mr. Smith's behalf that they might change his mind.

A. That's feasible.

Q. And you know that that's happened in the past.

A. He has changed his mind. I'm not going to--in my opinion Mr. Smith is responsible for that change. [H]e's changed his mind. They might have greatly influenced it.

* * *

* * *

Q. And if you wanted to be destructive, would Mr. Smith be amenable to that kind of influence?

A. There's that potential based on the quality of the relationship. I think he is influenceable as I think most people are, perhaps more influenceable than the average person, by a select few.

* * *

* * *

A. I only said it could be consistent with some of my perception and interpretation of Mr. Smith's behavior. I think that one of the things that Mr. Smith fears, as I said, is pain and the deepest kind of pain isn't physical pain that he fears as much as emotional pain. I think it pains him to argue, to change his mind, to have them begging him perhaps to continue seeking to live, to continue seeking a quality of life and a length of life in so long as that's in his power. I think for him that is painful. It's painful to say no to them. It's painful to be consistently reminded of those issues when he keeps swaying back and forth. I think he is attempting to escape the conditions there, not just the death row physical conditions, I'm talking [abo]ut the psychological and emotional climate as well. Death appears an option out for him.

Q. Is it your opinion or from your conversations with Mr. Smith that someone is attempting to influence Mr. Smith not to pursue his appeals.

A. That's my conjecture.

Id. at 2-142, 2-144, 2-168.

Dr. Sadashiv Parwatikar, whose deposition was taken February 10, 1986, is a psychiatrist and an associate clinical professor at the University of Missouri, in Columbia. Dr. Parwatikar initially examined Smith in the early 1980's:

A. My diagnosis at that time was he continued to have the borderline personality, but he was also suffering from mild depression.

Q. And could you give us the basis for that finding?

A. Mr. Smith, at this time, had changed his story and had stated to me that he indeed had killed this woman, and that he was--there's--there's no sense in living any further because he had a small child, and he did not want--want the small child to grow up knowing that he was a murderer, and that he wanted to get the death penalty because he did not want to live, and basically he had sort of lost hope with--with this case, and I felt that this was again a function of his borderline personality because borderline persons, can become depressed, and can become rather impulsive to the point that they sometimes don't know what they're trying to do * * *.

Parwatikar's Dep. at 10. "[P]eople can change from--from month to month, year to year, but since I have seen him for four years, I believe that this man is borderline at--and at any given time, he could become impulsive, and become dangerous to himself, or others." Id. at 21. Finally, Dr. Parwatikar summed up the typical conduct of an individual such as Smith:Q. Okay. Now, you said that--that one of the primary motivators, in terms of Mr. Smith's character disorder, is that he has to have his own way?

A. That's right.

Q. Okay. That would be somewhat similar to how a child sometimes reacts, when they don't get their own way?

A. That's correct.

Q. And that the impulsive behavior is often, if he doesn't get his own way, he's going to show you by doing something impulsive?

A. That's correct.

Q. That may be dropping his appeals because he feels his family hasn't paid enough attention to him, it may be hitting someone over the head because he's mad [at] someone else?

A. That's right.

Q. Okay. So that that kind of impulsive behavior, is very consistent with the characterological disorder that you found in Mr. Smith?

A. That's correct.

* * *

* * *

Q. * * * because he was a borderline personality disorder, he may or may not be acting on some--based on some psychosis?

A. That's correct.

Q. And that a--it was appropriate to do another examination, or evaluation, to determine what was the basis for his decision, if any?

A. That's correct.

Q. Okay. And in that particular document, you also indicated on Page 2, that psychological testing during the examination indicated that Mr. Smith's ability to exercise rational judgement [sic] in practical situations, was in the mentally handicapped range, which would serious[ly] affect his decision making under stressful situations?

A. That's correct.

Q. Okay. And I assume that living on death row itself, from what you--at least you understand it, obviously is a--is a stressful situation?

A. Yes, sir.

Id. at 33, 41-42.

Finally, Dr. Z.A. Ajans is a psychiatrist who is on the University of Missouri faculty and consultant to the state's department of corrections. In his first visit, Dr. Ajans observed Smith in a severe state of depression. His next visit showed Smith much improved but Dr. Ajans nonetheless acknowledged his long history of unstable and self-destructive tendencies. Regarding Smith's many attempts at suicide, Dr. Ajans stated:

A. * * * He'd had a total of five, three before his incarceration and two since his incarceration. I could not make any judgments about the nature of the suicide attempts before his incarceration but he gave me the impression that the ones since his incarceration were not genuine suicide attempts and I believed him.

Q. Okay. Now when you interviewed Mr. Smith you indicated that he oftentimes tries to tell you what he thinks you want to hear, the audience wants to hear.

A. Yes.

Q. And that would be true?

A. Especially, as I said, I think there was a definite change in attitude and his willingness and degree of cooperation. I felt that that was true more so during the 1984 examination than the 1986 examination.

Q. Okay. And at that time you said he appeared insecure and inadequate?

A. Yes, he has.

Q. Do you feel that he is no longer insecure?

A. I'm sure he was--part of the personality disorder we're talking about there are--even though they act tough and they're very hostile and aggressive, there are always feelings of insecurities in these people, so to that extent, yes, it's correct even now.

Q. Would a borderline personality disorder necessarily improve or his condition improve with time?

A. Borderline personality disorders manifest--their symptomatology becomes worse during stressful situations. But the basic personality makeup, the tendencies are unchanged.

Q. Okay. And they wouldn't change with treatment or otherwise?

A. No, the basic tendencies.

Q. So that the borderline personality disorder that you found which was found by almost every psychiatrist who has dealt with him, would still exist.

A. That's correct.

Q. And you don't think that it's gone?

A. I'm sorry.

Q. You don't think that it's dissipated or lessened in any way.

A. No sir.

Q. So then--

A. Other psychiatrists may disagree with me though, I mean, it's just a matter of opinion regarding this examination but it's my opinion that he did demonstrate the findings that were compatible with those personality disorders.

Q. Is his background one of inconsistency?

A. Inconsistency?

Q. Inconsistency.

A. Yes.

Q. Is his background one of erratic judgments?

A. Yes sir.

Q. Would you say that his ability to make judgments is influenced considerably by his personality disorders?

A. Yes sir.

Q. All right. And so that those mental disorders that you're referring to would influence his ability to make judgments.

A. Yes sir.

Competency Hrg. Transcript at 2-195 to -197. Smith's mental condition, according to Dr. Ajans, could have a substantial influence over his decision making powers:

Q. Now in the response to Ms. Mescher's question you said that a personality disorder would interfere with someone's judgment making capabilities, is that correct?

A. Judgment?

Q. Yes.

A. Yes sir.

Q. And when you say "interfere" I assume you also mean it would affect it.

A. Yes sir.

Q. And could affect it substantially.

A. Yes sir.

Id. at 2-211 to -212.

Smith has now filed an affidavit with this court asserting that he is competent to make his choice and that he now chooses to die. Smith is resentful of the Missouri Public Defender Commission and the judges of this court who seek another competency hearing.

This affidavit is compatible with Smith's declaration made over the past several years at the times when he wished to dismiss his appeal. It is inconsistent with the various occasions where he has changed his mind and has sought to make further challenge and attack upon the validity of his sentence. Over the course of time since Smith was sentenced to be executed, Smith has changed his mind on at least ten occasions as to whether or not he would challenge the state death sentence.

The clerk's office has received reports from Smith's wife stating that she has not exercised undue influence. The clerk's office has also received a report allegedly made by a Deputy Attorney General of the State of Missouri that Smith's wife has a contract to publish a story about Smith's life when he is executed. These factors are not in the record but simply illustrate the need for further evidentiary exploration as to what influences have been injected in Smith's alleged exercise of free will in dismissing his appeal.

Smith has been convicted in the state court of first degree murder. A competency hearing was thereafter held which was incomplete and which did not disclose all of the exculpatory information concerning Smith's competency in the state proceedings.

Three years later, in 1986, the federal court determined Smith was competent to waive his rights to appeal. This was two and one-half years ago, and now Smith has once again decided to abandon his appeal.

A person of mental instability may be subject to all kinds of psychological stress and undue influence such that this person can be easily influenced to make decisions which are not done of one's own free will. It is fundamental that no person should be executed at the hands of the state unless they have been afforded due process of law and effective representation by counsel.

Furthermore, a person who is not legally competent must not be executed. It is equally fundamental that a person who is not legally competent to exercise their free will in making a rational decision or who manifests a state of mental disorder or disease demonstrating mental instability should not be allowed to waive their legal rights; such a person cannot be allowed to waive the right to live or exercise the right to die.

Under these circumstances, in my judgment, it is and would be a denial of due process of law to dismiss Smith's appeal without a further determination of Smith's mental competency to exercise his own free will.

HEANEY, Circuit Judge, with whom LAY, Chief Judge, and McMILLIAN, Circuit Judge, join, dissenting.

I write separately to outline Gerald Smith's personal history, because I believe that his personal history supports the view that Smith's mental health is a progressive and changing condition requiring that a current evidentiary hearing be held to determine his present competency to dismiss his appeal.

The experts who examined Gerald Smith are in general agreement that Smith suffers from a borderline personality disorder, from an anti-social personality disorder, and from a history of depression. (The term "borderline" means that Smith sits on the border between psychotic and intensely anxious behavior, out of control anger and the opposite.) The experts are also in general agreement that each of the above are "mental disorders" within the meaning of Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966).

The record moreover makes it clear that Smith has suffered from these disorders during most of his thirty years. As a young child, Smith sustained several serious head injuries. When he was less than two years old, he was admitted to the St. Louis City Hospital with lead poisoning. The lead level in his body was dangerously high. He was thrown out of school in the first grade for fighting. At age 10, he became a petty thief. At age 15, Smith was sent to the Missouri Hills Home for Boys, a juvenile detention facility. Throughout Smith's childhood his father drank excessively and beat Smith frequently.

Smith dropped out of school after completing the eighth grade and has had no significant period of employment since dropping out. He has abused alcohol and marijuana since age 13 and has abused amphetamines, demoril, placedil and valium on a regular basis for a number of years. Smith has a history of being unable to maintain enduring relationships, although he has had many sexual partners.

Smith has a long history of being unable to control his anger, causing him to act impulsively. Smith has a history of physically hurting himself, implicating suicidal tendencies. He has cut his forearm 83 times, he has slashed his wrist three times, and he has overdosed on several occasions. He has attempted suicide five times: three times before incarceration, and twice thereafter.

Smith was arrested on eight occasions between September, 1979, and August, 1980. He was admitted to the Alexian Brothers Hospital in St. Louis in 1980 after he threatened to commit suicide by jumping off a three-story building. Smith was then diagnosed as suffering from depression and personality disorder. One examiner noted that Smith's "chronic obsessive thinking of hostile threats and activity is a problem of mammoth proportions." Another stated that Smith was a total catastrophe. He was nonetheless released from the hospital shortly before he killed Karen Roberts.

All of the psychiatrists who have examined Smith indicate that he has frequent mood changes and conclude that persons who have a personality disorder such as Smith are prone to act impulsively, to be self-destructive, to act out of extreme anger without a sense of what is going to happen in the long run, to be in need of immediate gratification, and to have difficulty in dealing with other people.

Under the circumstances outlined above and in Chief Judge Lay's dissent, I believe that an evidentiary hearing relating to Smith's current competency should be held before his appeal is dismissed.


1 The case was under advisement for five months

2 The State argued that the District Court had wrongly placed the burden of proof on it. We found it unnecessary to decide this question. See 812 F.2d at 1058 & n. 8

3 Under our practice, if no judge requests a poll on a petition for rehearing en banc, an order denying the petition is routinely entered

4 As the dissenting opinion of Lay, C.J., notes, post, p. 1512, Mrs. Smith, in an informal communication with our Clerk's office, disputes these allegations. If we thought they were legally material, we would agree that an evidentiary hearing should be held, but we do not. A claim that someone has "encouraged" another to make a decision does not even begin to raise a genuine issue of undue influence or overreaching. We note, in addition, that Mrs. Smith has now filed her own next-friend petition, attacking another death sentence imposed on her husband for another murder. Smith v. Armontrout, 865 F.2d 1501 (8th Cir., notice of appeal filed November 17, 1988)

5 The submission in a rehearing petition of material--especially factual material--that was not before the panel is extraordinary. Normally we would not consider it. In this case, however, because life is at stake and because the next friends had only a few days to prepare their presentation to the panel, we have considered the new material. We have also considered the next friends' supplemental suggestions, with exhibits, filed on November 15, 1988

6 The possibility always exists that Mr. Smith may change his mind again. We direct the respondent Armontrout to deliver to Mr. Smith in person a copy of this opinion. If Mr. Smith changes his mind again, we direct the respondent Armontrout to inform the Clerk of this Court at once. The writer of this opinion believes that Smith's petition for habeas corpus, considered on its merits, is not frivolous. If Smith changes his mind about pursuing his remedies, it is my intention to grant a certificate of probable cause and issue a stay of execution, pending determination by this Court of the appeal on its merits

1 In effect three judges have appraised the intervening events alleged, and have held as a matter of law these cannot change the legal determination of Smith's competency found two and one-half years ago. Yet three distinguished psychiatrists, with their distinguished vitae attached to their opinion, have filed sworn statements that such events within a reasonable degree of medical and psychiatric certainty could have a material bearing on whether Smith is still competent to make a rational and competent decision



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