Thompson v. Bell

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 23, 2004
• Docket: 00-5516
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Thompson v. Bell No. 00-5516 ELECTRONIC CITATION: 2004 FED App. 0195P (6th Cir.) File Name: 04a0195p.06 ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. UNITED STATES COURT OF APPEALS MOORE, J., delivered the opinion of the court, in which CLAY, J., joined. SUHRHEINRICH, J. (pp. 7-105), FOR THE SIXTH CIRCUIT delivered a separate opinion concurring in part and dissenting _________________ in part.

GREGORY THOMPSON, X _________________ Petitioner-Appellant, - OPINION - - No. 00-5516 _________________ v. - > KAREN NELSON MOORE, Circuit Judge. Eighteen , months ago, this panel in a split decision producing three RICKY BELL, Warden, - different opinions affirmed the decision of the district court Respondent-Appellee. - granting summary judgment to respondent in this habeas N corpus action. Judge Suhrheinrich later conducted sua sponte Appeal from the United States District Court a second, thorough review of the record and came to the for the Eastern District of Tennessee at Chattanooga. conclusion that the facts as adduced in deposition testimony No. 98-00006—R. Allan Edgar, Chief District Judge. not part of the district court record supported the granting of the writ. See infra (Suhrheinrich, J., concurring). Upon Decided and Filed: June 23, 2004 reviewing the deposition of Dr. Faye Sultan, and investigating the procedural complications of this case, it is clear that this Before: SUHRHEINRICH, MOORE, and CLAY, Circuit extremely probative testimony requires that we vacate the Judges. district court’s grant of summary judgment in favor of respondent. _________________ Judge Suhrheinrich summarizes most effectively the Sultan COUNSEL deposition and its value in assessing Gregory Thompson’s mental state at the time of the crime. Where his opinion goes ARGUED: Dana C. Hansen Chavis, FEDERAL too far is in its accusations of fraud on the court; while his DEFENDER SERVICES, Knoxville, Tennessee, for explanation for the omission of the Sultan deposition from the Appellant. Jennifer L. Smith, OFFICE OF THE official record before the court is possible in the narrowest ATTORNEY GENERAL, Nashville, Tennessee, for sense, the power of this court should not be used to make Appellee. ON BRIEF: Dana C. Hansen Chavis, FEDERAL such accusations without more definite proof than the factual DEFENDER SERVICES, Knoxville, Tennessee, for record of this case reveals. Appellant. Jennifer L. Smith, OFFICE OF THE

1 No. 00-5516 Thompson v. Bell 3 4 Thompson v. Bell No. 00-5516

Dr. Sultan’s deposition was taken by trial counsel for 913 F.2d 89, 97 (3d Cir. 1990) (citing inconsistent circuit respondent, but was not included with the evidence submitted precedent); United States v. Aulet, 618 F.2d 182, 187 (2d Cir. as part of Bell’s motion for summary judgment. Slightly 1980), the rule in this circuit has consistently been that Rule more than one year later, contemporaneous with the 10(e) does not allow such inclusion. See, e.g., Inland Bulk, preparation of this appeal, appellate habeas counsel made a 332 F.3d at 1012; S & E Shipping Corp. v. Chesapeake & Rule 60(b) motion in the district court asking to include the Ohio Ry. Co., 678 F.2d 636, 641 (6th Cir. 1982). We adhere Sultan deposition as part of the record. At the same time, to our previous interpretation that Rule 10(e) does not allow Thompson’s counsel submitted that deposition to this court as inclusion in the appellate record of material that the district part of his motion to hold this appeal in abeyance during the court did not consider. pendency of the Rule 60(b) motion. Applying the principle of Occam’s razor, we conclude that more than likely, a Although Rule 10(e) is thus unavailable, we recognize that genuine mistake was made, one which was not realized until a number of our sister circuits have held that the courts of a different attorney looked at the case. To conclude otherwise appeals have the inherent equitable power to supplement the is to disbelieve sworn testimony by an officer of the court, record on appeal, where the interests of justice require. See and to assume that habeas counsel conspired to conceal United States v. Kennedy, 225 F.3d 1187, 1192 (10th Cir. evidence beneficial to their client, for no discernible reason 2000) (“[U]nder some circumstances, we have an inherent — evidence loses power, rather than gains it, by being equitable power to supplement the record on appeal. revealed on the “eve of execution” in a second habeas However, we conclude the present case” does not present petition. Reading Judge Suhrheinrich’s opinion, one might those circumstances.); Ross v. Kemp, 785 F.2d 1467, 1474 conclude that this court had only recently unearthed the (11th Cir. 1986) (relying on Dickerson, infra, and exploring Sultan deposition, when in fact it was submitted to the panel circumstances under which exercise of that power is prior to oral argument as part of the abeyance motion. appropriate); Gibson v. Blackburn, 744 F.2d 403, 405 n.3 (5th Cir. 1984) (“Although a court of appeals will not ordinarily We did not consider it, however, in rendering our decision, enlarge the record to include material not before the district believing ourselves to be bound by the record created in the court, it is clear that the authority to do so exists.”); Dickerson district court. Upon reflection, and after reviewing Judge v. Alabama, 667 F.2d 1364, 1368 (11th Cir. 1982) (relying on Suhrheinrich’s forceful assessment of the probity of the court’s inherent equitable powers to supplement the record in Sultan deposition, we believe it is appropriate to use our habeas case); Turk v. United States, 429 F.2d 1327, 1329 (8th inherent equitable powers to expand the record on appeal to Cir. 1970) (“[I]n the interest of justice, this court may order consider the deposition. Ordinarily, a court of appeals should the record enlarged.”); Gatewood v. United States, 209 F.2d only consider evidence made part of the district court record. 789, 792-93 & n.5 (D.C. Cir. 1953) (sua sponte ordering Where through error or accident material matters are omitted preparation of transcript for record “in the interest of both or misstated, Federal Rule of Appellate Procedure 10(e) parties, and of the due administration of justice”); see also allows correction of the appellate record to include the Charles Alan Wright et al., Federal Practice & Procedure corrected material. See Inland Bulk Transfer Co. v. Cummins § 3956.4, at 349-51 (3d ed. 1999 & Supp. 2003) (“In special Engine Co., 332 F.3d 1007, 1012 (6th Cir. 2003). While circumstances, however, a court of appeals may permit some circuit courts have held that Rule 10(e) allows the supplementation of the record to add material not presented inclusion of material the district court did not consider, see In to the district court.”); 20 Moore’s Federal Practice, re Capital Cities/ABC, Inc.’s Appl. for Access to Sealed Trs., § 310.10[5][f], at 310-19 (3d ed. 2000) (“In extraordinary No. 00-5516 Thompson v. Bell 5 6 Thompson v. Bell No. 00-5516

situations, the circuit court may consider material not 357 F.3d 461, 464 (4th Cir. 2004) (“The mandate of the court presented to the district court when it believes the interests of has not yet issued in this case, and, therefore, we may, at our justice are at stake.”). Although recent Sixth Circuit cases discretion, ‘amend what we previously decided . . . .’” indicate that we have not yet “embraced the notion that the (quoting Alphin v. Henson, 552 F.2d 1033, 1035 (4th Cir. record can be supplemented under an appellate court’s 1980)); First Gib. Bank v. Morales, 42 F.3d 895, 898 (5th Cir. equitable authority,” see Inland Bulk, 332 F.3d at 1012, in at 1995) (relying on Alphin, 552 F.2d at 1035, to reconsider least one earlier state habeas case we have so supplemented decision where mandate had not yet issued). We therefore the record, citing to Dickerson, 667 F.2d at 1367. See rely on our inherent power over a case until our mandate Prather v. Rees, 822 F.2d 1418, 1420 n.1 (6th Cir. 1987) issues in reconsidering our opinion in this case. (“Although the parties did not provide the court with copies of the state court briefs, this court may supplement the record The judgment of the district court is therefore VACATED, when necessary.”); see also Adams v. Holland, 330 F.3d 398, and the case is REMANDED for further proceedings not 405-06 (6th Cir. 2003) (recognizing exception to Rule 10(e) inconsistent with this opinion. Thompson’s execution is also in habeas cases: “where substantial portions of [the state trial STAYED for 180 days to permit the district court to proceed. transcript] were omitted before the District Court, a habeas case should be remanded to the District Court for consideration in light of the full record.”). Because the evidence here was apparently negligently omitted, because the evidence is so probative of Thompson’s mental state at the time of the crime, because there is no surprise to respondent as it was his counsel who took the deposition, and because this is a capital case, we believe that the circumstances of this case merit consideration of the Sultan deposition pursuant to our equitable power to supplement the record on appeal, despite the omission of the deposition from the District Court record. We therefore vacate the grant of summary judgment, and remand the case to the District Court for a full evidentiary hearing. It remains to be explained the source of our power to so reconsider our earlier opinion, as we do not join in Judge Suhrheinrich’s allegation of fraud on the court. Instead, we rely on our inherent power to reconsider our opinion prior to the issuance of the mandate, which has not yet issued in this case. Although a court of appeals should withdraw an already-issued mandate only to prevent a miscarriage of justice, see Calderon v. Thompson, 523 U.S. 538 (1998), at least two of our sister circuits have reconsidered opinions where the mandate has not yet issued. See Wilson v. Ozmint, No. 00-5516 Thompson v. Bell 7 8 Thompson v. Bell No. 00-5516

______________________________________________ in my chambers, who also happens to be a board-certified psychiatrist, expressed concern as to why Thompson’s post- CONCURRING IN PART, DISSENTING IN PART conviction expert, Gillian Blair, Ph.D., and Thompson’s ______________________________________________ habeas experts, Barry Crown, Ph.D. and Faye Sultan, Ph.D., had not directly addressed the question as to whether SUHRHEINRICH, Circuit Judge, concurring in part and Thompson did or did not exhibit symptoms of a major mental dissenting in part. illness at the time of the crime or sentencing, and, if he did, whether the symptoms were sufficient at that point to support I. Introduction a diagnosis of mental illness which should have been presented as mitigating evidence at the sentencing hearing. Petitioner-Appellant Gregory Thompson (“Thompson” or I then conducted my own review of the entire certified record, “Petitioner”) was convicted of first degree murder and in addition to my prior review of the joint appendix. As a sentenced to death by the State of Tennessee. In a previous result of my review of the entire certified record, I feel that it decision, this Court affirmed the district court’s denial of his is incumbent upon me, as a judicial officer sworn to uphold request for a writ of habeas corpus. See Thompson v. Bell, the Constitution, and as authoring judge of the initial opinion, 315 F.3d 566 (6th Cir. 2003), cert. denied, 124 S. Ct. 804 to reverse that ruling and issue this opinion. Although I am (2003). The Supreme Court denied Thompson’s petition for now merely a concurring/dissenting judge in this matter, I writ of certiorari. On February 25, 2004, the State of wish it to be known that the initiative for this decision came Tennessee granted the State’s motion to set an execution date from my chambers. The majority’s ruling is based upon their and has ordered that the Warden of the Riverbend Maximum review of my draft opinion, prepared after my discovery, and Security Institution or his designee execute the sentence of the hundreds of hours of work that followed, reviewing the death on August 19, 2004, “unless otherwise ordered by this entire record, researching the law, and drafting this opinion. Court or other appropriate authority.” This matter is now before this Court on its own motion. The question thus is whether our prior ruling was mistaken, because there is, and was, in fact available proof that Essential to our conclusion that Thompson was not denied Thompson was suffering from a serious mental disease or effective assistance of counsel due to counsel’s failure to defect at the time of the 1985 offense which would have introduce evidence that he suffered from schizophrenia at the substantially impaired his ability to conform his conduct to time of the offense was our finding that Thompson “has never the requirements of law.1 Also at issue, and integral to the submitted to any court any proof that he suffered from severe mental illness at the time of the crime.” Thompson, 315 F.3d at 590. Subsequent to the issuance of our decision on January 1 9, 2003, information has come to the attention of the Court The Tennessee Code Annotated, § 39-13-204(j) lists as a mitigating which requires us to determine whether our decision to affirm factor: (8) The capac ity of the defendant to app reciate the wrongfulness the district court’s denial of Thompson’s petition for writ of of the defendant’s conduct or to conform the defendant’s habeas corpus relief from his death sentence was improvident. conduct to the requirements of the law was substantially impaired as a result of a mental disease or defect or intoxication While reviewing various Sixth Circuit death penalty cases which was insufficient to establish a defense to the crime but in preparation of a law review article on the subject, an intern which substantially affect the defendant’s judgment[.] Tenn. Cod e Ann. § 39-13-304 (j)(8) (2003). No. 00-5516 Thompson v. Bell 9 10 Thompson v. Bell No. 00-5516

primary question, is whether the federal habeas counsel in this the Navy, when he was beaten in the head with a hammer by case committed fraud on the court by intentionally or three fellow servicemen. recklessly failing to present critical evidence on the question, of which they had knowledge, to the district court. For the On March 28, 1985, less than three months from the date of reasons that follow, we vacate our prior ruling and the offense, the trial court ordered that Thompson be referred conditionally grant the writ. to the Multi-County Mental Health Center for a forensic evaluation to determine (1) his competency to stand trial and II. Background to assist in his own defense, and (2) his mental capacity at the time of the crime. On April 4, 1985, the trial court entered The facts are set forth in great detail in our prior opinion. another order directing Thompson to undergo a forensic See id. However, because the present inquiry involves evaluation at a state facility, Middle Tennessee Mental Health voluminous facts and procedural history not presented to us Institute (“MTMHI”), for a maximum of thirty days. A team on appeal as part of the joint appendix, it is necessary to of forensic psychologists at MTMHI evaluated Thompson revisit much of the case, and to review and present the new and found him to be competent. materials. To the extent possible, I have attempted to present the relevant facts in chronological and procedural order. Trial counsel questioned the state team’s impartiality and requested funds to secure further psychiatric evaluations. On A. State Court Proceedings July 29, 1985, the trial court granted counsel funds to hire an independent psychiatrist. Instead, counsel used the funds to 1. Trial Court hire Dr. Copple, a clinical psychologist. Trial counsel stated that the effort to hire a psychiatrist “was not successful.” Id. Brenda Lane was murdered on January 1, 1985. Thompson at 573. Also as part of their trial preparation, counsel traveled was apprehended the next day. On January 29, 1985, the trial to Thompson’s home town where they interviewed various court appointed counsel. On February 26, 1985, less than two family members and acquaintances of Thompson. months after the murder, counsel filed a notice of insanity defense and also requested a mental or psychological Thompson did not present a defense at trial, and the jury evaluation of Thompson to determine (1) whether Thompson convicted him of the first degree murder of Brenda Lane. At was competent to stand trial, and (2) his mental capacity at the sentencing phase, Thompson’s former girlfriend, Arlene the time of the crime. On March 25, 1985, less than three Cajulao, testified that she knew Thompson from 1980 until months after the murder, trial counsel filed a supplementary June 1984. She described Thompson as caring and sensitive. motion for a psychiatric examination and a neurological On cross-examination, she testified to incidents concerning examination to determine (1) whether Thompson was Thompson’s violent behavior while in the Navy. competent to stand trial and assist counsel with his defense, Thompson’s sister, Nora Jean Walton, testified about his (2) whether Thompson was suffering from a mental illness on activities in Georgia upon his return from Hawaii after his the date of the offense, and (3) whether Thompson was in discharge from the Navy. Dr. Copple also testified. He stated need of hospitalization for further psychiatric treatment and that he spent roughly eight hours examining Thompson over evaluation. The affidavit in support stated that Thompson had several sessions. Copple stated that during the first session, previously suffered two concussions, one when he was he was basically looking at what things Thompson would be sixteen years old from a car accident, and the second while in capable of doing in a prison setting. Copple testified that, in No. 00-5516 Thompson v. Bell 11 12 Thompson v. Bell No. 00-5516

his opinion, Thompson had an unusually strong need to 2. Post-Conviction nurture other people that had impelled him to some unwise actions. Copple felt that Thompson did not have an adult On October 16, 1990, Thompson filed a petition for post- anti-social personality disorder. On cross-examination conviction relief, claiming in relevant part that trial counsel Copple stated that he did not think Thompson was suffering failed to investigate adequately Thompson’s background and from any mental illness. personal and medical history for the existence of mitigating evidence. See Thompson, 315 F.3d at 576. On February 1, The State presented in rebuttal the deposition testimony of 1991, post-conviction counsel filed an ex parte, sealed motion Dr. Robert Glenn Watson, who had participated in the staff seeking “funds to hire a licensed psychologist or psychiatrist evaluation of Thompson at MTMHI. Watson found no and an investigator to assist in the preparation of his case for intellectual impairment. Watson also testified that they found post-conviction relief.” Id. at 577. In support, counsel no real evidence of organicity or brain damage. Watson also attached the affidavit of Dr. Gillian Blair, a clinical administered the Minnesota Multiphasic Inventory-II psychologist. Blair noted that Thompson’s post-incarceration (“MMPI”), but determined that the tests results reflected medical records indicated that Thompson had been variously malingering. Watson further stated that on May 24, 1985, at diagnosed as having bipolar affective disorder, schizo- a staff conference, based on all the data, the staff concluded affective disorder, and schizophrenia, paranoid type, and was that: taking Lithium, Haldol, and Cogentin. Id. Blair opined that “[i]f Mr. Thompson is found to be suffering from [Thompson] exhibited none of the signs of an affective neurological or psychological impairment as described above, illness. His judgment and insight are rather poor. it is likely that some degree of such impairment would have Psychological testing revealed him to be functioning in existed at the time of the offense and would have been a the average range intellectually, to exhibit no signs of significant factor in determining whether or not Mr. organicity or brain damage on the Bender-Gestalt Test Thompson was able to appreciate the wrongfulness of his and the Bender Interference Procedure. Personality conduct or to conform his conduct to the requirements of law profiles revealed no evidence of a psychosis, but when he committed the homicide of which he stands indicated malingering in the mental illness direction. convicted.” Id. Blair indicated that Thompson needed a full (For example, the schizophrenic score was at T 120, psychological evaluation. Id. while clinical observations revealed no evidence of a thought disorder.) The state trial post-conviction court held an evidentiary hearing on March 27 and March 29, 1995. At the hearing The staff at MTMHI diagnosed Thompson as Axis 1, Adult Blair testified that she reviewed Thompson’s institutional Antisocial Behavior, 071.01. The forensic team therefore records, beginning with the 1985 MTMHI assessment. She concluded that Thompson was mentally competent to stand also interviewed Thompson in March and April 1992, and at trial and was not suffering from a mental disease or defect. that time administered “a basic psychological battery of tests with some additional . . . neuropsychological tests because of The jury imposed the death penalty at the conclusion of the the history of head injuries that Mr. Thompson had received penalty phase, and the trial court entered judgment sentencing and that were well documented in his medical record.” Id. at Thompson to death by electrocution. Thompson thereafter 578-79. Blair then articulated the following opinion: pursued his direct appeals to no avail. No. 00-5516 Thompson v. Bell 13 14 Thompson v. Bell No. 00-5516

The Riverbend medical record indicated that since 1985, violent and possibly in his mother but none of those Mr. Thompson had shown a deteriorating mental status. records were available. He had become psychotic. He had been treated with anti-psychotic medication at that time. He was treated Id. Blair therefore stated that she did not have an opinion with Haldol, Cogentin, and Lithium, and three different about Thompson’s diagnostic treating physicians at that time: Dr. Dyner [sic], Dr. Deal, and Dr. Humble had all over the years from 1985 status in 1985. Id. to 1990 had diagnosed him as either having bipolar disorder or a schizo affective disorder or schizophrenia. On cross-examination, Blair stated that she had reviewed They described his agitated behavior. They described his all of the records included in the files from MTMHI. This hostility. They described his inappropriate affect, his included daily progress notes, medication sheets, the report of experience of auditory hallucinations, his delusions, his psychological testing, the discharge summary, the admission paranoia, his thoughts of persecution. He had attempted summary, the staff conference report, and the social worker’s suicide of a couple of occasions. He had set fire to his history. Id. When asked whether she thought MTMHI’s cell burning both his hands and his face. They had testing procedure was unreliable, she averred that it was not certainly–two of those psychiatrists and maybe all three unreliable, but simply “not extensive enough.” Id. Blair of them had considered the possibility that he was further testified that from her own testing,2 she did not malingering, that he was faking mental illness and believe that Thompson was faking or attempting to fake throughout their Riverbend records, it was clear that mental illness. those psychiatrists had discounted the possibility of malingering because they didn’t feel that it accounted for On May 15, 1995, the post-conviction court denied all of the psychotic symptoms they saw in him. Thompson’s claims. The court found that defense counsel had made an adequate investigation into their client’s Id. at 579. background and prior medical history. The court stated that state post-conviction counsel had presented no proof of Blair was also asked what other facts would be necessary mental problems that would have provided Thompson with a for her to develop an opinion as to Thompson’s condition at defense or shielded him from the death penalty. Id. at 580. the time of the offense. She stated that “the most important thing that would be necessary would be a full history and full medical records of Mr. Thompson prior to the commission of 2 Blair stated that she ad ministered the following tests: the offense.” Id. She added that: The tests that I administered in 1992 that directly addressed whether there was psychosis or no t, I administered the PA I, I From the records I was able to review, it was clear that administered the MM PI II which replaces the MM PI which was the social history was very sketchy in terms of his remote administered in 1985. I administered the Rorschach, which was not adm inistered in 1985. The PAI wa s not ad ministere d in history, his childhood and his upbringing, and also 1985. I administered the MC MI II and I adm inistered the family history of mental illness. There seemed to be a Rorschach, which is a projective test of personality which was [sic] strong evidence to suggest that there was mental not–the others are all objec tive. They are all tests in which illness in his family, probably in his father who individual answers true or false and the Rorschach is very committed suicide and was known to be extremely different. Id. at 579-80. No. 00-5516 Thompson v. Bell 15 16 Thompson v. Bell No. 00-5516

The Tennessee Criminal Court of Appeals held that Warden to disclose his expert witnesses by December 31, Thompson had failed to establish that any type of 1998. The scheduling order also provided that the Warden’s psychological impairment in general may have existed which answer to the petition for writ of habeas corpus was to be would have been mitigating evidence.” Id. That court filed on or before July 17, 1998, and that the parties file a specifically noted that “Dr. Blair declined to give an opinion joint schedule of needed discovery by July 24, 1998. on these important issues, and the evidence does not preponderate against the trial court’s finding that the defense On May 26, 1998, Assistant Attorney General Glenn R. attorneys were not ineffective.” Id. (quoting Thompson v. Pruden became counsel of record for the Warden. State, 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997)). a. The Petition B. Federal Habeas Proceedings As required by the scheduling order, Thompson filed his 1. District Court petition for writ of habeas corpus on June 12, 1998. Thompson alleged in relevant part that his trial counsel were On January 23, 1998, Thompson filed a petition for writ of ineffective for failing to: (1) perform a reasonable habeas corpus pursuant to 28 U.S.C. § 2254. (DCTR 1).3 He investigation of his background and mental health history; also filed a motion and application for appointment of counsel (2) secure adequate expert assistance regarding his mental to investigate, prepare and file the petition, pursuant to 21 health; (3) discover available evidence of mental illness U.S.C. § 848(q)(4)(B). (DCTR 2). On January 29, 1998, the caused by two serious head injuries; and (4) investigate and court granted Thompson’s motion for appointment of counsel challenge Thompson’s competency to stand trial as well as and designated the Federal Defender Services of Eastern his competency at the time of the offense.4 He also Tennessee, Inc., to provide Thompson with an attorney to prepare and file a petition for a writ of habeas corpus and “to prepare for and participate in all proceedings in connection 4 In fact, the allegation, as stated in his traverse, reads as follows: therewith.” (DCTR 3). The petition alleges in releva nt part that: In violation of the F ifth, Sixth, Eighth, and Fourteenth On March 9, 1998, the district court held a scheduling Amendments, petitioner was denied the effective assistance of conference. Attorney Stephen M. Kissinger was present counsel at the guilt phase of trial, the sentencing p hase o f trial, representing Thompson. Assistant Tennessee Attorney on appeal, and in post-conviction proceedings. In particular, counsel failed to perform reasonably, and there is a reasonable General John H. Baker III was present on behalf of the State. probab ility, sufficient to undermine confidence in the outcome (DCTR 6). On March 11, 1998, the district court entered a of trial, sentencing, ap peal, and p ost-conviction proceedings, that scheduling order. The court required, in relevant part, that had counsel performed reasonably, petitioner would not have disclosure of anticipated use of any expert witness and been convicted or sentenced to death, and/or would have disclosure of information regarding the expert and the received relief on appeal or in po st-conviction proc eedings. expert’s expected testimony was to be completed by Spe cifically, counsel was ineffective for the following non- exclusive list of reasons: Thompson by October 30, 1998. The court directed the a. Counsel at all critical stages failed to reasonably investigate Mr. Tho mpson’s background and mental 3 health history. Had counsel done so, they would have District Court Record (“D CTR ”). discovered that Petitioner had, in the years following No. 00-5516 Thompson v. Bell 17 18 Thompson v. Bell No. 00-5516

claimed that he was denied funding for mental health and investigative experts during the state trial and post-conviction his graduation fro m high school, interm ittently proceedings. The petition was signed by Stephen M. demonstrated bizarre and delusional thought patterns, Kissinger. particularly during ob jectively stressful situations. They would have also discovered that members of On August 25, 1998, the district court entered an order Petitioner’s family, e.g., his father, had a long and granting Respondent’s motion for extension of time for filing pervasive history of severe mental illness. There is a reaso nable probab ility that such ev idenc e, when a discovery schedule, moving the deadline to September 2, coupled with evid ence prese nted d uring trial, would 1998. have convinced one or more jurors that Mr. Thomp son’s confession was not the truth, but rather the On October 22, 1998, Thompson filed an amended petition product of the interaction betwee n his mental illness, for writ of habeas corpus. Thompson contended, in pertinent his desire to protect his co-defendant, Joanne part, that the state courts denied him funding for mental McN amara, and illegal questioning by po lice, as we ll as to provide relevant mitigating evidence at the health and investigative experts at trial and during state post- sentencing phase of trial. Trial counsel, however, conviction proceedings, implicating his fundamental rights to failed to perform a reasonable investigation, failed to due process, equal protection, and effective assistance of find such evidence, and consequently failed to present counsel. (DCTR 17). Thompson also complained that he was the following evidence to the jury, both during the guilt denied expert funding, in violation of his Fifth, Sixth, Eighth phase and during the sentencing p hase o f the trial.

b. Coun sel was ineffective for failing to fully investigate and present relevant evidence of Mr. Thompson’s mental health history, and to secure adequate expert i. Counsel failed to discover and interview assistance to defend Mr. T hompson including pertine nt, available witnesses who could have psychologists, neuropsychological, and/or neurological testified and or informed appropriate mental experts to estab lish valid m itigating facto rs including, health experts of M r. Thompson’s descent but not limited to, three statutory mitigating factors into intermittent bizarre and delusional under Tennessee law, i.e, that Mr. Thompson suffered behavior following high schoo l; from substantial mental disord ers and dem onstrable physical brain dam age which made him unable to ii. Counsel failed to discover available evidence conform his behavior to the law; left him under the of mental illness caused by two serious head influence of extreme mental or emotional disturbance, injuries. substantially impaired his ability to appreciate the wrongfulness of his conduct at the time of the offense, iii. Counsel failed to obtain medical and other and non-statutory mitigation under both Tennessee and important records for the purpose of federal law. As importantly, had counsel secured such prese nting evidenc e in mitigation. mental health history, the result of any p rofessio nally adeq uate pre-trial competency and insanity c. Counsel failed to obtain adequate expert assistance, examination (including, if indee d it was, o r had been, i n c l u di n g c o n fi d en t ia l p s yc h o l o g i ca l, professiona lly adequate, the pre-trial competency neuro psychological, and neuro logical experts. examination actually p erform ed in M r. Thompson’s case) would have been different. Specifically, but not d. Counsel failed to investigate and challenge Petitioner’s exclusively: competency to stand trial as well as his competency at the time of the offense. No. 00-5516 Thompson v. Bell 19 20 Thompson v. Bell No. 00-5516

and Fourteenth Amendment rights. He alleged in relevant schizophrenia were found consistent with part: Petitioner’s psychotic disorder even at his then current “stable” level of functioning. Since his a. Both trial and post-conviction counsel knew incarceration, Petitioner has been heavily Petitioner’s mental state was an important issue medicated. For example, Petitioner has taken but without assistance from a competent Lithium and Klonopin, both indicated for investigator and mental health expert, counsel bipolar disorder; Depakene and Depakote was unable to explain and overcome the state indicated for epileptic conditions and rapid mental hospital’s initial findings. cycling bipolar disorder due to brain disease; the anti-psychotic drugs Haldol, Haloperidol, b. Attorney Parsons was aware of Petitioner’s Mellaril, Navane, Thioridazine, and Trilafon; history of head injuries and “the significant Cogentin/Benztropine to minimize the effect of [sic] of those head injuries and what that can do such drugs; the sedative Vistaril; and, to somebody.” P.C. Vol. I, p.38. Later, counsel Ativan/Lorazepam and Valium to reduce also witnessed “a period when he [Petitioner] agitation. got sick mentally.” P.C. Vol. I, p.83. Trial counsel requested funds for a mental health d. Post-conviction counsel repeatedly requested expert but were denied. Instead, Petitioner was funds for a mental health expert. The sent to Middle Tennessee Mental Health prosecutor argued that post-conviction counsel Institute (MTMHI) for a competency were not entitled to experts at state expense. evaluation. Although MTMHI found Petitioner P.C. Vol. 1, p.16. In support of the motion for to be competent, Mr. Parsons continued to funding, counsel submitted the affidavit of Dr. believe further evaluation was needed. . . . Gillian Blair. Dr. Blair’s affidavit and post- conviction testimony reflected her need for a c. Records from Riverbend Maximum Security complete social history, additional testing and Institution reflect that several different treating interviews before she could render an opinion psychiatrists have diagnosed Petitioner as on Petitioner’s mental status at the time of the having either a bipolar affective disorder, cyclic crime, at trial, and at the present time. See mood disorder, schizo-affective disorder or generally P.C. Vol. I, pp. 199-219. Dr. Blair schizophrenia. All of the psychiatrists opined that based on the Riverbend records, her described Petitioner’s agitated behavior, test results from 1992, and the brief social hostility, inappropriate affect, auditory and history available, further investigation and visual hallucinations, delusions, paranoia, and examination of Petitioner was required. Dr. thoughts of persecution. Psychiatrists Blair testified that since 1985 Petitioner had considered the possibility of Petitioner’s shown a deteriorating mental status. P.C. Vol. malingering and all discounted that possibility. II, p. 209. Petitioner had been diagnosed with State examiners at Riverbend ruled out bipolar disorder, schizo affective disorder or malingering noting that it did not explain all schizophrenia. Id. She further testified that psychotic features. Test results indicating schizophrenia and bipolar disorder, indeed all No. 00-5516 Thompson v. Bell 21 22 Thompson v. Bell No. 00-5516

forms of psychosis, generally begin in early Thompson further alleged ineffective assistance of counsel, adulthood, Id. at 215, which coincides with the for the following non-exclusive reasons: timing of the instant offense. Dr. Blair stated that Petitioner’s troubles in the Navy, just prior 1. Counsel at all critical stages failed to to the crime, would suggest that he was reasonably investigate Mr. Thompson’s becoming mentally ill at that time. Id. at 216. background and mental health history. Had However, further information was needed to counsel done so, they would have discovered render an opinion and diagnosis of Petitioner at that Petitioner had, in the years following his that time. Dr. Blair also stated that further graduation from high school, intermittently evaluation of Petitioner was necessary to demonstrated bizarre and delusional thought determine his present competency. Id. at 207. patterns. They would have also discovered that members of Petitioner’s family, e.g., his father, e. The court denied funding for expert assistance had a long pervasive history of severe mental at the post-conviction hearing. The court illness. Trial counsel, however, failed to reasoned that funds were unnecessary because perform a reasonable investigation, failed to Petitioner had not shown a “need,” further find such evidence, and consequently failed to funding would result in a delay of the present the following evidence to the jury, both proceedings and the issue was a matter of during the guilt phase and during the sentencing record. . . . phase of the trial. f. Although the court found no “need” for further 2. Counsel was ineffective for failing to fully expert assistance, the court later used the fact investigate and present relevant evidence of Mr. that Dr. Blair could not express an opinion as to Thompson’s mental health history, and to the issues of Petitioner’s mental health to limit secure adequate expert assistance to defend Mr. Dr. Blair’s testimony and, subsequently, to Thompson inclu ding p sychologi s ts, deny Petitioner relief from his unconstitutional neuropsychological, and/or neurological experts conviction and sentence. For example, to establish valid mitigating factors including, throughout Dr. Blair’s testimony, the but not limited to, three statutory mitigation prosecutor made repeated objections on the factors under Tennessee law, i.e., that Mr. basis that Dr. Blair did not have an ultimate Thompson suffered from substantial disorders opinion. See e.g. P.C. Vol. II, pp. 208, 215, and demonstrable physical brain damage which 216, 220, 259. Although the court allowed made him unable to conform his behavior to the most of Dr. Blair’s answers, it did so remarking law; left him under the influence of extreme that the weight of the testimony was specious. mental or emotional disturbance, substantially See id. The court, however, did not allow Dr. impaired his ability to appreciate the Blair to testify about mitigating circumstances. wrongfulness of his conduct at the time of the offense, and non-statutory mitigation under (Footnotes omitted.). both Tennessee and federal law. As importantly, had counsel secured such mental No. 00-5516 Thompson v. Bell 23 24 Thompson v. Bell No. 00-5516

health history, the result of any professionally that the allegations before the court did not establish good adequate pre-trial competency and insanity cause for discovery as required under Rule 6(a) of the Rules examination (including, if indeed it was, or had Governing Section 2254 Cases in the United States District been, professionally adequate, the pre-trial Court. That same day the court entered an order allowing competency examination actually performed in Thompson to take the depositions of Dr. Michael Rutter, Dr. Mr. Thompson’s case) would have been Robert Hoen, and Dr. John Pruett, mental health experts. The different. Specifically, but not exclusively: order further allowed Respondent the right to take the depositions of Thompson’s two experts, neuropsychologist i. Counsel failed to discover and interview Barry Crown, Ph.D, and psychologist Faye Sultan. (DCTR pertinent, available witnesses who could 18). The magistrate judge noted that the execution of have testified and/or informed appropriate Thompson would violate the Eighth Amendment due to mental health experts of Mr. Thompson’s Thompson’s incompetence. The order also noted a Brady descent into intermittent and delusional claim.5 behavior following high school. Also on November 2, 1998, Thompson filed his initial .... witness list. His “[e]xpert witnesses and testimony” included the following: . . . Had counsel been informed, they would have recognized that witness accounts, of Petitioner’s bizarre change in behavior signaled the onset of mental illness. The lingering question would have been answered. The 5 outcome of Petitioner’s capital conviction and Although not fully articulated as such, the magistrate judge appears sentence probably would have been different. to have b ased its conclusion o n the follo wing allegation in Th omp son’s amended p etition, which the court quoted in its order: 41. CLAIM 41- BRA DY CLAIM (DCTR 17; footnotes omitted). The amended petition for writ a. Throughout P etitioner ’s court proceedings the prosecutor of habeas corpus was signed by Stephen M. Kissinger. engaged in false and/or misleading questioning and use of reports to argue that Petitioner was competent and not mentally b. Discovery ill. The prosecu tor misled Petitioner’s judge and jury despite having evidence to the contrary, and without revealing such On November 2, 1998, the magistrate judge held three evidence, thereby committing gross misconduct. For example, during the Petitioner’s postconviction proceedings, the state telephone conferences with Attorney Kissinger and Assistant argued that Petitioner was not mentally ill, was competent at the Attorney General Jennifer Smith regarding Thompson’s time of trial, was p resently competent, and was competent to be request for discovery regarding those matters alleged in the executed, despite ten years of records to the contrary. petition, to which Respondent objected. The court’s order Institutional records clearly illustrate Petitioner’s ‘significant states that, during the hearing, Kissinger advised that he history of psychosis requiring multiple medications.’ Petitioner’s mental health treatment plan contemporary to the needed to obtain the depositions of three mental health expert postconviction hearing reveals a diagnosis of schizoph renia with personnel who had seen and treated Thompson during his presenting problems of auditory and visual hallucinations and period of incarceration. Respondent maintained his objection paranoid ideatio n. . . . (DC TR 18). No. 00-5516 Thompson v. Bell 25 26 Thompson v. Bell No. 00-5516

a. Dr. Barry Crown, Penthouse Ste 310, Red Road, the time of the offense and at the time of trial. She will South Miami, FL 33143, will provide foundation testify that Petitioner’s mental illness was severe and testimony to establish himself as an expert in that it substantially impaired the ability of the Petitioner neuropsychology. He will testify that he has been to distinguish between right and wrong and/or to provided with background information regarding conform his conduct to the requirements of the law Petitioner’s medical and social history, that he has and/or prevented Petitioner from doing the same. She interviewed, and administered a battery of indicated will testify that Petitioner’s mental illness prevented neuropsycholgical tests to the Petitioner. He will testify Petitioner from meaningfully assisting in his own that the results of those tests indicate that Petitioner defense at trial and during state post-conviction suffers from organic brain damage. He will testify that proceedings and/or from fully comprehending the nature the brain damage observed, as well as Petitioner’s social of those proceedings. She will further testify that and medical history, is consistent with schizophrenia. arguments regarding Petitioner’s mental state made by He will testify that Petitioner’s brain damage counsel for the State of Tennessee during state post- substantially impaired the ability of the Petitioner to conviction proceedings were both outside the scope of a distinguish between right and wrong and/or to conform lay person’s knowledge and that the prosecutor’s his conduct to the requirements of the law and/or statements misrepresented Petitioner’s prison medical prevented Petitioner from doing the same. He will records. testify that Petitioner’s brain damage prevented Petitioner from meaningfully assisting in his own (DCTR 19) (emphases added). defense at trial and during state post-conviction proceedings and/or from fully comprehending the nature On November 30, 1998, Respondent appealed the of those proceedings. He will further testify that magistrate judge’s discovery order. The district court arguments regarding Petitioner’s mental state made by affirmed the ruling. Significantly, the district court stated the counsel for the State of Tennessee during state post- following: conviction proceedings were both outside the scope of a lay person’s knowledge and that the prosecutor’s Additionally, if the facts are developed to show that statements misrepresented Petitioner’s prison medical petitioner’s mental health should have been introduced as records. mitigating evidence, petitioner may be entitled to relief. The magistrate judge heard argument of counsel and then b. Dr. Faye Sultan, 8430 University Executive Park ruled that certain specific discovery would be Drive, Suite 690, Charlotte, NC 28262, will provide allowed. . . . Not only has Thompson raised the issue of foundation testimony to establish herself as an expert in ineffective assistance of counsel for failure to fully clinical and forensic psychology. She will testify that explore his mental health for mitigating purposes at his she has been provided with background information sentencing, which trial counsel testified he should have regarding Petitioner’s medical and social history, that she explored Thompson’s mental health further . . . ; the has interviewed, and administered a battery of indicated record also includes factual allegations that there was psychological tests to the Petitioner. She will testify that, some mental health evidence that could have been on the basis of her examination, it is her expert opinion introduced as mitigating evidence. Furthermore, that Petitioner suffers from schizophrenia and did so at Thompson alleges he did not receive a full and fair post- No. 00-5516 Thompson v. Bell 27 28 Thompson v. Bell No. 00-5516

conviction hearing in state court because he was denied On February 12, 1999, Thompson filed an ex parte motion funds to hire a mental health expert to prove his for a temporary mandatory restraining order, for preliminary incompetency/insanity at trial and at execution. If the and permanent injunctive relief, and for an order finding fact are fully developed, he may be able to demonstrate Thompson incompetent to proceed, continuance, and to toll. he is entitled to relief. (DCTR 34). In support, Thompson alleged in part as follows: After a cursory review of the numerous volumes of 1. Petitioner suffers from schizophrenia. During state documents[] involved in this case, it appears that the vast majority of his incarceration Thompson has alleged a factual basis for some of his Respondent has medicated Petitioner in order to claims and the magistrate judge so found. For example, treat his mental illness. petitioner claims trial counsel failed to properly investigate his mental health history and present 2. On or about September 1998, Respondent mitigating evidence at trial and sentencing. Petitioner stopped providing Petitioner with appropriate contends he had two serious head injuries and psychiatric medication. intermittent bizarre and delusional thought patterns and witnesses to testify to such, and this mitigating evidence 3. Petitioner’s mental health thereafter radically should have been introduced. Furthermore, petitioner declined. Petitioner is now unable to contends that his institutional records reveal a diagnosis meaningfully assist counsel or understand the of schizophrenia with problems of auditory and visual nature of the proceedings in which he is being hallucinations and paranoid ideation. If petitioner proves required to participate. Moreover, because of these factual allegations, he may be entitled to relief. the severe nature of Petitioner’s mental illness, Respondent’s refusal to provide appropriate (Footnote omitted) (DCTR 22). psychiatric care is tantamount to subjecting Petitioner to physical torture. See, Exhibit A, On December 24, 1998, Respondent filed his initial expert Declaration of Faye Sultan PhD. attached. witness list disclosure. It listed simply Dr. Theodore H. Blau, who would “testify as an expert in the area of forensic .... neuropsychology. Dr. Blau will be called, if necessary, to rebut the testimony of petitioner’s expert witnesses, Dr. Barry 6. Petitioner has no remedy at law. . . . Given the Crown and Dr. Faye Sultan, as disclosed in petitioner’s initial Petitioner’s incontrovertible right both to witness list of October 30, 1998.” (DCTR 24). receive proper psychiatric care and to seek federal habeas corpus relief the likelihood that On December 29, 1998, Attorney Kissinger moved to he will prevail on the merits of his motion are appear pro hac vice. (DCTR 25). great. Should Respondent be allowed to continue to deprive Petitioner of proper On February 3, 1999, the district court granted Thompson’s psychiatric care Petitioner will suffer request for an extension of time to conduct discovery. The irreparable injury. Not only is he being court set the discovery date at June 11, 1999, and the rendered incompetent, he is, for all intents and dispositive motion cutoff at July 2, 1999. (DCTR 32). purposes, being tortured. No. 00-5516 Thompson v. Bell 29 30 Thompson v. Bell No. 00-5516

(Footnotes omitted.). The motion was signed by Attorney of his surroundings, and requiring immediate emergency Kissinger (by permission). (DCTR 34). attention. (Id). Attached to the February 1999 motion is the declaration of On April 7, 1999, Thompson moved to withdraw his ex Faye Sultan, Ph.D, a clinical psychologist. Sultan stated in parte motion for injunctive relief and for an order finding him relevant part that incompetent to proceed, principally because on April 6, 1999, Dr. Sultan saw Thompson and concluded that his condition At the request of attorneys at the Federal Defender had improved, due to an adjustment in his medication. Thus, Services of Eastern Tennessee, I initiated a psychological the factual basis for the motion no longer existed. (DCTR evaluation of Mr. Gregory Thompson in August, 1998. 64). On April 29, 1999, the court granted the motion to Formal psychological testing and extensive clinical withdraw the ex parte motion. (DCTR 67). interview were conducted with Mr. Thompson at the Riverbend Maximum Security Prison in Nashville, On June 28, 1999, the district court entered an order Tennessee on 8-20-98. This interview was conducted as extending the discovery deadline to July 30, 1999. The court a “Contact Visit”, with no physical barrier between this extended the deadline to allow Respondent to depose examiner and Mr. Thompson, and Mr. Thompson was Thompson’s expert witnesses, Drs. Crown and Sultan, and to not physically restrained in any way. allow Petitioner to depose Respondent’s expert witness, Dr. Theodore Blau. On July 9, 1999, Respondent filed a motion In addition to the data gathered during this for summary judgment as to all claims raised in the amended examination, I was asked to review extensive petition for writ of habeas corpus. (DCTR 81-82). On July documentation about Mr. Thompson’s psychiatric, 15, 1999, Thompson deposed Respondent’s expert, Dr. Blau. military, and legal history. These data also serve as On July 20, 1999, Respondent deposed Petitioner’s expert. bases for the opinions rendered here. These data include Dr. Crown.6 On July 29, 1999, Thompson filed his response psychiatric records and examinations regarding Mr. to Respondent’s motion for summary judgment. Thompson for approximately the past fifteen years, administrative and medical records from the Tennessee On August 2, 1999, Respondent filed a motion for Department of Corrections, and legal and police reimbursement of deposition expenses. (DCTR 87). documents relating to the original offenses for which Mr. Respondent claimed that Dr. Crown’s deposition testimony Thompson is currently incarcerated. In total, hundreds of was considerably different than that represented in pages of records and documents have been reviewed for Petitioner’s initial witness list. Specifically, Respondent the purpose of this evaluation. alleged that, based on Petitioner’s initial disclosure concerning Dr. Crown’s testimony, particularly as to (DCTR 34). Dr. Sultan also stated that in August 1998 Petitioner’s mental state at the time of the offense, “i.e., his Thompson met all of the diagnostic criteria for the major ability to distinguish between right and wrong and/or to mental illness schizophrenia, episodic, with interepisode conform his conduct to the requirements of law, competency residual symptoms. She further indicated that Thompson’s condition had rapidly deteriorated between August 1998 and February 1999. In Dr. Sultan’s opinion, Thompson was 6 experiencing a severe psychiatric crisis, making him unaware As will be explained shortly, counsel for Resp ondent depo sed Thomp son’s other named exp ert, Dr. Faye Sultan, PhD. on July 22, 1999. No. 00-5516 Thompson v. Bell 31 32 Thompson v. Bell No. 00-5516

at the time of trial,” counsel for Respondent traveled to in connection with the July 20, 1999, deposition of Dr. Miami, Florida to depose Dr. Crown. Respondent further Crown. claimed that, at the beginning of the deposition, he was presented “for the first time” with an affidavit indicating Dr. On August 4, 1999, Petitioner filed a motion in limine, Crown’s proposed testimony, which was significantly seeking to exclude Dr. Blau’s testimony on the grounds that different from the October 30, 1998, initial witness list Dr. Blau neither formed an opinion nor was asked to form an disclosure. The affidavit indicated no opinion as to opinion regarding any of the issues raised in the petition: Thompson’s mental state at the time of the offense or at trial, “Despite all issues being clearly framed by the allegations in no opinion indicating that brain damage substantially the petition, Respondent never sought, nor did Dr. Blau impaired Thompson’s ability to conform his conduct to the render, any opinion contrary to such allegations.” (Footnote requirements of law and/or to distinguish between right and omitted.). (DCTR 88). Also on August 4, Petitioner filed a wrong, and no opinion concerning Thompson’s ability to motion for costs incurred in deposing Dr. Blau. Petitioner assist counsel in his defense at trial or comprehend the nature alleged in pertinent part: of that proceeding. 2. On July 15, 1999, undersigned counsel conducted Respondent alleged that, “contrary to representations in the deposition of Dr. Blau in order to discover the Petitioner’s initial expert disclosure, Dr. Crown testified in his substance of his testimony at the evidentiary hearing. At deposition that he had not rendered, nor had he been asked to that time Dr. Blau testified that he had been asked to render, an opinion concerning Petitioner’s mental status at the render an opinion only in regard to Mr. Thompson’s time of the offense in this case.” (DCTR 87). The motion competency to proceed in the instant action . . . ; that he stated that Dr. Crown testified that he was also not asked to had not reached any opinion other than that reflected in render an opinion concerning Petitioner’s competence at the his report on the competency to proceed . . . ; and that in time of trial. The motion further alleged that “Dr. Crown order to render additional opinions he would require testified that he had seen petitioner on one occasion, June 12, further interviewing and testing of Mr. Thompson. . . . 1998, and was prepared to render an opinion concerning petitioner’s competence and mental status on that day.” 3. It is clear that although Respondent was on notice of Thus, in Respondent’s view, “Dr. Crown offered no Petitioner’s mental health claims which are detailed in testimony pertinent to any claim presented in the amended his habeas petition and was on notice regarding petition for writ of habeas corpus.” Respondent therefore Petitioner’s anticipated expert’s testimony, Respondent claimed that, had he been advised of the precise nature of Dr. either instructed Dr. Blau not to render any opinion Crown’s testimony, as required under Fed. R. Civ. P. during deposition regarding the issues in the petition or 26(a)(2)(B) and by the district court’s order of March 11, Dr. Blau failed to formulate such opinions. It appears 1998, he likely would not have deposed Dr. Crown. that Respondent made the strategic decision to limit Dr. Respondent contended that, given the clear representations in Blau’s testimony to Mr. Thompson’s competency to his October 1998 expert disclosure statement, Petitioner had proceed given Dr. Blau’s sworn testimony that his a duty to disclose the nature of Dr. Crown’s testimony. opinion was limited to Mr. Thompson’s competence to Respondent sought an order requiring Petitioner to reimburse proceed, the fact that Dr. Blau only evaluated Mr. Respondent in the amount of $2,768.71 for expenses incurred Thompson on one occasion for the specific purpose of competency to proceed, and that Respondent did not No. 00-5516 Thompson v. Bell 33 34 Thompson v. Bell No. 00-5516

provide a copy of Petitioner’s habeas petition to Dr. .... Blau. 7. Not one of these questions asked whether Dr. Crown 4. Undersigned counsel relied upon Respondent’s had an opinion on the issue of mental state at the time of representation that Dr. Blau would rebut Petitioner’s the offense, at trial, or at any other time for that matter. expert witnesses. Had undersigned known that Dr. They queried only regarding the communications Blau’s opinion was limited to Mr. Thompson’s between Dr. Crown and undersigned counsel. As a competency to proceed, an issue which is no longer matter of fact, only once in the excerpts attached to before this court, he would not have taken Dr. Blau’s Respondent’s motion does Mr. Pruden ask any question deposition and incurred expenses totaling $4,097.01. which could reasonably be interpreted as seeking Dr. Crown’s opinions on these issues. (DCTR 89) (emphasis added) (footnote omitted). Petitioner requested a court order requiring Respondent to pay those costs. The motion for costs is signed by Stephen M. Kissinger. trial?

On August 5, 1999, Thompson filed a response opposing (Crown deposition at Page 7, lines 11-13) Respondent’s motion for reimbursement of deposition expenses. In it he contended that the opinions Dr. Crown So if I understand you co rrectly, you were only asked [by Respondent’s counsel] to make a expressed in his deposition were materially consistent with competency determination at the time you met M r. Thompson’s initial witness list. In response to Respondent’s Thom pson? contention that Dr. Crown failed to provide an opinion at deposition regarding Thompson’s mental condition at the (Id. at Page 7, lines 19-21) time of the offense, Thompson stated that “[t]his allegation is Have you been asked to render any opinions concerning Mr. untrue or irrelevant for at least two reasons.” First, Thomp son’s mental status at the time of the murder of Brenda Lane? 5. Insofar as Respondent’s complaint relates to Dr. Crown’s response to the Assistant Attorney General Pruden’s very few questions which Respondent elected (Id. at Page 8, lines 7-9) to attach to his motion, Dr. Crown was not asked whether Not specifically. Does that mean that you have not been asked that he had an opinion regarding Petitioner’s mental condition specific question? at the time of the offense or at trial. Instead Mr. Pruden chose to focus on the communication between Dr. Crown (Id. at Page 8, lines 11-12[)] and Respondent’s counsel.[7] So you have not been asked to render an opinion to Mr. Kissinger yet one way or the other regarding M r. Thomp son’s 7 ability to distinguish between right and wrong or conform his 6. Respo ndent po sed the following questions: conduct to the requirements of the law at the time of M s. Lane’s murder? Have you been asked to render any determination about whether he was competent to stand trial at his criminal (Id. at 17-20). No. 00-5516 Thompson v. Bell 35 36 Thompson v. Bell No. 00-5516

8. On that occasion, Dr. Crown responded that he was from one severe schizotypal mental illness at the time of the unable to render such an opinion because he could not be offense as well as his state court trial rather than another certain whether he had been provided all relevant severe schizotypal mental illness, Dr. Crown’s deposition information. Crown deposition at Page 9, lines 4-15. testimony is clearly consistent with the information contained Rather than show that he had no opinion on a material in Petitioner’s Initial Witness List.” Thompson also alleged issue, Dr. Crown’s answer demonstrated that he would that Respondent was not in a position to complain that Dr. not carelessly issue an opinion until counsel for Crown’s testimony did not make the connection between Respondent defined the facts upon which counsel wished Petitioner’s mental illness and competency at the time of the Dr. Crown to base that opinion. Despite Dr. Crown’s offense, because Respondent “with full knowledge that Dr. qualified response, counsel for Respondent never asked Crown was of the opinion that Petitioner was severely Dr. Crown whether, assuming that Dr. Crown had all mentally ill at the time of the offense, either chose not to relevant information, he had an opinion regarding Mr. inquire regarding the afore-described connection or forgot to Thompson’s mental state at the time of the offense and/or do so.” (DCTR 90) (emphasis added). Thompson therefore at trial, nor did counsel provide Dr. Crown with claimed that he had demonstrated that the information in his supplemental fact which Respondent deemed relevant initial witness list was consistent with Dr. Crown’s testimony. and then ask him whether, based upon the combined He further claimed that even if it was materially inconsistent, information, he held an opinion on those regards. Respondent could not complain because he had previously made this allegation to the magistrate judge, who granted 9. The reasons Respondent failed to discover Dr. Respondent the right to depose both Drs. Crown and Sultan Crown’s opinions in these areas were not because Dr. before Respondent ever contacted Dr. Blau. Thus, Thompson Crown held no such opinions. Respondent’s counsel claimed that Respondent had been granted the opportunity to either made a strategic decision to focus on the conduct determine the exact opinions of Dr. Crown before Dr. Blau of counsel (or perhaps to attempt to create the illusion was ever contacted. (DCTR 90). that Dr. Crown’s opinions regarding these areas will come as a complete surprise to the Respondent when Next, Thompson asserted that Dr. Blau stated during his they are stated at hearing), or he simply neglected to ask deposition that he was contacted by Respondent’s counsel, the relevant questions. Pruden, on November 2, 1998, to retain him as a psychological expert and that he was asked simply “to review (DCTR 90). records in respect to competence to proceed regarding Mr. Thompson, and possible questions were whether Mr. Thompson articulated a second reason, namely that Dr. Thompson is competent to act as a party participant in habeas Crown’s deposition did substantially conform to the corpus proceedings,” and also whether he “could determine information contained in his initial witness list because psychologically his mental condition and status with respect Crown stated during his deposition “that Petitioner suffers to his capacity to understand his legal position and his from bipolar disorder of a schizo-affective type and that the options.” (DCTR 90 (quoting Deposition of Theodore H. onset of this affliction was prior to the alleged offense. Crown Blau, Ph.D., July 15, 1999, Page 5, lines 8-19). Thompson deposition at Pages 32-34, in passim.” Thompson added that further alleged that Dr. Blau was asked whether he had been “[u]nless Respondent can seriously maintain that it is material asked to examine Thompson regarding any area other than in this case whether Dr. Crown found that Petitioner suffered competency and that “[h]is response clearly demonstrated that No. 00-5516 Thompson v. Bell 37 38 Thompson v. Bell No. 00-5516

not only had he not examined and/or reached any opinions in future date prior to the evidentiary hearing to any area other than Petitioner’s present competency, the only render such an opinion? neuropsychological examination he had conducted was ‘at best’ . . . a screening examination.” (DCTR 90 ¶ 6). A: It hasn’t been suggested or asked of me. Thompson therefore moved for an order denying Respondent’s motion for reimbursement of deposition Q: So if I understand you correctly then, you were expenses. (DCTR 90). only asked to make a competency determination at the time you met Mr. Thompson? In his reply, Respondent stated simply that the documents attached to its motion for reimbursement plainly A: That is correct. demonstrated that Thompson’s October 1998 disclosure was materially different from the testimony offered at Dr. Crown’s Q: And when was that, sir? deposition and in his affidavit. (DCTR 91). Attached as an exhibit was a complete copy of Dr. Crown’s July 20, 1999, A: June 12th of 1998. deposition. Much of it bears repeating here: Q: All right. His mental status. Please elaborate Q: Specifically, what issues regarding Mr. for me, what about his mental status have you Thompson and his case have you been asked to been asked to opine? review and render expert opinions on, sir? A: I have been asked to evaluate it. A: At this point, I have been asked to consider his Q: His mental status at present? competency and also his mental status. A: Well, it was his status as of the time that I saw Q: Okay. Let’s take them one at a time, then. him. I haven’t seen him since June 12th of Competency, are you talking strictly about his 1998. present competency in the habeas corpus proceedings? Q: Have you been asked to render any opinions concerning Mr. Thompson’s mental status at A: I am talking about his competency at the time the time of the murder of Brenda Lane? that I saw him. A: Not specifically, no. Q: Have you been asked to render any determination about whether or not he was Q: Not specifically. Does that mean that you have competent to stand trial at his criminal trial? not been asked that specific question? A: No. A: That is correct. Q: Has anything been said to you that would lead Q: Have you rendered an opinion, though, in that you to believe that you might be asked at a regard? No. 00-5516 Thompson v. Bell 39 40 Thompson v. Bell No. 00-5516

Q: No, not as of this time. A: That is correct. Q: So you have not rendered an opinion to Mr. Q: What materials have you been provided to Kissinger yet one way or another regarding Mr. review concerning Mr. Thompson? Thompson’s ability to distinguish between right and wrong or conform his conduct to the A: I have seen what I believe to be his Department requirements of the law at the time of Ms. of Corrections file from it’s [sic] inception. Lane’s murder? Q: And when you say his Department of A: That is correct. Corrections file, do you mean his medical/mental health file? Q: Has Mr. Kissinger, or anyone else representing Mr. Thompson, represented to you that they A: It’s his medical file, as well as his general file, would like you to render such an opinion including disciplinary reports, including during the course of your employment? adjustment reports.

A: No. Q: Have you reviewed any other records?

Q: Just so I am clear then, your mental status A: I have seen the depositions of three of the evaluation of Mr. Thompson is only to evaluate employees of Prison Health Services. I have his mental status at present? seen the reports of the mental health facility that Mr. Thompson spent thirty days in prior to his A: I have only seen him on one occasion, June original trial. I have seen the testimony of the 12th of 1998. So what I have to say would be mental health professions at his trial, Dr. related to that examination. I have looked at Kogley. other records, but I don’t know they are necessarily complete, and I couldn’t render an Q: Cobley? opinion based on the lack of completeness, or what I assume is the lack of completeness. A: Cobley. I have seen the materials from Dr. Blaire. Q: So you don’t feel that based on the materials that you have reviewed to date that you could, Q: How about Dr. Watson? based on your professional experience, render an opinion about Mr. Thompson’s mental state A: Watson. I have seen Dr. Watson. say back in 1985 at the time of the murder? Q: When you say materials from Dr. Blaire, does A: As I sit here today, I could not. that simply mean her testimony, or have you seen other-- Q: So you are not prepared to render any opinion in that regard today? No. 00-5516 Thompson v. Bell 41 42 Thompson v. Bell No. 00-5516

A: I have seen the raw data, or parts of raw data. He also indicated that Kissinger had not at that time asked Actually, the entire raw data are not in the him to do so. materials that were provided to me. And then I have seen Dr. Blau’s report and Dr. Blau’s raw Dr. Crown opined that Thompson suffers from an auditory data. processing deficit. He further indicated that Thompson has some sort of organic brain damage, but that he did not Q: And you just received Dr. Blau’s-- pinpoint it to a specific portion of the brain. Dr. Crown stated that he did not intend to make any further evaluation of A: Correct. Thompson’s organic brain damage unless asked. Dr. Crown indicated that he knew that Thompson had suffered traumatic (DCTR 91). head injuries. He testified that he had not seen Thompson’s military medical records. Dr. Crown testified that the Dr. Crown also indicated that he had reviewed Thompson’s organicity was secondary to other mental impairments, medication portfolio from his records at Riverbend Maximum namely schizo-affective disorder, bipolar subtype, with Security Institution. When asked, Dr. Crown stated that he organic components. Dr. Crown stated that he reached this had not read, and not been asked to read, the trial transcript, conclusion but that he had asked Mr. Kissinger “to provide me with whatever materials he wished.” (DCTR 91). Dr. Crown from looking at the reports of the treating physician, the acknowledged that he had not given Kissinger a specified list psychiatrists, and psychiatric nurses, and nurse of items he wished to review, but was “relying on whatever practitioners that have had the opportunity to monitor it is Mr. Kissinger” gave him. him over the last fourteen years, that I have concluded that he’s best treated with anti-psychotic medication, that Dr. Crown also stated that he met with Thompson on schizo-affective disorder is a disorder that affects June 12, 1998, at Riverbend for about two and one half hours. thoughts related to reality and results in distortions of Dr. Crown indicated that, at that time, he took a brief history, reality. a standard basic demographic clinical interview, and administered a group of tests.8 Dr. Crown testified that the It also results in distortions of affect, meaning, the way only written record of his evaluation was his July 20 affidavit; that behavior is expressed. And I believe that his affect that he would only prepare a written report if Kissinger asked. has been variable from rather depressed to highly agitated and aggressive. And so, putting that together, I believe he does have a schizo-affective disorder of the bipolar type, meaning, there is a considerable spread in 8 his emotionalities, that there is a distortion in his Dr. Cro wn stated that he administered the following tests: perception of reality, that he tends to fragment at times, The Shipley Institute of Living Scale; the G-F-W Auditory Selective Attention Test; the Catego ry Te st; the Kaufman and tends to be directed by hallucinatory activity. Neuropsychological Assessment Procedure; the Luria Mem ory Test; the Reitan-Indiana A phasia Screening Test; the Rey- . . . [I]n Mr. Thompson’s case, there are notations Osterreith Complex Figure Test; the Trailmaking Test; W ord throughout his medical records that he has auditory Generation, F/A/S; Finger Oscillation T est; and the W isconsin hallucinations. He also related to me that at the time I Card So rting T est. No. 00-5516 Thompson v. Bell 43 44 Thompson v. Bell No. 00-5516

saw him he was auditory hallucination free, but that he Next, counsel asked Dr. Crown: frequently got command hallucinations that there were voices coming from within him that were telling him Q: And if I understood your answers earlier what to do, which is what happens in an auditory correctly, you do not have an opinion at this hallucination state. time as to the exact nature of this brain damage for which you have seen some indicia? (DCTR 91). The following colloquy between counsel for Respondent and Dr. Crown, then took place: ....

Q: Based on your review of Mr. Thompson’s A: I don’t specifically know the causation. I records or the records that were provided to believe it may be secondary to his thought you, what do you conclude, or when did you disorder since we know that in people who do conclude, was the onset of these auditory have chronic thought disorders that the thought hallucinations? disorder itself may either be caused by or may result in some damage to the brain. For A: I have no real pinpoint. For that, most example, schizophrenics very often have typically, people with schizo-affective disorder enlarged ventricles of the brain. tends to develop in late adolescence to early adulthood. Q: I notice that you did not attempt to administer an MMPI to Mr. Thompson. The reason for Q: From the materials you have reviewed, do you that, sir? see anything in those materials that show that this is when it occurred in Mr. Thompson? A: In the regular course of my neuropsychological evaluations, I tend not to administer a A: I believe he began to have a more difficult time personality questionnaire. I leave that for, or with life in his–in the last stages of his military the assessment of personality, specifically to a service. So I believe that the beginnings of it clinical psychologist or a psychiatrist. would be tracked to that. I haven’t seen the records, but I believe that that’s probably when Q: In this case, this would be something that you I would anticipate that it would have begun. would defer basically to Dr. Sultan?

(Emphases added.) A: I would defer in terms of administering or interpreting of the personality testing. Yes. Counsel for Respondent also asked Dr. Crown whether he had talked with any of Thompson’s family members to gain Q: Would an MMPI-2 be useful in terms of insight into his background while growing up. Dr. Crown assessing organic brain damage? stated that he had not, nor had he spoken with school teachers, counselors, or ministers. Dr. Crown also indicated that he A: No, not necessarily. No. had not spoken with Joanne McNamara, or Arlene Cajulao. .... No. 00-5516 Thompson v. Bell 45 46 Thompson v. Bell No. 00-5516

A: No. If I thought it was necessary to form a Q: In terms of competency, did you evaluate him neuropsychological opinion, I would have given as being competent? it. A: At the time that I saw him, it’s my opinion he Q: And in this case you didn’t? was competent. A: That is correct. (DCTR 91). Q: And part of that is because you are not In response to Thompson’s motion for costs, Respondent interested in determining whether or not he can reiterated that in his October 30, 1998, initial witness list, distinguish between right and wrong? Thompson stated that he intended to call two expert witnesses, Dr. Barry Crown and Dr. Faye Sultan. Respondent A: I was asked to assess his neuropsychological stated that with regard to the substance of the expert status, and that to [sic] extent, I wasn’t asked to testimony, Petitioner indicated that each would testify in consider issues of determining right or wrong, pertinent part that Petitioner’s mental condition substantially sanity, and I wasn’t asked specifically to impaired his ability to distinguish between right and wrong consider personality. But when I looked at him, and/or to conform his conduct to the requirements of law. it was clear to me that Mr. Thompson also had Respondent contended that on December 24, 1998, personality problems. He had a thought Respondent notified Petitioner that he intended to call Dr. disturbance. Theodore Blau as an expert in the area of forensic neuropsychology to rebut the testimony of Drs. Crown and I assumed that someone else would be looking Sultan. Respondent further claimed that, pursuant to the at him in terms of those thought disturbances, November 2, 1998 order of the magistrate judge, Respondent the personality difficulties, and I just recently conducted the depositions of Dr. Crown and Dr. Sultan on learned that Dr. Sultan had looked at him. July 20, 1999, and July 22, 1999, respectively. 9 Respondent further contended that, prior to those depositions, Respondent (Emphasis added.) Dr. Crown stated that he had worked with received no information from Petitioner other than that Dr. Sultan on several capital cases. contained in the initial witness list, nor had Respondent been provided with any information concerning the data or other Counsel for Respondent recapped: information considered by the witnesses in forming their Q: My understanding then is you were solely asked opinions, as required by Fed. R. Civ. P. 26(a)(2)(B). Finally, to talk about Mr. Thompson’s current Respondent asserted that, although it was clear from competency. That’s what you have been asked Respondent’s notice of expert witnesses that Dr. Blau would to render an opinion about–or competency at be called to rebut the testimony of Petitioner’s experts, the time you saw him? Petitioner chose to schedule the deposition of Dr. Blau on

A: Competency and mental status. 9 Kissinger defended b oth dep ositions. No. 00-5516 Thompson v. Bell 47 48 Thompson v. Bell No. 00-5516

July 15, 1999, before the previously-scheduled depositions of does he intend to make such an evaluation. (Court File Drs. Crown and Sultan. No. 91, Exhibit 1, pp. 24-28). Dr. Crown believes this organicity is secondary to a thought disorder which he c. The District Court’s Ruling on the Rule 56 Motion refers to as a schizo-affective disorder-bipolar subtype with organic components. Dr. Crown bases his On February 17, 2000, the district court issued a conclusion on the reports of the people who have treated Memorandum granting Respondent’s summary judgment Thompson for the last fourteen years. (Court File 91, motion as to all claims and dismissing his § 2254 motion. Exhibit 1, p. 35). The district court stated in relevant part: Respondent hired Dr. Blau to rebut Dr. Crown’s Petitioner claims experts recently obtained by him testimony. Portions of Dr. Blau’s testimony have been have revealed that he was incompetent under Tennessee filed with the Court. Dr. Blau testified he did not law at the time of the crime and throughout his court observe or see any indications of organic brain damage proceedings. Petitioner has failed to state the name of on the test he administered. Dr. Blau found Thompson’s the expert and failed to provide the proof of these responses during testing were rational and appropriate. revelations. The Court has read the deposition of Dr. (Court File No. 89, Attachment C, pp. 31, 47-48). Crown, (Court File No. 119, Exhibit 1) but was unable to located [sic] his opinion that Thompson was Thompson has failed to provide any significant incompetent at the time of the crime and throughout his probative evidence which would make it necessary for court proceedings. As a matter of fact, Dr. Crown stated this Court to resolve a factual dispute. . . . Thompson he was not asked to render any determination about has not provided this Court with anything other than whether or not Thompson was competent during his state factually unsupported allegations that he was jury trial. (Court File No. 91, Exhibit 1, pp. 7-9). Dr. incompetent at the time he committed the crime and at Crown stated he was only asked to make a competency the time of his jury trial. Nor has Thompson provided determination at the time he met Mr. Thompson on June this Court with any significant probative evidence that 12, 1998. After meeting with Thompson for two and a Thompson was suffering from a significant mental half to three hours, which consisted of taking a brief disease that should have been presented to the jury history for twenty-five to thirty minutes and the during the punishment phase as mitigation evidence. remainder of the time was spent administering tests, it was his opinion that Thompson was competent on June Petitioner had two different psychological evaluations 12, 1998. (Court File No. 91, Exhibit 1, p. 7-47). and both resulted in findings of competency at the time of the crime and at the time of trial. Additionally, the Dr. Crown did testify Thompson had a significant record shows that trial counsel did reasonably auditory processing deficit which means he is easily investigate Thompson’s background and mental health distracted by external auditory stimuli. (Court File No. history. 91, Exhibit 1, p. 20). He further testified that some of the test results led him to conclude that there was some sort Memorandum dated February 17, 2000 at 53-55 (emphases of organic brain damage. However, he is not able to added) (DCTR 124). make any assessment of the severity of the damage nor No. 00-5516 Thompson v. Bell 49 50 Thompson v. Bell No. 00-5516

d. The Motion to Alter or Amend was, or would be, applied to claims arising from facts not heretofore presented to the state courts of Tennessee is On March 2, 2000, Petitioner filed a motion to alter or independent of federal law; and (2) whether the State of amend the judgment pursuant to Fed. R. Civ. P. 59. By way Tennessee’s interference with Mr. Thompson’s attempts of introduction, the motion states: to present claims arising from his unquestionably severe mental illness either deprived Mr. Thompson of a full As an initial point, undersigned counsel apologizes for and fair opportunity to present the facts supporting those any lack of clarity which may exist in Petitioner’s claims to the state courts of Tennessee or provided pleadings.1 Though counsel disagrees with the Court’s “cause” for not presenting the facts supporting those criticism of those pleadings, the fact that the Court’s claims to the state courts of Tennessee. Decision is contrary to controlling authority and sound legal reasoning provides empirical evidence that (DCTR 126, at 1-2). Thompson then presented argument on undersigned counsel has somehow failed to bring that two issues, namely, that “The Tennessee Courts Will Not authority and reasoning to the Court’s attention. Mr. Apply the Tennessee State Post-Conviction Statute of Thompson should not suffer because of counsel’s Limitations to Petitioner’s ‘Later-arising’ Claims in a Manner shortcomings. Furthermore, this Court should not face that is Independent of Federal Law, “ and that “The almost certain reversal simply because counsel phrased Tennessee Court’s Refusal To Afford Petitioner Mental otherwise irrefutable arguments in such a way that the Health Services During State Post-conviction Proceedings Court remained unaware of the proper resolution of Constituted a State Obstacle to the Presentation of Facts Respondent’s Motion for Summary Judgment. In an And/Or Claims Arising From Mr. Thompson’s Mental effort to fulfill his duty to both his client and the Court, Illness.” In conclusion, Thompson reiterated that although counsel now attempts to phrase those arguments in such the motion to alter or amend did not specifically address a way that the Court is fully aware of their nature and every error in the district court’s decision, which he asks this Court to alter or amend the judgment entered specifically reasserted, “[t]he errors addressed herein, herein to fully address such arguments and thereafter however, go to the very integrity of the judicial process.” deny Respondent’s Motion for Summary Judgement.2 (DCTR 126 at 10). The motion was signed by Stephen M. Kissinger. ____________________ e. The District Court’s Ruling on the Motion to Amend 1The Court’s Decision contains several negative comments regarding perceived deficiencies in On March 31, 2000, the district court denied the motion, undersigned counsel’s pleadings. holding that Thompson had failed to present any additional information which justified reconsideration and an order 2Though Mr. Thompson does not waive or concede altering or amending judgment. (DCTR 128). any of the issues and/or arguments raised by the pleadings which were not expressly or previously waived On April 21, 2000, Thompson filed his notice of appeal to or conceded, and the same are reasserted herein, this Court. Petitioner’s Motion to Alter or Amend centers on two primary issues: (1) whether the procedural bar which No. 00-5516 Thompson v. Bell 51 52 Thompson v. Bell No. 00-5516

f. The Rule 60(b) Motion of the claims. With regards to the merits of Mr. Thompson’s mental health related claims, he maintains On March 2, 2001, Thompson, through undersigned that he made a sufficient showing of a genuine issue of appellate habeas counsel, Dana C. Hansen, also of the Federal material fact to overcome Respondent’s summary Defenders Office of Eastern Tennessee, filed a motion under judgment motion notwithstanding Dr. Sultan’s opinions. Fed. R. Civ. P. 60(b).10 In that motion, Thompson However, Dr. Sultan’s opinions certainly are directly “respectfully request[ed] the Court to relieve Mr. Thompson relevant to the mental health related claims and should be from the final order entered on February 17, 2000, for the considered by the Court. Counsel for Mr. Thompson purpose of entering an order to supplement the record with engaged in [sic] Dr. Sultan’s services for the sole Respondent’s deposition of Dr. Faye E. Sultan, Ph.D, and the purpose of offering her opinions to support his accompanying report of Dr. Sultan.” (DCTR 133, at 1). constitutional claims. The failure of counsel to ensure Thompson claimed that the petition was timely. “The order that Dr. Sultan’s opinions were filed in the record is a entered in Mr. Thompson’s case granting summary dismissal result of excusable neglect. of his amended petition for writ of habeas corpus was entered on February 17, 2000. Therefore this motion, being filed (Id. at 2) (emphasis added). within one year of the order, is timely.” (Id.) In support of his claim that Dr. Sultan’s deposition and Thompson explained “Dr. Sultan’s Involvement in this report were not included in the record because of mistake, Case:” inadvertence, surprise, or excusable neglect, Thompson stated the following: Earlier in Mr. Thompson’s District Court proceedings, Respondent took the deposition of Dr. Sultan. The District Court counsel for Mr. Thompson, Stephen M. district court record presently contains a summary of her Kissinger, was under the mistaken belief that the conclusions in an expert disclosures pleading (R. 19) and evidence was in the record.1 To the extent that counsel an affidavit detailing her opinion regarding Mr. should have nonetheless known that Respondent had not Thompson’s mental health status in February 1999 (R. placed Dr. Sultan’s deposition and report in the record, 34). Having examined Mr. Thompson and viewed his counsel’s failure to ascertain that fact and file the same social and medical history, Dr. Sultan executed a report himself was the result of excusable neglect. During the in addition to her testimony at Respondent’s deposition. time period in question, counsel’s office was in a state of (Attachments A & B). turmoil and his caseload was excessively burdensome. Although this Court denied Mr. Thompson’s mental health related claims partially on procedural grounds, Dr. Sultan’s deposition and report are important to the merits

10 On March 2, 2001, Hansen filed with this C ourt a m otion to hold case in abeyance pending Thompson’s contemporaneous Rule 60(b) motion in the district court. Dr. Sultan’s deposition is attached to that motio n. W e den ied that reque st by ord er dated M arch 2 1, 20 01. No. 00-5516 Thompson v. Bell 53 54 Thompson v. Bell No. 00-5516

As described fully in the attached affidavit of counsel, 3. Social, environmental, psychological, and Stephen M. Kissinger, this state of disorder contributed economic factors in the life of Mr. Thompson to counsel’s excusably negligent failure to realize that which might have [to] be considered to be Dr. Sultan’s deposition and report were not filed in the mitigating in nature at the time of his trial. record. (Attachment C). (DCTR 133, Attachment A; emphasis added). __________________ Dr. Sultan’s report indicated that she began psychological 1. Respondent’s deposition of Dr. Crown and the evaluation of Thompson on August 20, 1998. At the first accompanying report were placed in the record by session, which lasted four hours, Dr. Sultan conducted a Respondent. (R. 91). Because Respondent had moved clinical interview and administered the MMPI-2. Dr. Sultan for costs incurred in, inter alia, hiring its own mental also noted that she did not assess Thompson’s levels of health expert, Dr. Blau, on the grounds that Dr. Blau’s current intellectual and neuropsychological functioning services were unnecessary because Petitioner had no because they had recently been assessed by Dr. Crown. expert opinions to support the mental health related allegations contained in the petition, counsel for Mr. Thereafter, Dr. Sultan initiated “a very extensive review of Thompson was under the mistaken belief that legal, military, medical, prison and psychiatric/psychological Respondent had placed his deposition of Dr. Sultan records.” Regarding “Relevant Psychological/Psychiatric and the report which Dr. Sultan had supplied to Data Contained in Records,” Dr. Sultan stated: Respondent in the record. The [sic] is substantial documentation throughout the (Id. at 3) (emphasis added). Thompson therefore asked the Tennessee Department of Corrections records that Mr. Court to order the record supplemented with the deposition Greg Thompson has suffered from significant mental and report of Dr. Faye E. Sultan, PhD, and that the district illness since at least the time of his incarceration in 1985. court revisit its previous summary denial of Thompson’s He has been treated almost continuously with some petition. (Id.) combination of major tranquilizer and/or anti-depressant and/or anti-anxiety medications. He has received a (i). Dr. Sultan’s Report variety of diagnostic labels including Psychosis, Psychosis Not Otherwise Specified, Paranoid Attached to the motion are three exhibits. The first is a Schizophrenia, Mania, Mixed Substance Abuse, psychological report prepared by Dr. Sultan, dated July 22, Schizophrenia, BiPolar Affective Disorder, 1999. Dr. Sultan states the referral questions as follows: Schizoaffective Disorder, Malingering, and Adult Antisocial Behavior. This is clearly indicative of the 1. Mr. Thompson’s current psychological status[.] Tennessee DOC mental health staff’s view that Mr. Thompson has experienced major mental illness 2. Mr. Thompson’s likely psychological status and throughout at least most of his period of incarceration. mental state before and surrounding the time of Further, there is extensive documentation contained in the 1985 offense. these records of many episodes of bizarre aggressive and/or self destructive behavior. No. 00-5516 Thompson v. Bell 55 56 Thompson v. Bell No. 00-5516

(Id.) children’s basic daily needs, highly critical, and unable to care properly for the children. Ms. Wharton described Next, Dr. Sultan stated that she interviewed five individuals many instances of such abuse and neglect. She described “who provided significant supplemental information about the the period following their mother’s death as particularly life circumstances and past/present psychological functioning chaotic and neglectful, recalling that often there was no of Mr. Gregory Thompson.” Dr. Sultan interviewed Ms. food in the home and that the children would take money Maybelle Lamar, Thompson’s maternal grandmother. Dr. from under their grandmother’s mattress to go and buy Sultan reported that Lamar assumed complete responsibility food. In the period following their mother’s death, Ms. for Thompson and his two older siblings after Thompson’s Wharton reported that her grandmother was mother was killed when Thompson was five years old. Dr. continuously drunk and unable to care for her Sultan reported Lamar’s description of Thompson as follows: grandchildren. According to Ms. Wharton, Greg Thompson frequently witnessed his sister Nora being Ms. Lamar described Mr. Thompson as displaying beaten by their grandmother. significantly “different” behavior when he returned to visit her following his discharge from the U.S. Navy. Ms. Wharton further recalled that she and her younger “Greg didn’t act the same”. Unlike the ‘eager to please’, brother had witnessed the brutal beating and rape of their passive, sometimes funny gentle boy who she had mother by their biological father. She recalls Greg reared, Mr. Thompson was “angry”, “sometimes sad”. “I standing in the scene screaming and sobbing don’t think he wanted me to know what was going on uncontrollably. with him. He mostly just stayed away from me.” Ms. Lamar reported that she noticed Mr. Thompson Of particular relevance is Ms. Wharton’s recollections sometimes “staring off into space” or “talking to about Mr. Thompson repeatedly banging his head against himself”. She would ask him about these behavior. [sic] the wall of their home on many occasions during their “He’d deny it. He acted like he didn’t know what I was early childhood. This behavior frequently followed their talking about.” Ms. Lamar recalls being quite concerned grandmother yelling at Greg “You have the Devil in about her grandson’s mental state during this time. She you.” Mr. Thompson would tell his sister that he was did not recall ever being asked questions at any time attempting to “knock the Devil out” of his head in this before or during Mr. Thompson’s trial. way. Ms. Wharton recalls believing that this behavior was quite odd. (DCTR 133 Attachment A). Ms. Wharton reported that Greg would frequently cry Dr. Sultan also interviewed Ms. Nora Jean Hall Wharton, at school during the early school years, and as a result, Thompson’s older sister. Dr. Sultan reported: was often the victim of intense mockery from his classmates. Because Ms. Wharton was in the same Ms. Wharton described Mr. Greg Thompson as a classroom as her brother she observed these behaviors highly sensitive, passive, timid, emotionally vulnerable and often intervened on her brother’s behalf. She child. She described a childhood of great hardship. described Mr. Thompson’s response to this abuse as According to her report, their grandmother, Ms. quite passive. Maybelle Lamar was verbally abusive, neglectful of the No. 00-5516 Thompson v. Bell 57 58 Thompson v. Bell No. 00-5516

Following his discharge from military service, Ms. antecedent. She reported that Mr. Thompson sometimes Wharton described Mr. Thompson’s behavior as thought that people were “after” him. He would close all significantly different than his prior conduct and attitude. the curtains in the house because he did not want the She reported several episodes of bizarre behavior which person who was “looking” for him to see him through the included a sudden intense emotional reaction without curtains. She remembers being quite concerned about obvious external provocation. Mr. Thompson would Mr. Thompson’s mental state. become extremely angry, would cry and scream for a lengthy period of time, would appear as if he might or Dr. Sultan next reported her “Summary and Conclusions,” actually become physically violent or aggressive, and which we quote here in full: then would suddenly retreat. Ms. Thompson reported this behavior and her concerns about it to her Mr. Gregory Thompson has experienced symptoms of a grandmother. Ms. Lamar suggested that Ms. Wharton major mental illness throughout his adult life. Indeed, take her brother to the psychiatric unit of the local there is information available which suggests that Mr. hospital for treatment. Ms. Wharton did not attempt to Thompson was displaying significant signs of mental get any treatment for Mr. Thompson and reports feeling illness from the time he was a small child. Self-injurious quite guilty about this. behavior is reported as early as six years old. There is extensive documentation contained within the records Nora Jean Wharton described her own struggles with reviewed for this evaluation that Mr. Thompson has mental illness throughout the past fifteen years. She has experienced a thought disorder and/or an affective received counseling to assist her in coping with the disorder of some type for many years. effects of her abusive childhood and she has been treated with a combination of a major tranquilizer (Stellazine) It is my opinion that Mr. Gregory Thompson is most and anti-depressant medications. She reported her appropriately diagnosed, according to the Diagnostic younger half-sister Kim has also suffered from and Statistical Manual of Mental Disorders, Fourth significant mental illness. Edition, as having Schizoaffective Disorder, Bipolar Type. As is typical of this illness, symptoms became (DCTR 133 Attachment A). apparent in early adulthood. Mr. Thompson was suffering serious mental illness at the time of the 1985 Dr. Sultan also relayed the report of Michael Chavis, an offense for which he has been convicted and sentenced. investigator for the Federal Defenders Office of Eastern This mental illness would have substantially impaired Tennessee, from his interview of Ms. Cajulao in summer of Mr. Thompson’s ability to conform his conduct to the 1998. requirements of the law. Mr. Chavis reported that Ms. Cajulao described Mr. Further, Mr. Thompson was the victim of severe Thompson as displaying increasingly bizarre behavior childhood emotional abuse and physical neglect. His during the latter part of their relationship. Similar to family background is best described as highly neglectful descriptions proved [sic] by Ms. Nora Wharton, Ms and economically deprived. Mr. Thompson repeatedly Cajulao reported several episodes of “paranoid” and witnessed episodes of violence during his childhood in aggressive behavior which had no apparent external which one family member assaulted or brutalized No. 00-5516 Thompson v. Bell 59 60 Thompson v. Bell No. 00-5516

another. There are significant aspects of Mr. state, his level of functioning at the present Thompson’s social history that have been recognized as time. mitigating in other capital cases. Q: Were you also asked if you would be able to It is important to note that all of the information related determine his competency at the time of his to Mr. Thompson’s early mental illness and social criminal trial in 1985? history was available at the time of his 1985 trial. A: That was not an initial question, no. Id. (emphases added). Again, this report is dated July 22, 1999.11 ....

(ii.) Dr. Sultan’s Deposition Testimony Q: Did Mr. Chavis express to you any opinion as to what he thought Mr. Thompson’s The second attachment is Dr. Sultan’s deposition. Pruden, psychological condition was, his mental status counsel for Respondent, took Dr. Sultan’s deposition on July was, at the time of the offense? 22, 1999. Appearing on behalf of Thompson was Stephen Kissinger. Michael Chavis was also present. A: The only opinion that he expressed to me was that he thought that he was not in good shape, Dr. Sultan told Respondent that she was first contacted by that he had deteriorated. He didn’t label it in Chavis on behalf of Kissinger in July or August of 1998. Dr. any particular way. Said he didn’t think that he Sultan testified that was doing as well. A. Mr. Chavis asked me about my availability and (Emphasis added.) (DCTR 133 Attachment B). asked if I would be willing to perform a psychological evaluation to assess what Mr. Dr. Sultan also stated that she had consulted with Dr. Thompson’s psychological condition might Crown. She stated that Chavis told her have been like at the time of the offense in 1985, to assess whether it was possible to make such Dr. Crown would be conducting the neuropsychological and an appraisal, to see whether there were factors intellectual assessment. Dr. Sultan testified that she needed in his personal background that might have to check Dr. Crown’s test results so that she could include been investigated at the time of trial that would them in her opinion, but that she did not provide Dr. Crown have had bearing on his psychological status at with any of her diagnostic information. the time of the offense, and Mr. Chavis also suggested that they wanted to know something When asked whether she had prepared a social history on about Mr. Thompson’s current psychological Thompson, Dr. Sultan indicated that she had not yet but that it had been provided as part of the prison records. Dr. Sultan testified that she had spoken with Thompson’s grandmother 11 and sister, and had attempted to speak with his brother Curtis. The documents to which Dr. Sultan refers are not actually attached to the report. They are attached to her deposition testimony, Attachment She further stated that, although she had not spoken with any B, and marked as Exhibit 3 to that deposition. of Thompson’s school teachers, school administrators, or No. 00-5516 Thompson v. Bell 61 62 Thompson v. Bell No. 00-5516

neighbors, she had reviewed testimony from them. Dr. Sultan and she saw those behaviors as very unusual for was not sure whether she had reviewed the actual transcript him and reported to Mr. Chavis that Mr. from Thompson’s court martial, but stated that, at a Thompson seemed unaware of what had minimum, she had reviewed the testimony of at least some of provoked it and didn’t even seem after the fact the witnesses. She had not contacted any of Thompson’s to remember what had taken place, would supervisors in the military. simply, after a period of time, calm himself down and return to normal behavior. I found all Although Dr. Sultan also had not spoken with Cajulao, she of that quite significant. interviewed Chavis, who spent several days with Cajulao in 1998. Dr. Sultan stated that she found Cajulao’s observations (Id. at 55-56). “beneficial” in reaching her diagnosis. Specifically, Shortly thereafter, Pruden called for a break, and took that A: Ms. Cajulao described to Mr. Chavis that opportunity to take a look at Dr. Sultan’s report. Upon return, during the course of the four-year relationship Pruden asked Dr. Sultan: she had with Mr. Thompson, Mr. Thompson became increasingly bizarre in behavior that he Q: What indicates to you or what indicia are there exhibited. There were a number of occasions in for you that suggest Mr. Thompson was which there were incidents that took place in displaying significant signs of mental illness the military that he described to her as him from the time he was a small child? How do having been attacked. The facts of the situation you arrive at that conclusion? may in fact not be that, but that was his description to her, that he was being picked on, A: During my interview with Mr. Thompson’s that he was being bullied, that he was being sister–and let me say all of her names–Ms. Nora attacked. Jean Hall Wharton, Ms. Wharton spontaneously began to talk to me about Mr. Thompson’s He became depressed, according to her, over behavior in the time period immediately time and increasingly paranoid. At some point following their mother’s death. she would come home from work, and he would be in their home with the curtains drawn, By the time of the first grade, Mr. Thompson, standing by himself in the dark telling her that when he was being yelled at by his people were after him and that he didn’t want grandmother, she was reportedly verbally people to be able to look at him through the abusive in the following fashion: She would windows. She remembers being quite yell at him-- you have the devil in you, boy. concerned about his behavior. She would then observe Mr. Thompson standing or sitting beside a wall repeatedly There are a couple of situations that she banging his head into the wall. She, in her role described to Mr. Chavis in which, with no as protector of him, would ask him what was external provocation that she could identify, going on, and he would tell her he was trying to Mr. Thompson became quite violent with her, knock the devil out of his head. She recalls at No. 00-5516 Thompson v. Bell 63 64 Thompson v. Bell No. 00-5516

the time, although she was quite young herself, permitted much interaction outside of their being worried about his behavior and thinking home. it as was very odd. (Id. at 60). One of things that we know about people who develop thought disorders is that frequently in Dr. Sultan further testified that: childhood you’ll see one or more peculiarities in behavior. This would certainly fit in that She [Ms. Wharton] recalled another episode category. She recalls other instances. during which her biological father was brutally beating and raping their mother on the floor in Q: Sort of self-punishment or a self-exorcism type front of them when the children were quite thing? small, perhaps Mr. Thompson was himself three or four. She was maybe four or five. Mr. A: A self-injurious behavior is what we would call Thompson’s reaction to that was to stand and it I think. Mr. Thompson, when he was Greg, scream and scream and scream and scream in the first and second and third grade had during the entire episode. rather frequent crying episodes in classrooms that Ms. Wharton recalls also as very unusual in Any of the–taking the self-injury aside, setting the context of his schoolroom situation. She that aside, any one of those behaviors in describes him as being the subject of torment on isolation might not be particularly significant. the part of the students because he behaved in Putting them together, we begin to see a pattern an odd fashion. Sometimes he would simply of intense emotional reactivity. begin to cry and wail and scream and apparently made a sound like a fire engine Q: So basically, if I understand it, it’s the self- when he was sobbing and developed the injurious behavior and the crying and the way nickname Fire Engine. That’s reported in the you see him reacting to these physical abuses of trial transcript. She told me much more detail others? about actually the extent of those kind of emotional outbursts. A: Yes.

At home it was rather common for Mr. Q: And that is indicative of a sign of mental illness Thompson to begin to cry and scream during to you? I just want to make sure that I’m times when Ms. Wharton herself was being understanding what you’re telling me. If I’m beaten by their grandmother. Ms. Wharton was not, please explain it to me. the victim of physical abuse on the part of the grandmother. Mr. Thompson observed much of A: I think I understand your question. It is an early this since they were together virtually all of the indicator of a problem that’s likely to develop. time, and Nora Wharton was not really With the benefit of hindsight, it takes on the significance of a precursor, because then we see No. 00-5516 Thompson v. Bell 65 66 Thompson v. Bell No. 00-5516

the escalating pattern of dysfunction and Q: . . . You don’t know to what degree the children abnormality. were malnourished then? Q: Sort of a causal relationship is what you’re A: No. I don’t know. I do know that–and this is seeing developing? confirmed by the grandmother–in the six weeks approximately following their mother’s death, A: I’m not sure what causes what. There are often the children were left alone virtually all of the early indices of later mental illnesses that you time because Ms. Lamar was drunk and in bed, don’t know exactly what it’s going to look like and so we have a five, a six, and a seven-year- later, but you realize in looking at the child that old child in a house with no food. They would there’s a high likelihood that something is not occasionally steal money from underneath her going to be right when that person achieves mattress while she was sleeping, and one of maturity. them would go to the store to try to find some food. Occasionally a neighbor would provide Q: Because of the environment, for example, in them with a meal or a can of food. I don’t which he’s growing up? know whether they were malnourished over an extended period of time. I do know that there A: Perhaps. Perhaps because of the genetics is, from Ms. Wharton’s perspective, rather involved. Perhaps because of the situations serious psychological damage from that time. he’s exposed to, as you said, the environment. Perhaps because of whatever factors there are. Q: You have no medical documentation showing Perhaps nutrition plays a role in this. These any malnourished condition or that it’s caused children were without food for significant some problem with his brain, do you? periods of time as well. I don’t know all of the reasons, but what I know is that if you look A: I don’t. These children were never taken to the back in the childhood of this man, the doctor, so there wouldn’t be any medical beginnings of mental illness are apparent. documentation. There’ s p r obably documentation in the school system. According Q: Besides Ms. Wharton’s report of lack of food, to Ms. Wharton, Ms. Lamar was so drunk at the have you seen any evidence that the children beginning of the school year following their were taken away because of malnutrition? mother’s death that she forgot to sign the children up for lunches at school. They didn’t A: No. Ms. Wharton did tell me, however, that have anything to eat during the day, so they there was a neighbor who had planned to make forged her signature on a permission slip so that a report to Social Services, so perhaps I’ll have they could eat. They were discovered and the opportunity to interview that neighbor as punished by the school superintendent people, well. and a form was sent home to Ms. Lamar. She then signed it, and the children were able to eat No. 00-5516 Thompson v. Bell 67 68 Thompson v. Bell No. 00-5516

lunch after that point. A couple weeks passed take into account both thought disorder and for all of that to get straightened out. affective illness. Ms. Wharton has undergone a lot of therapy in The very best diagnosis to describe all of the recent years and says that she’s now able to complex of symptoms that I just talked to you describe situations that she wasn’t very about is schizoaffective disorder, bipolar type. comfortable acknowledging to herself, these being one of them. Q: You note in your report Mr. Thompson was observed having a significant change in Q: Your diagnosis of Mr. Thompson is behavior after he was discharged from the schizoaffective disorder, comma, bipolar type. Navy. What significance do you attach to that What leads you to that diagnosis from what fact? you’ve reviewed and your testing results? A: Well, it’s interesting, because the state Court of A: What leads me to the diagnosis is that there is a Appeals actually notes this, that prior to his long history, perhaps at this point almost a 20- entry into the military Mr. Thompson is year history, of simultaneous thought disorder described almost uniformly–well, in fact, on the part of Mr. Thompson documented uniformly according to their opinion–as throughout all the records, and affective passive, as compliant, as eager to please, as disorder, emotional disorder, being unable to gentle, as timid, as eager to run from attacks. regulate his emotions, sometimes falling into the pits of despair and becoming suicidal, At some point–and we don’t know, because I sometimes becoming highly agitated and manic haven’t seen any psychiatric records from the and having too much energy, too much military at this point; I don’t know if there are exuberance, and grandiose thinking. The any–we don’t know whether or not the change thought disorder is manifested in persecutory in Mr. Thompson is perceived as other than ideas, delusions of grandeur–lots of different behavioral disruption, but, in fact, his kinds of delusions actually–auditory description of that time is that he began to hallucinations that he sometimes admits to, notice that people were trying to hurt him all sometimes suspected by the doctors who are the time, that officers and other people of his doing the examination. rank and slightly above his rank attempted to provoke him, that they sometimes physically The psychological testing early on in Mr. assaulted him, that he thought he was being Thompson’s incarceration confirm the presence followed a lot, and that he sometimes struck out of a psychotic process. There was an MMPI in what he thought was defense and then later administered to him by a prison psychologist in found out from other people who he knew and 1990 that is described as valid and indicative of trusted that there wasn’t anything to defend psychotic process, and throughout the prison against or that there might not have been record he receives a variety of diagnoses that anything to defend against. No. 00-5516 Thompson v. Bell 69 70 Thompson v. Bell No. 00-5516

Q: This is what he related to you during your approach her grandmother about what to do for interview last August? treatment for him. A: Right. The people who saw him after the (Id. at 62). military each were struck by how very different he seemed. That was the word that kept being Pruden then asked: used, “different.” Sometimes the people I was speaking to were not able to describe what Q: You state that the schizoaffective disorder, different meant, but, for example, the bipolar type, would substantially impair Mr. grandmother said that he was different as in not Thompson’s ability to conform his conduct to right, that he wasn’t himself. Ms. Wharton tells the requirements of the law. How so? me that the grandmother was very well aware that he was in deep psychological distress, and, A: There are points in time when Mr. Thompson is in fact, the grandmother suggested that he be out of contact with reality. He is responding to taken to the psychiatric unit at Grady Hospital situations that simply don’t exist or that he in Atlanta, I believe, for treatment. The perceives in extremely exaggerated or different grandmother observed him staring off into form. A person is not able to conform one’s space for long periods of time. She observed conduct to the law if you are frankly delusional him mumbling to himself. When she asked him or hallucinating in some way. Mr. Thompson what he was doing, he told her he had no idea over the years has had both of those symptoms. what she was talking about. She said that was very different from the boy who left her to go Q: So it’s this delusional aspect of this disorder into service. that is the main factor that would keep him from having the ability to conform his conduct The sister has even a better glimpse of him than to the requirements of law, if I understand you that, because he actually went to live with her correctly? for a while, and she said he was bizarre. She described him as paranoid. She said that he A: Is it the main factor? Let me say that I think it’s would explode for no reason at all, that she was at least as potent a factor if not more as the afraid of him for the very first time in her life, other aspect of his mental illness, which is that that they had always been terribly close, the sort he has emotional disregulation. of close where if there was only one piece of Q: Meaning? bread to eat they would share it, that they always looked out for one another, and that A: Meaning Mr. Thompson often is not in control suddenly he was behaving in ways that she of his emotions. He has episodes of rage, of simply could not identify. She described three aggression, that he doesn’t understand or relate very serious episodes of aggression and to very well. He’s told about them later. emotional upset that she said are what led her to Sometimes he remembers them, sometimes he doesn’t. No. 00-5516 Thompson v. Bell 71 72 Thompson v. Bell No. 00-5516

(Id. at 69). made regarding Respondent’s filing of the report and deposition of Dr. Sultan, which were, however The deposition concluded shortly thereafter. reasonable, incorrect. Counsel’s failure to verify this assumption regarding these documents was neglect. (iii.) Kissinger’s Affidavit Given the extraordinary pressure under which counsel was operating at that time, such neglect was excusable. The third attachment is Kissinger’s affidavit. In it, he explains in relevant part the following: And further this affiant saith not. 2. I was appointed to represent the Appellant, Gregory Thompson, on January 29, 1998, by the district court. (Id. Attachment C)(emphasis added). Kissinger’s affidavit is dated March 1, 2001. 3. In approximately November of 1999, Ms. Leah Prewitt, the Federal Defender for the Eastern District of g. The District Court’s Ruling on the Rule 60(b) Motion Tennessee, was forced by illness to cease activities on behalf of Federal Defender Services of Eastern On April 17, 2001, the district court denied Thompson’s Tennessee, Inc. Ms. Prewitt’s duties were assumed by motion to reconsider the order denying his motion to alter or Ms. Elizabeth Ford, an Assistant Federal Defender in the amend judgment pursuant to Fed. R. Civ. P. 60(b). First, the office. Because Ms. Prewitt had not resigned, Federal district court held that it had previously determined the Rule Defender Services of Eastern Tennessee, Inc., was not 60(b) motion was filed outside the one year time period. The able to hire a permanent replacement for Ms. Prewitt. district court noted that, according to its calculation the Because Ms. Ford could not do both Ms. Prewitt’s job motion was required to be filed no later than February 16, and her own, Federal Defender Services of Eastern 2001, to be considered timely. DCTR 139 (citing Fed. R. Civ. Tennessee, Inc. assigned a portion of Ms. Ford’s P. 6 and 60(b)). The district court then noted that: caseload to affiant. Thompson now argues, without citing authority, that the 4. Affiant, however, already had an extremely heavy calculation of the Rule 60(b) one-year limitation period capital habeas corpus caseload, including, but not limited should not begin until March 31, 2000, the date this to, Mr. Thompson’s case. In fact, his capital caseload Court denied his Rule 59 motion to alter or amend the was so heavy that Federal Defender Services of Eastern judgment. Thompson’s interpretation is contrary to the Tennessee, Inc. was forced to hire a second attorney to plain language of the rule. Thompson has not cited, nor handle capital habeas corpus cases in July of 2000. has the Court found, any authority to support his When a portion of Ms. Ford’s cases were assigned to position. The rule specifies that the motion should be affiant, that caseload became so great that affiant made made within a reasonable time, and in this case “not errors which, however understandable, were nonetheless more than one year after the judgment, order, or errors. proceeding was entered or taken.” Rule 60(b) of the Federal Rules of Civil Procedure. In the case before this 5. Despite the affiant’s efforts, there were occasions Court, the order dismissing the habeas petition was when he made assumptions, such as the assumption he entered on February 17, 2000. [Court File No. 125]. No. 00-5516 Thompson v. Bell 73 74 Thompson v. Bell No. 00-5516

(Id. at 3). 2. Appeal to this Court Next, the district court stated, and we quote in full, the Thompson did not appeal from the order of the district following: court’s denying his motion to alter or amend judgment. On appeal to this Court, Thompson articulated the issues for Moreover, the Court specifically noted in its review as follows: memorandum opinion dismissing the habeas petition, that Thompson procedurally defaulted his claim that he I. Whether the district court erred when it was incompetent at the time of the crime and an the time reviewed Mr. Thompson’s claims under the “all of trial. [Court File No. 124, at 35]. Furthermore, when reasonable jurists” standard denounced by the addressing Thompson’s claim of ineffective assistance Supreme Court in (Terry) Williams v. Taylor to of counsel for failing to adequately investigate his summarily deny Mr. Thompson’s petition. mental health, the Court placed Thompson on notice that he failed to provide evidence of his allegations that II. Whether the district court erred in denying Mr. he was incompetent at the time of the crime and trial. Thompson’s habeas petition without a hearing [Court File No. 124, at 53]. where Mr. Thompson did not fail to develop the factual basis of his claims in state court and Petitioner claims experts recently obtained by him whether the district court erred by making have revealed that he was incompetent under factual findings without affording Mr. Tennessee law at the time of the crime and Thompson the opportunity to present evidence throughout his court proceedings. Petitioner has with regards to those findings. failed to state the name of the expert and failed to provide proof of these revelations. The Court has III. Whether Mr. Thompson received ineffective read the deposition of Dr. Crown, (Court File No. assistance of counsel in both the guilt and 119, Exhibit 1) but was unable to located [sic] his sentencing phases of his capital trial where opinion that Thompson was incompetent at the time counsel failed to investigate and present of the crime and throughout his court proceedings. evidence regarding Mr. Thompson’s mental As a matter of fact, Dr. Crown stated he was not illness and social history and failed to present asked to render any determination about whether or evidence in support of a life sentence in not Thompson was competent during his state trial. violation of due process and the Sixth Amendment. Id. Thus, the filing of this request more than one year after Thompson was placed on notice that such IV. Whether Mr. Thompson’s Fifth, Sixth, Eight, information was not in the record is unreasonable and not and Fourteenth Amendment rights were excusable neglect. violated when the state withheld exculpatory evidence which clearly supported Mr. (Id. at 3-4) (bold and underlining added). Thompson’s claim of serious mental illness and its debilitating effects and presented false evidence regarding Mr. Thompson’s mental No. 00-5516 Thompson v. Bell 75 76 Thompson v. Bell No. 00-5516

health during trial and post-conviction However, even if this matter were before us as a second proceedings. habeas petition, it would not matter, because the AEDPA does not bar a second or successive petition premised upon Curiously, appellate habeas counsel Dana Hansen did not fraud upon the court. See Workman v. Bell, 245 F.3d 849, appeal the denial of the Rule 60(b) motion, despite her 852 (6th Cir. 2001) (“In our equally divided opinion denying apparent realization that Dr. Sultan’s deposition testimony further relief for the petitioner . . ., all of the judges agreed and report were never made part of the district court record. that the court can reconsider the petition if there was a fraud upon the court.”) Cf. Calderon v. Thompson, 523 U.S. 538, 556-57 (1998) (holding that the principles of the AEDPA III. Discussion apply in general to a recall of the mandate because a “State’s interests in finality are compelling when a federal court of A. Procedural Posture appeals issues a mandate denying federal habeas relief;” exempting claims of “fraud upon the court, calling into This case is governed by the Anterrorism and Effective question the very legitimacy of the judgment”); Workman, Death Penalty Act of 1996, and we have already ruled on the 227 F.3d at 334 (stating that “[o]ne of the reasons which initial habeas petition. See Thompson v. Bell, 315 F.3d 566 would justify recalling a mandate is the potential existence of (6th Cir. 2003), cert. denied, 124 S. Ct. 804 (2003). a fraud upon the court”). Indeed, in Calderon, the Supreme However, as alluded to above, this matter is before us in a Court stated that “a mandate may be recalled when it is unique procedural posture, on our own motion, and prior to necessary to address new circumstances before the court the issuance of the mandate.12 Thus, we are not obliged to which are ‘grave’ and ‘unforeseen’ or which are, in other satisfy the requirements for the filing of a second or words, unforeseeable circumstances which implicate the successive petition outlined in 28 U.S.C. § 2244. See justice of the judgment previously rendered.” Workman, 227 Workman v. Bell, 227 F.3d 331, 334 (6th Cir. 2000) (en banc; F.3d at 334 n.3 (citing Calderon, 523 U.S. at 549). equally divided court) (stating that “[a]s a general rule, when a mandate is recalled with respect to a petition for writ of B. Ineffective Assistance of Trial Counsel at Mitigation habeas corpus, the petitioner first must satisfy the requirements for the filing of a second or successive petition As the United States Supreme Court recognized in as outlined in § 2244(b)). Strickland, “the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial.” Srickland v. Washington, 466 U.S. 668, 684 (1984). “‘[T]he right to counsel is the right to effective assistance of 12 counsel,’” id. (quoting McMann v. Richardson, 397 U.S. 759, On July 26, 2002, Respondent-Appellee, Ricky Bell, filed a motion 771 n.14 (1970)), and a defendant can be deprived of that for reconsideration o f our order filed July 26, 2002, granting Petitioner’s ex parte motion for authoriz ation to expand the appointment of counsel right by counsel’s failure to render “‘adequate legal to include state court proceedings. That motion has not yet been ruled on. assistance.’” Id. (quoting Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)). Furthermore, our docket sheet reflects that, on March 1 4, 2003, D ana C. Hansen filed a motion to stay the mandate, and that we granted it on In Strickland, the Supreme Court held that March 24, 200 3. On D ecem ber 2 , 200 3, Dana H ansen filed a motion to further stay the mandate, which this Court granted on December 12, 2003. No. 00-5516 Thompson v. Bell 77 78 Thompson v. Bell No. 00-5516

[a] convicted defendant’s claim that counsel’s assistance failed to present any evidence indicated that he suffered from was so defective as to require reversal of a conviction or symptoms of mental illness at the time of the offense. See death sentence has two components. First, the defendant Thompson, 315 F.3d at 589. In other words, we could not must show that counsel’s performance was deficient. have found ineffective assistance because there was no This requires showing that counsel made errors so showing that trial counsel missed available evidence, and we serious that counsel was not functioning as the “counsel” were mislead by incomplete records. guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient According to Dr. Sultan’s July 1999 testimony, Thompson performance prejudiced the defense. This requires was suffering from a serious mental illness at the time of the showing that counsel’s errors were so serious as to offense.13 Moreover, “all of the information related to Mr. deprive the defendant of a fair trial, a trial whose result Thompson’s early mental illness and social history [and] was is reliable. available at the time of his 1985 trial.” Had trial counsel adequately interviewed family members, counsel would have Id. at 687. found that Thompson exhibited troubling behaviors from an early age. Thompson engaged in self-injurious behaviors as When the duty at issue is the duty to investigate, “counsel a young child. As a young adult, and prior to the murder, has a duty to make reasonable investigations, or to make a Thompson had mood swings and episodes during which he reasonable decision that makes particular investigations acted in a bizarre manner and appeared to lose contact with unnecessary.” Id. at 690; see also id. at 688-89. reality. He talked to himself. At times he became agitated, Reasonableness is determined by considering all of the crying and screaming for no apparent reason. At other times, circumstances. Id. at 688. However “[p]revailing norms of he appeared paranoid, keeping the drapes closed, fearing that practice as reflected in American Bar Association standards he was being followed. As Dr. Sultan observed, although each and the like,” are guides to determining reasonableness. Id.; instance taken alone might not be sufficient, when combined see also Hamblin v. Mitchell, 354 F.3d 482, 486-88 (6th Cir. with Thompson’s abnormal responses, they are indicative of 2003) (same). an early psychopathology. Also relevant to the question of whether the scope of As Dr. Blair indicated at the state post-conviction hearing, counsel’s investigation was reasonable is what counsel a complete social and family history is critical to the actually knew. “In assessing the reasonableness of an attorney’s investigation, . . . a court must consider not only the quantum of evidence already known to counsel, but also 13 Schizophrenia is a chronic disorder of thought, characterized by whether the known evidence would lead a reasonable attorney delusions, hallucina tions, diso rganized sp eech or gro ssly disorganized to investigate further.” Wiggins v. Smith, 539 U.S. 510, 123 orientation or catatonic beha viors. See American Psych iatric Association, S. Ct. 2527, 2538 (2003). Diagnostic and Statistical Manual of Mental Disorders pp. (rev. 4th ed. 2000) (“DSM -IV”). There is no definite laboratory or radiological test that establishes the diagnosis of schizoph renia, rather, the d iagnosis is 1. Deficient Performance based on longitudinal historical information. As individuals with schizo phrenia may not disclose the full extent of their symptoms, an In our previous opinion we held that trial counsels’ evaluation for the presence or absence of schizo phrenia or o ther psychotic investigation was sufficient, principally because Thompson disorders is not co mplete without a thorough social history obtained from family members or friends who have known the patient over time. No. 00-5516 Thompson v. Bell 79 80 Thompson v. Bell No. 00-5516

establishment of a diagnosis of mental illness. See that his mother was a chronic alcoholic and that he was sent Thompson, 315 F.3d at 579. Yet, according to Dr. Blair, to various foster homes, factors which would have led any MTMHI’s records only contained sketchy information related reasonably competent attorney to pursue); Williams v. Taylor, to Thompson’s history before he committed the murder. Dr. 529 U.S. 362, 395-98 (2000) (finding ineffective assistance of Copple’s testimony indicated that he did not take a thorough counsel because counsel failed to investigate and introduce history: “I did get a little bit of general information, such as readily available evidence of the petitioner’s nightmarish his age, his education.” Dr. Copple did not appear to be childhood, including severe and repeated beatings by his aware of Thompson’s possible symptoms. When asked about father, and available evidence showing that the petitioner was Thompson’s report of mood swings, Copple indicated that he borderline mentally retarded; also finding prejudice in that the did not believe Thompson ever had mood swings or reported evidence “might well have influenced the jury’s appraisal of them to Dr. Watson. his moral culpability”); Hamblin, 354 F.3d at 489-91 (holding that defense counsel’s representation of the This readily available social and family history evidence, petitioner fell short of prevailing standards because had had trial counsel obtained it, should have been reported to counsel investigated, they would have found a large body of experts for psychiatric evaluation. After all, it was counsel mitigating evidence of an unstable and deprived childhood, who traveled to Thompson’s home town to interview family characterized by extreme poverty, neglect, and family members and friends and would have had access to the violence, as well as signs of a mental disability or disorder); information. Furthermore, the evidence was not subtle, Coleman v. Mitchell, 268 F.3d 417, 451-54 (6th Cir. 2001) counsel did not need any expertise in psychiatry, as even (finding ineffective assistance at mitigation where counsel Thompson’s family members were aware of Thompson’s failed to present evidence of the petitioner’s horrific need for a psychiatric evaluation. childhood, his mental and emotional disorders, and low IQ); Carter v. Bell, 218 F.3d 581, 600 (6th Cir. 2000) (finding Trial counsel were also ineffective for failing to obtain and ineffective assistance where counsel failed to present present a comprehensive social history. Thompson was the evidence “of a childhood in which abuse, neglect and hunger victim of verbal abuse and neglect of sufficient severity that were normal”). by first grade Thompson was exhibiting odd behaviors. He repeatedly banged his head in response to his grandmother Like trial counsel in Wiggins, trial counsel here had more yelling at him. He wailed in the classroom and received the than sufficient leads to investigate further. Cf. Wiggins, 123 nickname of “Fire Engine” due to the unusual sound of his S. Ct. at 2536-37 (holding that trial counsel’s decision not to sobs. At age three or four, he observed his father brutally expand their investigation beyond a presentence investigation beat and rape his mother. His mother died when he was five report and department of social services records which years old and he was left with his maternal grandmother who revealed facts concerning the petitioner’s alcoholic mother was continuously drunk for the first six weeks and did not and his problems in foster care, as well as his self-report of a even provide food for the children. All of this information miserable childhood was unreasonable). Thompson’s trial was powerful mitigating evidence that should have been counsel were aware that Thompson had exhibited possible presented to the trier of fact at sentencing. See Wiggins v. symptoms of a mental illness. Trial counsel filed a notice of Smith, 539 U.S. 510 (2003) (holding that the scope of trial insanity defense and requested that Thompson undergo a counsel’s investigation was unreasonable when counsel failed mental evaluation. In a letter dated March 29, 1985 to Dr. to investigate the petitioner’s social history, including the fact Taran of Multi-County Mental Health, counsel explained that No. 00-5516 Thompson v. Bell 81 82 Thompson v. Bell No. 00-5516

Thompson was experiencing “extreme mood changes.” social history and present powerful, readily available Counsel also knew of Thompson’s violent behaviors in the mitigating evidence, and by failing to pursue known leads that military, which were in stark contrast to Thompson’s previous might have helped them to prepare their case in mitigation. history. In addition, as described in the report, Thompson In light of Dr. Blair’s post-conviction testimony that a full described hearing auditory hallucinations “all of his life” history was needed to determine whether Thompson was when admitted to MTMHI. As counsel testified at the post- schizophrenic at the time of the offense, the state court conviction evidentiary hearing, “[t]he thing that struck me so postconviction courts’ denial of funds amounted to an strongly throughout this whole case was really to do with that, objectively unreasonable application of Strickland under 28 and that was the difference in the man when he lived in U.S.C. § 2254(d)(1). Georgia and grew up there and what kind of person he was as opposed to someone who committed–allegedly committed C. Misconduct of Habeas Counsel this act, this murder and that was a tip off that there may have been some kind of brain injury.” Thompson, 315 F. 3d at 577. The next issue is whether Kissinger may have intentionally, In short, trial counsel’s investigation into Thompson’s or at a minimum recklessly, failed to timely and properly background did not reflect reasonable professional judgment present critical evidence to the district court and this in light of what they knew and suspected. Cf. Wiggins, 123 Court–evidence which, in the words of the district court, S. Ct. at 2542 (holding that trial counsel’s decision to end might have entitled Thompson to relief. Simply put, the their investigation when they did was unreasonable in light of question is this: how and why did habeas counsel fail to the evidence counsel uncovered in the social service records). timely and properly present Dr. Sultan’s expert opinion testimony that “Mr. Thompson was suffering serious mental 2. Prejudice illness [Schizoaffective Disorder, Bipolar Type] at the time of the 1985 offense for which he has been convicted and The failure to present this mitigating evidence was sentenced. This mental illness would have substantially prejudicial. Cf. Wggins, 123 S. Ct. at 2542 (holding that the impaired Mr. Thompson’s ability to conform his conduct to petitioner’s evidence of severe privation and abuse in his the requirements of law.” Psychological Report prepared by early life while in the custody of his alcoholic mother and Dr. Faye Sultan, dated July 22, 1999. physical abuse in subsequent years in foster care prejudiced his defense). As the Supreme Court stated in Wiggins, This matter is somewhat reminiscent of Demjanjuk v. “Petitioner thus had the kind of troubled history we have Petrovsky, 10 F.3d 338 (6th Cir. 1993).14 There, on its own declared relevant to assessing a defendant’s moral motion, this Court vacated the judgment of the district court culpability.” Id. at 2542 (and cases cited therein). Finally, as denying the petitioner’s writ of habeas corpus upon finding was true in Wiggins, “[h]ad the jury been able to place the that the judgments in the underlying extradition proceedings petitioner’s excruciating life history on the mitigating side of were wrongly procured as a result of prosecutorial the scale, there is a reasonable probability that at least one juror would have struck a different balance.” Id. at 2543. 14 In sum, trial counsels’ conduct failed to render effective Although Demjanjuk involved misconduct by federal prosecutors, assistance of counsel guaranteed by the Sixth Amendment by I see no reason why defense attorneys should not be held to a similar failing to conduct a reasonable investigation of Thompson’s standard of integrity, especially when defense counsel are federal defenders sp ecializing in hab eas and cap ital cases. No. 00-5516 Thompson v. Bell 83 84 Thompson v. Bell No. 00-5516

misconduct that constituted fraud on the court.15 Id. at 356. his loyalty to the court, as an officer thereof, demands As in Demjanjuk, we must decide if “the conduct outlined integrity and honest dealing with the court. And when he herein constitutes fraud on the court or attorney misconduct departs from that standard in the conduct of a case he sufficiently serious to require corrective action on our part.” perpetrates fraud upon a court. Id. at 352. Id. at 352 (quoting 7 James Wm. et al., Moore’s Federal As we observed in Demjanjuk, fraud upon the court “is a Practice ¶ 60.33). Finally, we remarked that “[a]lthough somewhat nebulous concept,” defined as embracing there are cases holding that a ‘plan or scheme’ must exist in order to find fraud on the court, we agree . . . that a scheme, only that species of fraud which does or attempts to, based on a subjective intent to commit fraud, is not required subvert the integrity of the court itself, or is a fraud in a case such as this. Reckless disregard for the truth is perpetrated by officers of the court so that the judicial sufficient.” Id. at 352-53 (holding that Department of Justice machinery cannot perform in the usual manner its Attorneys committed fraud on the court by failing to disclose impartial task of adjudging cases that are presented for to the courts and to the detainee exculpatory information in adjudication, and relief should be denied in the absence their possession). of such conduct. Demjanjuk defined fraud on the court as consisting of Id. (quoting 7 Moore’s Federal Practice and Procedure, (1) conduct by an officer of the court, (2) directed towards the ¶ 60.33)). See also Hazel-Atlas Glass Co. v. Hartford judicial machinery itself, that is (3) intentionally false, Empire Co., 322 U.S. 238, 245 (1944) (holding that fraud wilfully blind to the truth or is in reckless disregard for the upon the court generally involves a deliberately planned truth, is (4) a positive averment or concealment when one is scheme to subvert the integrity of the judicial process). Cases under a duty to disclose, and that (5) deceives the court. Id. dealing with fraud on the court usually turn on whether the at 348. improper actions involved the parties alone, or whether the attorneys in the case were also involved. Demjanjuk, 10 Fd. The first and second fraud on the court factors appear to be 3d at 352. As we further observed in Demjanjuk, “[a]s an easily met. Thompson’s attorneys are clearly officers of the officer of the court, every attorney has a duty to be court, see generally Hickman v. Taylor, 329 U.S. 495, 510 completely honest in conducting litigation,” and that (1947) (noting that “[h]istorically, a lawyer is an officer of the court and is bound to work for the advancement of justice while an attorney should represent his client with while faithfully protecting the rightful interests of his singular loyalty, that loyalty obviously does not demand clients”), and their representation of Thompson in these that he act dishonestly or fraudulently; on the contrary habeas proceedings was and is clearly directed at the judicial machinery of the court. 15 Spe cifically, we found that attorneys for the Department of Justice The fourth and fifth factors also appear to be present. Attorneys “acted with reckless disregard for the truth and fo r the Habeas counsel for Thompson had an obligation, as part of government’s obliga tion to take no steps that preve nt an ad versary from their duty to represent zealously their client, to present to the presenting his case fully and fairly” when they withheld exculpatory court material, critical, available evidence, which in this case materials from the petitioner. Demjanjuk v. Petrovsky, 10 F.3d 338, 354 would virtually have ensured the relief Thompson requested (6th Cir. 1993). No. 00-5516 Thompson v. Bell 85 86 Thompson v. Bell No. 00-5516

in his federal habeas corpus petition. This meant presenting, it was not presented at the summary judgment stage, the by affidavits or otherwise, proof of Thompson’s mental district court held that illness at the time of the offense in response to Respondent’s motion for summary judgment. See Fed. R. Civ. P. 56(e) Thompson has failed to provide any significant (stating that “[w]hen a motion for summary judgment is made probative evidence which would make it necessary for and supported as provided in this rule, an adverse party may this Court to resolve a factual dispute. . . . Thompson has not rest upon the mere allegations or denials of the adverse not provided this Court with anything other than party’s pleading, but the adverse party’s response, by factually unsupported allegations that he was affidavits or as otherwise provided in this rule, must set forth incompetent at the time he committed the crime and at specific facts showing that there is a genuine issue for trial. the time of his jury trial. Nor has Thompson provided If the adverse party does not so respond, summary judgment, this Court with any significant probative evidence that if appropriate, shall be entered against the adverse party”). Thompson was suffering from a significant mental See also Fed. R. Civ. P. 56(c) (stating that “[t]he judgment disease that should have been presented to the jury sought shall be rendered forthwith if the pleadings, during the punishment phase as mitigation evidence. depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no Petitioner had two different psychological evaluations genuine issue as to any material fact and that the moving and both resulted in findings of competency at the time party is entitled to judgment as a matter of law”). If counsel of the crime and at the time of trial. knew that it had positive, mitigating proof in the form of an expert opinion that Thompson suffered from a mental illness Memorandum Opinion dated February 17, 2000, at 54-55. at the time of the offense such that it would have substantially impaired his ability to conform his conduct to the This Court labored under the same misimpression that there requirements of the law–information that the district court was no evidence to establish that Thompson suffered from a specifically indicated in its discovery order might entitle serious mental disease or defect at the time of the offense: Thompson to the relief he requested–then that information Moreover, not one of Thompson’s post-trial experts should have been presented in response to Respondent’s have opined that Thompson suffered from organicity or motion for summary judgment so as to prevent the grant of mental illness at the time of the crime or trial. Blair, summary judgment in Respondent’s favor and against Thompson’s state post-conviction expert, also a clinical Thompson. psychologist with ties to Vanderbilt, declined to give an Here, both the district court and this Court were deceived. opinion, stating simply that more information was That is, both courts assumed that probative evidence as to needed. Significantly, she did not fault the testing Thompson’s mental illness at the time of the crime did not procedures used by MTMHI or Copple, but merely stated exist because counsel failed to present it.16 Based on the that they were not extensive enough. Indeed, she natural assumption that such evidence did not exist because performed many of the same tests. Similarly, neither Crown nor Sultan ever expressed an opinion that Thompson was mentally ill at the time of the crime. In 16 fact, Crown stated that he was not asked to render such This seems to be a pretty natural assumptio n, given counsel’s an opinion. . . . On the other hand, Crown found obligation to zealously represent their client. No. 00-5516 Thompson v. Bell 87 88 Thompson v. Bell No. 00-5516

Thompson competent in June 1998, which is consistent .... with Copple’s findings and the MTMHI evaluation in 1985. Thompson has not presented any evidence of incompetence at the time of the crime or trial in either the Also, as the district court found, Thompson failed to state or federal proceedings. As previously noted, none submit any medical records or proof to any court that he of Thompson’s experts have stepped up to the plate on actually sustained the alleged head injuries or that they the key issue of Thompson’s competence at the time of resulted in any permanent damage. Further, he has trial. never submitted to any court any proof that he suffered from severe mental illness at the time of the crime. Id. at 590-92 (emphases added).

Thompson, 315 F.3d at 589-90 (emphases added). That is not In short, both the district court and this Court were mislead all we said: into believing that significant mitigating evidence of Thompson’s mental illness at the time of offense did not Counsel has now had numerous opportunities via exist. It quite clearly did exist, and that evidence was in expert testimony to establish that Thompson suffered habeas counsel’s possession, via Dr. Sultan’s July 22, 1999 from organic brain disease or mental illness at the time of report and July 22, 1999, deposition, prior to the filing of the crime. And yet, at each opportunity, counsel fails to Thompson’s response in opposition to Respondent’s motion secure an answer to the critical issue of whether for summary judgment, which Thompson filed on July 29, Thompson was mentally ill at the time of the crime. In 1999 (DCTR 86), and prior to Thompson’s filing of essence, counsel is attempting to rely on, as proof, two Supplemental Brief in Support of Response in Opposition to inferences: 1) because Thompson allegedly suffered Respondent’s Motion for Summary Judgment, on September head injuries, he must have suffered brain damage, and 14, 1999.17 (DCTR 104). 2) because he is currently suffering from schizo-affective disorder, he must have been suffering from mental illness This leaves the third factor. Here the question is whether at the time of the crime. But inferences are not proof, as habeas counsel’s conduct in failing to present available even Thompson’s experts seem to recognize, for each evidence of Thompson’s mental illness at the time of the and every one fails to automatically take the leap from crime was intentionally false, wilfully blind to truth, or in these inferences to the conclusion that he was mentally reckless disregard for the truth. In his affidavit attached to incompetent at the time of the murder. However, absent Thompson’s Rule 60(b) motion, Kissinger states that “an some evidence of organic brain damage or mental illness extremely heavy capital habeas corpus caseload, including, at the time of the crime, trial counsel cannot be deemed but not limited to, Mr. Thompson’s case” caused him to make ineffective for failing to discover something that does not appear to exist. As we held in Lorraine v. Coyle, 291 F.3d 416, 436 (6th Cir. 2002), “[i]t simply cannot be said 17 In his opposition to Respondent’s motion for sum mary judgm ent, that trial counsel’s conduct fell below an objective Thompson asked the court for an order allowin g him to file a brief in standard of reasonableness under Strickland simply regard to the issues of exhaustion of state remedies. The district court because the leads [of possible brain damage] led granted Thomp son’s request via written order on September 8, 1999, nowhere.” directing Thompson to file his brief no later that Tuesday, September 14, 199 9. No. 00-5516 Thompson v. Bell 89 90 Thompson v. Bell No. 00-5516

“errors,” thereby suggesting that his conduct in this matter In his petition for post-conviction relief in state court, was negligent and not intentional or in reckless disregard for Thompson claimed that trial counsel failed to adequately the truth. investigate his background for the existence of mitigating evidence, and sought to hire a licensed psychologist or Our incredulity over this explanation stems from a simple psychiatrist and an investigator. Attached to that request was premise: how could counsel possibly forget or overlook the the affidavit of Dr. Gillian Blair, a clinical psychologist, who critical piece of evidence–i.e., an expert opinion that specifically stated that if Thompson were suffering from a Thompson suffered from a significant mental disease or neurological or psychological impairment bipolar affective defect at the time of the offense–that both trial and habeas disorder or schizoaffective disorder, it was likely that some counsel purportedly sought for over a decade in both the state degree of that impairment would have existed at the time of and federal courts, and which habeas counsel obtained at the the offense and would have been a significant factor in very latest (but obviously much sooner) seven days prior to determining whether Thompson could have conformed his the filing of Thompson’s response to Respondent’s conduct to the requirements of law. Dr. Blair stated that dispositive motion? Thompson needed a full psychological evaluation. She testified to the same effect at the state post-conviction Virtually every pleading in both the state and federal hearing. The state post-conviction court denied Thompson proceedings is directed toward this end. Within two months funds, however. of the murder, trial counsel requested a mental evaluation of Thompson to determine his mental capacity at the time of the On appeal to this Court, habeas counsel asserted that the crime. Within three months of the murder, trial counsel filed state post-conviction courts placed Thompson in a Catch-22 a supplementary motion for a psychiatric examination and a situation by denying them the funds needed to obtain the neurological examination to determine if Thompson was requisite expert opinion and then finding no ineffective suffering from a mental illness on the date of the offense. assistance because there was no proof in the record that Less than three months after the offense, Thompson was counsel failed to present any available evidence of a mental referred to the Multi-County Mental Health Center for a disease or defect. And habeas counsel went out and hired a forensic evaluation to make that determination, and a week neuropsychologist and a clinical psychologist. Dr. Sultan later the trial court entered another order directing Thompson conducted the very examination and evaluation that Dr. Blair to undergo a forensic evaluation at MTMHI. outlined was necessary but could not provide because of lack of funds. Dr. Blair stated that “the most important thing that Trial counsel were not content with the state’s evaluation would be necessary would be a full history and full medical and requested funds to hire an independent psychiatrist. They records of Mr. Thompson prior to the commission of the ultimately hired Dr. Copple. Dr. Copple examined Thompson offense.” She further indicated that from her limited review, principally to see what he would be capable of doing in a Thompson’s social history, his childhood and upbringing prison setting and did not perform a thorough review of were “sketchy.” Thompson’ social history. Amazingly, habeas counsel faulted trial counsel’s choice of Copple because he did not Dr. Sultan found the “other facts” Dr. Blair indicated would conduct a thorough review of Thompson’s family history and be necessary to develop an opinion as to Thompson’s medical background. condition at the time of the offense. In her report, Dr. Sultan stated that she “initiated a very extensive review of legal, No. 00-5516 Thompson v. Bell 91 92 Thompson v. Bell No. 00-5516

military, medical, prison, and psychiatric/psychological Despite the representations in his initial witness list, as records.” Dr. Sultan also interviewed several individuals who Respondent discerned on July 20, 1999, Dr. Crown had no provided significant information about Thompson’s opinion as to Thompson’s mental state at the time of the childhood and family background, including Thompson’s offense. In other words, at the time of Dr. Crown’s grandmother, older sister, and a girlfriend. These witnesses deposition, eight months after the initial witness list was filed revealed an abusive, traumatic childhood and clear signs of and several days before Thompson’s response to the summary schizophrenia onset in early adulthood prior to the offense. judgment was due, Dr. Crown had not been asked to form an Based on that review, Dr. Sultan opined that Thompson opinion on the issue he was purportedly retained to evaluate displayed significant signs of mental illness from the time he and the key issue in the case. Dr. Crown’s deposition was a small child and manifested symptoms of schizo- testimony verifies that habeas counsel never asked him to affective disorder in early adulthood, prior to the 1985 render an opinion as to Thompson’s mental state at the time offense. of the murder. Furthermore, even though Dr. Crown concluded that Thompson had a schizo-affective disorder, The principal bases for Thompson’s petition and amended which he acknowledged tends to develop in late adolescence petition for writ of habeas corpus were his allegations that to early adulthood, and which he further acknowledged trial counsel were ineffective for: (1) failing to perform a appeared to have begun in the last stages of Thompson’s reasonable investigation of his background and mental health military career, Dr. Crown stated that he was not asked, and history; (2) failing to secure adequate expert assistance had not pinpointed, the onset date. regarding his mental health; and (3) failing to reasonably investigate and challenge Thompson’s competency at the time In contrast, in the initial witness list, Petitioner stated that of the offense. Thompson also claimed he was denied Dr. Crown would testify that he had “been provided with funding for mental health and investigative experts during the background information regarding Petitioner’s medical and state trial and post-conviction proceedings. social history,” and “administered a battery of indicated neuropsychological tests,” which would “indicate that Thompson’s initial witness list represented that Dr. Crown Petitioner suffers from organic brain damage.” The witness would testify that Thompson’s brain damage, as well as his list further represents that Dr. Crown would testify “that the medical and social history, are consistent with schizophrenia. brain damage observed, as well as Petitioner’s social and The initial witness list further indicated that Dr. Sultan would medical history, is consistent with schizophrenia,” and that testify that Thompson suffers from schizophrenia and did so “Petitioner’s brain damage substantially impaired the ability at the time of the offense. Moreover, from the outset habeas of the Petitioner to distinguish between right and wrong counsel represented to the district court, through the and/or to conform his conduct to the requirements of the law.” pleadings, that Thompson would establish that trial counsel The disparity between Dr. Crown’s actual deposition failed to present available mitigating evidence. Indeed, the testimony and the witness list is patent. district court’s November 1998 ruling affirming the magistrate judge’s November 2, 1998, discovery order Less clear is why habeas counsel did not ask Dr. Crown for explicitly stated that if the facts were developed to show that an opinion on Thompson’s mental status at the time of the Thompson’s mental health should have been introduced as offense. Habeas counsel’s attempt, in response to mitigating evidence, Thompson might be entitled to relief. Respondent’s motion for reimbursement of deposition costs, to shift the burden of procuring such an opinion from Dr. No. 00-5516 Thompson v. Bell 93 94 Thompson v. Bell No. 00-5516

Crown to Respondent, is absolutely audacious. Habeas Most troubling of all, of course, is the presence and counsel actually argued that Respondent had the burden of substance of Dr. Sultan’s testimony. Dr. Sultan conducted the procuring that opinion from Dr. Crown. How ironic that background investigation, interviewed Thompson’s family habeas counsel would suggest that procuring such expert members and provided the exact diagnosis that habeas opinion testimony was somehow the Warden’s burden, given counsel claims trial counsel was under a constitutional that habeas counsel equally faulted defense trial counsel for obligation to discover and present. And she provided the failing to procure and present same. We have a hard time service at Kissinger’s request. The record reflects that habeas believing that, on the brink of summary judgment, habeas counsel were in communication with Dr. Sultan as early as counsel somehow got confused over who had the burden in August 1998. In an affidavit signed on February 10, 1999, the habeas proceeding of proving ineffective assistance of attached to Thompson’s ex parte motion for a temporary trial counsel. mandatory restraining order, Dr. Sultan alleged that she had reviewed hundreds of pages of records and documents about More outrageous is Kissinger’s representation on behalf of Thompson’s psychiatric, military, and legal history, and had his client in that same response that Dr. Crown’s statement first met with Thompson on August 20, 1998. Kissinger, substantially conformed to the information contained in the through Chavis, asked Dr. Sultan for that opinion, received a initial witness list because Dr. Crown stated “in passing” in report with that exact conclusion on July 22, 1999 and heard his deposition that Thompson suffers from a bipolar disorder Dr. Sultan testify to that effect on July 22, 1999. After all, of a self-afflicted type and that the onset of this affliction was Kissinger was counsel of record for Thompson at Dr. Sultan’s prior to the alleged offense. As review of Dr. Crown’s deposition. How then could counsel fail to include any deposition testimony makes clear, Dr. Crown stated mention of Dr. Sultan’s expert opinion in Petitioner’s Thompson has a schizo-affective disorder, which typically response brief to Respondent’s motion for summary occurs in early adulthood, but Dr. Crown also made clear that judgment? It is virtually inconceivable to think that counsel he was not asked to opine whether Thompson actually could overlook this information as he was preparing the manifested symptoms prior to the offense and further stated response to the summary judgment motion. Dr. Sultan’s that he had “no real pinpoint.” deposition testimony and accompanying report were obtained a mere seven days before the brief was filed. How could Again we cannot escape the irony of Kissinger’s assertions counsel possibly forget about its best evidence, and in such a in that motion that Respondent either made “a strategic short span of time? decision” not to procure Dr. Crown’s opinion regarding Thompson’s mental health at the time of the offense, or that Habeas counsel’s conduct following the district court’s Respondent “forgot to do so.” 18 issuance of its opinion granting summary judgment to Respondent seriously undercuts the possibility that habeas counsel’s account is believable. On March 2, 2000, two 18 Also disturbing was habeas counsel’s parallel motion for weeks after the district court granted summary judgment to reimbursement costs for the deposition of Dr. Blau. Habeas counsel Respondent in an opinion which explicitly stated that scheduled that deposition prior to the depositions of D rs. Crown and Thompson had failed “to provide this Court with any Sultan, knowing full well that all the information Respondent had was significant probative evidence that Thompson was suffering what habe as counsel ha d stated in the initial witness list. Such from a significant mental disease that should have been gamesmanship, on the eve of the due date o f Thompson’s response to Resp ond ent’s mo tion for summary jud gment, is inexcusable. presented to the jury during the punishment phase as No. 00-5516 Thompson v. Bell 95 96 Thompson v. Bell No. 00-5516

mitigating evidence,” Thompson filed a motion to alter or Then, for the first time, counsel offered to supplement the amend judgment. Habeas counsel claimed that it filed that record with Dr. Sultan’s report and deposition testimony upon motion “[i]n an effort to fulfill his duty to both his client and its enlightened view that “Dr. Sultan’s opinions certainly are the Court.” Yet the motion does not attempt to present the directly relevant to the mental health related claims,” and “forgotten” evidence, Dr. Sultan’s opinion. Instead, it merely further acknowledgment that “[c]ounsel for Mr. Thompson presented two clarifying arguments. Ironically, habeas engaged in Dr. Sultan’s services for the sole purpose of counsel stated that while not waiving or conceding any of the offering her opinion to support his constitutional claims.” other arguments previously raised, the motion centered on Habeas counsel argued excusable neglect based on a heavy these two issues because they went “to the very integrity of caseload and a disorderly office, and further stated that the judicial process.” If counsel’s “failure to remember” Dr. Kissinger “was under the mistaken belief” that the evidence Sultan’s testimony, after a pointed reminder by the district was in the record. In a footnote, Kissinger further explained court that “Petitioner had two different psychological his “mistaken belief” as follows: Because Respondent had evaluations and both resulted in findings of competency at placed Dr. Crown’s deposition testimony and accompanying the time of the crime and at the time of trial,” is not reckless report in the record, as part of its motion for reimbursement disregard for the truth, what is? costs, and because Respondent had moved for costs in hiring its own mental health expert, Dr. Blau, on the grounds that And habeas counsel apparently continued to forget about Blau’s services were unnecessary as Petitioner had no experts Dr. Sultan’s opinion. Habeas counsel waited still another to support the mental health related issues, Kissinger year to bring this information forward. And it waited for a apparently assumed that Respondent would also have year from the district court’s denial of Thompson’s motion to included the deposition testimony and report of Thompson’s alter or amend judgment, not one year from the date of the only other mental health expert to bolster its request for underlying judgment. As the district court pointed out, this deposition costs. motion was untimely, because the plain language of Rule 60(b) sets an absolute time limit on the motion of one year in This explanation makes little sense. In the first place, Dr. addition to the requirement that the motion be filed within a Sultan’s deposition testimony and accompanying report, reasonable time. Fed. R. Civ. P. 60(b). The district court unlike Dr. Crown’s, do support the mental health related therefore lacked the authority to grant relief. See Ackerman allegations and is consistent with the witness list statement. v. United States, 340 U.S. 193, 197 (1950) (“A motion for More importantly, Kissinger’s explanation seeks to obscure excusable neglect as provided in Rule 60(b)(1) must, by the the fundamental fact that Thompson’s habeas counsel had an rule’s terms, be made not more than one year after the independent responsibility to both Thompson and the court to judgment was entered.”). Again, we find it curious that present Dr. Sultan’s opinion in Thompson’s opposition to habeas counsel’s remembrance of depositions past came just Respondent’s motion for summary judgment, and ultimately, a hair too late to fit within the parameters of Rule 60(b).19 to meet Thompson’s burden of establishing that he was entitled to the requested relief, a grant of the writ of habeas corpus based on constitutional error. Kissinger’s attempt to 19 shift the “blame” to Respondent is inexcusable. As reflected in its order denying Petitioner’s motion to alter or amend judgment, the district court obviously sensed that something was Furthermore, habeas counsel’s filing of an obviously amiss, but its hands were tied by counsel’s strategic choice to file an untimely Rule 6 0(b)(1) m otion. untimely Rule 60(b) motion can be conceived of as “a fraud No. 00-5516 Thompson v. Bell 97 98 Thompson v. Bell No. 00-5516

perpetrated . . . so that judicial machinery cannot perform in IV. Response to Majority Opinion the usual manner.” That is precisely what happened in this case. The district court was prevented from administering full The majority opinion agrees that Dr. Sultan’s opinion justice because it lacked all of the vital information necessary requires us to vacate the district court’s grant of summary to afford the proper relief. judgment in favor of respondent. However, it posits that my opinion “goes too far in its accusations of fraud on the court;” As exhaustively detailed above, the essence of Thompson’s on the grounds that “while his [my] explanation for the claim throughout the entire course of the state and federal omission of the Sultan deposition from the official record proceedings was that he was suffering from a mental disease before the court is possible in the narrowest sense, the power or defect at the time of the offense. Habeas counsel criticized of this court should not be used to make such accusations trial counsel for failing to procure this evidence, and was without more definite proof than the factual record of this aware from the outset how it needed to establish ineffective case reveals.” Rather, the majority would find that the more assistance of trial counsel at mitigation, as reflected by its plausible explanation is that “a genuine mistake was made, early decision to retain Drs. Crown and Sultan. Habeas one which was not realized until a different attorney looked counsel then did exactly what it faulted trial counsel for at the case,” and that “[t]o conclude otherwise is to disbelieve failing to do.20 That is, habeas counsel conducted the sworn testimony by an officer of the court.” investigation that it alleged trial counsel were constitutionally ineffective for failing to perform. That investigation revealed The majority opinion correctly recognizes that, at this that Thompson was suffering from a serious mental illness at juncture, I am inclined to disbelieve Kissinger’s the time of Brenda Lane’s murder. It also revealed significant representations of excusable neglect because I find it utterly aspects of Thompson’s social history long recognized as implausible that counsel could forget about his most mitigating in other capital cases. This Court simply cannot, at important piece of evidence, expert testimony assessing this juncture, accept counsel’s explanation that it forgot to Thompson’s mental state at the time of the crime, given that remember that critical evidence until slightly one year after judgment. There appears to be no acceptable excuse for habeas counsel’s behavior.21 To conclude otherwise is to disbelieve sworn testimony by an officer of the court, and to assume that habeas counsel conspired to conceal evidence beneficial to their client, for no discernible reason.” 20 Once again, if one reminisce s, the cap ital case o f Byrd v. Collins, 209 Trial counsel cannot be faulted for relying on the evaluation of a F.3d 486 (6th Cir. 2000), cert. denied, 531 U.S. 1082 (2001) (first habeas credentialed expert which was entirely consistent with the evaluation of petition), and In re Byrd, 269 F.3d 54 4 (6th Cir. 2001) (successive an inpatient psychiatric team specializing in forensics that also concluded petition) comes quickly to mind. There, habeas counsel sat for twelve Thompson was not mentally ill. Nonetheless, as previously discussed, years on an affidavit by a codefendant that allegedly would have trial counsel’s failure to investigate and present Thomp son’s social history established petitioner Byrd ’s actual innocence, an d did not file their provides an independent basis for finding ineffective assistance of counsel second habeas petition introducing the evidence and “actual innocence” at mitigation under Wiggins. argument until one w eek b efore the petitioner’s scheduled execution date. 21 On this basis, a majority of the judges in regular active service invoked W e can only assume that habeas counsel planned to unve il Dr. the inherent equitable powers of the court to stay the p etitioner’s Sultan’s opinion on the eve of Thompson’s execution. Judge Moore execution and remand the matter for the development of a factual record. differs, conc luding that “more than likely, a genuine mistake was made, See In re Byrd, 269 F.3d 585 (6th Cir. 2001). So there may be a rational, one which was not realized until a different attorne y looked at the case. strategic, calculated reason for hab eas co unsel’s purpo rted ne gligence. No. 00-5516 Thompson v. Bell 99 100 Thompson v. Bell No. 00-5516

his principal strategy throughout the habeas proceedings was to claim Sixth Amendment ineffective assistance of counsel based on trial counsel’s failure to obtain that very evidence. psychiatrist. Respondent moved for summ ary jud gment, From day one, habeas counsel knew that in order to make a asserting only that the claims were either procedurally barred or successful constitutional challenge, he had to acquire an the state court decision was no t contrary to or an unreasonable expert opinion to the effect that Thompson was suffering from application of federal law (A px. 442) beca use D r. Blair had not offered a final opinion on Thompson’s mental health at the time schizophrenia at the time of the offense, as reflected by the of the offense (which, of course, she was prevented from doing fact that counsel hired two experts who would purportedly say by the post-conviction court’s denial of funding). Respondent that. Furthermore, even assuming short-term memory loss further asserted Thompson was not entitled to present further due to a crushing workload, Kissinger sat through Dr. evidence in support of his claims in a federal court evidentiary Sultan’s deposition a mere seven days before he signed and hearing. Thomp son responded to the summary judgment motion filed the response to the summary judgment motion. On the by asserting that he had not failed to develop the factual basis of his claim; instead, the state court had, through the after-the fact eve of its filing, how could he, how did he, forget what Dr. application of procedural rules governing the appointment of Sultan said, and utterly fail to make the slightest allusion to experts in state post-conviction cases, p revented him from fully her expert opinion–especially since she provided precisely developing his claim in state court and that he was therefore what he needed to support his ineffective assistance claim? entitled to an evidentiary hearing to present further evidence in suppo rt of his claims. W hen the district court issued its decision granting Even assuming that Kissinger innocently suffered from Resp ondent’s motio n for sum mary judgment, however, it by- virtual amnesia during this critical phase of the federal district passed Resp ond ent’s argument as well as Thomp son’s response court proceedings, and appellate habeas counsel Dana Hansen and instead held that the claim would be denied be cause caught the error when she took over the appeal and tried to Thompson had failed to present affidavits or other evidence correct it, why then did she fail to appeal the district court’s (Apx. 711). The district court never provided T hom pson with notice of its intentio n to rely on this ground nor did it provide denial of the Rule 60(b) motion or otherwise seek to him with an opportunity to present such evidenc e prio r to supplement the record on appeal under Fed. R. App. 10(e) entering judgment against him. Thompson had such evidence in given the obvious importance of that testimony and the his possession and, contrary to the findings of the district co urt, gravity of the situation before us?22 most of it was in the record. Habeas counsel had a neuropsychologist, Dr. Barry Crown, examine Thomp son. T he result was a finding of organic brain 22 damage, secondary to schizo-affective disorder, bipolar subtype. I am also troubled by the fact that in Thomp son’s petition for writ (Apx. 711). of certiorari, signed by Dana C. Hansen Chavis, as counsel of record for .... Petitioner, Hansen refers to Dr. Sultan’s opinion reg arding Thom pson’s Additiona lly, forensic psychologist Dr. Faye Sultan as if it were properly presented to the district court and made part of the repo rted: record. In that brief, Hansen Chavis represents as follows: It is my opinion that Mr. G regory T homp son is most Thomp son’s habeas corpus alleged ineffective assistance of app ropriately diagnosed , acco rding to the D iagnostic trial counsel via the failure to adeq uately inve stigate and o btain and Statistical M anual of Mental D isorders, Fo urth adequate expert assistance regarding T hom pson’s mental health Edition, as having Schizoaffective Disorder, Bipolar at the time of the offense and failure to direct an expert inquiry Type. As is typica l of this illness, symptoms became into mental health mitigation and to obtain adequate expert apparent in early adulthood. Thompson was suffering assistance regarding Thompson’s mental health at the time of the serious mental illness at the time of the 1985 offense offense and failure to direct an expe rt inquiry into mental health for which he has been convicted and sentenced. This mitigation and to obtain rebuttal evidence against the State’s mental illness would have sub stantially impaired No. 00-5516 Thompson v. Bell 101 102 Thompson v. Bell No. 00-5516

Kissinger’s and Hansen’s unusual performance is, and should be criticized as, inadequate, and should not escape Thomp son’s ability to conform his conduct to the close judicial scrutiny. Both of these attorneys are federal requirements of the law. defenders, specializing in death penalty cases. If their Further, Thom pson was the victim of severe conduct was negligent, then perhaps they should not perform childhood emotional abuse and physica l neglect. His this kind of work in the future. If their conduct was family back ground is best described as highly neglectful and economically deprived. Thompson something more than that, then appropriate disciplinary action repeatedly witnessed episode s of violence d uring his should be taken. Furthermore, my and the majority opinion’s childhood in which one family member assaulted or disagreement over the proper characterization of this conduct brutalized another. There are significant aspects of is precisely why there is a need for the district court or a duly- Thomp son’s social history that have been recognized as appointed Special Master to conduct a full evidentiary hearing mitigating in other capital cases (R. 133, Attachment A, on this issue to ascertain the truth. Sultan report, p. 6). Despite this unrebutted expert testimony the district court noted from the trial court record tha t “[t] he tea m a t Cen tral Sta te The majority opinion correctly states that we could not concluded there was no organicity (brain da mage) and Dr. consider Dr. Sultan’s deposition testimony because it was not Copple [the industrial p sycholog ist] fo und no in dication o f brain made a part of the record before the district court, and beyond damage” (Apx . 701 ) and ruled, due to a lack of affidavits the scope of our appellate review. See Lippi v. City Bank, 955 “Thompson has failed to provide any significant probative evidence which w ould ma ke it necessa ry for this Cou rt to resolve F.2d 599, 604 (9th Cir. 1992). See also United States v. a factual dispute” (Apx. 711). The petition was dismissed. Barrow, 118 F.3d 482, 487 (6th Cir. 1997) (stating that, “[i]n Thomp son’s P etition for Certio rari, p.1 4-16 (emp hasis ad ded ). general, the appellate court should have before it the record Hansen also rep resented that: and facts considered by the District Court”); cf. Sovereign The district co urt enga ged in fact finding to grant News Co. v. United States, 690 F.2d 569, 571 (6th Cir. 1982) Resp ond ent’s motion by crediting the opinions of Respondent’s experts over Thompson’s experts and by disregarding the (stating that “[a] party may not by-pass the fact-finding findings of Thomp son’s experts that he was psychotic when he process of the lower court and introduce new facts in brief on committed the offense (A px. 657). The district co urt also d id appeal”). Furthermore, appellate habeas counsel did not file not give Thom pson an oppo rtunity to co rrect ce rtain a Fed. R. App. P. 10(e) motion to supplement the record 23 fundamental misconcep tions up on wh ich the d istrict court’s decision was bas ed . T he district court erred further by making findings that were unsupported or contradicted by other evidence, and drawing inferences adverse to Tho mpson, contrary to well-settled summary jud gment standa rds. jury during the punishment phase as mitigation evidence.” Id. Id. at 24. Id. at 28. Furthe r, Hansen asserted that: In short, the brief before the United States Supreme Court accuses the The district court disregarded the rulings of Thom pson’s district court of ignoring probative evidence that it did not even have experts–in particular Dr. Blair’s opinion that Thompson likely before it in any form when it granted summ ary jud gment to Respo ndent. was schizo phrenic whe n he co mmitted the o ffense, D r. Sultan’s 23 opinion that Thompson suffers from schizo-affective disorder Federal Rule of Appellate Procedure 10(e) allow s the appellate and that his mental problems began wh ile he was in the record to be sup plemented “if anything material to either party is omitted military–i.e. long b efore the offense. Instead the court cursorily from or misstated in the record by error or accident.” Fed. R. App. P. concluded Thom pson had not provided “any significant 10(e). It “ is clear from the ru le’s wording [that] ‘[t]he purpose of the probative evidence that Thompson was suffering from a rule is to allow the [ ] court to correct omission s from or misstateme nts in significant mental disease that should have been presented to the the record for appe al, not to introduce new evidence in the court of No. 00-5516 Thompson v. Bell 103 104 Thompson v. Bell No. 00-5516

nor make any reference to Dr. Sultan’s July 1999 testimony appeal the district court’s 60(b) ruling. It is disingenuous for in the appellate brief.24 Nor did appellate habeas counsel the majority opinion to suggest that we “had” the deposition before us at the time of the initial review and therefore had not just recently “unearthed” it. Indeed, had the deposition app eals.’” Inland Bulk Transfer Co. v. Cummins Engine Co., 332 F.3d had been properly placed before this Court, we could have 1007, 1012 (6th Cir. 2003 ) (quoting S&E Shipping Corp. v. Chesapeake exercised our equitable powers at that time. Our previous & O. Ry. Co., 678 F.2d 636, 64 1 (6th Cir. 1982) (alteration in original). decision was based on the absence of the evidence. The only Dr. Sultan’s July 29, 1999 testimony and accompan ying report do not reason we have it now was because I conducted an qualify as omissions from the record because Kissinger never referenced independent review of the record. her expert opinion on the issue o f T hompson’s mental status at the time of the offense; i.e., he did not rely on that evidence as part of meeting Thomp son’s burden under Fed. R. C iv. P. 56. The majority opinion holds that we can exercise our inherent equitable power to supplement the record on appeal. 24 Tho mpson’s appellate brief, prepared by Dana C . Hansen, Here I agree, because I feel that the “special circumstances” provides merely that: of this case–a fortuitous discovery that, if left unaddressed, Mr. Thompson then filed a petition for writ of habeas corpus will result in a grave miscarriage of justice–justifies our under 28 U .S.C.A. § 2254 (W est 2000), claiming inter alia invocation of this authority. Indeed, by reviewing Dr. ineffective assistance of trial counsel via the failure to o btain Sultan’s opinions on the merits and altering the opinion, that adequate expert assistance regarding Mr. Thompson’s mental health at the time of the offense. Respondent moved for is what I did in my capacity as a judicial officer. However, summary judgment while conc eding that this po int was properly our inherent equitable authority to review material that was cognizab le on its merits (R. 82: M otion for Summary Jud gment, never reviewed by the district court to right a very grave p. 18-19; Apx. 442 ). wrong in this case should not immunize Kissinger’s and The defense then had an other specialist, Dr. Crown, Hansen’s professional performance from further examination. examine M r. Thomp son. T he resu lt was a finding of organic brain dam age, secondary to schizo-affective disorder, bipolar Thus, although it provides a separate basis for jurisdiction, subtype. (R.1 24: M emo randum, p. 54; A px. 711). those inherent equitable powers should not be used to cover Final B rief of Appe llant, Gregory Thomp son, p. 14. up potentially fraudulent conduct by counsel on the court by Later, Han sen asse rted o n behalf of T hom pson that federal habeas counsel. Again, though, this matter needs a [t]he district court clearly weighed the partial testimony of thorough examination in the district court. Drs. Crown and Blair versus that of the state experts and made findings of fact in favor of Resp ondent. (Id. at 53-54; Apx. 710). This is improper at the summary judgment stage. Finally, if further investigation into the attorneys’ conduct Anderson, supra. The district court did no t view the facts in the here is not pursued, this could create dangerous precedent. light most favorable to Mr. Thom pson to determine whether any That is, it virtually invites habeas counsel to save their best “genuine issue of material fact” appeared on which a reasonable fact-finder could return a verdict for Mr. Thomp son. Id. at 42. Hansen never men tions Dr. Sultan’s name or refers to her opinion crime and trial, Hansen, presented, inter alia, ample quotations from and in the brief. references to Dr. Sultan’s testimony and rep ort, attached to T hom pson’s However, Hansen makes ample reference to Dr. Sultan’s testimony Rule 60(b) motion. She failed to indicate, however, that said evidence and report in Thomp son’s petition for rehearing. See Gregory was not properly presented to the district court, and therefore never part Thomp son’s Petition for Rehearing and Suggestion for Rehearing En of the record for review to this Court. She did not indicate that she failed banc In a Capital Case, pp. 12-22. In fact, in support of the assertion that to appeal the d istrict court’s Rule 6 0(b) ruling. She did not invoke the Thompson presented evidence that he was mentally ill at the time of the inherent equitable p owers of the C ourt. No. 00-5516 Thompson v. Bell 105

evidence for last, thereby undermining principles of finality and the AEDPA. And, at the same time, it potentially encourages counsel to engage in risky strategy, because there is no guarantee that any given panel of the Sixth Circuit will bypass the strict procedural and substantive requirements of the AEDPA simply because the matter happens to involve the death penalty. Here, but for the chance discovery of the Sultan affidavit, this matter could have gone in a different direction, and Thompson might well have been executed as scheduled on August 19, 2004.25 V. Conclusion In the face of this record, Kissinger’s explanation is implausible, and if not intentionally false, most certainly appears to be in reckless disregard for the truth. Meanwhile, a man’s life hangs in the balance. As in Demjanjuk, we have “acted pursuant to our inherent power to protect the integrity of the judicial process within this Circuit.” Demjanjuk, 10 F.3d at 356. Cf. Hazel-Atlas Glass Co., 322 U.S. at 244 (recognizing a court’s inherent power to grant relief, for “after-discovered fraud,” from an earlier judgment, “regardless of the term of [its] entry”). As part of the order of remand, I would instruct the district court to conduct full evidentiary hearings on both the issue of ineffective assistance of counsel at mitigation and fraud upon the court.

25 Meanwhile, Gregory Thompson has been facing the true specter of the death penalty since at least January 9, 2003. For this fundamental reason, I feel that habeas counsel’s performance was truly, ho rribly, ineffective.