A mother's application for stay of her condemned murderer son's
execution scheduled by the Alabama Supreme Court for April , 1979,
based on the son's alleged incompetency, is granted, pending
further consideration by the Circuit Justice, or by the full Court
if the application is referred thereto by the Circuit Justice, of
submissions of a response to the application by respondent
Commissioner of the Alabama Correctional System and an explanation
by applicant's counsel as to why applicant had waited until April 2
to seek habeas corpus relief in Federal District Court.
MR. JUSTICE REHNQUIST, Circuit Justice.
This application for stay has come to me by reason of the
unavailability of MR. JUSTICE POWELL. Applicant is the mother of
John Louis Evans; her son was tried and convicted of robbery-murder
and was sentenced to death pursuant to Alabama law by an Alabama
trial court in April, 1977. Evans did not contest his guilt at
trial. Instead, he took the stand, confessed to the crime, and
requested the jury to find him guilty so that he could receive the
death penalty. His conviction and sentence were appealed (according
to the application, against his will) under the Alabama automatic
appeal statute, and the judgment and sentence were affirmed by the
Alabama Court of Criminal Appeals and the Supreme Court of Alabama.
Evans v. State, 361
So. 2d 654 (Ala.Crim.App. 1977);
Evans v.
State, 361 So. 2d
666 (Ala.1978). With his
Page 440 U. S. 1302
approval, a petition for writ of certiorari seeking review of
the sentence imposed upon him was filed in this Court in November,
1978. On February 3, 1979, Evans counsel, at Evans' insistence,
filed a formal request for withdrawal of his petition for writ of
certiorari, but both the petition for withdrawal and the petition
for writ of certiorari were denied by this Court on February 21,
1979.
Evans v. Alabama, ante p. 930. Following that action
by this Court, the Supreme Court of Alabama set an execution date
of April 6, 1979.
According to the application for stay, John Louis Evans has
refused to undertake any further appeals on his behalf and has
repeatedly expressed his desire to die. On April 2, 1979 -- nearly
six weeks after this Court had denied the petition for certiorari,
and only four days before the execution date set by the Supreme
Court of Alabama -- applicant, the mother of the condemned killer,
filed a petition for a writ of habeas corpus in the United States
District Court in the Southern District of Alabama. That court
heard oral argument on April 3, and following that argument
dismissed the petition on the grounds that
"the reason forwarded by petitioner for the inmate's failure to
verify the petition,
i.e., incompetency is not supported
by credible evidence, that Betty Evans is not entitled to next
friend status by reason thereof, that accordingly, this Court has
no jurisdiction over the action and the action must therefore be
DISMISSED and the stay DENIED."
A timely notice of appeal was filed and the District Court
issued a certificate of probable cause. On April 4, the applicant
moved for a stay of execution in the Court of Appeals for the Fifth
Circuit. That court likewise denied the application for a stay,
reciting in its order:
"A majority of the Court concludes that a factual issue
justifying standing in a next friend has not been made."
"Judge Hill would grant the stay in order to ascertain whether
or not a mental deficiency short of incompetency would authorize
proceedings by a next friend. "
Page 440 U. S. 1303
If I were casting my vote on this application for a stay as a
Member of the full Court, I would vote to deny the stay. Evans has
been found guilty of an atrocious crime, sentenced to be put to
death in accordance with Alabama law, and has had his conviction
and sentence reviewed both by the Alabama Court of Criminal Appeals
and by the Supreme Court of Alabama. His petition for certiorari to
review the judgments of those courts affirming his conviction and
sentence was denied by this Court. A Federal District Court has
denied a stay and dismissed the petition for habeas corpus filed by
Evans' mother on his behalf, and a panel of the Court of Appeals
for the Fifth Circuit also has denied a stay. There must come a
time, even when so irreversible a penalty as that of death has been
imposed upon a particular defendant, when the legal issues in the
case have been sufficiently litigated and relitigated that the law
must be allowed to run its course. If the holdings of our Court in
Proffitt v. Florida, 428 U. S. 242
(1976),
Jurek v. Texas, 428 U. S. 262
(1976), and
Woodson v. North Carolina, 428 U.
S. 280 (1976), are to be anything but dead letters,
capital punishment when imposed pursuant to the standards laid down
in those cases is constitutional; and when the standards expounded
in those cases and in subsequent decisions of this Court bearing on
those procedures have been complied with, the State is entitled to
carry out the death sentence. Indeed, just as the rule of law
entitles a criminal defendant to be surrounded with all the
protections which do surround him under our system prior to
conviction and during trial and appellate review, the other side of
that coin is that, when the State has taken all the steps required
by that rule of law, its will, as represented by the legislature
which authorized the imposition of the death sentence, and the
state courts which imposed it and upheld it, should be carried
out.
There is not the slightest doubt in my mind that the United
States District Court made every effort to resolve doubts as to
legal issues in favor of granting a stay, but was nonetheless
Page 440 U. S. 1304
unable to find legal authority for granting the stay. My
conclusion in this regard is supported by the following language
from the opinion of that court: '
"Having concluded that next friend applications are permissible
in habeas corpus cases, it remains for the Court to determine
whether this is such a case that a next friend petition ought to be
allowed. Both
Funaro [
United States ex rel. Funaro v.
Watchorn, 164 F. 152 (CA2 1908)] and
Preiser
[
United States ex rel. Sero v. Preiser, 506 F.2d 1115 (CA2
1974)] limited the use of such applications to incidents of
infancy, incompetency, or lack of time, and the Court is
unpersuaded that any other grounds are permissible. In the instant
case, the inmate is over the age of majority and adequate time
exists for him to verify his own petition, so the petitioner must
fail unless the inmate is incompetent."
"The only evidence presented to the Court in support of John
Evans' incompetency is a sworn affidavit of a staff psychiatrist at
the Mobile Mental Health Center. The psychiatrist, who has not
personally interviewed or otherwise examined John Evans, concludes
from conversations with other individuals that John Evans is 'not
able to deal rationally with his situation, and . . . probably
need[s] someone else to make legal decisions affecting his life for
him.' The affidavit further reveals that the doctor tried to
arrange an interview between John Evans, himself, and a
psychologist, but Evans refused to be evaluated. The evidence in
rebuttal to the allegation of incompetency is quite strong. John
Evans was evaluated prior to his murder trial, and was determined
fit to stand trial, and there is no indication of any intervening
physical or mental disability arising between the time of trial and
the filing of the petition in the instant case. Clearly one who is
competent to stand trial is competent to make decisions as to the
course of his future. At no time prior
Page 440 U. S. 1305
to the filing of this petition, as far as the Court can
ascertain, has John Evans' competency been questioned. The fact
that Evans has elected not to pursue postconviction remedies that
would serve to forestall the impending execution is not
controlling, since it may well be, as the media has advertised,
that John Evans has confronted his option of life imprisonment or
death by execution and has elected to place his debts on a new
existence in some world beyond this. The Court finds no evidence of
irrationality in this; indeed, in view of the allegations in the
case of
Jacobs v. Locke, the death row conditions of
confinement case presently pending in this Court, it may well be
that John Evans has made the more rational choice. In any event,
this Court is not persuaded that John Evans is incompetent merely
from a professional opinion rendered on hearsay
information.[1]"
"[1] Evans' attorney stated during the hearing that he had
observed no change in Evans' mental condition in the past two
years, but, of course, this counsel is without any training in
psychiatry."
The application for stay cites a number of decisions relating to
mental competency, none of which seem to me to bear directly on the
issue in this case. The application states (p. 7):
"The criticism of the trial judge that the affidavit is based on
hearsay is due solely to the fact that John Louis Evans refused to
see the psychiatrist. Clearly Evans should not be allowed to
control his mother's standing to raise issues on his behalf."
To my mind, this argument stands the question on its head: It is
not Betty Evans, the applicant, who has been sentenced to death,
but her son, and the fact that her son refuses to see a
psychiatrist and has expressed a preference for electrocution,
rather than serving the remainder of his life in a penitentiary,
cannot confer standing upon her as "next friend" which she would
not have under recognized legal principles.
Page 440 U. S. 1306
Nonetheless, since this matter is not before the full Court, but
simply before me as a Circuit Justice, I must act as surrogate for
the full Court. The most closely analogous case to come before us
in this posture is that of
Gilmore v. Utah, 429 U.S. 1012
(1976). There, a majority of the Court denied an application for a
stay of execution over the dissents of MR. JUSTICE WHITE, joined by
MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL,
id. at 1017,
and of MR. JUSTICE MARSHALL,
id. at 1019, and MR. JUSTICE
BLACKMUN,
id. at 1020. As I understand the dissent of MR.
JUSTICE WHITE, its linchpin was the absence of any consideration or
decision as to the constitutionality of the Utah statute providing
for the imposition of the death penalty by the Utah courts. MR.
JUSTICE MARSHALL's dissent, as I read it, was based upon what he
regarded as the inadequacy of the procedures provided by the State
to determine the competency of the waiver by Gilmore of his right
to appeal from the sentence imposed by the Utah trial court. MR.
JUSTICE BLACKMUN's dissent expressed the view that the question of
the standing of Gilmore's mother to raise constitutional claims on
behalf of her son was not insubstantial, and should receive a
plenary hearing from this Court.
Were this a case involving an issue other than the death
penalty, I think I would be justified in concluding that, because
the Alabama Court of Criminal Appeals and the Alabama Supreme Court
have fully reviewed Evans' conviction and sentence, the same
considerations which led four Members of this Court to disagree
with our denial of a stay of execution in Gilmore's case would not
necessarily lead all of them to do so here. But because of the
obviously irreversible nature of the death penalty, and because of
my obligation as Circuit Justice to act as surrogate for the Court,
I do not feel justified in denying the stay on that assumption.
I have therefore decided to grant a stay of the execution
ordered by the Supreme Court of Alabama to be carried out at 12:01
a.m. on April 6, 1979, pending further consideration
Page 440 U. S. 1307
by me, or by the full Court at its Conference scheduled for
Friday, April 13, in the event that I should refer the application
to that Conference, of the following submissions:
(a) a response by respondent Larry Bennett, Commissioner of the
Alabama Correctional System, to this application for stay;
(b) a detailed explanation by counsel for applicant as to why,
in a matter of this importance, she waited from February 21, 1979,
the date upon which this Court denied John Louis Evans' petition
for certiorari seeking to review the judgment of the Supreme Court
of Alabama, until April 2, 1979, to file a petition for a writ of
habeas corpus in the United States District Court for the Southern
District of Alabama. There may be very good reasons for the delay,
but there is also undoubtedly what Mr. Justice Holmes referred to
in another context as a "hydraulic pressure" which is brought to
bear upon any judge or group of judges and inclines them to grant
last-minute stays in matters of this sort just because no mortal
can be totally satisfied that within the extremely short period of
time allowed by such a late filing he has fully grasped the
contentions of the parties and correctly resolved them. To use the
technique of a last-minute filing as a sort of insurance to get at
least a temporary stay when an adequate application might have been
presented earlier, is, in my opinion, a tactic unworthy of our
profession. Such a explanation is not a condition of the granting
of this or any further stay, but the absence of it will be taken
into consideration by me.
The parties are required to file the foregoing submissions by 12
noon, e.s.t., on Tuesday, April 10, 1979. Unless otherwise ordered
by me or by the Court, this stay shall expire at 5 p.m., e.s.t., on
Friday, April 13, 1979.
The application for a stay is granted on the terms and
conditions set forth in this opinion, and an order will issue
accordingly.