After petitioner was charged with the capital crime of murder
committed during a robbery, but before he was represented by
counsel, he was subjected to a court-ordered examination by a
psychologist to determine his competency to stand trial, sanity at
the time of the offense, and future dangerousness. Petitioner was
not served with copies of the State's motion for the examination or
the court's order. Petitioner was later indicted, counsel was
appointed to represent him, and he was arraigned. The District
Attorney, without serving a copy of his motion on defense counsel,
requested a second psychiatric evaluation of petitioner as to the
same matters. Without determining whether defense counsel had been
notified of the State's motion, the trial court granted the motion
and ordered an examination by the same psychologist and a specified
psychiatrist. Later, a letter to the court from another
psychiatrist (Dr. Grigson) appeared in the court file, stating
that, pursuant to court order, he had examined petitioner and that
he concluded that petitioner had "a severe antisocial personality
disorder and is extremely dangerous and will commit future acts of
violence." After petitioner was tried by a jury and convicted of
capital murder, a separate sentencing procedure was conducted in
accordance with Texas law before the same jury. Appearing as a
witness for the State, Dr. Grigson testified, over defense
counsel's objection, that in his opinion petitioner presented a
continuing threat to society through acts of criminal violence. The
jury answered affirmatively the special verdict questions as to
whether the State had proved, beyond a reasonable doubt, (1) that
the defendant's conduct causing the death was committed
deliberately and with the reasonable expectation that the victim's
death would result, and (2) that there was "a probability that the
defendant would commit criminal acts of violence that would
constitute a continuing threat to society." The court, as required
by state law, sentenced petitioner to death. On petitioner's appeal
of his death sentence, the Texas Court of Criminal Appeals held
that the admission of Dr. Grigson's testimony violated the Sixth
Amendment right, recognized in
Estelle v. Smith,
451 U. S. 454, of
a defendant formally charged with a capital crime to consult with
counsel before submitting to a psychiatric examination designed to
determine future dangerousness. However, the court concluded that
the constitutional violation
Page 486 U. S. 250
was subject to harmless error analysis, and that the error was
harmless in this case.
Held:
1. The use, at the capital sentencing proceeding, of Dr.
Grigson's testimony on the issue of future dangerousness violated
the Sixth Amendment. The Court of Criminal Appeals properly
determined that there had been no compliance with the Sixth
Amendment requirement, set out in
Estelle v. Smith, that
defense counsel be given advance notice of a psychiatric
examination encompassing the issue of future dangerousness.
Petitioner's right to counsel had attached at the time Dr. Grigson
examined him in jail, and the record does not support the State's
contention that various
ex parte motions and orders
contained in the court file provided defense counsel with notice
that an examination encompassing the issue of petitioner's future
dangerousness would take place. Moreover, even if the
ex
parte orders and filings were timely and were applicable to
Dr. Grigson's examination, they did not adequately notify defense
counsel that Dr. Grigson would examine the petitioner to assess his
future dangerousness. Constructive notice to defense counsel
achieved by mere placement of the State's motions and the court's
ex parte orders in the court file does not satisfy the
Sixth Amendment. Pp.
486 U. S.
256-258.
2. The harmless error rule set forth in
Chapman v.
California, 386 U. S. 18 --
which held that, if the prosecution can prove beyond a reasonable
doubt that a constitutional error did not contribute to the
verdict, the error is harmless and the verdict may stand -- applies
to the admission of psychiatric testimony in violation of the Sixth
Amendment right set out in
Estelle v. Smith. Some
constitutional violations -- including Sixth Amendment violations
that pervade the entire criminal proceeding -- by their very nature
cast so much doubt on the fairness on the trial process that, as a
matter of law, they can never be considered harmless. However, the
effect of the Sixth Amendment violation in this case is limited to
the admission into evidence of Dr. Grigson's testimony. It is
important to avoid error in capital sentencing proceedings.
Moreover, the evaluation of the consequences of an error in the
sentencing phase of a capital case may be more difficult because of
the discretion that is given to the sentencer. Nevertheless, a
reviewing court can make an intelligent judgment about whether the
erroneous admission of psychiatric testimony might have affected a
capital sentencing jury. Pp.
486 U. S.
256-258.
3. The Court of Criminal Appeals improperly held that the
erroneous admission of Dr. Grigson's testimony was harmless beyond
a reasonable doubt. The court concluded that the admission of this
testimony on the critical issue of "future dangerousness" -- a
probability of which must be found before a death sentence may be
imposed under Texas law -- was harmless because the legally
admitted evidence was sufficient to support
Page 486 U. S. 251
the jury's finding of future dangerousness. However, under the
Chapman harmless error test, the controlling question is
whether the State has proved beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained.
Upon reviewing all the evidence at the sentencing hearing, this
Court finds it impossible to say beyond a reasonable doubt that Dr.
Grigson's expert testimony on the issue of petitioner's future
dangerousness did not influence the sentencing jury. Pp.
486 U. S.
258-260.
726
S.W.2d 81, reversed and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, STEVENS, and SCALIA, JJ., joined.
MARSHALL, J., filed an opinion concurring in part and concurring in
the judgment, in which BRENNAN, J., joined, and in Part II of which
BLACKMUN, J., joined,
post, p.
486 U. S. 260.
BLACKMUN, J., filed an opinion concurring in part and concurring in
the judgment,
post, p.
486 U. S. 267.
KENNEDY, J., took no part in the consideration or decision of the
case.
JUSTICE O'CONNOR delivered the opinion of the Court.
In
Estelle v. Smith, 451 U. S. 454
(1981), we recognized that defendants formally charged with capital
crimes have a Sixth Amendment right to consult with counsel before
submitting to psychiatric examinations designed to determine their
future dangerousness. The question in this case is whether it was
harmless error to introduce psychiatric testimony obtained in
violation of that safeguard in a capital sentencing proceeding.
Page 486 U. S. 252
I
On March 15, 1979, petitioner John T. Satterwhite was charged
with the capital crime of murdering Mary Francis Davis during a
robbery. The next day, before Satterwhite was represented by
counsel, the presiding District Judge granted the State's request
for a psychological examination to determine Satterwhite's
competency to stand trial, sanity at the time of the offense, and
future dangerousness. 1 Record 2. Though the State's motion and the
court's order were placed in the court file, Satterwhite was not
served with copies of either. Psychologist Betty Lou Schroeder
examined Satterwhite pursuant to the court's order.
Satterwhite was indicted on April 4. The trial court appointed
counsel to represent him and sent a copy of the appointment letter
to the Bexar County District Attorney. App. 10. Satterwhite was
arraigned on April 13. On April 17, the District Attorney filed a
second motion requesting a psychiatric evaluation of Satterwhite's
competency to stand trial, sanity at the time of the crime, and
future dangerousness. App. 12. The District Attorney did not serve
defense counsel with a copy of this motion. The next day, without
determining whether defense counsel had been notified of the
State's motion, the trial court granted the motion and ordered the
Sheriff to produce Satterwhite for examination by psychologist
Betty Lou Schroeder and psychiatrist John T. Holbrook. The record
does not reveal when the court's order was placed in the court
file. [
Footnote 1]
On May 18, a letter to the trial court from psychiatrist James
P. Grigson, M. D., appeared in the court file. Dr.
Page 486 U. S. 253
Grigson wrote that, pursuant to court order, he had examined
Satterwhite on May 3, 1979, in the Bexar County Jail. He further
reported that, in his opinion, Satterwhite has "a severe antisocial
personality disorder and is extremely dangerous and will commit
future acts of violence." App. 15-16.
Satterwhite was tried by jury and convicted of capital murder.
In accordance with Texas law, a separate proceeding was conducted
before the same jury to determine whether he should be sentenced to
death or to life imprisonment.
See Tex. Code
Crim.Proc.Ann., Art. 37.071(a) (Vernon Supp.1988). The State
produced Dr. Grigson as a witness in support of its case for the
death penalty. Over defense counsel's objection, Dr. Grigson
testified that, in his opinion, Satterwhite presented a continuing
threat to society through acts of criminal violence.
At the conclusion of the evidence, the court instructed the jury
to decide whether the State had proved, beyond a reasonable doubt,
(1) that
"the conduct of the defendant that caused the death [was]
committed deliberately and with the reasonable expectation that the
death of [the victim] would result,"
and (2) that there is "a probability that the defendant would
commit criminal acts of violence that would constitute a continuing
threat to society." App. 33. Texas law provides that, if a jury
returns affirmative findings on both special verdict questions,
"the court shall sentence the defendant to death." Tex.Code
Crim.Proc.Ann., Art. 37.071(e) (Vernon Supp.1988). The jury
answered both questions affirmatively, and the trial court
sentenced Satterwhite to death.
Satterwhite appealed his death sentence, arguing that the
admission of Dr. Grigson's testimony violated the Sixth Amendment
right to assistance of counsel recognized in
Estelle v. Smith,
supra. The Texas Court of Criminal Appeals agreed, but
concluded that the error was harmless because an average jury would
have found the properly admitted evidence sufficient to sentence
Satterwhite to death.
726
S.W.2d 81, 92-93 (1986). The court acknowledged our holding
Page 486 U. S. 254
that a Sixth Amendment violation tainting an entire criminal
proceeding can never be considered harmless,
Holloway v.
Arkansas, 435 U. S. 475
(1978), but reasoned that a
per se rule of reversal is
inappropriate where, as here, the error relates only to the
admission of particular evidence. 726 S.W.2d at 93, n. 5. We
granted certiorari to decide whether harmless error analysis
applies to violations of the Sixth Amendment right set out in
Estelle v. Smith. 482 U.S. 905 (1987).
II
The controversy in
Estelle v. Smith, supra, also
centered on the expert testimony of Dr. James P. Grigson. In that
case, as in this, Dr. Grigson appeared as a witness for the State
in a capital sentencing proceeding and testified that the defendant
was a severe sociopath who would continue to commit violent crimes
in the future. He based his testimony upon a psychiatric
examination of the defendant that he had conducted pursuant to
court order. The problem in the case was that defense counsel were
not given advance notice that Dr. Grigson's psychiatric
examination, encompassing the issue of their client's future
dangerousness, would take place. We recognized that, for a
defendant charged with a capital crime, the decision whether to
submit to a psychiatric examination designed to determine his
future dangerousness is "
literally a life or death matter'"
which the defendant should not be required to face without "`the
guiding hand of counsel.'" 451 U.S. at 451 U. S. 471,
quoting Smith v. Estelle, 602 F.2d 694, 708 (CA5 1979),
and Powell v. Alabama, 287 U. S. 45,
287 U. S. 69
(1932). We held that defense counsel must be given advance notice
of such an examination.
The Texas Court of Criminal Appeals determined that the Sixth
Amendment notice requirement set out in
Estelle v. Smith
was not met in this case, and we agree. Since Satterwhite's
indictment, arraignment, and appointment of counsel had all
occurred before Dr. Grigson examined him in the Bexar County Jail,
it is clear that his Sixth Amendment right
Page 486 U. S. 255
to counsel had attached at the time.
See Estelle, 451
U.S. at
451 U. S. 469;
Kirby v. Illinois, 406 U. S. 682,
406 U. S.
688-689 (1972). The State does not contest the lower
court's finding that Satterwhite did not waive his right to consult
with his attorney before participating in the psychiatric
examination. The State contends, however, that various
ex
parte motions and orders contained in the court file provided
defense counsel with notice that an examination encompassing the
issue of his client's future dangerousness would take place.
[
Footnote 2]
We note preliminarily that the applicability and timing of some
of these filings are disputed: the record does not contain a court
order authorizing Dr. Grigson to examine
Satterwhite, 726
S.W.2d at 92; and, as we have already noted, it is unclear whether
the April 18 order appointing Drs. Schroeder and Holbrook was
placed in the court file before Dr. Grigson performed his
examination.
See n. 1,
supra. Yet even if the
ex parte orders and filings were timely and were
applicable to Dr. Grigson's examination, we agree with the Texas
Court of Criminal Appeals that they did not adequately notify
defense counsel that Dr. Grigson would examine the defendant to
assess his future dangerousness. The Court of Criminal Appeals did
not find that defense counsel had actual knowledge of the motion
and order for the psychiatric examination. The State has cited no
authority for its proposition that constructive notice to defense
counsel achieved by mere placement of the State's motions and the
court's
ex parte orders in the court file satisfies the
Sixth Amendment, and we hold that it does not. Accordingly, like
the Texas Court of Criminal Appeals, we conclude that the use of
Dr. Grigson's
Page 486 U. S. 256
testimony at the capital sentencing proceeding on the issue of
future dangerousness violated the Sixth Amendment.
Our conclusion does not end the inquiry, because not all
constitutional violations amount to reversible error. We generally
have held that, if the prosecution can prove beyond a reasonable
doubt that a constitutional error did not contribute to the
verdict, the error is harmless and the verdict may stand.
Chapman v. California, 386 U. S. 18,
386 U. S. 24
(1967). The harmless error rule
"'promotes public respect for the criminal process by focusing
on the underlying fairness of the trial, rather than on the
virtually inevitable presence of immaterial error.'"
Rose v. Clark, 478 U. S. 570,
478 U. S. 577
(1986) (quoting
Delaware v. Van Arsdall, 475 U.
S. 673,
475 U. S. 681
(1986)).
Some constitutional violations, however, by their very nature
cast so much doubt on the fairness of the trial process that, as a
matter of law, they can never be considered harmless. Sixth
Amendment violations that pervade the entire proceeding fall within
this category.
See Holloway v. Arkansas, 435 U.
S. 475 (1978) (conflict of interest in representation
throughout entire proceeding);
Chapman, supra, at
386 U. S. 23, n.
8 (citing
Gideon v. Wainwright, 372 U.
S. 335 (1963) (total deprivation of counsel throughout
entire proceeding));
White v. Maryland, 373 U. S.
59 (1963) (absence of counsel from arraignment
proceeding that affected entire trial because defenses not asserted
were irretrievably lost);
Hamilton v. Alabama,
368 U. S. 52 (1961)
(same). Since the scope of a violation such as a deprivation of the
right to conflict-free representation cannot be discerned from the
record, any inquiry into its effect on the outcome of the case
would be purely speculative. As explained in
Holloway:
"In the normal case where a harmless error rule is applied, the
error occurs at trial, and its scope is readily identifiable.
Accordingly, the reviewing court can undertake with some confidence
its relatively narrow task of assessing the likelihood that the
error materially affected the deliberations of the jury. But in a
case of
Page 486 U. S. 257
joint representation of conflicting interests the evil -- it
bears repeating -- is in what the advocate finds himself compelled
to
refrain from doing, not only at trial but also as to
possible pretrial plea negotiations and in the sentencing process.
. . . Thus, any inquiry into a claim of harmless error here would
require, unlike most cases, unguided speculation."
435 U.S. at
435 U. S.
490-491 (citations omitted).
Satterwhite urges us to adopt an automatic rule of reversal for
violations of the Sixth Amendment right recognized in
Estelle
v. Smith. He relies heavily upon the statement in
Holloway that
"when a defendant is deprived of the presence and assistance of
his attorney, either throughout the prosecution or during a
critical stage in, at least, the prosecution of a capital offense,
reversal is automatic.
Gideon v. Wainwright, 372 U. S.
335 (1963);
Hamilton v. Alabama, 368 U. S. 52
(1961);
White v. Maryland, 373 U. S. 59
(1963)."
435 U.S. at
435 U. S. 489.
His reliance is misplaced, however, for
Holloway, Gideon,
Hamilton, and
White were all cases in which the
deprivation of the right to counsel affected -- and contaminated --
the entire criminal proceeding. In this case, the effect of the
Sixth Amendment violation is limited to the admission into evidence
of Dr. Grigson's testimony. We have permitted harmless error
analysis in both capital and noncapital cases where the evil caused
by a Sixth Amendment violation is limited to the erroneous
admission of particular evidence at trial. In
Milton v.
Wainwright, 407 U. S. 371
(1972), for example, the Court held the admission of a confession
obtained in violation of
Massiah v. United States,
377 U. S. 201
(1964), to be harmless beyond a reasonable doubt. And we have held
that harmless
Page 486 U. S. 258
error analysis applies to the admission of identification
testimony obtained in violation of the right to counsel at a
post-indictment lineup.
Moore v. Illinois, 434 U.
S. 220 (1977);
Gilbert v. California,
388 U. S. 263
(1967) (capital case);
United States v. Wade, 388 U.
S. 218 (1967). Just last year we indicated that harmless
error analysis would apply in a noncapital case to constitutional
error in the use of a psychological evaluation at trial.
Buchanan v. Kentucky, 483 U. S. 402,
483 U. S. 425,
n. 21 (1987).
It is important to avoid error in capital sentencing
proceedings. Moreover, the evaluation of the consequences of an
error in the sentencing phase of a capital case may be more
difficult because of the discretion that is given to the sentencer.
Nevertheless, we believe that a reviewing court can make an
intelligent judgment about whether the erroneous admission of
psychiatric testimony might have affected a capital sentencing
jury. Accordingly, we hold that the
Chapman harmless error
rule applies to the admission of psychiatric testimony in violation
of the Sixth Amendment right set out in
Estelle v.
Smith.
III
Applying the
Chapman harmless error test, we cannot
agree with the Court of Criminal Appeals that the erroneous
admission of Dr. Grigson's testimony was harmless beyond a
reasonable doubt. A Texas court can sentence a defendant to death
only if the prosecution convinces the jury, beyond a reasonable
doubt, that
"there is a probability that the defendant would commit criminal
acts of violence that would constitute a continuing threat to
society."
Tex.Code Crim.Proc.Ann., Art. 37.071(b)(2) (Vernon Supp.1988).
The Court of Criminal Appeals thought that the admission of Dr.
Grigson's expert testimony on this critical issue was harmless
because
"the properly admitted evidence was such that the minds of an
average jury would have found the State's case [on future
dangerousness] sufficient . . . even if Dr. Grigson's testimony had
not been admitted."
726 S.W.2d at 93. The question, however, is not whether the
legally admitted evidence was sufficient to support the death
sentence, which we assume it was, but rather, whether the State has
proved "beyond a reasonable doubt that the error complained of
did
Page 486 U. S. 259
not contribute to the verdict obtained."
Chapman, 386
U.S. at
386 U. S.
24.
The evidence introduced at sentencing showed that, in addition
to his conviction in this case, Satterwhite had four prior
convictions of crimes ranging from aggravated assault to armed
robbery. Eight police officers testified that Satterwhite's
reputation for being a peaceful and law-abiding citizen was bad,
and Satterwhite's mother's former husband testified that
Satterwhite once shot him during an argument. The State also
introduced the testimony of Bexar County psychologist Betty Lou
Schroeder. [
Footnote 3] Dr.
Schroeder testified that she found Satterwhite to be a "cunning
individual" and a "user of people," with an inability to feel
empathy or guilt. She testified that, in her opinion, Satterwhite
would be a continuing threat to society through acts of criminal
violence. App. 55-56.
Dr. Grigson was the State's final witness. His testimony stands
out both because of his qualifications as a medical doctor
specializing in psychiatry and because of the powerful content of
his message. Dr. Grigson was the only licensed physician to take
the stand. He informed the jury of his educational background and
experience, which included teaching psychiatry at a Dallas medical
school and practicing psychiatry for over 12 years. He stated
unequivocally that, in his expert opinion, Satterwhite "will
present a continuing threat to society by continuing acts of
violence." He explained that Satterwhite has "a lack of conscience"
and is "as severe a sociopath as you can be." To illustrate his
point, he testified that, on a scale of 1 to 10 -- where "ones" are
mild sociopaths and "tens" are individuals with complete disregard
for human life -- Satterwhite is a "ten plus." Dr. Grigson
concluded his testimony on direct examination with perhaps his most
devastating
Page 486 U. S. 260
opinion of all: he told the jury that Satterwhite was beyond the
reach of psychiatric rehabilitation.
Id. at 72-73.
The District Attorney highlighted Dr. Grigson's credentials and
conclusions in his closing argument:
"Doctor James Grigson, Dallas psychiatrist and medical doctor.
And he tells you that, on a range from 1 to 10, he's ten plus.
Severe sociopath. Extremely dangerous. A continuing threat to our
society. Can it be cured? Well, it's not a disease. It's not an
illness. That's his personality. That's John T. Satterwhite."
8 Record 2725-2726.
The finding of future dangerousness was critical to the death
sentence. Dr. Grigson was the only psychiatrist to testify on this
issue, and the prosecution placed significant weight on his
powerful and unequivocal testimony. Having reviewed the evidence in
this case, we find it impossible to say beyond a reasonable doubt
that Dr. Grigson's expert testimony on the issue of Satterwhite's
future dangerousness did not influence the sentencing jury.
Accordingly, we reverse the judgment of the Texas Court of Criminal
Appeals insofar as it affirms the death sentence, and we remand the
case for further proceedings not inconsistent with this
opinion.
It is so ordered.
JUSTICE KENNEDY took no part in the consideration or decision of
this case.
[
Footnote 1]
The Assistant Attorney General represented at oral argument that
the trial court's order was stamped with the Clerk's stamp showing
that it was filed on April 18. Tr. of Oral Arg. 22. The copy of the
April 18 order contained in the record before us, however, contains
no such stamp. 1 Record 23. Defense counsel informs us that,
although he examined the court file twice, he did not discover the
April 18 order until mid-May. Tr. of Oral Arg. 7.
[
Footnote 2]
The State points to the following documents in the record: (1)
the State's March 16 motion for a psychological examination, App.
3-4; (2) the court's March 16 order granting that motion and
appointing Dr. Betty Lou Schroeder to examine Satterwhite,
id. at 5; (3) the State's April 17 motion for a
psychiatric examination to be conducted by Drs. Holbrook and
Schroeder,
id. at 12-13; and (4) the court's April 18
order granting that motion,
id. at 14.
[
Footnote 3]
Satterwhite now contends that Dr. Schroeder's testimony was also
admitted in violation of
Estelle v. Smith, 451 U.
S. 454 (1981). The Texas Court of Criminal Appeals
explicitly noted that this claim was not raised at trial or on
appeal, and we decline to consider it.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins and with whom
JUSTICE BLACKMUN joins as to Part II, concurring in part and
concurring in the judgment.
I
I agree with the Court that the psychiatric examination on which
Dr. Grigson testified at the capital sentencing proceeding was in
bald violation of
Estelle v.
Smith, 451 U. S. 454
Page 486 U. S. 261
(1981), and that petitioner's death sentence should be vacated.
I write separately because I believe the Court errs in applying
harmless error analysis to this Sixth Amendment violation. It is my
view that the unique nature of a capital sentencing determination
should cause this Court to be especially hesitant ever to sanction
harmless error review of constitutional errors that taint capital
sentencing proceedings, and even if certain constitutional errors
might properly be subject to such harmless error analysis, a
violation of
Estelle v. Smith is not such an error.
Until today's ruling, this Court never had applied harmless
error analysis to constitutional violations that taint the
sentencing phase of a capital trial. In deciding to apply harmless
error analysis to the Sixth Amendment violation in this case, I
believe the Court fails to adequately consider the unique nature of
a capital sentencing proceeding and a sentencer's decision whether
a defendant should live or die. The Court's analysis is also flawed
in that it fails to accord any noticeable weight to the qualitative
difference of death from all other punishments.
Unlike the determination of guilt or innocence, which turns
largely on an evaluation of objective facts, the question whether
death is the appropriate sentence requires a profoundly moral
evaluation of the defendant's character and crime.
See
California v. Brown, 479 U. S. 538,
479 U. S. 545
(1987) (O'CONNOR, J., concurring) (a death sentence should "reflect
a reasoned moral response to the defendant's background, character,
and crime");
Enmund v. Florida, 458 U.
S. 782,
458 U. S. 801
(1982) (capital defendant's "punishment must be tailored to his
personal responsibility and moral guilt"). Moreover, although much
of the Court's capital jurisprudence since
Furman v.
Georgia, 408 U. S. 238
(1972), has been focused on guiding and channeling the decision
whether death is the appropriate sentence in a specific case, the
sentencer nonetheless is afforded substantial discretion.
See,
e.g., McCleskey v. Kemp, 481 U. S. 279,
481 U. S.
304-306 (1987);
Woodson
v.
Page 486 U. S. 262
North Carolina, 428 U. S. 280
(1976). Even in the face of overwhelming aggravating evidence, the
sentencer has discretion to act with leniency and refuse to impose
the death sentence.
See McCleskey, supra, at
481 U. S. 311
("[D]iscretionary exercises of leniency [by the sentencer] are
final and unreviewable").
Because of the moral character of a capital sentencing
determination and the substantial discretion placed in the hands of
the sentencer, predicting the reaction of a sentencer to a
proceeding untainted by constitutional error on the basis of a cold
record is a dangerously speculative enterprise. As the Court
recognized in
Caldwell v. Mississippi, 472 U.
S. 320,
472 U. S. 330
(1985), "[w]hatever intangibles a jury might consider in its
sentencing determination, few can be gleaned from an appellate
record." In the same vein, an appellate court is ill-equipped to
evaluate the effect of a constitutional error on a sentencing
determination. Such sentencing judgments, even when guided and
channeled, are inherently subjective, and the weight a sentencer
gives an instruction or a significant piece of evidence that is
later determined to violate a defendant's constitutional rights is
nowhere apparent in the record. In
McCleskey v. Kemp,
supra, the Court acknowledged that
"[i]ndividual jurors bring to their deliberations 'qualities of
human nature and varieties of human experience, the range of which
is unknown and perhaps unknowable,'"
and their collective judgment of the appropriate sentence is
marked by an "inherent lack of predictability."
Id. at
481 U. S. 311,
quoting
Peters v. Kiff, 407 U. S. 493,
407 U. S. 503
(1972) (opinion of MARSHALL, J.). The threat of an erroneous
harmless error determination thus looms much larger in the capital
sentencing context than elsewhere.
That threat is of particular concern because of the unique
nature of the death sentence. The awesome severity of a sentence of
death makes it qualitatively different from all other sanctions.
See, e.g., Lockett v. Ohio, 438 U.
S. 586,
438 U. S. 605
(1978) (plurality opinion). For this reason, the Court has
Page 486 U. S. 263
emphasized the greater need for reliability in capital cases,
and has required that
"capital proceedings be policed at all stages by an especially
vigilant concern for procedural fairness and for the accuracy of
factfinding."
Strickland v. Washington, 466 U.
S. 668,
466 U. S. 704
(1984) (BRENNAN, J., concurring in part and dissenting in part);
see California v. Ramos, 463 U. S. 992,
463 U. S.
998-999 (1983) ("[T]he qualitative difference of death
from all other punishments requires a correspondingly greater
degree of scrutiny of the capital sentencing determination").
Because of this heightened concern for reliability, "[t]ime and
again the Court has condemned procedures in capital cases that
might be completely acceptable in an ordinary case."
Barefoot
v. Estelle, 463 U. S. 880,
463 U. S. 913
(1983) (MARSHALL, J., dissenting). Harmless error analysis impinges
directly on the reliability of the capital sentencing decision by
allowing a court to substitute its judgment of what the sentencer
would have done in the absence of constitutional error for an
actual judgment of the sentencer untainted by constitutional
error.
I therefore have serious doubts whether a constitutional error
that infects the sentencing phase of a capital case ever may be
considered harmless beyond a reasonable doubt. But even if I could
agree that harmless error analysis is appropriate for certain
constitutional errors at the sentencing phase, such a situation is
not presented when the error is a violation of the Sixth Amendment
under
Estelle v. Smith.
II
As an initial matter, the Court in
Estelle v. Smith
gave no hint that harmless error analysis ever could apply to the
admission of psychiatric testimony in a capital sentencing
proceeding which was based on an examination of the defendant
conducted in violation of his Sixth Amendment right to counsel.
After finding constitutional error, the Court simply vacated the
death sentence.
See 451 U.S. at
451 U. S. 473.
The failure of the Court to engage in harmless error analysis
Page 486 U. S. 264
in
Smith is understandable, because the factors on
which this Court traditionally has focused to determine whether
harmless error review is appropriate make clear that an
Estelle
v. Smith violation that taints a capital sentencing proceeding
should lead to automatic reversal. First, the potential for actual
prejudice resulting from such a violation of
Smith is so
high that a "case-by-case inquiry into prejudice is not worth the
cost."
Strickland v. Washington, supra, at
466 U. S. 692.
As evidenced in this case, psychiatric testimony is generally of
critical importance to the sentencing determination, covering
issues of rehabilitative potential, future dangerousness, and
individual culpability. [
Footnote
2/1] Moreover, psychiatric testimony on these issues is clothed
with a scientific authority that often carries great weight with
lay juries.
Cf. Ake v. Oklahoma, 470 U. S.
68,
470 U. S. 79
(1985) (recognizing "pivotal role" psychiatry has come to play in
criminal proceedings).
Second, it is difficult, if not impossible, to accurately
measure the degree of prejudice arising from the failure to notify
defense counsel of an impending psychiatric examination and the
subsequent admission at the sentencing phase of evidence acquired
from the examination.
Cf. Hamilton v. Alabama,
368 U. S. 52,
368 U. S. 65
(1961) (rejecting harmless error analysis where "the degree of
prejudice can never be known");
Holloway v. Arkansas,
435 U. S. 475,
435 U. S.
490-491 (1978) ("[A]n inquiry into a claim of harmless
error [in a case involving defense counsel's conflict of interests]
would require, unlike
Page 486 U. S. 265
most cases, unguided speculation"). As I discussed above, the
decision whether a defendant should live or die is a discretionary,
moral judgment involving a balancing of often intangible factors.
Divining the effect of psychiatric testimony on a sentencer's
determination whether death is an appropriate sentence is thus more
in the province of soothsayers than appellate judges. In addition,
contrary to the Court's claim,
see ante at
486 U. S. 257,
the prejudice arising from an
Estelle v. Smith violation
is not limited to the illegal admission of psychiatric testimony.
If defense counsel is properly notified under
Smith of the
State's intention to perform a psychiatric examination, the course
of subsequent proceedings may be altered significantly. For
instance, defense counsel might extensively prepare his client for
the examination, or perhaps advise his client to refuse to
participate in the examination by the particular psychiatrist;
defense counsel also might urge that a different psychiatrist
perform the examination.
Cf. Estelle v. Smith, 451 U.S. at
451 U. S. 471
(defendant "was denied the assistance of his attorneys in making
the significant decision of whether to submit to the examination
and to what end the psychiatrist's findings could be employed"). I
therefore believe that any attempt to predict the effect of such an
Estelle v. Smith violation would require the appellate
court to engage in unguided speculation. The confluence of these
factors -- the likelihood of prejudice and the difficulty in
evaluating the degree of that prejudice -- together with the
heightened concern for reliability in capital cases, convinces me
that a psychiatric examination conducted in violation of
Estelle v. Smith, and the later admission at a capital
sentencing proceeding of psychiatric testimony based on this
examination, may never be considered harmless error. [
Footnote 2/2]
Page 486 U. S. 266
I would have thought that this Court's decision in
Holloway
v. Arkansas, supra, already had settled the question whether
an
Estelle v. Smith violation in a capital case can ever
be harmless error. In
Holloway we stated:
"'The right to have the assistance of counsel is too fundamental
and absolute to allow courts to indulge in nice calculations as to
the amount of prejudice arising from its denial.' . . .
Accordingly, when a defendant is deprived of the presence and
assistance of his attorney, either throughout the prosecution or
during a critical stage in, at least, the prosecution of a capital
offense, reversal is automatic."
435 U.S. at
435 U. S.
488-489, quoting
Glasser v. United States,
315 U. S. 60,
315 U. S. 76
(1942). We stated in
Estelle v. Smith, supra, that a
pretrial examination by a state psychiatrist of a capital defendant
is a "critical stage" in a capital case.
Id. at
451 U. S. 470.
As the Court recognized in that case,
"the decision to be made regarding the proposed psychiatric
evaluation is 'literally a life or death matter' and is 'difficult
. . . even for an attorney' because it requires 'a knowledge of
what other evidence is available, of the particular psychiatrist's
biases and predilections, [and] of possible alternative strategies
at the sentencing hearing.'"
Id. at
451 U. S. 471,
quoting
Smith v. Estelle, 602 F.2d 694, 708 (CA5
1979).
The Court attempts to distinguish
Holloway by arguing
that, in that case, the "deprivation of the right to counsel
affected -- and contaminated -- the entire criminal proceeding."
Ante at
486 U. S. 257.
But
Holloway anticipated automatic reversal not only when
the deprivation affected the entire proceeding, but also when the
deprivation occurred during a "critical
stage in, at
least, the prosecution of a capital offense." 435 U.S. at
435 U. S. 489
(emphasis added). By focusing on whether the error occurred in a
capital case,
Holloway exhibited an appreciation
Page 486 U. S. 267
of the heightened concern for reliability in this context --
something I believe today's decision fails to recognize. [
Footnote 2/3]
In the end, the Court principally relies on its belief
"that a reviewing court can make an intelligent judgment about
whether the erroneous admission of psychiatric testimony might have
affected a capital sentencing jury."
Ante at
486 U. S. 258.
I do not possess the same confidence in an appellate court's
ability to divine the prejudice arising from such a significant
error in a capital sentencing proceeding. In my view, the
speculation engendered by harmless error review of a violation of
Estelle v. Smith in the context of a capital sentencing
proceeding presents an intolerable danger that the death sentence
will be administered erroneously. Accordingly, I do not join in
that aspect of the Court's opinion sanctioning harmless error
analysis for violations of
Estelle v. Smith.
[
Footnote 2/1]
The likelihood of actual prejudice arising from the illegal
admission of psychiatric testimony is even greater in the context
of this case. The Texas capital sentencing statute provides that,
in the absence of evidence of provocation by the victim, the court
"shall sentence the defendant to death" if the jury finds that the
murder was "committed deliberately and with the reasonable
expectation that the death of the deceased . . . would result," and
that "there is a probability that the defendant would commit
criminal acts of violence that would constitute a continuing threat
to society." Tex.Code Crim.Proc.Ann., Art. 37.071 (Vernon
Supp.1988). The psychiatrist's evaluation of future dangerousness
thus purports to answer one of two questions posed by the
statute.
[
Footnote 2/2]
It is also important to note that a violation of petitioner's
Sixth Amendment right to counsel under
Estelle v. Smith is
easy to identify and, "for that reason and because the prosecution
is directly responsible, easy for the government to prevent."
Strickland v. Washington, 466 U.
S. 668,
466 U. S. 692
(1984). Because the error is in the control of the State and is
easy to prevent, holding that such a violation will result in
automatic reversal does not pose a significant burden on the
State.
[
Footnote 2/3]
Moreover, in the present case, the Court is unable to cite a
single capital case since our decision in
Furman v.
Georgia, 408 U. S. 238
(1972), in which we have ignored
Holloway's reasoning and
have applied harmless error analysis to a Sixth Amendment violation
occurring during a critical stage of the proceedings. The Court
cites dicta in
Buchanan v. Kentucky, 483 U.
S. 402,
483 U. S. 425,
n. 21 (1987), as an indication of the Court's willingness to apply
harmless error analysis to the admission of psychological testimony
in violation of
Estelle v. Smith, 451 U.
S. 454 (1981). But the petitioner in
Buchanan
was not prosecuted for a capital offense, and thus the Court's
indication in that case that harmless error analysis might apply to
the illegal admission of psychological testimony has little
relevance in the present context.
JUSTICE BLACKMUN, concurring in part and concurring in the
judgment.
I join Part II of JUSTICE MARSHALL'S concurring opinion because
I agree that harmless error analysis is inappropriate where the
error is a Sixth Amendment violation under
Estelle v.
Smith, 451 U. S. 454
(1981), which results in the erroneous admission of psychiatric
testimony in a capital sentencing proceeding. The situation is
particularly acute where, under a system such as that of Texas, the
jury must answer the very question that the psychiatrist purports
to
Page 486 U. S. 268
answer. I am fortified in this conclusion by my continuing
concern -- wholly apart from the testimony of the ubiquitous Doctor
Grigson in Texas capital cases -- about the reliability of
psychiatric testimony as to a defendant's future dangerousness
(wrong two times out of three).
See Barefoot v. Estelle,
463 U. S. 880,
463 U. S. 916
(1983) (dissenting opinion).