# Demosthenes v. Baal/Dissent Brennan

* Court Documents
* Case Syllabus
* Per Curiam Opinion of the Court
* Dissenting Opinion Brennan
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
The Court today vacates a stay of execution that the United States Court of Appeals for the Ninth Circuit had entered so that it might consider the case in an orderly fashion. For the second time within the span of only a few weeks, this Court has seen fit to interfere with the administration of justice by the lower federal courts by vacating a stay issued in the sound discretion of judges who are much more familiar with the cases than we are. See Delo v. Stokes, 495 U.S. 320, 110 S.Ct. 1880, 109 L.Ed.2d 325 (1990). I find this development unfortunate and distressing.
* The Court's action in the instant case is particularly unwise. The Court of Appeals issued the stay so that it could consider Mr. Baal's first federal habeas petition, filed on his behalf by his parents in their capacity as next friends. It is wholly inappropriate to deny the court an opportunity to consider the case at such an early stage of the collateral review process. As even the Judicial Conference's recent proposal for streamlined review in capital cases acknowledges, a prisoner is entitled at a minimum to "one complete and fair course of collateral review in the state and federal system, free from the time pressure of impending execution." Judicial Conference of the United States, Ad Hoc Committee on Federal Habeas Corpus in Capital Cases, Committee Report and Proposal 6 (Aug. 1989) (emphasis added).
The Court recognizes that this case requires application of our recent decision in Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990), which held that "a 'next friend' must provide an adequate explanation-such as . . . mental incompetence, or other disability-why the real party in interest cannot appear on his own behalf to prosecute the action." Id., at 163, 110 S.Ct., at 1727. In the instant case, the members of Mr. Baal's family allege that he is not competent to waive federal review of his claims, and they seek a hearing to resolve that question. The Ninth Circuit granted a stay to examine their claim. Whether their arguments are persuasive to us is not the issue; the question is whether the Ninth Circuit abused its discretion in granting a stay to enable it to reflect on the family's contentions and digest the record in a methodical and unhurried manner.
I do not believe that this decision can be characterized as an abuse of discretion, especially since the Ninth Circuit has set an expedited briefing and hearing schedule. The Court of Appeals has merely issued a certificate of probable cause to appeal; it has not ruled on the merits of Baal's competency or even on the question of whether an evidentiary hearing is required to determine whether Baal is competent. Rather, it has held merely that Mr. Baal's family has made a " 'substantial showing of the denial of [a] federal right.' " Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983) (citation omitted). The Court of Appeals may yet rule that Mr. Baal's family has not pleaded facts sufficient to warrant an evidentiary hearing. The Court of Appeals has found only that "the issu[e] [is] debatable among jurists of reason; that a court could resolve the issu[e] [in a different manner]; or that the questions are 'adequate to deserve encouragement to proceed further.' " Id., at 893, n. 4, 103 S.Ct., at 3394, n. 4 (citation omitted).
In vacating the stay, this Court has decided quite precipitately that Mr. Baal's family has failed even to allege sufficient facts to require an evidentiary hearing regarding his competence. A federal court has the power to conduct an evidentiary hearing to resolve disputed facts if it determines that a petitioner's allegations, if proved true, would entitle him to relief under the appropriate legal standard. See Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963). Assuming that the standard for competence to waive federal habeas corpus review of a death sentence is the same as that announced in Rees v. Peyton, 384 U.S. 312, 314, 86 S.Ct. 1505, 1506, 16 L.Ed.2d 583 (1966), the question is whether Mr. Baal's family alleged sufficient facts to show that Mr. Baal
"has [the] capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further ligitation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises."
In an order released only a few hours ago, the Ninth Circuit summarized the evidence warranting further inquiry into the question of Mr. Baal's competence: "Although the record contains three opinions by psychiatrists who found Baal competent in 1988 to stand trial, assist his attorneys, and understand the charges against him, the record also reveals that Baal has been hospitalized for behavioral and mental problems on numerous occasions since he was fourteen years old, has attempted suicide on at least four occasions since 1987, and has been diagnosed in the past as a latent schizophrenic, a borderline personality, depressed, and as suffering from organic brain syndrome. And although Dr. Jurasky declared him competent in March, 1988 to understand the charges against him, Dr. Jurasky described him as a 'seriously and dangerously disturbed person' whose judgment 'is considered impulsive with strong antisocial tendencies.'
In addition, petitioners presented to the district court an affidavit by board-certified psychiatrist Jerry Howle stating that, based on the reports that he reviewed, 'there is reason to believe [Baal] may not be competent to waive his legal remedies.' . . . This evidence, combined with the fact that Baal has changed his mind in the past after having decided to waive his legal remedies, and has attempted suicide twice in April of this year, provides at least an arguable basis for finding that a full evidentiary hearing on competence should have been held by the district court." Order in Baal v. Godinez, No. 90-15716 (June 2, 1990), pp. 4-5 (footnote omitted).
The Court can reach the conclusion it does today only by, in effect, holding an evidentiary hearing in advance and resolving these complex factual issues on its own.
The fact that a state court held an evidentiary hearing one week ago and determined that Mr. Baal was competent offers no support for the Court's action today. Maggio v. Fulford, 462 U.S. 111, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983), on which the Court relies, is consistent with the view that the question of competence is ultimately a legal issue. See id., at 117, 103 S.Ct., at 2264; id., at 119, 103 S.Ct., at 2265 (WHITE, J., concur ring in judgment). A state court's determination of subsidiary facts may enjoy a presumption of correctness in whatever federal hearing is held. This does not answer the antecedent question, however, whether an evidentiary hearing in federal court is warranted on the basis of the factual allegations made in the federal habeas petition. In addition, of course, the state court's findings would receive deference only if the state hearing provided a full and fair opportunity for resolution of the issue. See 28 U.S.C. § 2254(d). Because the proceedings in this case have been so hurried, it is not at all clear that the state hearing was "full and fair" and that the findings are supported by the record.
Even apart from the posture of the instant case, I would deny the application to vacate the stay entered by the Court of Appeals. I adhere to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. See Gregg v. Georgia, 428 U.S. 153, 227, 96 S.Ct. 2909, 2950, 49 L.Ed.2d 859 (1976) (BRENNAN, J., dissenting).

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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