Bundy - litigation, 1982-1983, 1986-1989, Undated

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IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1988

CASE NO. 88-5881 RECEIVED & DOCKETED
FLORIDA ATTORNEY GENERAL

DEC 14 1988

CAPITAL COLLATERAL

Seer ALLAHASSEE
4 -

{i
L

THEODORE ROBERT BUNDY,
Petitioner,
Ve
RICHARD L. DUGGER,

Respondent.

RESPONSE TO
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

ROBERT A. BUTTERWORTH
ATTORNEY GENERAL

CAROLYN M. SNURKOWSKI
ASSISTANT ATTORNEY GENERAL

MARK C. MENSER
ASSISTANT ATTORNEY GENERAL

DEPARTMENT OF LEGAL AFFAIRS
THE CAPITOL

TALLAHASSEE, FL 32399-1050
(904) 488-0600

COUNSEL FOR RESPONDENT

|
|

QUESTIONS PRESENTED

WHETHER CERTIORARI SHOULD BE GRANTED FOR THE
PURPOSE OF REWEIGHING EVIDENCE OF THE
PETITIONER'S COMPETENCE TO STAND TRIAL.

II.

WHETHER CERTIORARI SHOULD BE GRANTED TO
REVIEW THE CIRCUIT COURT'S RESOLUTION OF THE
“HYPNOTIC EVIDENCE" ISSUE IN THE ABSENCE OF
ANY SPECIAL OR IMPORTANT REASONS.

III.
WHETHER CERTIORARI SHOULD BE GRANTED TO

REVIEW THE COMPETENCE OF PETITIONER'S CO-
COUNSEL.

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS

TABLE OF CITATIONS

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE
Facts: Claim I (Competence to Stand Trial)
Facts: Claim II (Hypnotic Evidence)
Facts: Claim III (Ineffective Assistance

of Counsel)

REASONS FOR DENYING THE WRIT
ISSUE I
CERTIORARI SHOULD NOT BE GRANTED FOR THE
PURPOSE OF REWEIGHING EVIDENCE OF THE
PETITIONER'S COMPETENCE TO STAND TRIAL.
ISSUE II
CERTIORARI SHOULD NOT BE GRANTED TO REVIEW
THE CIRCUIT COURT'S RESOLUTION OF THE
“HYPNOTIC EVIDENCE" ISSUE IN THE ABSENCE OF
ANY SPECIAL OR IMPORTANT REASONS.
ISSUE III

CERTIORARI SHOULD NOT BE GRANTED TO REVIEW
THE COMPETENCE OF PETITIONER'S CO-COUNSEL.

CONCLUSION

CERTIFICATE OF SERVICE

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PAGES

11-13

13-15

15,16
17

TABLE OF AUTHORITIES

AUTHORITY PAGES

Amadeo v. Zant,

U.S. ___, 108 S.Ct. 1771,
TOO L.Ed.2d 249 (1988) 9,11
Anderson v. Bessemer City,
470 U.S. 564 (1985) 11
Arizona v. Youngblood,
U.S. _ ss 3,L.Ed.2d
—_ S.Ct. ,2F F.L.W. FedsS. 830 (1988) 14

Berenyi v. Immigration Director,
385 U.S. 630 (1967) 12

Bruce v. Estelle,
536 F.2d 1051 (5th Cir. 1976),
cert. denied, 429 U.S. 1053 (1977) 11

Bundy v. Dugger,
816 F.2d 564 (1ith Cir.),
cert. denied, 108 S.Ct. 198 (1987) 2,3

Bundy v. Dugger,
675 F.Supp. 622 (M.D. Fla. 1987) 2,4

Bundy v. Dugger,
850 F.2d 1402 (11th Cir. 1988) 2,9

Bundy v. Florida,
479 U.S. 894 (1986) 1

Bundy v. State,
471 So.2d 9 (Fla. 1985), cert. denied,
479 U.S. 894 (1986) 1,9

Bundy v. State,
497 So.2d 1209 (Fla. 1986),
cert. denied, 108 S.Ct. 198 (1986) 1

Bundy v. Wainwright,
805 F.2d 948 (llth Cir.), app. to vacate
stay denied, 107 S.Ct. 483 (1986) 2

Davis v. United States,
417 U.S. 333 (1974) 12,13

Drope v. Missouri
420 U.S. 162 (1975) 11

Dusky v. United States,
362 U.S. 401 (1960) ll

Faretta v. California, .
422 U.S. 806 (1975) 10,15

Federal Trade Commission v. Traveler's Health Assn.,
362 U.S. 293 (1960) 13

Foster v. Dugger,
823 F.2d 402 (11th Cir. 1987), cert. denied,
U.S. , 108 S.Ct. 2915 (1987) 15

Foster v. Strickland,

707 F.2d 1339 (11th Cir. 1983)
cert. denied, 466 U.S. 993 (1984) 15

- iii -

TABLE OF AUTHORITIES (CONTINUED)

Graver Tank and Manufacturing Co. v. Linde Air
Products Co., .
336 U.S. 271 (1948)

Loconte v. Dugger,
847 F.2d 745 (11th Cir. 1988), cert. denied,
U.S. (1988)

Messer v. Kemp,
760 F.2d 1080 (11th Cir. 1985)

Mulligan v. Kemp,
771 F.2d 1436 (11th Cir. 1985)

Robinson v. Maynar
829 F.2d forte “(10th Cir. 1987)

Rock v. Arkansas,
483 U.S. + 97 L.Ed.2d 37,
107 S.Ct. 2704 (1987)

Rogers v. Lodge,
458 U.S. 613 (1982)

Pate v. Robinson,
383 U.S. 375 (1966)

Strickland v. Washington,
466 U.S. 668 (1987)

Texas v. Mead,
465 U.S. 1041 (1984)

Tucker v. Kemp
776 F. 2d "1487 (11th Cir. 1985)

United States v-. Doe,
465 U.S. 605 (1984)

United States v. Martinez-Fuente,
428 U.S. 543 (1976)

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4

IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1988
CASE NO.

THEODORE ROBERT BUNDY,
Petitioner,
Vv.
RICHARD L. DUGGER, .

Respondent.

BRIEF FOR RESPONDENT IN OPPOSITION

The Respondent, Richard L. Dugger, respectfully submits

that certiorari should be denied.

OPINIONS BELOW

On February 12, 1980, Petitioner Theodore Bundy was
convicted of the murder and abduction of twelve-year-old Kimberly
Leach. The Petitioner was sentenced to death. The conviction
and sentence were upheld on appeal. Bundy v. State, 471 So.2d 9
(Fla. 1985).

Mr. Bundy's petition for certiorari review on the issue of
hypnotically enhanced testimony was denied. Bundy v. Florida,
479 U.S. 894 (1986).

Mr. Bundy filed collateral attacks in the courts of
Florida, without success. See Bundy v. State, 497 So.2d 1209
(Fla. 1986), cert. denied, 108 S.Ct. 198 (1986).

Mr. Bundy petitioned for federal habeas corpus relief on
November 17, 1986. The federal court, after a thorough review of
all Bundy's files and consideration of the State's response to
the petition, summarily denied relief. Bundy v. Wainwright, Case

No. 86-968-Civ-Orl-18 (M.D. Fla. 1986).

The Eleventh Circuit granted a stay of execution. Bundy v.
Wainwright, 805 F.2d 948 (llth Cir.), app. to vacate stay denied,
107 S.Ct. 483 (1986).

After briefing and oral argument, the Eleventh Circuit
issued a limited remand order directing the District Court to
conduct a hearing into the question of Bundy's competence to
stand trial. Bundy v. Dugger, 816 F.2d 564 (llth Cir.), cert.
denied, 108 S.Ct. 198 (1987).

A full evidentiary hearing followed in which Bundy failed
to establish by competent evidence any incompetence to stand
trial. The District Court again denied relief. Bundy v. Dugger,
675 F.Supp. 622 (M.D. Fla. 1987).

Supplemental briefs were filed in the Eleventh Circuit and
argument was heard. The Eleventh Circuit affirmed the District
Court's decision. Bundy v. Dugger, 850 F.2d 1402 (llth Cir.
1988).

All of the above referenced opinions have been reprinted

and appendixed as a part of Mr. Bundy's petition.

JURISDICTION
Jurisdiction has been invoked pursuant to 28 U.S.C.

§1254(1).

CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED

Mr. Bundy has recited no constitutional or statutory

provisions germane to the petition.

STATEMENT OF THE CASE

Theodore Robert Bundy has been sentenced to death in two
unrelated prosecutions known generally as the "Chi Omega" case
and the "Lake City" case. These prosecutions have not been
consolidated for state or federal review. The certiorari
petition before this Honorable Court stems from the "Lake City"
case only.

The facts relevant to each of Mr. Bundy's three claims are

set forth, in order, as follows:

Facts: Claim I
(Competence to Stand Trial)

The Eleventh Circuit Court of Appeals ordered an
evidentiary hearing on the issue of Mr. Bundy's competence to
stand trial in the Lake City case. In doing so, the Court said:

"We do not suggest in any way, however that
Bundy was incompetent to stand trial. That
determination can be made only after a full
and fair evidentiary hearing. We hold simply
that the district court's finding that Bundy
failed to present evidence sufficient to
warrant an evidentiary hearing on _ his
competency is clearly erroneous."
Bundy v. Dugger, 816 F.2d 564, 568 (llth Cir. 1987).

Pursuant to. this order, Judge G. Kendall Sharp held a full
evidentiary hearing on the issue of Bundy's competence during the
Lake City trial.+ The hearing began on October 22, 1987. This
was followed by a deposition (in lieu of live testimony) of Dr.
Tanay and a Mr. Michaud. The hearing itself resumed on December
14, 1987 and continued through December 17, 1987.

Theodore Bundy called Dr. Dorothy Lewis, a psychiatrist;
Michael H. Minerva, Esquire, the Public Defender in the Chi Omega
case; Edward Harvey, Esquire, Assistant Public Defender; Bruce
Lubeck, Esquire, Assistant United States Attorney; Joe Nursey,
Esquire, former Assistant Public Defender; Donald Kennedy, an
investigator; Lynn Thompson, Esquire, former Assistant Public
Defender; and Mike Korin, Esquire, co-defense counsel. Bundy
submitted the deposition dated December 12, 1987 of Dr. Emanuel
Tanay, a psychiatrist. Of these witnesses, only Korin, Kennedy
and Thompson actually had knowledge of Bundy's activities during
the Lake City trial.

The Respondent produced physical evidence in the form of
video tapes of Mr. Bundy taken during the trial, cassette tapes
made by Bundy himself analyzing the trial and practicing his
closing argument, and live testimony from George Dekle, Esquire,

Assistant State Attorney; Dr. Peter Lipkovic, medical examiner;

1 References to the October 22 proceeding will be cited as

(R.O.-page). References to the deposition of Dr. Tanay will be
cited as (O-page). References to the December hearing will be
cited as (R-page). References to the original record will be

cited as (R.O.A.-page).

Robert Leventhal, Esquire, an expert witness; the Honorable
Wallace Jopling, the Lake City trial judge; Bryan Hayes, Esquire,
Bundy's attorney in the competency hearing; Dr. Peter Macaluso,
the physician to the Leon County Jail; James Sewell, former
investigator; Dr. Charles Mutter, a psychiatrist; Jerry Blair,
Esquire, State Attorney, Third Judicial Circuit; and Dr. Umesh
Mhatre, a psychiatrist.

After careful consideration of the record, evidence and
testimony Judge Sharp entered a detailed order which reviewed the
testimony of the witnesses both as to content and credibility.
Bundy v. Dugger, 675 F.Supp. 622 (M.D. Fla. 1987). Judge Sharp's
findings as to the Petitioner's witnesses were as follows:

Dr. Lewis' evaluation of Theodore Bundy was totally
inconsistent with the record facts. (675 F.Supp at 625). Dr.
Lewis could not explain her conclusions, nor could she explain
“in a satisfactory reasonable manner" why she had rejected the
findings of three other experts (Dr. Cleckly, Dr. Jorgenson and
Dr. Carlyle) who had examined Bundy and determined he was not
mentally ill. (675 F.Supp. at 625). Dr. Lewis' testimony was
“inconsistent and contrary" (675 F.Supp. at 625) to the
observations of those witnesses who saw Bundy during the trial.
This testimony included a conclusion that Bundy was "higher than
a kite" during the trial when in fact no such observation was
made by the trial judge, the prosecutors or even the defense
lawyers. (675 F.Supp. at 625).

Dr. Emanuel Tanay's testimony was also deemed inconsistent
with the record (675 F.Supp. at 626) and was "evasive." (675
F.Supp. at 625). Dr. Tanay did not believe it was "rational" for
Bundy to "reject" the plea agreement. (675 F.Supp. at 625).
Dr. Tanay felt Bundy suffered from a lifelong personality
disorder or psychopathic personality. (675 F.Supp. at 626). The
Court noted that Dr. Tanay conceded that Bundy had an excellent
grasp and understanding of the proceedings. The Court also
observed that Dr. Tanay had not reviewed the Lake City trial
record, had no idea how Bundy acted and had no understanding of

the strength of the state's case. Indeed, Dr. Tanay, on cross,

confessed that in fact "he had no opinion regarding the [Lake
City] case" and that his impression of Bundy might be different
had he read the record. (675 F.Supp. at 626).

Michael Minerva was Bundy's co-counsel in the "Chi Omega"
case and was involved in the aborted plea proceedings. Minerva
challenged Bundy's competence which resulted in an evidentiary
hearing in the trial court. On cross examination (at the Federal
District Court hearing) Minerva admitted that Bundy understood
his legal rights; the nature of the proceedings; that his
decision to go to trial was in fact rational and that even
lawyers on the defense team agreed with Bundy that he should not
enter a plea. (675 F.Supp. at 629).

The Court held that Bundy's problems with Mr. Minerva
resulted from their tactical disagreement and Minerva's lack of
zeal in defending Bundy rather than any mental disorder. (675
F.Supp. at 629).

The next witness, Mr. Harvey, merely questioned Bundy's
abilities as an attorney. (675 F.Supp. at 629-30) Other
members of the defense team, the Court found, all agreed that
Bundy was articulate and could communicate when he so desired.
(675 F.Supp. at 630).

In reviewing the Respondent's case, Judge Sharp first
discussed the testimony of the State's psychiatrists, Dr. Mutter
and Dr. Mhatre.

Dr. Mutter found extensive record evidence showing that
Bundy was motivated to help in the defense of the Lake City case.
(675 F.Supp. at 626-27). Dr. Mutter found a valid basis for
Bundy's dislike of his attorney Mike Minerva (Minerva wanted to
plead rather than defend Bundy in the circumstantial case). (675
F.Supp. at 626). Dr. Mutter noted that Bundy's marriage to Carol
Boone was of strategic value. Dr. Mutter concluded that Bundy
had a superior ability to receive and process information. Judge
Sharp also agreed with Dr. Mutter's two-part criticism of Dorothy
Lewis; to-wit: Lewis believed, based on a study of fifteen death
row inmates, "that all persons on death row must suffer from some

form of mental disease." Also, Lewis focused on Bundy's

childhood while ignoring the Lake City record. (675 F.Supp. at
627).

Dr. Mhatre's findings were also accepted by Judge Sharp due,
again, to their consistency with the record facts. Mhatre,
unlike Lewis and Tanay, spoke with defense counsel (Africano),
the prosecutors and the trial judge. (675 F.Supp. at 628).
Mhatre found that Bundy was able to relate to and work well with
Mr. Africano and, on one occasion during trial, recognized a
valid basis for objection and alerted his attorney to it. Any
anxiety or "depression" experienced during the murder trial were
within normal limits. (675 F.Supp. at 628). Dr. Mhatre found
that Bundy had a rational as well as factual understanding of the
proceedings. Although Bundy's experts alleged "bipolar mood
disorder,” Bundy's conduct, especially his attention to personal
appearance and hygiene, belied the diagnosis. Dr. Mhatre found
nothing unusual in Bundy's scholastic record. Dr. Mhatre agreed
that the decision to marry Carol Boone before the sentencing
phase jury could have been a strategic ploy to gain sympathy from
the jury. (675 F.Supp. at 628). Finally Dr. Mhatre noted that
even a person with "bipolar mood disorder" can be competent to
stand trial between psychotic episodes. (675 F.Supp. at 629).

The Court accepted the observations of prosecutor George
Dekle as to Bundy's conduct before and during the trial. Dekle
agreed that the marriage was a “humanizing" tactic. Bundy was
never intoxicated in court. Bundy did not reject the plea, Dekle
withdrew the offer when Bundy attempted to lay a foundation for a
future collateral attack at the plea hearing. Bundy was even
able to locate and cite relevant case law to the court. (675
F.Supp. at 630).

The Court specifically agreed that Bundy's marriage to Carol
Boone after being convicted of murdering a little girl was indeed
an attempt at gaining some sympathy from the jury. (675 F.Supp.
at 631).

The Court found that Dr. Lipkovic was competently deposed by
Bundy and, in fact, was even compelled to alter his findings
based upon an error in his research which Bundy detected. (675

F.Supp. at 631).

The Court then noted the opinion of Judge Wallace Jopling,
who presided over the Lake City trial. Judge Jopling never saw
Bundy "intoxicated" in court and the judge stated that Bundy was
actively involved in his own defense. Bundy presented cogent
arguments and, with one exception, his behavior was always
appropriate. Judge Jopling felt Bundy understood the nature of
the proceedings as well as the possible penalty. Bundy's

strategy was to challenge the credibility and reliability of the

state's witnesses. Bundy was one of the most intelligent
defendants ever to appear before his court. (675 F.Supp. at
631).

The District Court then noted the testimony of attorney

Brian Hayes. Mr. Hayes represented Mr. Bundy ("against Mr.
Minerva") in the Chi Omega competency proceedings. Mr. Hayes
felt Bundy was articulate, competent and knowledgeable. (675

F.Supp. at 631).

The Court then discussed the testimony of James Sewell, a
witness whom Bundy deposed. Mr. Sewell stated that Bundy's
performance compared favorably with other attorneys who had
questioned him in other cases. (675 F.Supp. at 631).

Mr. Jerry Blair's testimony was discussed next. As State
Attorney, Blair agreed to the plea bargain because the case
against Bundy was not strong enough to be considered “air tight."
Mr. Blair felt that Bundy's decision to challenge the state's
evidence was not irrational at all. Bundy was never seen to act
incompetently and, again, the tactical value of Bundy's marriage
was noted. (675 F.Supp. at 632).

The Court then carefully analyzed exhibits in the form of
cogent letters written by Bundy to various attorneys and judges.
The Court viewed a video cassette of Bundy arguing his case to
the jury during the Lake City trial. (675 F.Supp. at 632-633).

Finally, and most significantly, the Court listened to a
series of cassette tapes” prepared by Bundy during the trial.

(675 F.Supp. at 633-634). These tapes, all dated and timed by

2 The tapes were admitted into evidence pursuant to a
stipulation between the parties.

Bundy, analyzed his trial as well as important historical events
in Bundy's life. On one tape, Bundy even rehearsed his final
argument to the court. Judge Sharp concluded:

"The Petitioner's observations and opinions
expressed on tapes 6, H and I leads the Court
to believe that Petitioner was at all times
cognizant of the proceedings. Petitioner's
ability to receive and process information,
and later relate that information by tape
recording, was exceptional. There is nothing
in any of the tapes prepared by Petitioner at
or near the time of the Leach murder trial
which would lead this Court to question
Petitioner's ability to comprehend = and
appreciate the nature of the proceedings
against him."

675 F.Supp. at 634.

The court found that Bundy understood and appreciated the
charges, the possible penalty, the adversary nature of the
proceedings and the legal process. Bundy was able to communicate

and relate to Mr. Africano and in fact assisted in his own

defense. Bundy was motivated to defend himself and was "an
effective questioner." Bundy was able to cope with the stress of
incarceration. Bundy, in sum, was competent. (675 F.Supp. at
635).

In addition to the evidence discussed by the court, this
outcome had other evidentiary support, to-wit:

Cross examination of Mr. Minerva and Dr. Tanay revealed that
Dr. Tanay was going to diagnose Bundy as "competent" to plead
guilty if the plea bargain succeeded. (R.O. 80, 95; D 59)
Tanay, in fact, called himself “part of the defense team." (D 53)
Tanay was not aware of the state's case or the fact that Bundy
had an (honors) degree in psychology. (R.O. 51)

Don Kennedy, an investigator with the Leon County Public
Defender's Office, testified that Bundy received pills and
alcohol. On cross examination, however, he confessed that Bundy
consumed no pills in his presence (R 96) and that Bundy only took
"a few nips" of some spiked juice. (R 96) Kennedy, on one
occasion, found pills in Bundy's lunch. The pills were "blue-
grey" or "green."

In response to Don Kennedy's testimony, the State called Dr.

Peter Macaluso, Bundy's physician during that time period. He

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~ LL

testified that no narcotic drugs came in the form of "blue-grey"
or "green" pills. (R 510-11)
On appeal, the Eleventh Circuit reviewed the District

Court's findings for "clear error" under Amadeo v. Zant,

U.S. __, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988) and concurred
with the finding of the lower court that Bundy was entitled to no
relief.
Facts: Claim II
(Hypnotic Evidence)

The record shows that one C. L. Anderson was hypnotized by
the police in an effort to determine just what, if anything, he
saw. Bundy v. Dugger, 850 F.2d 1402, 1414 (11th Cir. 1988).9

Mr. Anderson was not shown to have been supplied with any
facts, nor was his memory enhanced beyond the three minor details
mentioned by the reviewing courts; to-wit: the color of the
victim's jersey, the possible number appearing on the jersey and
the fact that the man with her had on a pull-over shirt. Bundy
v. State, 471 So.2d 9 (Fla. 1985), cert. denied, 479 U.S. 894
(1986); Bundy v. Dugger, 850 F.2d 1402 (llth Cir. 1988).

Bundy filed a pretrial motion to suppress (R.O.A. 13,002-
13,006) but was never able to establish any prejudice to his
case. (R.O.A. 13,955-14,022) Anderson was deposed prior to
trial (R.O.A. 7,980-8,140) and was vigorously cross-examined
during the trial itself. (R.O.A. 4,091-4,182)

Based upon this record, the Florida Supreme Court found that
any "error" in the use of hypnotic testimony was "harmless."

Bundy v. State, 471 So.2d 9, 19 (Fla. 1985) cert. denied 479 U.S.

894 (1986). The Eleventh Circuit, after careful analysis,

concurred Bundy v. Dugger, 850 F.2d 1402 (11th Cir. 1988).

3 Mr. Bundy's second claim is a reargument of the sole issue
raised in his previous petition for certiorari. Bundy v. State,
471 So.2d 9 (Fla. 1985), cert. denied, 479 U.S. 894 (1986).

Facts: Claim III
(Ineffective Assistance of Counsel)

Mr. Bundy was granted leave to represent himself after Mr.
Bundy cited and argued Faretta v. California, 422 U.S. 806 (1975)
to the trial court. (R.O.A. 144-149)

Bundy either took or particpated in or directed (with co-
counsel) eighty discovery depositions from May to November of
1979. (R.O.A. 6,959-9,262) ;

The defense argued motions attacking the death penalty,
(R.O.A. 9,738-60) motions to quash Count I, (R.O.A. 9,938-10,002)
motions to suppress (R.O.A. 10,232-10,265; 10,266-10,418; 10,490-
10,672; 10,769-10,870; 10,871-10,996; 10,997-11,019) as well as
motions for change of venue (R.0.A. 11,020-11,217) and motions in
limine (R.O.A. 10,673-10,768)

Bundy accepted the appointment of Victor Africano as his co-
counsel and, according to Judge Jopling, expressed: satisfaction
with Africano's work. (R 454)

As noted by the Eleventh Circuit, Bundy has never alleged
any specific facts showing "how" his case was prejudiced by
counsel engaging in plea negotiations. (Counsel apparently being
Mr. Minerva, from Chi Omega). Bundy v. Dugger, 850 F.2d at 1412.
‘Thus, Bundy “never made a colorable showing of prejudice
sufficient to trigger an evidentiary hearing." (id.)

As for counsel's failure to move for a "competency"
determination, the record of the competency hearing, before Judge
Sharp, demonstrates that a competency hearing during the Lake
City case was not warranted and would not have succeeded. Bundy
was not incompetent, ergo "no prejudice" can be established and
“no basis for an additional evidentiary hearing exists." Bundy

v. Dugger, 850 F.2d at 1412.

-10-

~ LR

Reasons for Denying the Writ
I.
CERTIORARI SHOULD NOT BE GRANTED FOR THE
PURPOSE OF REWEIGHING EVIDENCE OF THE
PETITIONER'S COMPETENCE TO STAND TRIAL.
The Respondent submits that there was more than ample
evidence of Bundy's competence to stand trial under the standards
announced in Dusky v. United States, 362 U.S. 401 (1960); Pate v.
Robinson, 383 U.S. 375 (1966) and Drope v. Missouri, 420 U.S. 162
(1975). Dusky, supra, states the standard as:
"whether he has sufficient present ability to
consult with his lawyer with a reasonable
degree of rational understanding - and
whether he has a rational as well as factual
understanding of the proceedings against
him."

362 U.S. at 402.

The fact that the lower federal courts relied upon the
testimony of Drs. Mutter and Mhatre, who did not examine Bundy,
rather than Drs. Tanay and Lewis, who did, is not subject to
question on that basis. In Drope v. Missouri, 420 U.S. at 181
(n. 17) this Court recognized the -"irrelevance" of recent
psychiatric evdluations and refused to consider them as part of a
nunc pro tunc evaluation of competence. The opinion in Bundy v.
Dugger, supra, does not in any way conflict with this Court's
decisions.

On appeal, the Eleventh Circuit took a “hard look" at the
District Court's decision, see Bruce v. Estelle, 536 F.2d 1051
(Sth Cir. 1976) cert. denied 429 U.S. 1053 (1977) and did not
find "clear error" (i.e., a lack of record support for the
factual conclusions drawn) as required for reversal under Amadeo
v- Zant, supra and Anderson v. Bessemer City, 470 U.S. 564
(1985). Indeed, the Eleventh Circuit could not have come to a
different result. Mr. Minerva and Dr. Tanay conceded Bundy was
competent to enter a plea of guilty and were willing to present
him to the court for such a plea. Dr. Tanay did not review the
Lake City case and expressly stated he had no opinion as to

Bundy's competence in this case. Dr. Lewis' theories did not

mesh with the record. Mr. Kennedy never saw Bundy take drugs and

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only saw him take "a few nips" of "spiked" juice. No other
witnesses saw Bundy "drunk." There was, however, substantial
transcribed, taped, videotaped and testimonial evidence that
Bundy was competent, all supported by the expert testimony of two
psychiatrists who were familiar with all aspects of this case.

In seeking certiorari review, Mr. Bundy wants this Court to
review the evidence to see if it agrees with the two lower
federal courts. This is not a valid basis for certiorari review.

In Graver Tank and Manufacturing Co. v. Linde Air Products
Co., 336 U.S. 271, 275 (1948) this Court held:

"The rule requires that an appellate court
make allowance for the advantages possessed
by the trial court in appraising the
significance of conflicting testimony and
reverse only "clearly erroneous" findings.
These are manifestly supported by substantial
evidence and the Court of Appeals found them
supported by the weight of the evidence -
indeed found the evidence to warrant support
of the patent even in matters not found by
the trial court. A court of law, such as
this Court is, rather than a court for
correction of errors in fact finding, cannot
undertake to review concurrent. findings of
fact by two courts below in the absence of a
very obvious and exceptional showing of

This standard has been consistently followed. Berenyi v.
Immigration Director, 385 U.S. 630, 635 (1967); Rogers v. Lodge,
458 U.S. 613 (1982); United States v. Doe, 465 U.S. 605 (1984);
Texas v. Mead, 465 U.S. 1041 (1984).

Bundy cannot show "obvious. and exceptional error" on the

basis of this record. Bundy's own tapes reveal a complete
appreciation of his circumstances. The state's witnesses were
unequivocal in stating that Bundy was competent. The trial

transcripts of this massive trial contain another 15,000 pages of
proof of competence. Contrary to Bundy's view of the evidence,
there exists ample record support for the lower courts' orders
and no basis for certiorari review. Graver, supra.

Petitioner also contends that “intra-district conflict"
exists between the opinion at bar and the "remand orders" in this
case and the "Chi Omega" case. Any such argument fails to
overcome the general prohibition against certiorari review of

intra-district conflict, see Davis v. United States, 417 U.S. 333

~12-

(1974) and is unsupported by the opinion in Bundy v. Dugger, 850
F.2d at 568, which clearly stated that the remand order was not a

merits ruling.
II.

CERTIORARI SHOULD NOT BE GRANTED TO REVIEW
THE CIRCUIT COURT'S RESOLUTION OF THE
HYPNOTIC EVIDENCE ISSUE IN THE ABSENCE OF ANY
SPECIAL OR IMPORTANT REASONS.

Mr. Bundy alleges that his Sixth and Fourteenth Amendment
rights were violated when investigators for the state hypnotized
Cc. L. Anderson while investigating the Leach murder. Thus, Bundy
concludes, certiorari should be granted to answer what he
perceives to be questions left unanswered. by Rock v. Arkansas,
483 U.S. se, 97 L.Ed.2d 37, 107 S.Ct. 2704 (1987).

While this Court has from time to time answered "unanswered
questions," see United States v. Martinez-Fuente, 428 U.S. 543,
545 (1976), Federal Trade Commission v. Traveler's Health Assn.,
362 U.S. 293, 297 (1960), we submit that the decision in Rock,
supra, does not leave an "unanswered question." The Circuit
Court clearly agreed when it cited Rock for the proposition that
hypnosis does not create Sixth or Fourteenth Amendment problems.
Bundy v. Dugger, supra, at 1415. The Bundy court held:

"Rock thus teaches that, although hypnosis
may make effective cross examination more
difficult, it does not always make it
impossible, thereby preserving the
opportunity for effective cross~examination
safeguarded by the Sixth Amendment. See
Delaware v. Fensterer, 474 U.S. 15, 20, 106
S.Ct. 272, 245, 88 L.Ed.2d 15 (1985) ("[TJhe
Confrontation Clause guarantees the
opportunity for effective cross-
examination..." (emphasis in original)),
accord, Delaware v. Van Arsdall, 475 U.S.
673, 678, 106 S.Ct. 1431, 1435, 89 L.Ed.2a
674 (1986). Consequently we decline to hold
that the Confrontation Clause requires a per
se ban on the admission of hypnotically
refreshed testimony." (id.)

The Petitioner has not and cannot demonstrate error by the
Eleventh Circuit, for, indeed, Rock v. Arkansas states:

"The more traditional means of assessing
accuracy of testimony also remain applicable
in the case of a previously hypnotized
defendant. Certain information recalled as a
result of hypnosis may be verified as highly
accurate by corroborating evidence. Cross-
examination, even in the face of a competent
defendant, is an effective tool for revealing

-13-

inconsistencies. Moreover, a jury can be
educated to the risks of hypnosis through the
use of expert testimony and cautionary
instructions."

supra, at 97 L.Ed.2d 51, 52.

Mr. Bundy has one other problem. The issue in Rock was not
"hypnosis" but rather whether a state could prohibit a defendant
in a felony case from taking the stand on her own behalf simply
because she had been hypnotized. That issue is decidedly unlike
the one presented by Mr. Bundy.

It is suggested that Mr. Bundy's request for a "per se"
decision on the admissibility of all hypnotically-refreshed
testimony, if anything, is foreclosed by Rock rather than left
open by said opinion. Mr. Bundy's position was recently rejected
by the Tenth Circuit in Robison v. Maynard, 829 F.2d 1501 (10th
Cir. 1987). There simply is no rational nexus between the
physical effect of hypnosis on a person and that person's legal
status as a party to a case.

In Robison, id, two State witnesses were hypnotized for the
purpose of learning what they saw on the night of the murder in
question. One witness was driving past Robison's home in her
car. The second witness was with Robison when he disposed of the
murder weapon. The Oklahoma Court of Criminal Appeals held that
the hypnotically refreshed testimony of these witnesses should
not have been admitted into evidence, but that its admission was
harmless. The Tenth Circuit agreed, citing Rock v. Arkansas,
supra, and concluding that the use of hypnotic testimony is not
per se constitutional error.

We would suggest that the Confrontation Clause and
Fourteenth Amendment issues offered by Mr. Bundy are analogous to
those considered in the recent decision in Arizona v. Youngblood,

U.S. _, ___siL.Ed.2d lt, SCH. ls 2 OW
Fed.S. 830 (1988). There, this Court found no constitutional
deprivation in cases where the police fail to preserve physical
evidence or use the "best" available test thereon. Such "error,"
this Court said, does not deprive the defendant} of the
opportunity to argue the loss of the evidence or the state's

failure to properly test or preserve same. This is also| true, as

~14-

inconsistencies. Moreover, a jury can be
educated to the risks of hypriosis through the
use of expert testimony and cautionary
instructions."

supra, at 97 L.Ed.2d 51, 52.

It is suggested that Mr. Bundy's request for a "per se"
decision on the admissibility of all hypnotically-refreshed
testimony, if anything, is foreclosed by Rock rather than left
open by said opinion. Mr. Bundy's position was recently rejected
by the Tenth Circuit in Robison v. Maynard, 829 F.2d-1501 (10th
Cir. 1987). There simply is no rational nexus between the
physical effect of hypnosis on a person and that person's legal
status as a party to a case.

We would suggest that the Confrontation Clause and
Fourteenth Amendment issues offered by Mr. Bundy are analogous to
those considered in the recent decision in Arizona v. Youngblood,

U.S. _, _siL-Ed.2d et, SCH. Ll, 2 OPW
Fed.S. 830 (1988). There, this Court found no constitutional
deprivation in cases where the police fail to preserve physical
evidence or use the "best" available test thereon. Such “error,”
this Court said, does not deprive the defendant of the
Opportunity to argue the loss of the evidence or the state's

failure to properly test or preserve same. This is also true, as

- 14 -

noted in Rock, in cases where the defendant can attack "hypnotic"
evidence through proof of inconsistencies, expert testimony on
hypnosis, or cautionary instructions.

Thus, there exist no special or important reasons to
reconsider this Court's earlier decision to deny certiorari on

this issue.

IIl.
CERTIORARI SHOULD NOT BE GRANTED TO REVIEW
THE COMPETENCE OF PETITIONER'S CO-COUNSEL.

Mr. Bundy served as his own attorney in this case and is
estopped from challenging his own effectiveness. As this Court
held in Faretta v. California, 422 U.S. 806, 834-35 (1975)

“The defendant, and not the lawyer or the

State, will bear the personal consequences of
a conviction."

"When an accused manages his own defense, he
relinquishes, as a purely factual matter,
many of the traditional benefits associated
with the right to counsel. For this reason,
in order to represent himself, the accused
must 'knowingly and intelligently' forgo
[sic] those relinquished benefits.”

The American Bar Association Code of Professional
Responsibility, Ethical Consideration 7-7, also recognizes that
the defendant, whether represented by counsel or not, retains
ultimate control over the case. Thus, in Foster v. Strickland,
707 F.2d 1339 (11th Cir. 1983) cert. denied, 466 U.S. 993 (1984);
Foster v. Dugger, 823 F.2d 402 (11th Cir. 1987) cert. denied
U.S. , 108°S.Ct. 2915 (1987); Loconte v. Dugger, 847 F.2d 745
(llth Cir. 1988) cert. denied U.S. (1988); Mulligan v.
Kemp, 771 F.2d 1436 (llth Cir. 1985); Tucker v. Kemp, 776 F.2d
1487 (llth Cir. 1985) and Messer v. Kemp, 760 F.2d 1080 (11th
Cir. 1985) the courts refused to find counsel "ineffective" where
the client either pre-empted or inhibited counsel's efforts.

Theodore Bundy was his own co-counsel. Bundy was given
massive pretrial discovery, the assistance of capable co-counsel

and all the safeguards of the system. Bundy has yet to allege or

show a single fact in support of his conclusory allegations of

-15-

"incomplete preparation" or some “prejudice” to his case simply
because the defense team entered into plea negotiations. Bundy
v. Dugger, 850 F.2d at 1412.

The Circuit Court could not be expected to supply factual
allegations for Bundy, nor could it ignore Bundy's role as lead
counsel and find his co-counsel ineffective.4 It cannot,
therefore, be said that certiorari review is necessary to review
the Eleventh Circuit's findings of "no error or prejudice" under
Strickland v. Washington, 466 U.S. 668 (1987).

If we were to assume that Bundy's accusation of “failure to
investigate" goes to Mr. Africano, the record facts relied upon
by the Eleventh Circuit in Bundy. v. Dugger, 850 F.2d at 1411,
1412 clearly eliminates any prospect of reviewable error. As
that court noted, in addition to finding no deficiency on co-
counsel's part, the state court determination (on collateral
attack) that it would have still admitted the challenged evidence
even under Bundy's new theory eliminates the "prejudice" prong of
Strickland. Bundy v. Dugger, 850 F.2d at 1412.

Again, as to the plea bargain, Bundy never alleged facts of
any kind to support his claim of "prejudice."

Finally, Bundy's claim that counsel failed to put on penalty
phase evidence of a "mental disorder" wholly ignores Bundy's
refusal to permit this evidence and his active resistance to any
“insanity” defense, (as well as the finding of the district court
that Bundy is not mentally ill). The record, according to the
Eleventh Circuit, shows that even in 1980 the state had evidence
(from Dr. Cleckly) to rebut any opinion from Dr. Tanay. Bundy's
conduct and the record facts support the "no error" and "no
prejudice" findings in Bundy v. Dugger, supra. This evidence

should not be "reweighed" by certiorari. Graver, supra.

4 Indeed, Bundy does not even specify which lawyer was
"ineffective".

~ 16 -

CONCLUSION

Certiorari should not be granted. Mr. Bundy has failed to
satisfy Rule 17 by alleging or showing any basis or need for the
granting of review. His complaints are essentially centered upon
the lower courts' interpretations and weighing of the evidence

and not upon issues of law.
Respectfully submitted,

ROBERT A. RUTTERWORTH
ATTORNEY ERAL

Assistant Attorney General

Heb Lleer

‘MARK C. MENSER C€
Assistant Attorney General

DEPARTMENT OF LEGAL AFFAIRS
The Capitol

Tallahassee, FL 32399-1050
(904) 488-0600

COUNSEL FOR RESPONDENT

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the
foregoing has been furnished by Federal Express to Mr. James E.
Coleman, Jr., Esq., WILMER, CUTLER & PICKERING, 2445 M Street,

N.W., Washington, D.C. 20037, this day of mae 1988.

Assistant’ Attorney General

hd Me

Wa
LAE.
MARK’ C. MENSER
Assistant Attorney General

OF COUNSEL

- 17 -

RECEIVED
HAND DELIVERED

NOV 15 1988

OFFICE OF THE CLERK
SUPREME COURT, U.S.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1988

THEODORE ROBERT BUNDY, Petitioner,

RICHARD L. DUGGER, AS SUPERINTENDENT,
FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE ELEVENTH CIRCUIT

James E. Coleman, dJr.*

Polly J. Nelson
Wilmer, Cutler & Pickering
2445 M Street N.W.
Washington, D.C. 20037
(202) 663-6000

Counsel for Petitioner
* Counsel of Record

November 15, 1988

Questions Presented

1. WHETHER PETITIONER WAS DENIED AN ADEQUATE REMEDY
FOR THE STATE'S VIOLATION OF HIS RIGHT, UNDER PATE V. ROBINSON, TO

A COMPETENCY DETERMINATION CONTEMPORANEOUS WITH TRIAL.

2. WHETHER THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT CORRECTLY INTERPRETED THIS COURT'S DECISION IN
ROCK V. ARKANSAS, 107 S.Ct. 2704 (1987), TO PERMIT THE STATE OF
FLORIDA TO INTRODUCE AT PETITIONER'S CAPITAL TRIAL THE UNCOR-
ROBORATED HYPNOTICALLY-DEVELOPED TESTIMONY OF AN ALLEGED EYE-
WITNESS THAT THE FLORIDA SUPREME COURT SAID WAS THE "CRUCIAL LINK

IN THE CHAIN OF CIRCUMSTANTIAL EVIDENCE" OF PETITIONER'S GUILT.

3. WHETHER PETITIONER'S PRIMA FACIE CLAIMS OF
INEFFECTIVE ASSISTANCE OF COUNSEL PROPERLY WERE DENIED SUMMARILY

WITHOUT AN EVIDENTIARY HEARING IN ANY COURT.

List of Parties

The parties before the Court and to the proceedings
below are the petitioner Theodore Robert Bundy and the respondent
Richard L. Dugger, as Superintendent, Florida Department of

Corrections.

-ii-

TABLE OF CONTENTS

Questions Presented ......-.

List of Parties . 1. 6 2 ee ee ee ee ee ew ee we di
Table of Contents . . 1. 1 6 ee ee ee ee ee ee ee iii
Table of Authorities . 2... ee ee ee ew ee ee ee ee Vv
Opinions Below. . 6. 6 2 2 6 6 ee ee ee ee eee ee 1
Jurisdiction. . 2. 6 6 ewe we ee eee we ee ee es 3
Statement of the Case . . 1 1 6 ee ee ee ew ee eee 3
REASONS FOR GRANTING THE PETITION . . . 2. e+ 2 2 + 2 se ee © 8
I. The Courts Below Denied Petitioner a Remedy to the
State's Violation of Petitioner's Constitutional
Right to a Determination of His Competency at the
Time of Trial . 2. 1 ee ee we ee ee ee se ee 8
II. Petitioner Was Unconstitutionally Convicted
And Sentenced To Death After A Trial In
Which The Florida Supreme Court Found That
The "Crucial Link" in the Evidence Against
Petitioner Was the Uncorroborated Testimony
of a Previously Hypnotized Witness... ... +. e+ - 23
III. Petitioner is Entitled to an Evidentiary Hearing on His

Claims of Ineffectivenes of Counsel .....-.+ +--+ 57

CONCLUSION 2. 6 6 6 ee ee ee ee ee ee ee ee ee ee 62

Appendix . 6 6 ee ee ee eee ee wee eee ee ee

Tab 1 Florida Supreme Court's Decision on
Direct Appeal, Bundy v. State, 471 So. 2d 9
(Fla. 1985)

Tab 2 Denial of Certiorari, Bundy v. Florida, 479
U.S. 894 (1986) (Brennan, Marshall, J.J.,
dissenting)

Tab 3 District Court's Initial Decision Denying

the Writ, Bundy v. Wainwright, No. 86-968-CIV—
ORL-18 (M.D. Fla. Nov. 17, 1986) (not

published)

Tab 4 Eleventh Circuit's Decision Remanding for
Evidentiary Hearing on Competency Issue,
Bundy v. Dugger, 816 F.2d 564 (1987)

Tab 5 Petitioner's Motion to Middle District for
Status Conference, Bundy v. Dugger, No. 86-
968-CIV-ORL-18 (Oct. 14, 1987)

Tab 6 District Court's Decision on Remand,
Bundy v.Dugger, 675 F. Supp. 622 (M.D. Fla.
1987) :

Tab 7 Petitioner's Supplemental Brief to Eleventh

~ iii -

Tab

Circuit, Bundy v. Dugger, No. 86-3773 (Jan.
25, 1988)

State's Supplemental Brief to Eleventh Circuit
(Feb. 3, 1988)

Eleventh Circuit's Decision Affirming the
District Court After Remand, Bundy v. Dugger,
850 F.2d 1402 (1988)

Petitioner's Petition to Eleventh Circuit for
Rehearing and Suggestion of Rehearing En Banc,
Bundy v. Dugger, No. 86-3773 (July 26, 1988)

Petitioner's Application for Stay of Mandate
Pending Certiorari (Aug. 4, 1988)

Eleventh Circuit's Decision Denying Rehearing
and Rehearing En Banc (Sept. 16, 1988)

Eleventh Circuit's Decision Granting Stay of
Mandate (Sept. 20, 1988)

Clarence Anderson's July 28, 1978 Statement

Transcript of Clarence Anderson's July 28, 1978,
Hypnotic Session

Transcript of Clarence Anderson's July 31, 1978,
Hypnotic Session

Table of Clarence Anderson's Statements
Before, During, and After Hypnosis

Collection of Newspaper Articles Published by
The Lake City Reporter during the period from
February 10, 1978 to July 27, 1978

Trial Testimony of Clarence Anderson, R. 4055 —
4182

-iv-

TABLE OF AUTHORITIES

Page
CASES
Agan v. Dugger, 835 F.2d 1337 (llth Cir. 1987), cert.
denied, 108 S. Ct. 2846 (1988)... . - s+ + + + © + -67, 68

Bishop v. U.S., 350 U.S. 961 (1956)... +--+ ee eee es 8

Bruce v. Estelle, 536 F.2d 1051 (5th Cir. 1976), cert. denied,
429 U.S. 1053 (1977) «2 2 ee ee ee ee et ee ee ew 0 20

Bundy v. Dugger, 675 F. Supp. 622 (M.D. Fla. 1987), aff'd, 850
F.2d 1402 (llth Cir. 1988) .... 2. ee. e+e ee » « 2, 13

Bundy v. Dugger, 816 F.2d 564 (llth Cir.), cert. denied, 108 S.
Ct. 198 (1987) 2. 2. 6 2 ee ew ee ee ee ee ee 7... 2, 10, 50

Bundy v. Dugger, 850 F.2d 1402 (llth Cir. 1988). . 2, 14, 16, 54
Bundy v. State, 107 S. Ct. 295 (1986)... - ++ e+ ee eee 52

Bundy v. State, 455 So. 2d 330 (Fla. 1984), cert. denied, 106 S.
Ct. 1958 (1986). 2 2 1 ee ee ee ee ee ee ee ee 2

Bundy v. State, 471 So. 2d 9 (Fla. 1985), cert. denied, 479 U.S.
894 (1986) 2. 6 6 we we ew ee ee ee ee ee -passim

Bundy v. State, 479 U.S. 894 91986). . «© 6 2 6 ee ee ee es 2

Bundy v. State, 497 So.2d 1209 (Fla. 1986), cert. denied,
108 S. Ct. 198 (1987). 2. 2 2 ee ee ee ee ee ee ee ee

Bundy v. Wainwright, 805 F.2d 948 (llth Cir.), appl. to
vacate stay denied, 107 S. Ct. 483 (1986)... .-..-+-+-+- 1

Bundy v. Wainwright, 808 F.2d 1410 (1986), cert. denied, 108
S. Ct. 198 (1987). 2. ee ww we ew we ww ww ww ode Dy 63

Bundy v. Wainwright, No. 86 968-CIV-ORL-18 (M.D. Fla. Nov.
17, 1986)... 2 2+ 2 eee eo

Chambers v. Mississippi, 410 U.S. 284 (1973) . ... . . -67, 68
Chapman v. California, 386 U.S. 18 (1967). ...... . -5l, 52

Clay v. Vose, 771 F.2d 1 (1st Cir. 1985), cert. denied, 106
S. Ct. 1212 (1986) 2. 1. 1 ww ew we eee ee ee ww Ay 55

Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981) .47

Croonan v. Alabama, 587 F.2d 246 (5th Cir.), cert. denied,
440 U.S. 974 (1979). 2 2 we we ee ee ee ee ee ee 260

Delaware v. Fensterer, 474 U.S. 15 (1985). 2. «2 2 2 2 2 ee ee

BH
x
.
H
o)
ny
N
w

Drope v. Missouri, 420 U.S. 162 (1975) . 2... ee
Drope v. State, 498 S.W.2d 838 (1975). . 2. 2 6 6 ee ee ee 218

Dusky v. U.S., 362 U.S. 402 (1960) . «2 ee ee ee eee -8, 9
Fahy v. Connecticut, 375 U.S. 85 (1963)... ++ +++ -48, 51

Frye v. United States, 293 F.2d 1013 (D.C. Cir. 1923). . . . .45

Harker v. Maryland, 800 F.2d 437 (4th Cir. 1986) . .. .- .50, 54

Kampshoff v. Smith, 698 F.2d 581 (2d Cir. 1983)
865 (1986). te ee

Kimmelman v. Morrison, 477 U.S. 365 (1986)... .-. ++. + -68

King v. Strickland, 748 F.2d 1462 (11th Cir. 1984), cert.
denied, 471 U.S. 1016 1985). . 2. 2 6 2 ee we ee ee + 260

Lee v. Alabama, 386 F.2d 97 (5th Cir. 1967) (en banc),
cert. denied, 395 U.S. 927 (1969). . . . . «s+ e+ © 619, 20

Little v. Armontrout, 835 F.2d 1240 (8th Cir. 1987), cert.
denied, 108 S. Ct. 2857 (1988) .......+ +++. + epassim

Locket v. Ohio, 450 U.S. 931 (1981)... -. +--+ +++ e+ 64
Lokos v. Caps, 625 F.2d 1258 (11th Cir. 1980). .... . 21, 22
Martin v. Estelle, 583 F.2d 1373 (5th Cir. 1978) . . .19, 20, 21
McCoy v. Wainwright, 804 F.2d 1196 (11th Cir. 1986). .... .65

McQueen v. Garrison, 814 F.2d 951 (4th Cir.), cert. denied,
108 S. Ct. 332 (1987). - 2 2 ee ew ee ee ee 650, 54, 55, 58

Neil v. Biggers, 409 U.S. 188 (1972) . - «© 2 s+ ee ee ees 245

Pate v. Robinson, 383 U.S. 375 (1966)... « « 015, 16, 17, 23
People v. People v. Gonzales, 415 Mich. 615, 329 N.W. 2a 743 (1982) .48, 55

People v. Robinson, 22 Ill. 2d 162, 174 N.E.2d 820 (1961),
cert.denied, 368 U.S. 995 (1962)... 2.2. 2 ee ee eee 216

People v. Shirley, 31 Cal. 3d 18, 641 P. 2d 775, 181 Cal.
—Rptr. 243, cert. denied, 459 U.S. 860 (1982)... . . -47, 48

Porter v. Wainwright, 805 F.2d 930 (llth Cir. 1986), cert.
denied, 107 S. Ct. 3195 (1987) ..... +. . «62, 64, 67, 68

Rock v. Arkansas, 107 S. Ct. 2704 (1987) ......s..-. passim
Schneble v. Florida, 405 U.S. 427 (1972) . . . «© 2s es + 48

Slicker v. Wainwright, 809 F.2d 768 (llth Cir. 1987) . .. . .68

-vi-

Smith v. Wainwright, 741 F.2d 1248 (11th Cir. 1984), cert.
denied, 470 U.S. 1087 (1985)... 2 ee ee eee ee ee 768

Spryncznatyk v. General Motors, 771 F.2d 1112 (8th Cir.
1985), cert. denied, 106 S. Ct. 1263 (1986). .- -~.- + -50, 56

State ex rel. Collins v. Superior Court, 132 Ariz. 180, 644
P.2d 1266, (1982). .+. ee ee eee ee ee ee ee ee 245

State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981) . . . .46, 55, 59
State v. Mena, 128 Ariz. 226, 624 P.2d 1274, (1981)... .. .45
State v. Tedder, 322 So. 2d 908 (Fla. 1975). . 2. s+ 2+ se eee 7

Strickland v. Washington, 466 U.S. 668 (1984). . ... + -60, 64

Thomas v. Zant, 697 F.2d 977 (llth Cir. 1983), vacated, 478
U.S. 1016 (1986), cert. denied, 107 S. Ct. 1982 (1987) . . -68

United States v. Brown, 557 F.2d 541 (6th Cir. 1977)... . -57

United States v. Franzen, 594 F.Supp. 198 (N.D. Ill. 1984) . .65

United States v. Kimberlin, 805 F.2d 210 (7th Cir. 1986),
cert. denied, 107 S. Ct. 3270 (1987) . . . - - .50, 52, 53, 57

United States v. Valdez, 722 F.2d 1196 (5th Cir. 1984) . .passim

Wiley v. Wainwright, 709 F.2d 1412 (11th Cir. 1983). . . .67, 68

Young v. Zant, 677 F.2d 792 (llth Cir. 1982)... ....-. -60

STATUTES
28, U.S.C. 2254 (1982) 2. ee ee ee ee ee ee eee ee eB

28 U.S.C. 4 1254(1) (1982) 2. 2 ee ee ee eee ee ee eB

OTHER AUTHORITIES

B. Diamond, Inherent Problems in the Use of Pretrial
Hypnosis on a Prospective Witness, 68 Cal. L. Rev. 313,
(1980). eet ee ee ee ee ew we 252, 53, 56

G. Wells & M. Leippe, How Do Triers of Fact Infer the
Accuracy of Eyewitness Identifications Using Memory for
Peripheral Detail Can Be Misleading, 66 J. of Applied
Psychology, 682-687 (1981) .- - - + + see ee ee tes 52

American Medical Association, Council on Scientific Affairs,
Report: Scientific Status of Refreshing Recollection by
the Use of Hypnosis, 253 J.A.M.A. 1918, 1920
(April 5, 1985)... 0 ee ee et ee ee ee ee we 52, 54

- vii -

Orne, The Use and Misuse of Hypnosis in Court, 27 Int'l J.
Clinical & Experimental Hypnosis 311, (1979) ...... . .46, 56

4 W. Blackstone Commentaries, 24 ........4.24++ +242. 8

- viii -

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1988

THEODORE ROBERT BUNDY, Petitioner,
ve

RICHARD L. DUGGER, AS SUPERINTENDENT,
FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE ELEVENTH CIRCUIT

Petitioner Theodore Robert Bundy respectfully prays
that a writ of certiorari issue to review the judgment and opinion
of the United States Court of Appeals for the Eleventh Circuit,

entered in the above-entitled proceeding on July 7, 1988.

- ix -

Opinions Below

This petition seeks review of the opinion of the
Eleventh Circuit Court of Appeals affirming, after remand, the
district court's denial of Petitioner's original federal petition

for habeas corpus.

On February 12, 1980, Petitioner was convicted and
sentenced to death in Florida for the murder of Kimberly Leach.
The Florida Supreme Court affirmed the conviction and sentence on
May 9, 1985, and denied rehearing on July 11, 1985.1/ Bundy v.
State, 471 So. 2d 9 (Fla. 1985). This Court denied certiorari
review on October 14, 1986. 479 U.S. 894 (1986). The Governor
of Plorida immediately signed a death warrant scheduling peti-
tioner's execution for November 18, 1986. Petitioner's motions
for post-conviction and habeas corpus relief in the state courts
were denied without evidentiary hearing on November 17, 1986. See
Bundy v. State, 497 So. 2d 1209 (Fla. 1986), cert. denied, 108
S.Ct. 198 (1987).

On November 17, 1986, petitioner filed a petition for
habeas corpus in the.United States Court for the Middle District
of Florida, which was denied summarily the same day without
hearing, briefing, or argument. Bundy v. Wainwright, No. 86-968-
CIV-ORL-18 (M.D. Fla. Nov. 17, 1986). The Eleventh Circuit Court
of Appeals granted a certificate of probable cause and issued a

stay of execution pending appeal. Bundy v. Wainwright, 805 F.2d

1/- The present case will be referred to hereinafter as the
"Lake City" case. Six months prior to Petitioner's conviction in
the Lake City case, he was tried, convicted, and sentenced to
death for the murder of two residents of the Chi Omega sorority
house in Tallahassee, Florida (hereinafter the "Leon County"
case). Bundy v. State, 455 So. 2d 330 (Fla. 1984), cert. denied,
106 S. Ct. 1958 (1986). Petitioner also filed a federal habeas
petition in the, Leon County case; the case is presently in the
Southern District of Florida following remand by the Eleventh
Circuit. Bundy v. Wainwright, 808 F.2d 1410 (1986), cert. denied,
108 S.Ct. 198 (1987).

948 (11th Cir.), appl. to vacate stay denied, 107 S. Ct. 483

(1986).

After briefing and oral argument, the Eleventh Circuit
remanded the case to the district court to conduct a hearing on
the issues regarding petitioner's competence at the time of trial.
Bundy v. Dugger, 816 F.2d 564 (11th Cir.), cert. denied, 108 S.
Ct. 198 (1987). On remand, after denying petitioner's motion for
a pretrial conference to sort out preliminary issues relating to
the remand, the district court conducted evidentiary hearings on
October 22 and December 14-17, 1987. Immediately at the close of
the hearing, the district court ruled from the bench that
petitioner had been competent to stand trial. The court
subsequently issued a written opinion. Bundy v. Dugger, 675 F.
Supp. 622 (M.D. Fla. 1987), aff'd, 850 F.2d 1402 (llth Cir. 1988).

The Eleventh Circuit ordered supplemental briefs on the
competency issue and heard oral argument on February 25, 1988. At
the argument, the court informed counsel that it would decide all
pending issues. On July 7, 1988, the court issued its opinion
affirming the district court. Bundy v. Dugger, 850 F.2d 1402
(llth Cir. 1988). Petitioner's motion for rehearing and
suggestion for rehearing en banc were denied on September 16,
1988. On September 20, 1988, the Eleventh Circuit granted
petitioner's application for stay of the mandate pending a
petition for certiorari. If this Court certifies to the Eleventh
Circuit that this petition is filed by November 15, 1988, the stay

will remain in effect until this Court's final order.

All the opinions cited above are reprinted in the

appendix to this petition.2/

2/ In this petition, citations to the district court hearing
of December 14-17, 1987, are indicated by "R."; citations to the
district court hearings of October 22, 1987, are preceded by
(continued...)
2

Jurisdiction

In bringing this suit in the Middle District of Florida,
Petitioner invoked federal jurisdiction under 28 U.S.C. § 2254.
Because the Court of Appeals for the Eleventh Circuit affirmed the
district court's denial of relief on July 7, 1988, and denied
rehearing on September 16, 1988, this petition is timely filed
under Rule 20 of the Rules of this Court. The jurisdiction of
this Court to review the judgment of the Eleventh Circuit is

invoked under 28 U.S.C. § 1254({1) (1982).

Statement of the Case

A fair application of well-established law requires that
Theodore Robert Bundy's conviction for murder and his sentence to
death be overturned. That has not happened. Instead, two years
of proceedings have resulted in two irreconcilable circuit court
opinions, the second of which ignores and misapplies crucial
constitutional doctrines. Thus, it is left to this Court to apply
the Constitution to protect this unpopular petitioner to the same C

degree that it protects all other criminal defendants.

In this petition, Petitioner seeks certiorari review of
his claims regarding the district court's failure to remedy the
State's violation of Petitioner's constitutional right to a com-
petency determination under Pate v. Robinson; the uncorroborated
post-hypnotic testimony of a key identification witness; and the
failure of any court to afford Petitioner an evidentiary hearing
on his prima facie claims of ineffective assistance of counsel.

The unique circumstances of this case and this petitioner, and the

2/ (...continued)

™R.O."; Petitioner's exhibits at those hearings are identified as
"Pet. ex." Finally, citations to the record on appeal to the
Florida Supreme Court are noted by "R.O.A."

-3-

controversy they provoke, often have overshadowed the seriousness

of Petitioner's claims.

From the moment of his arrest in Florida in February
1978, Petitioner -- who had been convicted of aggravated kidnap-
ping in Utah and had escaped while awaiting trial in Colorado on
murder charges -- was the subject of intense public interest. 3/
In jail, he immediately began long, late night interviews with
police officers in which he incriminated himself in rambling and
disjointed narratives about what he termed his "problem" with the
“other Ted". R.O.A. 6903, Pet. ex 2 at 520. During the day,
however, he implored his court-appointed lawyers to obtain court
orders to prevent the very uncounseled interrogations he invited
at night. R.O. 33-35. His lawyers found it nearly impossible to
communicate with Petitioner, R.O. 51-52; one attorney testified

below that he left an interview with Petitioner "wondering if I

3/ As he had been in Colorado, Petitioner was
intrigued in Florida by the media and directed a great deal of his
pro se efforts toward motions regarding the media. In May 1978,
for example, he filed a motion for permission to conduct press
conferences. In denying that motion, the trial court emphasized
the amount of publicity that had already accompanied the case:

It is true beyond peradventure
that Theodore Bundy is newsworthy.
Since his arrest and incarceration
on the instant charges, Bundy had
understandably been the object of
intense public interest.
Resourceful newsgatherers have
proven well equal to the task of
keeping the public informed.
Virtually no aspect of Bundy's past
or present life, real or imagined,
has evaded media discovery, analysis
and comment. Fact, speculations,
characterization and impression
have combined to give Theodore
Bundy, wanted or not, a mystique of
sorts. He enjoys (or tolerates, as
the case may be) a name identifi-
cation in this area of Florida at
least equal to that of Florida's
most notable personages.

R.O.A. 14239; Leon County R.O.A. 127-30.

-4-

had been speaking the English language. He didn't seem to be able

to comprehend what I was telling him." R. 42.

Immediately after his arrest, Petitioner became the
prime suspect in three brutal murders in Florida. The press and
the other media gave extensive coverage to the State's attempt to
charge Petitioner with those crimes. On July 20, 1978, Petitioner
was indicted for the February 1978 murder of the twelve-year-old
victim in this case, Kimberly Leach, who had been reported missing
from her junior high school several weeks before her body was
found. On July 27, 1978, he was indicted for the January 1978

murder of two Florida State University women.

In May 1979, following his lawyers’ extremely sensitive
and difficult negotiations with the State, the two trial courts,
and the victims' families, Petitioner agreed to plead guilty in
both Florida cases in exchange for life sentences and a commitment
by the State not to extradite him to stand trial for any other
murder. R. 442; R.O. 65-68; Pet. ex. 9. After signing the plea,
however, Petitioner spent the night before the hearing typing a
lengthy motion to fire his attorney; the next morning he was
unable to decide whether to accept the plea or to pursue his pro
se motion. R.O. 75-76; Pet. ex. 9 at 7. After theatrically
weighing the two documents, he burst into an impassioned speech
attacking his counsel as incompetent. R.O. 77. He then sat down

appearing confused about what to do next. Id.4/

The State immediately withdrew the plea bargain, as

Petitioner specifically had been informed it would if he did

4/ During the same period as the plea negotiations and
aborted plea hearing, the jail physician was administering
psychotropic drugs to Petitioner without a psychiatric
consultation. R. 521-23. Neither the court nor Petitioner's
attorneys were aware that Petitioner was receiving such
medication. R. 518.

ion

anything at the hearing other than plead guilty. R. 396; R.O. 77.
The trial judge in this case presided at that hearing along with
the judge in the Leon County case. He testified below that when
Petitioner unexpectedly rose to attack his lawyers he was
surprised and disappointed: "Seemed to me that it was working
toward a reasonable solution of all the problems and charges.

And I can't help to say I was somewhat disappointed." R. 465.

As a result of Petitioner's behavior at the aborted plea
hearing and a report by a psychiatrist casting doubt on
Petitioner's competence to stand trial,5/ the State and defense
counsel separately moved for a determination of Petitioner's
competence in the Leon County case. R.O. 85-86; R. 381-82.
Petitioner requested and obtained special counsel "to protect him
from an attempt by his public defender counsel to find him
incompetent." Leon County R.O.A. 1275. Petitioner and his
special counsel joined the State in urging his competency, R. 487;
at Petitioner's request, the court did not permit his defense
counsel to participate in the hearing, either as a lawyer or as a
witness. Leon County R.O.A. 3617-20. Not surprisingly,

Petitioner was found competent. Id. at 36-49.

The Leon County trial started immediately thereafter, R.
87. It was the first trial to be televised in Florida; and each
night a half-hour summary of highlights was broadcast. As the
psychiatrist who had questioned Petitioner's competence had
predicted, Petitioner's conduct at trial was self destructive.
- Petitioner disrupted the trial, bantered with the press,

obstructed his lawyers, and barred the introduction of mental

5/ Dr. Tanay's report stated that, in his opinion, Petitioner,
despite his apparent intelligence and articulateness, had "an
incapacity to recognize the significance of evidence held against
him," “makes decisions based on distorted perceptions of reality,"
and was "neither concerned nor distressed in an appropriate manner
by the charges facing him."

mitigating evidence after he was convicted. When his lawyers
attempted again during the trial to raise the question of his
competency, the court made Petitioner chief counsel and relegated
his court-appointed lawyers to "stand-by counsel". R.O. 132-33.
Petitioner was convicted and sentenced to death, although,
according to press reports, the jury was tied 6-6 for a life
sentence. Miami Herald, July 31, 1979. The trial court
erroneously instructed the jury to break a tie. See State v-
Tedder, 322 So. 24 908 (Fla. 1975). According to the counsel who
represented him on a motion for a new trial, Petitioner was
“blase about the conviction", unconcerned that he had just been

sentenced to death. R. 499.

Petitioner was tried in the present case only five
months after his conviction in the Leon County case. No
competency inquiry was made. R. 123-24. Even though venue was
changed to Orlando, publicity was so great by that time that all
jurors had extensive knowledge about the crimes of which
Petitioner had been convicted or suspected. R.O.A. 1-3500. An
employee of the local newspaper was chosen as jury foreman.

R.O.A. 3480-83.

To avoid a repeat of the tumultuous Leon County trial,
his Lake City counsel allowed Petitioner to read magazines during
court proceedings, R. 116, 122; assigned an investigator to
"babysit", R. 118; and permitted him to receive daily doses of
valium and alcohol in "lunches" provided by a friend on the
outside, R. 72-73. Rather than focusing on the proceedings,
Petitioner spent his time and energies nightly assisting
reporters who were writing a book about him. Michaud Depo. 31-36.
He was particularly absorbed in planning his marriage, R. 83, 124,

which he finally executed with the help of his lawyers during the

penalty phase of his trial. R. 86-87. No mitigating evidence was

presented by the defense. R.O.A. Supp.
Petitioner was convicted and sentenced to death.

At the evidentiary hearing below, the psychiatrist who
examined him just prior to the plea hearing testified by
deposition that Petitioner was incapable of assisting his counsel,
Tanay Depo.; in addition, the only psychiatrist who had
comprehensively evaluated Petitioner and prepared a diagnosis
testified that Petitioner has suffered from a debilitating mood
disorder since at least 1967, R. 196; Pet. ex. 29 at 2. The
principal psychiatrist who testified for the State agreed that if
Petitioner suffered from a mood disorder, his behavior in this
case indicated incompetence. Neither psychiatrist who testified
for the State, however, examined Petitioner to confirm or dispute

his claim of mental illness.
REASONS FOR GRANTING THE PETITION

I. The Courts Below Denied Petitioner a Remedy to the
State's Violation of Petitioner's Constitutional Right
to a Determination of His Competency at the Time of
Trial

This Court has long recognized the substantive due
process right of a criminal defendant not to be tried if he is
incompetent. See, e.g., Dusky v. U.S., 362 U.S. 402 (1960);
Bishop v. U.S., 350 U.S. 961 (1956). As the Court has noted,
Blackstone wrote that one who became "mad" after the commission of
an offense should not be arraigned "because he is not able to
plead to it with that advice and caution that he ought." Drope
yv. Missouri, 420 U.S. 162, 171 (1975), quoting 4 W. Blackstone
Commentaries, * 24. As recognized by the Court, the Constitu-

tional prohibition against the trial of an incompetent defendant

is "fundamental to an adversary system of justice.“ Drope, 420

U.S. at 172.
It is not enough that the defendant. is oriented to time

and place and has some recollection of events;. rather, the test is
whether the defendant "has sufficient present.ability to consult
with his lawyers with a reasonable degree of rational
understanding -- and whether he has a:rational.as well as factual
understanding of the proceedings against. him."..Dusky, 362.U.5. at
402. Under this test, at the time of his trial in this case
Petitioner was incompetent to stand trial.

A. The Decisions Below Are Irreconcilabie
With the Facts and With Each Other

The Eleventh Circuit has issned:three- opinions. addres—
sing issues raised by Petitioner's competency claims in this case
and in the parallel Leon County°tase. “The: opinions cannot “be
squared with each other or with controlling ronstitutional law.

1. The Circuit Court's Decision Remanding. the
Leon County Case

In remanding the Leon County case for further proveedc— -
ings, the Eleventh Circuit recognized the inadequacy. of the
competency hearing in that case. Bundy v. Wainwright. BD8 F.2d
1410, 1422 (1986), cert. denied, 108 S..ft. 198 (1987). The
circuit court noted that, "No one participating in the hearing
adequately developed in an adversary manner ‘the issue pf whether
Bundy was competent which was what the hearing was about:" Id.6/

2. The Circuit Court's Decision Remanding the
Present Case

6/ Remanded for further proceedings in’ January 1987, the Leon io
County case still lingers in the Southern District of Florida,

where the district court has not yet ruled:-on cross-motions for

summary judgment filed in July and September 1987.

-9-

Issues of Petitioner's competency in the instant case
were first addressed by the court on appeal from the Gistrict
court's summary dismissal of Petitioner's habeas petition.

~ Dugger,- 816 F.2d 564 (lth. Cir. 1987). The circuit court ruled
-that the district court clearly erred in finding that Petitioner
had not established the-requisite.“clear and convincing evidence
to create a ‘real substantial and legitimate doubt as to [his]
mental capacity . . - to meaningfully participate and cooperate

with counsel‘". 816. F.2d at 566 {citations omitted).

The .court. said that the.district court had "seemingly
ignored strong indicia oF Bundy's incompetence to stand trial",
such asthe report. of the psychiatrist who examined Petitioner

“before the. plea hearing. Id.-at 567. The circuit court noted:

Such, evidence —.the uncontradicted opinion of
a qualified psychiatrist directed expressly
toward the relevant legal standard -- is far
more significant than defense counsel's
_failure to raise.this claim at trial. The
- district court, however, failed even to
mention Dr. Tanay's report.

Id. During trial Petitioner had ignored the advice of counsel,
gave statements to the police; reneged on a plea bargain that

would have spared his.life; and instead of offering mitigating
evidence. after he was convicted, insisted on conducting a mock

wedding. Id.

“The court held that the district court erred in failing

to consider the aggregate effect of these indicia:

- Bundy's behavior thronghout this prosecution
+ reinforces Dr. Tanay*s conclusion that Bundy
lacked a rational understanding of the case
against him and that Bundy could not
rationally consult with counsel. We believe
that the district :court gave too little weight
to this fact.

Id. -The court concluded:

—-10-

Furthermore, it is highly significant
that both defense counsel and the state moved
for a competency hearing after Bundy refused
to accept a joint plea offer. Bundy's
behavior in rejecting that plea offer was
central to the state's decision to request a
competency hearing in the Leon County case.
Because the joint plea agreement covered both
this case and the Leon County case, the trial
judge in this case attended the hearing where
Bundy theatrically rejected the plea offer.
Bundy's behavior at that hearing, atop his
already suspect behavior, sufficed to
question seriously his competency to stand
trial in the Leon County case. It has the
same effect here.

3. The District Court on Remand

On remand, the district court summarily denied Peti-
tioner's motion for a pretrial conference to pursue whether a
meaningful hearing could be conducted and the type of evidence
that would contribute to a meaningful nunc pro tunc determination
of Petitioner's competence at trial. Instead, Petitioner was

directed to put on his evidence of incompetency.7/

At the evidentiary hearing, all of the defense lawyers
who testified noted that Petitioner seemed unconcerned with the
possibility of conviction and a sentence of death. The lawyers
who represented him in the plea negotiations and at the Leon
County trial testified that he obstructed their work, could not
make a decision and stick with it, and insisted during trial that
they visit him in his cell to keep him company. The lawyer who
represented Petitioner in both the Leon County case and in this
case testified that the goal in this case was to entertain and

placate Petitioner so that he would not disrupt the proceedings or

7/ A full description of the evidence presented at the hear-—
ings in the district court can be found in Petitioner's supple-
mentary brief to the Eleventh Circuit. Appendix Tab 7. The

opinion below discusses only the State's evidence, and the dis-
trict court's opinion mischaracterizes much of the presentation.

-ll-

make an unfavorable impression on the jury. He said that
Petitioner was more interested in taking advantage of his liberal

telephone privileges than in discussing the case.

In explaining why he had not held a competency hearing,
the trial judge testified that he had relied on the competency
determination in the Leon County case, which he subsequently had

discussed in ex parte meetings with the prosecutors.8/

Four psychiatrists testified at the district court
hearing. Dr. Tanay, who examined Petitioner shortly before the
plea hearing, testified by deposition that Petitioner was
incompetent at the time of the Leon County trial and was unable to
control his behavior. Dr. Dorothy 0. Lewis also testified on
behalf of Petitioner. Based on her comprehensive psychiatric
evaluation of Petitioner, including testing by consulting
psychologists, interviews with family members and members of the
defense team, and several interviews with Petitioner, she
concluded that Petitioner suffered from bi-polar mood disorder,

which rendered him unable to assist his counsel.

Dr. Charles Mutter who testified on behalf of the State
did not examine Petitioner or interview any of his lawyers or
family members. His testimony was based solely on his review of
portions of the trial record provided by the State and affidavits
of Dr. Lewis and others filed by Petitioner's counsel. Dr. Mutter
saw no indicia of incompetence in anything he reviewed, and con-
cluded: "This man's arguments were brilliant, this man is bril-
liant. He has beat two death warrants. Is that insanity?" R.

564.

8/ Petitioner did not become aware of the ex parte
communications until the evidentiary hearing below.

-12-

The State's second expert, Dr. Umesh Mhatre, also did
not interview Petitioner or his family. He briefly interviewed
one of Petitioner's attorneys in the Lake City case by telephone
and discerned that Petitioner and his counsel had few disagree-
ments and were “able to patch things up". R. 625. He testified
that he did not take into consideration the lawyer's thwarted
attempts to develop an insanity defense over Petitioner's adamant
opposition, however, because insanity was not at issue at the
hearing. Although Dr. Mhatre agreed that if Petitioner's bizarre
behavior were the product of a mental illness he would interpret
it differently, R. 658, he ignored Dr. Lewis's diagnosis and
instead provided hypothetical rationales for isolated instances
of Petitioner's bizarre behavior as if they had stood alone. For
example, he testified: "I have sat here just amazed that people
are so upset that Mr. Bundy got married in the courtroom. . . -
It's their prerogative. I have seen people dropping from Cc
parachutes, 10,000 feet from the air, marrying on the way down."

R. 641.

The district court, emphasizing Petitioner's ability to

graduate from college “with distinction", Bundy v. Dugger, 675

F.Supp. at 625, ruled from the bench that Petitioner “is probably

the most competent serial killer in the country at this time. . .

. This court views him as a diabolical genius." R. 682.

4. The Circuit Court's Inexplicable Decision
Following Remand

Following the remand, the Eleventh Circuit, 850 F.2d
1402, ignored its earlier decision in the same case as well as its
own established law concerning the appropriate remedy for a Pate
violation.9/ While recognizing that "expert testimony is

9/ At the time of the appeal, Judge Kravitch had replaced
Judge Godbold on the panel that originally remanded the case.

-13-

particularly valuable, for the existence of even a severe psychi-
atric defect is not always apparent to laymen" and that once a
defendant establishes a clinically recognized disorder, the court
must determine whether it rendered him incompetent, the circuit
court merely brushed aside the question of whether Petitioner
suffered from a mental illness. 850 F.2d at 1407-08. Instead, it
surmised that "the district court determined that, even if Bundy
otherwise suffered from bipolar mood disorder, the disorder was
not manifesting itself so as to affect his competence to stand

trial." Id. at 1409.

The circuit court saw no problem with the fact that the
State's psychiatrists had not examined Petitioner. According to

the court, "a recent interview was unnecessary because the narrow

issue of focus was petitioner's competency to stand trial". Id.
at 1409 (emphasis added). The court also wrote that the
observations of Petitioner's demeanor at trial by the trial judge
and prosecutors were inconsistent with bi-polar mood disorder
since they witnessed only one outburst from Petitioner in the
courtroom. Id. Nowhere in the court's brief discussion is there
any mention of the testimony of Petitioner's experts or that of
his various trial counsel. The circuit court did note, however,
that in addressing the jury after conviction, Petitioner made "a
cogent, well reasoned argument," focused on pretrial publicity,
and "can be seen [on a video tape] flipping pages of a legal pad
as he goes through his argument." 850 F.2d at 1409. Finally,
the court said that the numerous tapes that petitioner had made
for- reporters during his trial demonstrated a rational
understanding of the proceedings.10/

10/ In a footnote, the circuit court also said cryptically
that "our review of the record in light of the district court's
observation concerning these indicia convinces us that what
appeared as ‘strong indicia’ prior to the hearing are happenings
that are consistent with a determination that Bundy was competent
(continued...)

-14-

B. The Decision Below Does Not Conform To The Law

The circuit court's analysis does not comport with this

Court's decisions in Pate v. Robinson and Drope v. Missouri, or

with the Eleventh Circuit's own well-developed law on competency.

1. The Law of this Court

In Pate v. Robinson, 383 U.S. 375 (1966), the Court

recognized the due process right to a determination of competency

contemporaneous with the trial proceedings whenever there are

indicia that raise substantial doubt as to the defendant's
competence. In Pate substantial testimony had been provided by
family members who described the defendant's history of irrational
behavior; the only rebuttal was the opinion of a psychiatrist

that the defendant knew the nature of the charges against him and
was able to cooperate with counsel, based on an examination two or
three months before trial. Id. at 383. In closing argument,
defense counsel claimed that the defendant was "presently insane",
but also noted that "the defendant has been able to cooperate with
counsel with some reservation", and referred to his "present
lucidity". Nonetheless, this Court held that the defendant had
been denied his right to a fair determination of his competence to

stand trial.

The Supreme Court of Illinois held that the evidence
was not sufficient to require a hearing in light of the mental

alertness and understanding displayed in the defendant's

10/ (...continted)
to stand trial." 850 F.2d at 1410 n.13. Most of these strong
indicia, however -- such as Petitioner's conduct around the time

of the plea negotiations, the report of Dr. Tanay, Petitioner's
statements to police, and his marriage during the penalty phase of
his trial -- are completely ignored by the circuit court in its
opinion.

-15-

"colloquies" with the trial judge. Id, at 385.11/ This Court
ruled, however, that "this reasoning offers no justification for
ignoring the uncontradicted testimony of Robinson's history of
pronounced irrational behavior." Id. at 385-86. "While
Robinson's demeanor at trial might be relevant to the ultimate
decision as to his sanity, it cannot be relied upon to dispense

with a hearing on that very issue." Id. at 386.

The Court determined that "Robinson's constitutional
rights were abridged by his failure to receive an adequate hearing
on this competence to stand trial", and directed that the writ of
habeas corpus issue, rejecting the suggestion that it would be

sufficient to hold a limited hearing as to Robinson's mental

ii/ The "colloquies" described by the Illinois Supreme Court
are no less "brilliant" than those engaged in by Petitioner in the
present case. The Illinois court observed:

[T]he record reflects several instances where
defendant displayed his ability to assist in
the conduct of his defense in a reasonable and
rational manner. Typical instances of when
defendant displayed mental alertness, as well
as understanding and knowledge of the
proceeding, appear in his remarks to the court
as follows: "Your honor, they were on the
State's witness list and the State said they
have several witnesses. They produced two.
For what reason, I don't know, but I am on
trial here and I would like to be given every
consideration, and I would like that the court
be adjourned until. tomorrow morning -- to give
me time to confer with counsel for the calling
of witnesses." Again, when discussing
witnesses with the court, defendant said:
"Well, the police are contending that the
clothes they have found in Moore's apartment
{are] mine. That is the reason at the
beginning of trial, I asked the attorney to
have a pre-trial preliminary to determine the
admissibility and validity of the evidence
that the State was intending to use against
me."

People v. Robinson, 22 Ill. 2d 162, 168, 174 N.E.2d 820, 823
(1961), cert. denied, 368 U.S. 995 (1962).

Similarly, in the present case, the circuit court
supported its decision that Petitioner was competent to stand
trial by the. fact that Petitioner made "a cogent, well-reasoned
argument," and "can be seen flipping pages of a legal pad as he
goes through his argument." Bundy v. Dugger, 850 F.2d at 1409.

-16-

competence at the time he was tried. Id. at 386-87. The Court
emphasized the difficulty of retrospectively determining a

defendant's competence to stand trial:

The jury would not be able to observe the
subject of their inquiry, and expert witnesses
would have to testify solely from information
contained in the printed record. That
Robinson's hearing would be held six years
after the fact aggravates these difficulties.
This need for concurrent determination dis-
tinguishes the present case from Jackson v.
Denno, 378 U.S. 368 (1964), where we held that
on remand the State could discharge its con-
stitutional obligation by giving the accused a
separate hearing on the voluntariness of his
confession.

Pate at 387.

In Drope v. Missouri, 420 U.S. 162 (1975) the Court
elaborated on the procedural due process requirement of a
competency hearing, and again determined that a retrospective
determination of competence would not be a sufficient remedy under
the circumstances. In Drope, although defense counsel only moved
for a psychiatric examination and not for a determination of the
defendant's competence, the Court found that sufficient indicia
existed at the time of trial to give rise to a right to a hearing

on the question.

In state post-conviction proceedings in Drope, a hearing
was held on the defendant's claim that his constitutional rights
had been violated by the failure to order a psychiatric exami-
nation prior to trial. At that hearing, a psychiatrist testified
that he had examined the defendant six years before trial and had
found that the defendant had psychiatric problems and was in need
of care. Id. The Missouri court ruled that the defendant's
suicide attempt during the trial should be evaluated without
resort to the psychiatric testimony, and that, standing alone, the
suicide attempt did not raise a reasonable doubt about the

defendant's competence. Id. at 170.

-17-

This Court noted that although the Missouri courts men-
tioned aspects of the psychiatric report that suggested compe-
tence, such as the impressions that petitioner did not have "any
delusions, illusions, hallucinations", was "well oriented in all
spheres", and "was able, without trouble, to answer questions

testing judgment", neither court mentioned the contrary data.

Id. at 175. This Court observed that the report also showed that
Drope, although cooperative in the examination, "had difficulty in
participating well," "had a difficult time relating", and that he
"was markedly circumstantial and irrelevant in his speech." Id.
The Missouri courts concluded that the defendant's episodic irra-
tional acts described in the report or the psychiatrist's diag-
noses of borderline mental deficiency and chronic anxiety reaction
with depression did not create sufficient doubt of competence to

require further inquiry. Id. at 176.

This Court concluded that the record in Drope revealed a
failure to give proper weight to the information suggesting
incompetence. Id. at 179. In addition to ignoring portions of
the psychiatric report, the Missouri Court of Appeals had
dismissed as "demonstrat[ing] pique more than anything" the
testimony of the defendant's wife that he sometimes threw himself
down the stairs. Drope v. State, 498 S.W.2d 838, 842 (1975).

This Court also found that the state courts gave too little weight
to the wife's testimony that he tried to choke her just before
trial: “For a man whose fate depended in large measure on the
indulgence of his wife, who had hesitated about pressing
prosecution, this hardly could be regarded as rational conduct."

420 U.S. at 179.

The Court observed that "[m]oreover, in considering the
indicia of petitioner's competence separately, the state courts

gave insufficient attention to the aggregate of those indicia".

-18-

Id. at 179-80. The Court noted that, "[a]s was true of the
psychiatric evaluation, petitioner's attempt to commit suicide

‘did not stand alone'". Id. at 180.

After concluding that a hearing into the defendant's
competence should have been held at trial, the Court concluded
that remanding the case for such hearing would not be sufficient
to remedy the constitutional wrong: "Given the inherent diffi-
culties of such a nunc pro tunc determination under the most
favorable circumstances, we cannot conclude that such a procedure

would be adequate here." Id. at 183 (citations omitted).

This Court has never addressed the issue of when, if
ever, a nunc pro tunc hearing would be adequate to remedy a vio-
lation of a defendant's right under Pate to a contemporaneous
determination of his competency when sufficient indicia arise at
trial. Nor has it addressed the burdens and standards to be
applied in any further proceedings. Accordingly, this Court
should grant this petition to define the procedures required to
protect the constitutional interests involved in federal remedies

of state violations of Pate v. Robinson.

«
2. The Law of the Eleventh Circuit

In failing to provide Petitioner an adequate remedy for
the State of Florida's Pate violation, the court below ignored its
own well-developed case law which provides a useful model for this

Court's approach to the remedy of Pate violations.

Under the law of the Eleventh Circuit, once a case is
remanded because of a Pate violation, the district judge is
required to determine whether it is currently possible to have a
"meaningful" or "adequate" nunc pro tunc determination of the
defendant's trial competency. Martin v. Estelle, 583 F.2d 1373,
1376 (5th Cir. 1978) (Godbold, J., concurring). Such a threshold

-19 -

finding was required by Lee v. Alabama, 386 F.2d 97, 108 (5th Cir.
1967 (en banc), cert. denied, 359 U.S. 927 (1969), which initially
implemented Pate in the former Fifth Circuit:

This court concludes after careful consider-

ation of the Supreme Court's decision and

opinion in [Pate] that is will be the duty of

the trial court, under such circumstances, to

decide whether it can conduct an adequate

hearing on the question of Lee's competency to

stand trial in 1943, If it cannot, it will be

under the obligation to set aside the judgment

of conviction and remand the case to the state

courts for a new trial at which time it will,

of course, be open to Lee to have an adequate

hearing on his then mental capacity to stand

trial.

As Judge Godbold noted in his concurrence in Martin v.
Estelle, "the question which the court must ask for itself, and
must answer" is "Do there appear to be presently available to the
court tools of principled decision that will produce a retrospec—
tive determination of trial competency sufficiently accurate to be
judicially acceptable." 583 F.2d at 1377. The court "must decide
for itself if the quantity and quality of available evidence [is]
adequate to arrive at an assessment that could be labeled as more

than mere speculation." Bruce v. Estelle, 536 F.2d 1051, 1057

(5th Cir. 1976), cert. denied, 429 U.S. 1053 (1977).

- Thus, in Martin v. Estelle, the Eleventh Circuit
remanded the petitioner's case for the second time because, fol-
lowing the remand for a Pate violation, the district court held a
competency hearing without first determining whether a meaningful
hearing could be held. Rather than harmless error, the Eleventh
Circuit found that the failure to conduct the inquiry required by
Pate tainted the competency hearing by confusing the burdens of

proof. 583 F.2d at 1375-76.

The basis for a defendant's constitutional claim under

Pate is that at the time of trial he was entitled to an adequate

- 20 -

hearing into his competence. If he was denied such a hearing, he
is entitled to the writ unless the state demonstrates that the
tools of rational decision are available. Id. at 1378. According

to Judge Godbold,

{flactors to be considered in deciding whether
to go forward with a hearing at which the
court will attempt to determine trial
competency nunc pro tunc include whether there
is available contemporaneous psychiatric
testimony of the prisoner's condition as of
his trial; the recollection of nonexperts,
including the trial judge, who observed the
defendant during the trial; the length of time
since trial; the transcript of the trial
itself; and any conflicts between lay and
expert testimony, which themselves may have so
dimmed the prospects of an accurate assessment
that a retrospective hearing is meaningless.

583 F.2d at 1377-78 (citation omitted). If the state can show
that a meaningful hearing can be held that will remedy the
constitutional wrong, the burden shifts to the petitioner to prove

that he was incompetent at trial. 583 F.2d at 1379.

In this case, the Eleventh Circuit found that Petitioner
had been denied the rights protected by Pate but failed to apply
its own standards for determining an appropriate remedy. The
interests of justice in the present case, and the important
constitutional principles involved, compel this Court to grant
certiorari.

c. In Weighing the Evidence of Petitioner's

Competence the Circuit Court Ignored the
Requirements of the Law

In Pate and Drope, this Court emphasized the relevance
of the aggregate of defendant's behavior and the testimony of
those closest to the defendant. The Eleventh Circuit has
reinforced the importance of those same considerations, but

ignored them here.

-21-

In Lokos v. Capps, 625 F.2d 1258, 1267 (llth Cir. 1980),
the Eleventh Circuit found that the district court clearly erred
in determining that the defendant had been competent to stand
trial based solely on the fact that he could respond to questions
from police officers and while on the witness stand, and the
testimony of a medical doctor and the peace officers who had
observed him that they saw nothing abnormal. The circuit court
noted that "[t]he testimony of the lay witnesses before the
Alabama court was not of value because they lacked prolonged and
intimate contact with Lokos." 625 F.2d at 1267-68.

Rather, the psychiatrist who had examined the defendant "knew far
more about the matter than anyone else, and he was positive of the
fact" that the defendant was suffering from a mental disorder at
the time of his trial. 625 F.2d at 1267. The Court noted as
follows:

The nature of Loko's condition was such that

he was able to understand questions and

respond to them. One need not be catatonic,

raving or frothing, to be unable to understand

the nature of the charges against him and to

be unable to relate realistically to the
problems of his defense.

The same circuit court failed to apply the same sensible
judgment in the present case. The only evidence supporting the
court's finding that Petitioner was competent was the observations
and speculations of the trial judge and prosecutors who could
observe Petitioner's demeanor only at trial, and the testimony of
two psychiatrists who did not examine Petitioner but reviewed
“portions of the printed record with the presumption -- despite
knowledge that Petitioner had been diagnosed with a mental illness
-- that none of his bizarre behavior was the product of a mental
illness. All of the witnesses who had prolonged and intimate
contact with Petitioner -- his numerous lawyers -- testified that

-22-

his behavior had no rational basis and that he was incapable of
comprehending the seriousness of the proceedings or assisting in
his defense. Furthermore, the two examining psychiatrists, who
"knew far more about the matter than anyone else", testified
positively that Petitioner suffered from a mental disorder during
proceedings in this case that resulted in his incompetence. The
court's refusal to credit the most probative witnesses -- those
with “the closest contact with the defendant", Drope, 420 U.S. at
177 n.13, quoting Pate, 383 U.S. at 391 (Harlan, J., dissenting) -
- cannot be reconciled with the law.
II. Petitioner Was Unconstitutionally Convicted and

Sentenced to Death After a Trial in Which The Florida

Supreme Court Found That the "Crucial Link" in the

Evidence Against Petitioner was the Uncorroborated
Testimony of a Previously Hypnotized Witness

According to the Chief Justice of the Florida Supreme
Court, the hypnotically-developed eyewitness testimony of
Clarence Anderson was the “crucial link in the chain of circum-
stantial evidence of [petitioner's] guilt." Bundy v. State, 471
So. 2d 9, 23 (Fla. 1985), cert. denied, 479 U.S. 894 (1986).
Anderson's testimony was not corroborated; "[t]he state's one
eyewitness to the abduction of Kimberly Leach was Clarence
Anderson." Id. at 12. Moreover, despite wide-spread publicity
and pleas by the police for information about the abduction,
Anderson did not come forward as a witness in the case until
almost six months after Kimberly Leach was first reported missing

and one week after petitioner was indicted for her murder.

The development of Anderson's testimony through hypnosis
fundamentally denied Petitioner a fair trial in violation of his
right under the sixth amendment to a meaningful opportunity to
cross-examine Anderson and his right under the fourteenth

amendment to due process of law.

-23-

A. The Facts Establish the Extreme Suggestibility and
Unreliability of Anderson's Identification of
Petitioner

1. The Disappearance of Kimberly Leach

Twelve-year old Kimberly Leach was reported missing from
the Lake City Junior High School on February 9, 1978. Leach was
last seen at the school shortly after 9:00 in the morning.

R.O.A. 3937. At the time she had on a coat that was "brown and it
had fur around the collar, around the sleeves." R.O.A. 3933. She

was also carrying a purse. R.O.A. 3936-37, 3939.

At about 2:30 p.m., Leach's parents were told that their
daughter was missing. R.O.A. 3882. They called "the police
department, the sheriff's department, and the juvenile
{authcrities]." According to her mother, when Leach left for
school on February 9, 1978, she was wearing “a white turtleneck,
long-sleeve blouse, football jersey with '83' on the front, 'Kim'
on the back. She had a blue denim bag. She had a tan vinyl-

looking coat with fur trim." R.O.A. 3877.

2. The Search for the Missing Girl

Kimberly Leach's disappearance was the subject of
intense coverage by the media in Lake City. The Lake City
Reporter, the local newspaper, ran front page stories about the
disappearance almost daily. See Appendix Tab 18. These stories
included photographs as well as a description of what Leach was
‘wearing. Id. On February 13, 1978, for example, the newspaper
carried a photograph of Leach and reported that "she was last seen
wearing blue jeans, a long brown coat with a fur collar and a
white football jersey with the number 83 on it, according to a

description report." Id. at A.

- 24 -

Within days, a large task force was assembled to search
for Leach. Police solicited any information the public had.
Shortly after her disappearance, two men who worked on West Duval
Street, about three-quarters of a mile west of the Lake City
Junior High School, contacted the search task force to report
seeing a girl resembling Leach hitchhiking on the morning of

February 9. The school is also located on West Duval Street.

Roy Bendenbaugh reported that at about 9:15 a.m. on
February 9, 1978, he saw a girl trying to hitchhike a ride west on
West Duval Street. R.O.A. 5723-24. He described the girl as
being between 13 and 15 years old. R.O.A. 5725. She was wearing
blue jeans and had on a brown coat that was trimmed with "some
kind of imitation fur." R.O.A. 5726. She had a handbag strapped
over her shoulder and had dark shoulder-length hair. Id.
Mr. Bedenbaugh last saw the girl in front of "Jimmy's Buttermilk
Chicken," next to a shopping center on West Duval Street. R.O.A.
5725.

William James Trulock also reported seeing Leach on West
Duval Street on the morning of February 9, 1978. Prior to her
disappearance he had seen Leach at the junior high school and near
her home, and was positive that the girl he saw was Leach.
R.O.A. 5747. Mr. Trulock reported seeing Leach shortly before
10:15 a.m. standing in front of "Jimmy's Buttermilk Fried
Chicken" hitchhiking west on West Duval Street. R.O.A. 5743.
The girl he saw had on a heavy coat and carried a package of some

sort, possibly a purse. R.O.A. 5744.

3. The Focus on Petitioner As The Prime Suspect

Petitioner was arrested by the Pensacola Police early
on the morning of February 16, 1978. The next day, Petitioner
had become the ‘prime suspect in the January 1978 murder of two
Florida State University students. As noted in the Statement of

-25-

the Case, Petitioner's arrest in Florida lead to intensive media
coverage. In May 1978, a court noted that "[v]Jirtually no aspect
of Bundy's past or present life, real or imagined, has evaded

media discovery, analysis and comment." R.O.A. 14239.

On February 17, 1978, The Lake City Reporter identified
Petitioner as a "strong suspect" in the January 1978 Florida State
University murders and reported that he "may 'possibly be involved
in. the disappearance of 12-year old Lake City school girl
Kimberly Diane Leach', a law enforcement source in Pensacola,

Pla., said early this morning." Appendix Tab 18 at D.

The search for Kimberly Leach continued throughout
February and March 1978. During that period, a series of
newspaper articles were published concerning Leach, clues the
police had to her disappearance, and possible links between
Petitioner and Leach's disappearance. On February 27, 1978, for
example, The Lake City Reporter reported that the search task
force had "received a tip that a white van, possibly matching the
description of one Bundy allegedly drove in Jacksonville, was seen
at a Suwannee County dumpster." Appendix Tab 18 at H. on
February 28, 1978, the newspaper reported that the "daughter of a
Jacksonville police officer was approached by a man in a white
van. She later identified the man as Bundy." Appendix Tab 18 at
I. The incident in Jacksonville had occurred on February 8; the
article noted that Leach disappeared from the Lake City Junior

High School on February 9.

Kimberly Leach's body was found on April 7, 1978, ina
location a half mile north of U.S. Highway 90 (West Duval
Street), about thirty-five to forty miles west of the Lake City
Junior High School. R.O.A. 4231-32. At the site, police also
found denim blue jeans, the blue football jersey with "Kim"
printed on the back, a blue denim shoulder bag, and the tan

- 26 -

colored coat with imitation fur trim. R.O.A. 4422, 4397. The
white pullover long sleeve turtleneck shirt was still on the body.
R.O.A. 4434-35. Following an autopsy, the medical examiner
concluded that Kimberly Leach had "died of homicidal violence to
the neck region, type undetermined." R.O.A. 4481. The medical
examiner testified that Leach could have died anytime during the

two-week period beginning February 9, 1978. R.O.A. 4487.

4. Petitioner Is Indicted

Following the discovery of Leach's body, the focus on
Petitioner intensified. In May 1978, the media began reporting
that prosecutors were presenting evidence to the grand jury.
Appendix Tab 18. These reports invariably identified Petitioner
as the "prime suspect." On July 21, 1978, The Lake City Reporter
reported that the grand jury had returned a sealed indictment in
the death of Kimberly Leach. Appendix Tab 18 at M-O, R. Later,
on July 27, 1978, Petitioner was indicted by a grand jury in
Tallahassee for the January 1978 murder of the two Florida State
University women. His indictment was widely reported throughout
Florida, in newspapers, on television, and on radio.

5. Clarence Anderson Finally Emerges As
An Alleged Eyewitness to Leach's Abduction

In February 1978, Clarence Anderson worked for the Lake
City Fire Department as an emergency medical technician. The
fire department and Lake City Police Department shared the same
building. Anderson acknowledged that throughout the period
February through July 1978 Leach's disappearance was a matter of
intense interest in Lake City. R.O.A. 4137-38, 4141. He was
aware that Petitioner was the prime suspect in Leach's
disappearance. R.O.A. 4135-44, Anderson read The Lake City
Reporter, R.O.A. 4135-36, and knew that the newspaper carried
numerous stories about Leach's disappearance, R.O.A. 4133. He

-27-

also read about Petitioner and saw his picture in the newspaper.
R.O.A. 4139. Moreover, he had seen a missing person's bulletin
posted in the police department that included a photograph of

Leach as well as a description of what she was wearing when she

disappeared. R.O.A. 4142.

Sometime shortly after 8:00 a.m. on July 28, 1978, one
of his co-workers at the fire department drew Anderson's attention
to a television report about Petitioner's indictments for murder.
R.O.A. 4082. According to Anderson, his co-worker said something
to the effect that "there's Bundy, the guy accused of killing the
coeds -- and the Leach girl." R.O.A. 13963. Anderson stated
that, at that moment, it jumped out at him for the first time that
Petitioner resembled a man he had seen several months earlier with
a dark-haired girl in a white van in front of the junior high

school from which Kimberly Leach was abducted. R.O.A. 13961.

Anderson immediately walked into the police department
and, in three separate conversations, orally reported his belief
that he had seen Leach's abduction. Anderson told the police he
had not previously come forward because although he had had a
"nagging feeling" that he had seen Leach and Petitioner, he also

had had "a lot of doubt." R.O.A. 4132.

a. Anderson's Pre-Hypnotic Statement

In a sworn statement to the police on the morning of
July 28 -- the only written statement Anderson gave before being
hypnotized -- Anderson stated that on his way home from work one
‘morning several months earlier, he thought in April, he saw a man
lead a little girl by the elbow to a white van, that the girl had
an unhappy look on her face as if she had gotten in trouble in
school and was being taken home by her father, and that the man

helped the girl get in the van and drove off. Anderson described

- 28 -

the man as of medium build, 5'7" to 5"10", with medium or darker
brown wavy hair. Anderson said the man was wearing a light shirt
or jacket but that he could not remember what type of slacks he
wore. Anderson described the girl as having shoulder-length
brown hair parted in the middle and looking to be about 12 or 13
years old. He stated that she wore “dungarees or slacks and a
dark pullover and she was carrying something in her hand, I don't
know if it was a sweater or jacket or large pocketbook." Appendix

Tab 14.

Anderson said that he did not recall anything distinctly
about the man. Id. He also stated that the rear windows in the
van were covered up so that, after the man and the girl entered

the van, all he could see was the back of the van. Id.

b. The First Hypnosis Session

After they heard Anderson's story, the prosecutor and
chief investigator asked Anderson to consent to be hypnotized.
R.O.A. 13888. They told Anderson that hypnosis would improve his
recall, R.O.A. 13892; that "whatever I saw, it was retained in my
self [sic] conscious mind, and [hypnosis] would help me remember."
R.O.A. 13994. The police arranged to have Anderson hypnotized
later that same day by Imogene Keene. Keene was a social worker
at the Veterans Administration hospital. Anderson was the third
person Keene had hypnotized to enhance his recollection; the other
two had also been hypnotized in connection with this case.

Besides Keene, the chief of police, chief investigator, and
prosecutor also attended the hypnosis. Prior to the hypnosis, the
chief investigator talked to Keene about the case and the

importance of getting the date of Anderson's observation. R.O.A.

13928.

- 29 -

Under hypnosis, Anderson stated that the girl was "12 or
13 maybe 14", “about 5'5" . . . 5'6", maybe not that tall," that
she was slim and had black hair to her shoulders, parted in the
middle. Appendix Tab 15. Anderson stated that the girl was
wearing “bluish pants, possible dungarees," and a dark pullover
that was blue in color but had no designs on it. Id. at 24-25.
When asked whether he could see the girl's face, Anderson replied
that he could not. Keene then repeated the trance-inducing pro-
cedure and asked Anderson what kind of expressions he saw on the
girl's face. Anderson answered that the girl was crying. Id. at
26. Keene then elicited a description of the man and girl walking

to the van and of what the girl was carrying:

Anderson: He leads her in front of the
van.

Keene: In front of the van. ..-. -

Anderson: And opens the door on the

passenger's side and helps
her get in and slams the door
and then runs to the driver's
side.

Keene: And did you say runs to the
driver's side? Did you...
can you see his shoes?

Anderson: No. They drive off.

Keene: Can you back just a little
bit as you saw the man
helping . . . putting the
girl into the van, was she
carrying anything?

Anderson: Yes.

Keene: Describe it. What was it?
An object or what? Can you .
- . . ? Okay.

Anderson: I can't remember but I think

it was dark.

KEKKKEKEEKKERKE

Anderson: It could be a rolled up
jacket or a medium sized
handbag.

Keene: Okay, Okay, very good. ...

- 30 -

. . Okay, again can you tell
me more of the color of the
object she's carrying?

Anderson: No. It's dark.

Keene: Dark? Is it like black or
brown or green OTr.........?

Anderson: Dark blue or black or dark
brown.

Id. at 26-27.

Keene was unable to elicit a more detailed description
of the man than Anderson previously had provided. She was able to
get Anderson to describe the license plate on the van as a green
and white Florida license plate (when presented with a picture of
the license plate of the stolen van at trial, Anderson conceded
that it did not match his description). Anderson stated that
there were three cars between his truck and the van. He said that
after making his observation he arrived home a little after 9:00
a.m., took a shower, and went to bed at 9:30 or 9:45 and slept
until noon. Keene asked Anderson what day it was; he said "I
don't remember." Anderson, however, repeated that he thought he

had seen the man and the girl in April.

c. Events Occurring After the First Hypnosis
Session .

After the Keene hypnosis, Anderson was told to try to

recall the date of his observation:

A. They told me to go home and think
about it, and I went home. I talked
it over with my wife. I was very
concerned about it, very upset about
it. I didn't even know what day
the girl went missing. I believe my
wife said it was around the time of
our little girl's birthday and then
it began to dawn on me as I went
over it in my mind that I saw the
little girl and the man coming home
from the fire department the day
after my little girl's birthday.

R.O.A. 4088, 13903.

=-31-

Sometime after the hypnotic session, the police
investigators went to the firehouse and searched Anderson's
employment records to determine if he had worked on February 9;
they discovered that he had. As a result, Anderson learned that
Leach had disappeared on February 9. R.O.A. 4160-61. He also
concluded that, since he had been working on that day, he could
not have been going home to sleep if he had seen Petitioner and

Leach, as he had told the police. R.O.A. 4165.

d. The Second Hypnosis Session

On July 31, three days after Anderson's initial report
and hypnosis session, Anderson was hypnotized a second time. The
second session was conducted by Johnny Jack Burnette, a co-worker
of Keene's who, like Keene, had taken a hypnosis course only the
year before. Burnette had never conducted a forensic hypnotic
session. R.O.A. 7891. Keene had told him about the first session
and asked Burnette if he "wanted to share an experience" by

hypnotizing Anderson the next time. R.O.A. 6133.

The specific purpose of the second hypnosis session was
to find out when Anderson had observed the man and girl he thought
were Petitioner and Leach: "At that point, the date, I was
informed, was unknown, and, if possible, to find out what the date
it was." R.O.A. 6135. Burnette also was told that Anderson
"didn't remember the specific details and to hypnotize him and try
to help him remember the details of that day." Id. Anderson told
Burnette at the beginning of the session that he still did not

recall the date of his reported observation. R.O.A. 7909, 7924.

During this second hypnotic session, Anderson described
for the first time his activities before allegedly leaving the

fire department to drive home on the morning of February 9:

-32-

MR. ANDERSON: I'm at the station
drinking coffee. On coming shift -
. . my shift is coming on day shift
is going off 8:15 we're drinking
coffee and start doing our chores.
Start checking on. . . drug cabinet
... » I've assigned everybody work
detail . . . check out the drug
cabinet I've been on. . . been at
the station all night. I needa
shower and a shave. I asked the
assistant chief if it be okay if I
run home, change clothes and shower
. . ». he asked me if there was
another paramedic on duty and I told
him yes, Robert Dortch.

Appendix Tab 16.

He then "recalled" that the man he had seen with the
girl wore a white jacket or a white pullover with a shirt
underneath. He said that the van was a Chevrolet and had glass
windows in both rear doors. Anderson said that he was able to
see through the rear windows that the man was scolding the girl.
He then described a very different version of his activities for
the remainder of the day than he had reported to the police or
recalled for Keene: "I continue on home, ask my wife to iron me a
shirt, I take a shower, I finish my shower, eat a piece of my baby

girl's birthday cake and go back to work." Id.

Anderson described the man as "fairly young, 29, 30, 31.
Good looking . . . I can't see his eyes, clean shaven, weighs
about 160, 165 at the most." Id. He described the girl's
clothing as a blue "football jersey" with two numbers, one
definitely being nge and the other being "6" or "8". He said that
the girl had a dark brown pocketbook over the second number. Id.
at 47. When asked what date it was, Anderson said "February the
9th." Id. When asked how he knows this is the date, Anderson
replied: "Because I worked that day ah. . . February the 8th is

my little girl's birthday." Id.

- 33-

Before removing Anderson from the trance, Burnette told
him: "You will have complete memory for your hypnotic session.
Your will remember all the details that you discussed with me

under hypnosis." Id.

Both Keene and Burnette stated in depositions after the
two hypnosis sessions that the second session produced more
detailed statements in general, R.O.A. 7964, 8228, and
specifically elicited a more complete description of the
appearance and clothing of the man and girl, R.O.A. 7931, 7954;

the date of the abduction, R.O.A. 7964; and that the van had a

Florida license plate, R.O.A. 7944, 8228.

e. The Pretrial Motion to Suppress Anderson's
Testimony

At trial, Petitioner moved to suppress the testimony of
several witnesses, including Anderson, who had been hypnotized.
At the suppression hearing, two experts testified on behalf of
Petitioner about the suggestiveness of the hypnotic sessions
conducted with Anderson and both noted some of the specific
changes in Anderson's original statement that were elicited during
the sessions. For example, one of the experts, Dr. David Kuypers,
testified that Keene improperly asked Anderson to describe the
girl's face, even though Anderson had said that he could not see
her face; Keene's question suggested to the hypnotized Anderson
that he could remember the details sought, even if he could not,
and therefore the question was designed to produce a response.
R.O.A. 10942. According to Dr. Kuypers, "[t]hat kind of procedure
_increases dramatically the probability that you will get a
confabulatory response." In this case, Anderson responded that

"she's crying."

Dr. Kuypers also testified that if Anderson had learned
facts relating to the incident between the two hypnosis sessions,

- 34 -

it was possible that the second session would validate that
information for him and increase his confidence. R.O.A. 10946.
Dr. Kuypers stated that there was a "high probability" that
Anderson's statement concerning the numbers on the jersey and his
"recollection" of the date in terms of his daughter's birthday
resulted from confabulation of facts derived from newspapers and

other sources. R.O.A. 10956.

When asked to list the variances in Anderson's state-
ments, Dr. Kuypers testified that they included the date of the
occurrence; the description of what Anderson was doing that day
both at work and at home; the numbers on the jersey; the man's
weight; the fact that the. man was clean shaven; the change in the
description of the man's clothing froma light shirt or jacket to
a white pullover with a shirt underneath; the change in the
description of the van from covered rear windows to windows
Anderson could see through; and the change in his ability to see

the man and the girl from the rear of the van. R.O.A. 10955.

The court denied Petitioner's motion to suppress

Anderson's testimony.

f. Anderson's Trial Testimony

At trial, Anderson testified as follows:

Q. What, if anything, did you observe in the
vicinity of Lake City Junior High School on
that morning as you travelled to your home?

A. The first thing I noticed was there was
- a white van parked in the westbound lane of
- Duval Street, that, as I approached it,
several cars had, were going around it. There
were still two cars behind the van and then
my truck. And I was sitting there waiting
for the truck to move or waiting for traffic
to clear so I could go around it. And on my
left, I noticed a young girl, approximately
twelve or thirteen years old, dark hair,
shoulder length, parted in the middle.
Probably the only reason I noticed this girl

- 35 -

was she looked very much like one of my
nieces.

Q. Was there anyone with the young girl?

A. Yes, sir. With her was a man, approx
imately early thirties, had brown hair, you
know, light to dark brown hair, was full cut
of hair. It was one of the things that I
really paid any attention to as far as the man
was concerned. It was kind of wavy, but it
was full cut, you know, really a nice head of
hair.

I got the impression that the young girl was
either crying or had been crying. The man
had a scowl on his face. And I felt like
probably the girl had gotten in trouble at
the school or misbehaved in some way and had
called her father to come pick her up and
take her home. And as I was sitting there,
watching them, I remember thinking to myself,
you know, the daddy is going to take the lit-
tle girl home and probably, you know, give
her a spanking or something like that.

Q. Would you tell us how the girl was
dressed, as you recall?

A. She was wearing a pullover football
jersey and probably dungarees.

Q. What was the color of the football
jersey?

A. It was dark blue.

Q. Did the jersey have any distinguishing
marks or characteristics?

A. Yes, sir. It had some letters on it,
"63" or "68", red-orange, something like
that.12/

Q. Did the girl appear to be carrying
anything?

12/ This description of the numbers differed significantly
from Anderson's statement during the second hypnosis session.
Then, he testified that he could make out only one of the two
.numbers, a "3". He guessed at the second number because the girl
hadher pocketbook "over the other one." At trial, he testified
that the purse was in the girl's left hand clutched to her chest.
R.O.A. 4064. If that in fact had been the case, Anderson would
have seen the "8" which was on her right side and not the "3" on
her left side. At trial, his testimony that the number was either
"63" or "68" was more consistent with his testimony that the left
number was obstructed. This change in Anderson's story is the
result of confabulation, intentional misrepresentation, or both.
See also, note 13, infra. These discrepancies in Anderson's
testimony, above, were sufficient to render his identification of
Petitioner highly unreliable. Kampshoff v. Smith, 698 F.2d 581
(2d Cir. 1983).

- 36-

A. Yes, sir. In her left arm, kind of
clutched to her chest like this
(demonstrating), was a medium-sized object
like, so it could have been a pocketbook or a
rolled-up jacket or maybe both. [On
cross-examination, he stated that it was
"probably a purse." R.O.A. 4176.) I don't
know. The man had her by her left arm, right
about the elbow, and he was leading her
towards the white van. The little girl was
not actually resisting. It was pretty
evident that, that, you know, she wasn't
really anxious to go. They was, from the
sidewalk, probably six to ten feet from the
sidewalk when I first saw them. They
continued to walk to the sidewalk. He
stopped-—

Q. Did the man have the girl by the left
arm during the entire time that you observed
them?

A. Yes, sir. . They stopped and a car came
by, going east, and they crossed in front of
the white van. The man opened the door.

Q. Which door did he open?

A. The door on the passenger side. And
helped the girl get in the van, slammed the
door, and kind of jogged in front of the van,
got in the passenger side, and they drove
“off.

R.O.A. 4063-65.

k ok

Q. Were you able to tell how the man was
dressed? *

A. Yes, sir. He had a pullover sweater,
with a shirt underneath the sweater. I don't
recall the exact color of either one of them.
The sweater was a neutral color, tan, light
grey, something like that. I don't recall
the color of his trousers.

Q. You have described the van as being a
white van. Can you give any further descrip-
tion of it, particularly with respect to any
windows?

A. All I seen was a, was the very back of
it and it had two windows, the rear doors.

R.O.A. 4068.

RK K

Q. Were you able to observe the driver as he
was stopped at the red light there at 7th
Street?

-37 -

A. Some. I could see through the rear
window. I could see more of a silhouette than
anything else. And he was turned to the
passenger side.

R.O.A. 4069.

Anderson then identified the Petitioner as the man in
the van by pointing him out in the courtroom, and identified a
picture of the victim as the girl he had seen get into he van on

February 9.

As to how he recalled the date he saw the man and the

girl, Anderson testified as follows:

A. They [Chief Philpot, Investigator
Dougherty, and Prosecutor Dekle] told me to
go home and think about it, and I went home.
I talked it over with my wife. I was very
concerned about it, very upset about it. I
didn't even know what day the girl went mis-
sing. I believe my wife said it was around
the time of our little girl's birthday and
then it began to dawn on me as I went over it
in my mind that I saw the little girl and the
man coming home from the fire department the
day after my little girl's birthday.

Q. What was your little daughter's birthday?
A. February the 8th.

Q. Had you planned any events in connection
with her birthday or what caused you to focus
attention on her birthday?

A. My wife had planned a party where some of
her friends and a movie, and I was looking
forward to, you know, going to the party and
taking the kids to the movies, you know,
helping chaperone the kics. And I didn't
make it because I was working overtime at the
fire station. I got called in quite often
that day to work overtime. It seemed like
every time I went home, I walked in the door,
the phone would be ringing and them asking me
to come back down to the fire station and,
late that afternoon, I got a call to go back
down to the fire station, they had a trip
going to Gainesville, and we needed the money,
so I went.and I called my wife and told her
that I'm sorry, go ahead and take the kids to
the party and the movie, I wasn't going to be
able to make it. .

- 38 -

Q. Okay. What, if anything, happened on
February the 9th, after you got home, that
allowed you to tie that incident in with your
little girl's birthday party?

A. I remember going in. I remember feeling
guilty about not being with the kids at the
party. Well, the first thing I did was eat a
piece of my daughter's birthday cake. I
asked my wife to iron me a shirt, a uniform
shirt. I think probably eating the cake and
just I remember feeling guilty about not mak—-
ing the party makes me remember it as clear
as anything else.

Q. Okay. And are you certain in your own
mind, as you have testified this morning, on
February the 9th is the date that you made
those observations that you have described to
the Court?

A. Yes, sir.

R.O.A. 4087-88.

Finally, Anderson testified on direct examination that
he had been hypnotized but that the hypnosis had refreshed his
recollection only as to the numbers on the girl's jersey and the
fact that the man wore a pullover sweater and a shirt. R.O.A.

4090.

The cross-examination of Anderson focused almost
exclusively on his hypnosis. Anderson testified that after the
second hypnosis session, he concentrated on "trying to make myself
remember." R.O.A. 4125-26. That effort, however, "was
interfering with my family life." Id. "Initially, I was really
involved in this thing. Just about everything else, my wife and
my family, you know, it was kind of pushed aside." R.O.A. 4125.
He believed that the "hypnosis did help" him to recall what he had
seen. R.O.A. 4135. Nevertheless, Anderson did not recall in any
of his statements that the girl he saw was wearing a coat at the
time he claimed to have witnessed her abduction. R. 4176.13/

———

13/ In a deposition given prior to trial, Anderson stated that
the blue pullover football jersey was the only outer garment the
(continued...)

- 39 -

At trial, the judge admitted into evidence the tran-
script of Anderson's initial sworn statement to the police and the
tapes and transcripts of the two hypnotic statements without any
special instruction to limit the purposes for which the jury
could consider the transcripts and tapes. R.O.A. 6276, 6274,
4062, 4185. As a result, in his closing argument, the prosecutor
told the jury:

when you get in those rooms or get in the

room, wherever you deliberate here, to look at

those transcripts there and I think you will

see that the core of Mr. Anderson's testimony,

the essence of his testimony has been the same

throughout. The first hypnosis session drew a

few more details out of him. The second even

more. But the core of his testimony has been

the same.

Sure, there are some inconsistencies.

Hypnosis is not a magical wand. It's not a

truth serum. A person is not going to have

total recall under hypnosis. It's just a

valid aid in memory retrieval. It's not a

cure-all. If it were, I'm sure that we would

all be undergoing hypnosis, but it's not that.

R.O.A. 6902.

The defense counsel's final argument to the jury and the
prosecutor's rebuttal argument focused primarily on Anderson's
testimony and the efficacy of hypnosis. The prosecutor acknow-
ledged that Mr. Anderson's testimony "is important in the total
scheme of things as far as the case, the State is concerned."
R.O.A. 6909. He noted that the defense had characterized Mr.

Anderson's testimony "as the glue which was going to make the

13/ (...continued)

girl had on and that it left her arms exposed from the elbows
down. Transcript of the deposition of Clarence Anderson, August
27, 1979, at 104-05. That description of the girl's clothing was
inconsistent with every other description of what she had on when
she disappeared as well as with the clothes found when her body
was recovered. In addition, it was inconsistent with the weather
on February 9, 1978, which Anderson and others described as rainy
and wintry. - The description of a girl in shirt sleeves, however,
would have been consistent with the weather in April, when
Anderson initially thought he had made his observation.

- 40 -

case, the State's case, stick, if indeed, it could stick." R.O.A.
6899. He then argued that despite "rather vigorous cross—
examination, I submit to you that the glue did stick, that the
testimony of Mr. Anderson withstood scrutiny not only of defense
counsel, but also the scrutiny of you ladies and gentlemen here."

Id.

The trial judge charged the jury on the various elements
of the crimes with which Petitioner was charged. He gave no
instruction about hypnosis. Among other things, the court
instructed the jury that they could find Petitioner guilty of
capital murder, without regard to premeditation, if they found
that Leach was killed in the course of a kidnapping. R.O.A.

6924, 6930-31. He also instructed the jury that "by a separate
pleading, the exact date has been made an issue to be tried. The
burden, therefore, rests upon the State to prove beyond a reason-
able doubt that the crime was committed on February 9, 1978."

R.O.A. 6933-34.

The jury subsequently convicted Petitioner of kidnapping

and first degree murder.

6. The Decision of the Florida Supreme Court

On appeal, the Florida Supreme Court succinctly

described the evolution of Anderson's testimony as follows:

The state's one eyewitness to the
abduction of Kimberly Leach was Clarence
Anderson. On July 18 [sic], 1978,14/ Anderson

. reported to the Lake City Police Department
that the profile of a person he had seen on a
television newscast bore a striking resem-
blance to the man that he had observed with a
girl near the Lake City Junior High School
several months earlier. Assistant State
Attorney Dekle asked Anderson to undergo hyp-

14/ The Supreme Court misstated this date; there is no dispute
that Anderson did not report his observation to the police until
July 28, 1978, after the Petitioner had been indicted.

-41-

nosis to refresh his memory. Anderson agreed
and was hypnotized twice. Thereafter, he
stated that on February 9, 1978, he noticed a
man leading a young girl into a white van

near the Lake City Junior High School.
Anderson identified the young girl as Kimberly
Leach and the man in the van as Theodore
Bundy.

471 So. 2d at 12-13.

In evaluating petitioner's claim that Anderson's testi-
mony should have been suppressed under Neil v. Biggers, 409 U.S.

188 (1972) and Frye v. United States, 293 F.2d 1013 (D.C. Cir.

1923), the Florida Supreme Court extensively quoted with approval
the analyses of several prominent state courts that had recognized
the dangers of hypnotically-enhanced testimony. For example, the
court quoted the following observation of the Arizona Supreme

Court in State v. Mena, 128 Ariz. 226, 230, 624 P.2d 1274, 1278

(1981):

Accepting a witness' statement that he
is testifying from his own recollection
requires the assumption that the witness is
capable of making a determination that what
he perceives as his recollection actually
came from his prior observations as opposed
to impressions planted in his memory through
hypnosis. Such an assumption is contrary to
the opinion held by many authorities that a
witness will recall memories fabricated under
hypnosis as his own recollection and will be
unable to distinguish his true memories from
pseudomemories implanted during hypnosis

The faith which [certain] courts placed
in the power of cross-examination also seems
misplaced. One article claims that "[t]he
subsequent opportunity for cross-examination
at the trial is virtually ineffective as a
means of assuring no false suggestions have

- been implanted."

471 So. 2a at 14. The court then noted that the Mena court had

held that the Confrontation Clause of the Sixth Amendment required

- 42 -

the exclusion of hypnotically tainted testimony.15/ 471 So. 2d at

14.

The court quoted the New Jersey Supreme Court about the
danger that hypnotized subjects will "fill in the gaps" of their

memory:

The hypnotic suggestion to relive a past
event, particularly when accompanied by ques-—
tions about specific details, puts pressure
on the subject to provide information for
which few, if any, actual memories are avail-
able. This situation may jog the subject's
memory and produce some increased recall, but
it will also cause him to fill in details

that are plausible but consist of memories or
fantasies from other times. It is extremely
difficult to know which aspects of hypnoti-
cally aided recall are historically accurate
and which aspects have been confabulated. * *
* * Subjects will use prior information and
cues in an inconsistent and unpredictable
fashion; in some instances such information is
incorporated in what is confabulated, while in
others the hypnotic recall may be virtually
unaffected.

471 So. 2d at 15 (quoting State v. Hurd, 86 N.J. 525, 538-39, 432

A.2d 86, 92-93 (1981)) (quoting Orne, The Use and Misuse of Hypno—

sis in Court, 27 Int'l J. Clinical & Experimental Hypnosis 311,
317-18 (1979)). In Hurd, the New Jersey Supreme Court concluded
that a previously hypnotized witness could testify but only if the
proponent established the admissibility of the testimony by clear
and convincing proof. Such proof was to include verification that
the hypnosis session followed specified, stringent procedures
designed to ensure that the "revived" memory was comparable in
accuracy to normal recall. 471 So. 2d at 16, (86 N.J. at 546-47,

432 A.2d at 95).

15/ The court also pointed out that the Arizona court
Subsequently had held that "hypnosis does not render the witness
incompetent to testify to those facts demonstrably recalled prior
to hypnosis." State ex rel. Collins v. Superior Court, 132 Ariz.
180, 209, 644 P.2d 1266, 1295 (1982).

- 43 -

The Florida Supreme Court, however, flatly rejected the
Hurd court's conclusion that hypnotically-refreshed recollection
could be admitted under certain circumstances. The court cited
the conclusion of the Pennsylvania Supreme Court that the Hurd
court's rationale "does not do full justice to the fact that 'the
traditional guarantees of trustworthiness as well as the jury's
ability to view the demeanor of the witness are wholly ineffective
to reveal distortions of memory induced by the hypnotic process.'"

471 So. 2d at 16, quoting Commonwealth v. Nazarovitch, 496 Pa. 97,

109-11, 436 A.2d-170, 177-78 (1981). The court also noted the

following observation of the California Supreme Court:

{W]e observe that certain dangers of hypnosis
are not even addressed by the Hurd require-
ments: virtually all of those rules are
designed to prevent the hypnotist from
exploiting the suggestibility of the subject;
none will directly avoid the additional
risks, recognized elsewhere in Hurd, that the
subject (1) will lose his critical judgment
and begin to credit "memories" that were
formerly viewed as unreliable, (2) will
confuse actual recall with confabulation and
will be unable to distinguish between the
two, and (3) will exhibit an unwarranted
confidence in the validity of his ensuing
recollection.

471 So. 2d at 17, quoting People v. Shirley, 31 Cal. 3d 18, 39-40,
641 P.2d 775, 787, 181 Cal. Rptr. 243, 255, cert. denied, 459

U.S. 860 (1982).

Acknowledging and joining the trend of recent cases in
other jurisdictions, the Florida Supreme Court ruled that
hypnotically-enhanced testimony would be per se inadmissible in
future criminal trials. Saying that it “aptly describes our view
on this issue," the court quoted the following statement by the
Michigan Supreme Court:

Hypnosis has not received sufficient general

acceptance in the scientific community to

give reasonable assurance that the results

produced under even the best of circumstances

- 44 -

will be sufficiently reliable to outweigh the
risks of abuse or prejudice.

[U]ntil hypnosis gains general acceptance
in the fields of medicine and psychiatry as a
method by which memories are accurately
improved without undue danger of distortion,
delusion, or fantasy and until the barriers
which hypnosis raises to effective cross—
examination are somehow overcome, the testi-
mony of witnesses which has been tainted by
hypnosis must be excluded in criminal cases.

Id. (quoting People v. Gonzales, 415 Mich. 615, 626-27, 329 N.W.2d
743, 748 (1982)). “For these reasons," the Florida court
explained, "we likewise hold that hypnotically refreshed testimony
is per se inadmissible in a criminal trial in this state, but
hypnosis does not render a witness incompetent to testify to

those facts demonstrably recalled prior to hypnosis." 471 So. 24a

at 18.
The court then turned to Anderson's testimony:

In the present case we are faced with a
witness whose memory has been "refreshed" or
"enhanced" through state-sponsored hypnosis.
Bundy's experts described the numerous inap-
propriate procedures and questions utilized by
the social workers who administered the hypno-
sis to the witness, C.L. Anderson, in their
attempts to enhance Anderson's recall through
hypnosis. Both experts also gave their opin-
ion that Anderson should never have been hyp-
notized in the first place because of the
lapse of time between the event he was
attempting to remember and the hypnotic epi-
sodes and because of all the information he
had learned about the event during that
intervening period of time. The expert's
opinion was that Anderson's testimony was
unreliable.

471 So. 2d at 17. Despite these opinions, the court nonetheless

concluded that the admission of Anderson's testimony was “harmless

constitutional error."

Citing this Court's decisions in Schneble v. Florida,
405 U.S. 427 (1972), and Fahy v. Connecticut, 375 U.S. 85 (1963),
the court described its analysis as follows:

- 45 -

We must now determine whether, on the
facts of this case, there was sufficient
evidence, excluding the hypnotically recalled
testimony, to uphold Bundy's conviction. The
United States Supreme Court has articulated
the harmless-constitutional-error rule to be
a question of whether there is a reasonable
possibilit hat th idence complained of

might have contribute he_ co .

The record shows that Mr. Anderson's
testimony was refreshed under hypnosis as to
only three details. Under hypnosis he was
able to recall that the football Yersey which
the girl he described was wearing was blue
and the numbers were "63" or "68". He was
also able to remember that part of the man's
attire was a pullover sweater and a shirt.
After a thorough examination of the record
before us in this case, we feel that suffi-
cient evidence does exist, absent the tainted
testimony, upon which the jury could have
based its conviction of Bundy. There is no
reasonable possibility that the tainted testi-
mony complained of might have contributed to
the conviction.

471 So. 2d at 19 (citations omitted).

B. The Court Should Grant This Petition to Resolve
the Question Left Open by Rock v. Arkansas

The court below, with only superficial analysis, con-
cluded that this Court's decision in Rock v. Arkansas, 107 S.Ct.
2704 (1987), permitted the State of Florida to rely on the
uncorroborated post-hypnotic testimony of Clarence Anderson to
convict Petitioner and sentence him to death for the kidnap and
murder of Kimberly Leach. But this Court held in Rock that a
defendant's constitutional right to testify in his own defense
barred a state from adopting a per se rule prohibiting a
previously hypnotized defendant from testifying at trial. Rock
‘expressly did not address the issue raised by this. case:

This case does not involve the admissibility

of testimony of previously hypnotized wit—

nesses other than criminal defendants and we
express no opinion on that issue.

- 46 -

107 S. Ct. at 2712 n.15. Petitioner submits that his conviction
based on the uncorroborated testimony of a previously hypnotized.
witness compels the Court to grant this petition and decide the

issue left open by Rock.

1. The Dangers of Hypnosis

Every federal court that has considered the issue of
post-hypnotic testimony, including this Court, has recognized the
dangers posed by the hypnosis of a witness.16/ See e.g., Rock v.
Arkansas, 107 $.Ct. 2704 (1987); Little v. Armontrout, 835 F.2d
1240 (8th Cir. 1987), cert. denied, 108 S.Ct. 2857 (1988); McQueen
v. Garrison, 814 F.2d 951 (4th Cir.), cert. denied, 108 S.Ct. 332

(1987); United States v. Kimberlin, 805 F.2d 210 (7th Cir.),

cert. denied, 107 S.Ct. 3270 (1987); Harker v. Maryland, 800 F.2d

437 (4th Cir. 1986); Spryncznatyk v. General Motors, 771 F.2d 1112

(8th Cir. 1985), cert. denied, 106 S.Ct. 1263 (1986); United
States v. Valdez, 722 F.2d 1196 (5th Cir. 1984). This Court

described those dangers in its opinion in Rock:

Responses of individuals to hypnosis vary
greatly. The popular belief that hypnosis
guarantees the accuracy of recall is as yet
without established foundation and, in fact,
hypnosis often has no effect at all on memory.
The most common response to hypnosis, however,
appears to be an increase in both correct and
incorrect recollections. Three general char-
acteristics of hypnosis may lead to the
introduction of inaccurate memories: the
subject becomes 'suggestible' and may try to
please the hypnotist with answers the subject
thinks will be met with approval; the subject
is likely to 'confabulate,' that is, to fill
in details from the imagination in order to

. make an answer more coherent and complete;

7 and, the subject experiences 'memory
hardening,' which gives him great confidence
in both true and false memories, making
effective cross-examination more difficult.
See generally M. Orne, et al., Hypnotically
Induced Testimony, in Eyewitness Testimony: _
Psychological Perspectives 171 (G. Wells and

16/ The court below largely ignored these dangers in its
analysis.

-4a7 -

E. Loftus, eds., 1985); Diamond, Inherent
Problems in the Use of Pretrial Hypnosis on a
Prospective Witness, 68 Calif. L. Rev. 313,
333-342 (1980). Despite the unreliability
that hypnosis concededly may introduce,
however, the procedure has been credited as
instrumental in obtaining investigative leads
or identifications that were later confirmed
by independent evidence. See e.g., People v.
Hughes, 59 N.Y. 2d 523, 533, 453 N.E. 2d 484,
488 (1983); see generally R. Udolf, Forensic
Hypnosis 11-16 (1983).

107 S. Ct. at 2713-14 (footnote omitted; emphasis added). Both

the majority and dissenting justices agreed on this point.

The record in this case establishes that Anderson's
testimony was substantially affected by his pretrial hypnosis.
For example, the Florida Supreme Court found that at least three
details leading to Anderson's identification of Petitioner as the
person who abducted Leach were attributable to the hypnosis.
These were (1) the blue color of the girl's football jersey, (2)
the number "63" or "68" on the front of the jersey, and (3) the
belief that the man wore a pullover sweater and a shirt. Although
the court found that the source of these details made Anderson's
testimony in that respect unreliable, it concluded that their

admission was harmless constitutional error.17/ These details,

17/ The Florida Supreme Court's finding of harmless error. was
based on a flawed application of that doctrine. First, as Justice
Marshall has noted:

Having identified constitutional error in the
admission of hypnotically refreshed testimony,
the Florida Supreme Court was not free to
excise a fraction of that evidence and
conclude that the rest could not have

> contributed to the conviction.

107 S. Ct. at 297 (dissenting from denial of cert.). Second, the
Florida court confused review for harmless constitutional error
with review for sufficiency of the evidence, despite this Court's
explanation of the difference in Fahy v. Connecticut: “We are not
concerned here with whether there is sufficient evidence on which
the petitioner could have been convicted without the evidence
complained of. The question is whether there is a reasonable
possibility that the evidence complained of might have contributed
to the conviction." 375 U.S. at 86-87. The Florida Supreme Court
treated these two standards as if they were one in the same.
(continued...)
- 48 -

however, contributed importantly to making Anderson's
identification of Petitioner and Leach credible.18/ Moreover, as
the Florida Supreme Court implicitly found, and as other courts
have explicitly found, it is impossible to determine -- even
through expert testimony -- the source of hypnotically
"remembered" details. See, e.g., Little v. Armontrout, 835 F.2d

at 1244; United States v. Kimberlin, 805 F.2d at 218; see also

American Medical Association, Council on Scientific Affairs,
Report: Scientific Status of Refreshing Recollection by the Use
of Hypnosis, 253 J.A.M.A. 1918, 1921 (April 5, 1985) ("AMA Council

Report").

Beyond these three details, the record is also clear
that other elements of Anderson's testimony can be traced to his

hypnosis.19/ The most important of these is Anderson's recol-

17/ (...continued)
In Chapman v. California, this Court noted:

We must recognize that harmless-error
rules can work very unfair and mischievous
results when, for example, highly important
and persuasive evidence . . . though legally
forbidden, finds its way into a trial in which
the question of guilt or innocence is a close
one. ‘

386 U.S. 18, 22 (1967). As Justice Marshall concluded: “When the
evidence admitted at petitioner's trial is reviewed in this light
it becomes clear that the tainted testimony significantly
bolstered the State's case against him, for the untainted evidence
was far from overwhelming." 107 S.Ct. at 297.

18/ Indeed, one study found that juries are particularly
influenced by a witness' memory for details, even more than his
ability to identify the defendant's face. See G. Wells and M.
Leippe, How Do Triers of Fact Infer the Accuracy of Eyewitness
Identifications? Using Memory for Peripheral Detail Can Be
Misleading, 66 Journal of Applied Psychology 682-687 (1981).

19/ The court below apparently concluded that Anderson was not
hypnotized in the first session. The basis for this apparently
was Anderson's own testimony that he doubted he had been
hypnotized. Anderson's reaction to the first hypnosis, however,
was normal and does not indicate that he was not hypnotized. B.
Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a

Prospective Witness, 68 Cal. L. R. 313, 334 (1980). (Hereinafter
"Diamond").

- 49 -

lection of the precise date that he allegedly saw Petitioner and
Leach.20/ The court below suggested that Anderson recalled the
date prior to the second hypnosis session. That conclusion,
however, is based entirely on Anderson's own testimony and is
inconsistent with the testimony of the hypnotist who conducted the

second session.

Anderson unquestionably learned prior to the second
hypnosis session that Leach's abduction was supposed to have
occurred on February 9, 1978. He learned that fact from the
police's search of his employment records and from his wife.
R.O.A. 4160-4161. He also knew that if he had worked on February
9, as his records indicated, he could not have seen Leach's
abduction. R.O.A. 4165. The record does not support his trial
testimony, however, that he recalled he had observed the abduction
prior to the second hypnosis session. The hypnotist who conducted
that session testified that its primary purpose was to determine
the date of Anderson's observation. R.O.A. 6135. In the pre-
hypnosis interview, Anderson told the hypnotist he still could not
recall the date. R.O.A. 7909, 7924. Both hypnotists later
confirmed that the date of his observation was one of the details

Anderson recalled under hypnosis. R.O.A. 7964.

Anderson's trial testimony that he recalled the date of

his observation prior to the second hypnosis session is consistent

20/ _ Other details of Anderson's testimony that can be traced
to his hypnosis are set forth in the table in Appendix 17. Those
details included: (1) the man's age, (2) the fact that the man
was "good-looking", (3) the girl's height, (4) that the girl was
"slim", (5) that Anderson noted at the time of the observation
that the girl looked very much like his niece, (6) that, after the
van drove off, Anderson could see through the rear windows of the
van that the man was "scolding" the girl, (7) a view of the man
leading the girl up to the sidewalk on the street opposite the
van, (8) that the girl wore a "football jersey" and blue pants,
(9) the red-orange color of the numbers on the jersey, and (10)
the dark color of the object the girl carried.

- 50 -

with what is known as “source amnesia". One authority on the

subject explained the phenomenon as follows:

One can only conclude that hypnosis can
induce subtle but. highly significant distor-
tions of memory that will persist indefi-
nitely, distorting all subsequent related
recall of the subject. My own experience has
convinced me that even communications and
other cues to the subject made in the normal,
waking state, both before and shortly after
the hypnotic session, may be similarly
influenced by the hypnotic experience. Thus
the police may tell a witness something just
before hypnosis and then hypnotize him. When
he awakes, his ‘source amnesia’ may lead him
to believe that the police statement was a
product of his own memory. Sometimes
communications made to the patient after
hypnosis may be retroactively integrated into
the hypnotic recall. The subject may recall a
fact with no awareness that it was not the
product of his own mind. Or he may recall
being told the fact but insist that he had
prior knowledge of it. This often happens
when subjects are shown photographs or line-
ups for identification just before or just
after hypnotic sessions. In my experience,
time, rather than weakening the effects of the
hypnotic distortion, tends if anything to fix
it into a permanent pattern. Therefore, the
pretrial hypnosis of a witness appreciably
influences all of his subsequent testimony in
ways that are outside the consciousness of the
witness and difficult, if not impossible, to
detect.

Diamond, supra, 68 Cal. L. Rev. at 336. Thus Anderson's testimony
at trial about when he recalled the date he allegedly saw
Petitioner and Leach -- contradicted by the recollection of the
hypnotists -- cannot be credited, as the court below did.

2. Constitutional Rights Implicated by The
Testimony of a Previously Hypnotized Witness

Both the court below, as well as other federal and state
courts, have recognized that because of the effects of hypnosis on
a witness, its use may raise questions under both the sixth and
fourteenth Amendments. Bundy v. Dugger, 850 F.2d at 1415; see
also Little v. Armontrout, 835 F.2d 1240 (8th Cir. 1987); McQueen

v. Garrison, 814 F.2d 951 (4th Cir. 1987); United States v.

- 51 -

Kimberlin, 805 F.2d 210 (7th Cir. 1986); Harker v. Maryland, 800
F.2d 437 (4th Cir. 1987); Clay v. Vose, 771 F.2d 1 (ist Cir.
1985), cert. denied, 106 S.Ct. 1212 (1986); United States v.
Valdez, 722 F.2d 1196 (5th Cir. 1984); state court decisions cited
in Rock v. Arkansas, 107 S.Ct. at 2712 n. 14. Petitioner submits
that substantial constitutional issues are raised under both
amendments with respect to the pretrial hypnosis of Clarence

Anderson.
a. Sixth Amendment

The harm under the sixth amendment is that hypnosis will
have the effect of increasing the witness's confidence in the
truth of his recollections, regardless of the accuracy of those

recollections. Rock, 107 S.Ct. at 2713; Little v. Armontrout, 835

F.2d at 1244; McQueen, 814 F.2d at 956 n.13; Clay v. Vose, 771
F.2d at 3; State v. Hurd, 86 N.J. 525, 432 A.2d 86, 93-94 (N.J.
1981); People v. Gonzales, 108 Mich. App. 145, 310 N.W. 2d 306,
313-14 (Mich. App. 1981). In this case, such memory hardening
obviously occurred with respect to Anderson's testimony about the
date on which he made his observation and the certainty of his

identification of Leach.

When such memory hardening occurs, it increases the
“appearance of certitude without a concurrent increase of
veracity."21/ This appearance of certitude makes effective cross-

examination virtually impossible:

A’remarkable feature of hypnosis is its
apparent ability to resolve doubts and
uncertainties. Most persons, when aware of
the deficiencies of their recall of events,
will communicate their awareness by hesitancy,
expressions of doubt, and body language
indicating lack of self-confidence. The jury
relies on these indicators of lack of
certainty of recall, and their importance in

21/ AMA Council Report, 253 JAMA at 1921.

- 52 -

the determination of the weight of the
evidence may be equal to or greater than the
bare substance of the testimony. Without
adding anything substantive to the witness'
memory of events, hypnosis may significantly
add to his confidence in his recall. Thus, a
witness who quite honestly reveals that he is
unsure of the identification of a defendant
from a photograph or a line-up, may, after
hypnosis, become quite certain and confident
that he has picked the right man. Yet nog
additional memory has been recalled that would
justify the increased confidence.22/

See also, Rock v. Arkansas, 107 S.Ct. at 2713 citing M. Orne

Hypnotically Induced Testimony, in Eyewitness Testimony:

Psychological Perspectives 171 (G. Wells and E. Loftus, eds.

1985); B. Diamond, Inherent Problems in the Use of Pretrial

Hypnosis on a Prospective Witness, 68 Calif. L. Rev. 313, 333-342

(1980); Little v. Armontrout, 835 F.2d at 1244 ("Because she now
believes in the accuracy of her memory, regardless of its actual
truth, the witness will be difficult to shake under cross-—

examination.")

An even more fundamental interference with Petitioner's
sixth amendment right also arose from.Anderson's testimony. The
prominence of hypnosis at trial made Anderson's credibility
largely irrelevant. If the jury believed, as the State argued,
that hypnotism was a reliable means of accurately enhancing a
witness's recollection, the only trial issue became whether
Anderson accurately testified about his hypnotically-refreshed
recollections. Indeed, that is precisely what the State invited
the jury to determine based on its own review of the transcripts

of Anderson's statements under hypnosis.23/ R.O.A. 6902. That

22/ Diamond, supra, 68 Cal. L. R. at 339-340.

23/ The admission of the tapes and transcripts of the hypnosis
sessions, without an instruction by the court strictly limiting
their use further contributed to the prejudicial impact of the
hypnosis on Petitioner's trial. See Sprynczynatyk, 771 F.2d at
1117.

- 53 -

invitation, however, shifted the focus away from Anderson's
credibility and improperly allowed the jury to decide the efficacy

of hypnosis.

Jurors tend to believe that hypnosis "is an infallible
method of discovering the truth."24/ This belief assumes that
memory is a process "analogous to a multichannel videotape
recorder inside the head [that] records all sensory impressions
and stores them in their pristine form indefinitely."25/ In its
closing argument in this case, the State suggested to the jury
that this was the true nature of memory. R.O.A. 6902. In fact,
however, this theory "is as yet without established foundation."
Rock v. Arkansas, 107 S. Ct. at 2713.26/ Thus, requiring
Petitioner to cross-examine Anderson primarily for the purpose of
trying "to successfully rebut scientific evidence which bears an
‘aura of special reliability and trustworthiness, '" United States
v. Brown, 557 F.2d 541, 556 (6th Cir. 1977) (citation omitted),
denied him a meaningful opportunity for effective cross—

examination, in violation of the sixth amendment.
b. The Fourteenth Amendment.

The fourteenth amendment guarantees Petitioner a trial
that results in the “impartial ascertainment of the facts."

Chambers v. Mississippi, 410 U.S. 284, 296 (1973). Petitioner was

denied such a trial; the admission of Anderson's post-hypnotic
testimony at Petitioner's trial was fundamentally "destructive of

the truth-gathering process." Id. at 296 n.8. As a result,

24/ See, United States v. Kimberlin, 805 F.2d at 218.

25/ AMA Council Report, 253 JAMA at 1920.
26/ See also AMA Council Report, 253 JAMA at 1920 (theory "not

consistent with research findings or with current theories of
memory."); United States v. Valdez, 722 F.2d 1196, 1200 (5th Cir.
1984) (theory “remains an open question among scientists.").

- 54 -

Petitioner's conviction and sentence to death violated his right
under the fourteenth amendment to due process of law. United

States v. Valdez, 722 F.2d 1196 (Sth Cir. 1984).27/

Anderson's uncorroborated testimony that he had
witnessed Petitioner's alleged abduction of Leach was the most
damaging evidence against Petitioner. Anderson's testimony was
necessary to establish that Petitioner kidnapped Leach on February
9, 1978, a fact the State had to prove beyond a reasonable doubt.
R.O.A. 6933-34. Once Petitioner was convicted of kidnapping, the
jury then could convict him of first degree murder, without
finding premeditation. R.O.A. 6924, 6930-31. No evidence, either
direct or circumstantial, connected Petitioner to Leach's

abduction on February 9, 1978, except Anderson's testimony.

The decision of the court below is the only instance of
which Petitioner is aware of a court upholding a conviction
obtained by the uncorroborated testimony of a previously

hypnotized witness. Compare, United States v. Valdez, 722 F.2d at

1203, see, also, Rock v. Arkansas, 107 S. Ct. at 2714 (Arkansas
rule prevented the petitioner from testifying about events
“despite corroboration of many of those events by other

witnesses"); see also Chambers v. Mississippi, 410 U.S. 284

(1973); McQueen v. Garrison, 814 F.2d at 960 ("no appellate court
has gone, nor would we go, so far as to judge whether
hypnotically-enhanced testimony was free of the dangers associated

with hypnosis solely from a review of the witness' testimony.").

In Valdez, the Fifth Circuit vacated the conviction of a
defendant in circumstances similar to those in this case. There,

a Texas Ranger was hypnotized to help him recall a casual

27/ See als6, Little v. Armontrout, 819 F.2d 1425, vacated,
835 F.2d 1240 (8th Cir. 1987); compare Kampshoff v. Smith, 698
F.2d at 585-87.

-55-

observation he had made in the course of an investigation. At the
time of the hypnosis, the witness knew that the defendant was
already under suspicion for the crime. At trial, the Texas
Ranger's identification of the defendant at the crime scene was
not corroborated. The court held that admission of the Ranger's

testimony denied the defendant's right to due process of law.

The court reviewed the effects of hypnosis on a witness
and concluded that those effects and the fact that there was "not
a word of corroboration of Jackson's post-hypnotic testimony,"
rendered the witness's identification of the defendant "more
potentially prejudicial than probative." 722 F.2d at 1203. The
court suggested that if the testimony had been corroborated and
adequate procedural safeguards had been followed in conducting
the hypnosis, the testimony might have been admissible:

However, when, as here, a hypnotized

subject identifies for the first time a

person he has reason to know is already under

suspicion, the post-hypnotic testimony is

inadmissible whatever procedural safeguards

were used to attempt to sanitize the hypnotic

session. 28/

Id. The court's decision in Valdez applies equally here;
Petitioner's conviction based on the uncorroborated post-hypnotic

testimony of a casual witness to the Petitioner's alleged

abduction of Kimberly Leach compels the granting of this petition.

28/ This Court has recognized that the use of safeguards
May reduce some of the adverse effects of hypnosis. Rock v.
Arkansas, 107 S. Ct. at 2714. In this case, however, other than
tape recording portions of the two hypnosis sessions, none of the
recommended safeguards was employed. Among other things, the two
hypnotists were inexperienced lay persons; the hypnotists were
part of the investigative team; persons other than the hypnotist
and Anderson attended the session; highly suggestive questions
were asked during the sessions; and Anderson's circumstances did
not make him an appropriate subject for hypnosis. The State's own
expert admitted that the two hypnosis sessions could have been
"more sophisticated."

- 56 -

III. Petitioner is Entitled to an Evidentiary Hearing on His
Claims of Ineffectiveness of Counsel

Petitioner raised several claims of ineffective
assistance of trial and appellate counsel. Without a hearing,
briefing, or even argument, the district court summarily disposed
of each such claim on the merits. On appeal the court of appeals
summarily affirmed. This case thus presents the extraordinary
situation of a petitioner being denied relief on the merits of
well-plead prima facie claims without a hearing in any court --
state or federal -- on any of the claims. This result is
contrary both to well established law and to the court of appeals

own decision in the related Leon County appeal.29/

29/ It is settled law that claims of ineffective assistance of
counsel pose mixed questions of law and fact open to full review
by a district court in a habeas proceeding. Strickland v.
Washington, 466 U.S. 668, 698 (1984); Young v. Zant, 677 F.2d 792,
794 n.2 (llth Cir. 1982). ‘Thus, Petitioner is entitled to an
evidentiary hearing on any of his claims that would warrant relief
if subsequently proven. Croonon v. Alabama, 587 F.2d 246, 249
(5th Cir.), cert. denied, 440 U.S. 974 (1979).

In order to prove ineffectiveness, Petitioner must
demonstrate that his counsel's performance was "deficient" -- that
is, he must identify specific acts and omissions. Petitioner must
also prove that the deficient performance prejudiced his
defense -- that counsel's errors were so serious as to render the
trial result unreliable. Strickland, 466 U.S. at 687; King v.
Strickland, 748 F.2d 1462, 1463 (llth Cir. 1984), cert. denied,
471 U.S. 1016 (1985). Petitioner met the first requirement by
identifying in the petition the many acts and omissions -— failure
to raise competency, failure to investigate, the fiber evidence,
and the rest -- that demonstrate that his counsel's performance
was deficient.

Petitioner likewise satisfied Strickland's second prong.
His conviction rests on two elements -- the hypnosis-enhanced
testimony of Clarence Anderson, which the Florida Supreme Court
concluded was unreliable, and legally unsupportable claims of the
state's forensic witnesses which counsel failed to challenge
adequately. Further, counsel failed to request a competency
hearing in the face of serious questions on that score. With
respect to this last, the court of appeals decision in the initial
appeal remanding the case for a competency hearing conclusively
shows that Petitioner was prejudiced.

Each of Counsel's errors, standing along, is
sufficiently grave as to satisfy the second prong of Strickland.
But together, their sheer number and scope leave serious doubt as
to the reliability of the trial court's verdict.

-57 -

Each of Petitioner's claims of ineffective assistance of

counsel was sufficiently plead to warrant an evidentiary hearing.

1. Trial Counsel's Inadequate Investigation and
Failure to Challenge Certain Scientific Evidence

Petitioner alleged that his trial counsel failed
adequately to investigate and contest the reliability and
admissability of certain scientific evidence submitted at trial
and failed to conduct other crucial investigation as well.
Indeed, trial counsel admitted that they mistakenly failed to
raise a Frye challenge to the fiber evidence. The district court
summarily rejected this claim as consisting of "speculative and

conclusive allegations".

When faced with "conflicting inferences" stemming from
information not presented at trial the court below has held that
the appropriate recourse is a remand for an evidentiary hearing to
determine if trial counsel's failure to uncover this information
constitutes ineffectiveness. Porter v. Wainwright, 805 F.2d 930
(llth Cir. 1986), cert. denied, 107 S.Ct. 3195 (1987). The court
of appeals in this case, however, dismissed this claim on the
merits.

2. Failure to Protect Petitioner's
Interests During Plea Negotiations

The petition alleges that as a result of trial counsel's
lack of preparation and failure to exercise independent judgment,
Petitioner lost the opportunity to enter a guilty plea to the
murder charge in this and in the Leon County case and thereby to
“avoid the sentence of death. The petition alleges that trial
counsel entered into plea negotiations with the State and allowed
the plea hearing to proceed despite counsel's belief that
Petitioner was incompetent. Counsel did so with the knowledge
that once negotiations began there would be "no turning back"

- 58 -

because information would have to be divulged to the State that

would seriously prejudice petitioner's chances at trial.

The court of appeals simply dismissed this claim on the
ground that a review of the record demonstrated that it lacked
merit and that, in any event, Petitioner failed to allege that
damaging information was disclosed during the plea negotiations or
whether it was used by the State. This ruling is in direct
conflict with the court's remand of the identical Leon County
claim for an evidentiary hearing, because "[n]lone of these claims
is shown by the face of the petition to be tactical" and because
"petitioner need only allege grounds and facts, which he did for
all or substantially all of his ineffective counsel allegations,
and [thus] he was not obliged to supplement his petition with
other materials." Bundy v. Wainwright, 808 F.2d at 1419.

3. Failure to Present Even a Minimally Adequate
Case During the Penalty Phase

The petition alleges that counsel failed to develop and
to present any evidence in mitigation.at the penalty phase of
trial, despite counsel's own doubts as to Petitioner's mental
capacity and counsel's familiarity with the psychiatric reports
concerning Petitioner. Instead, counsel knowingly assisted
Petitioner in using the penalty phase merely to exchange vows with
his fiance. The court below, in an earlier case, held that when
allegations regarding failure to present mitigating evidence at
the penalty stage is subject to "conflicting inferences" and the
court of appeal's review is hampered by “the absence of an
evidentiary hearing at any level on this issue," a remand to the
district court for an evidentiary hearing is necessary in order to
determine whether the claim has merit. Porter v. Wainwright, 805
F.2d 930, 936 (llth Cir. 1986), cert. denied, 107 S. Ct. 3195

(1987).

- 59 -

In this case, however, the court of appeals engaged in
the very speculation that Porter eschews and even more egregious,
ruled on the merits of the claim based on its view that whatever
evidence Petitioner presented, "the state could present countering
evidence and thus, in light of the aggravating circumstances, no
prejudice resulted. This ruling has the result of trivializing
Petitioner rights under by Lockett _v. Ohio, 450 U.S. 931 (1981),
and its progeny. Moreover, in this case, with no mitigating
evidence offered at all, the jury initially tied 6-6 on whether to
recommend life. It cannot be said that there was no reasonable
possibility that, if presented with evidence of Petitioner's
mental condition, a majority of the jury would not have
recommended life.

4. Failure to Move For a Determination of

Petitioner's Competence to Stand Trial;

and Failure to Investigate Whether the
Insanity Defense Was Viable

The Petition alleges that counsel were ineffective in
failing to raise the issue of Petitioner's competence to stand
trial. In support, Petitioner noted that at the time the
competency issue was raised in the Leon County case the same
counsel was representing him in the present case, and yet failed
to raise this issue in the present case despite a specific
suggestion by the State that they do so. Furthermore,
Petitioner's lead trial counsel in the present case not only
attended the competency hearing in the Leon County case, but also
“had-access to the psychiatrist's report upon which the claim of
incompetence was based. He made no use of that report, however,
until after the jury's recommendation of death. The petition
also alleges that counsel were ineffective for failing to

investigate whether an insanity defense was viable.

- 60 -

The court of appeals dismissed these claims in the same
single paragraph -- and on the same grounds -- in which it
dismissed the claim relating to the trial counsel's failure to
offer evidence in mitigation. In view of the extensive record of
Petitioner's mental condition developed in the evidentiary hearing
in the district court below, it defies reason to understand the

court of appeals' summary decision.

A habeas petitioner is entitled to an evidentiary
hearing on his ineffectiveness claims where he alleges a colorable
claim: "facts which if proved, could merit relief."30/ The Court
cannot resolve such claims where, as here, it is without "the aid
of an evidentiary hearing at any level on this issue," and is thus
confronted with claims that otherwise must be resolved based
solely upon conflicting “inferences which each side gleans from
the record."31/ Until the present case, the law of the Eleventh
Circuit was that a hearing could not be denied merely because the
State posited "facts that could explain the conduct of
[Petitioner's] lawyers."32/ The failure of the court of appeals
to order a hearing in this case represents a departure from

settled law that should be reviewed by this Court.33/

30/ McCoy v. Wainwright, 804 F.2d 1196, 1199 (11th Cir. 1986)
(emphasis added); Leon County, 808 F.2d at 1419.

31/ Porter v. Wainwright, 805 F.2d 930, 933-37 (llth Cir.
1986) cert. denied, 107 S.Ct. 3195 (1987); Wiley V. Wainwright,
709 F.2d 1412, 1413 (llth Cir. 1983) (where relevant factual
issues not developed in state court "a hearing by the district
court is mandated").

32/- Agan v. Dugger, 835 F.2d 1337, 1340 (llth Cir. 1987)
(emphasis added), cert. denied, 108 S.Ct. 2846 (1988).

33/ See, e.g., Kimmelman v. Morrison, 477 U.S. 365, 390-91
(1986); Agan v. Dugger, 828 F.2d 1496, 1496-97 (llth Cir. 1987),
cert. denied, 108 S.Ct. 2846 (1988); Slicker v. Wainwright, 809
F.2d 768, 771 (llth Cir. 1987); Porter, 805 F.2d at 935-37; Smith
v. Wainwright, 741 F.2d 1248, 1252-54 (11th Cir. 1984), cert.
denied, 470 U.S. 1087 (1985); Wiley, 709 F.2d at 1413; Thomas v.
Zant, 697 F.2d 977, 986 (llth Cir. 1983), cert. denied, 107 S.Ct.
T1982 (1987).

- 61 -

CONCLUSION

For the foregoing reasons, this petition for certiorari
should be granted. Petitioner was tried despite indicia of
incompetence known to the trial court. He was convicted on the
bases of the uncorroborated alleged eyewitness testimony and
identification of a person who came forward only after learning
Petitioner had been indicted and who was hypnotized twice by the
State before he was able to provide a date and description that
coincided with well-publicized facts about the crime. His
substantial claims of ineffective assistance of counsel, remanded
in the Leon County case and based on nearly identical facts, were
dismissed summarily in the present case. Petitioner submits that
justice and the number and extent of Constitutional violations
that attended his conviction and sentence to death require that
this Court grant review.

Respectfully submitted,

| Syn Ce__.

E. Coleman, Jr.*
Polly J. Nelson
Wilmer, Cutler & Pickering
2445 M Street N.W.
Washington, D.C. 20037
(202) 663-6000

- Counsel for Petitioner
* Counsel of Record

November 15, 1988

- 62-

IN THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No, 86-3773

THEODORE ROBERT BUNDY,
Petitioner-A ppellant,
ve

RICHARD L, DUGGER, as Secretary,
Department of Corrections, State of Florida,

Respondent-Appellee.

On Appeal from the United States District Court
for the Middle District of Florida
Orlando Division

PETITION FOR REHEARING AND
SUGGESTION OF REHEARING EN BANC

James E. Coleman, Jr.

Polly J. Nelson

John Byron Sandage
Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington, D.C. 20037
(202) 663-6000

Attorneys for Petitioner-A ppellant
July 26, 1988

STATEMENT OF COUNSEL

I express a belief, based on a reasoned and studied professional judg-
ment, that the panel decision is contrary to the following decisions of the Supreme
Court of the United States or the precedents of this circuit and that consideration by
the full court is necessary to secure and maintain uniformity of decisions in this
court: Johnson v. Mississippi, 108 S. Ct. 1981 (1988; Rock v. Arkansas, 107 S. Ct.
2704 (1987); Strickland v. Washington, 466 U.S. 668 (1984); Drope v. Missouri, 420
U.S. 162 (1975); Pate v. Robinson, 383 U.S. 375 (1966); Cromwell v. County of Sac, 94
U.S. 351 (1877); Miller v. Dugger, 838 F.2d 1530 (11th Cir. 1988); Bundy v.
Wainwright, 808 F.2d 1410 (11th Cir, 1987); Porter v. Wainwright, 805 F.2d 930 (11th
Cir. 1986); McCoy v. Wainwright, 804 F.2d 1196 (11th Cir. 1986); Wallace v. Kemp,
757 F.2d 1102 (11th Cir. 1985); Strickland v. Francis, 738 F.2d 1542 (11th Cir. 1984);
Lokos v. Capps, 625 F.2d 1258 (5th Cir. 1980); and United States v. Makris, 535 F.2d
899 (5th Cir. 1976).

I express a belief, based on a reasoned and studied professional judg-
ment, that this appeal involves one or more questions of exceptional importance:

1. Whether a prima facie case of ineffective assistance of counsel may
be denied without an evidentiary hearing in any court.

2. Whether hypnotically-enhanced eyewitness testimony, which the
state court found to be unreliable, can nonetheless support Petitioner's conviction.

3. Whether the panel, in concluding that Petitioner was competent to
stand trial, properly applied the precedents of this Circuit and of the Supreme Court.

Le. ban Achy —

John Byron Sandage

{
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|
|

TABLE OF CONTENTS

Statement of Issues Meriting En Bane Consideration .......

Statement of the Course of Proceedings .............

Argument .........

A. The Panel Erred in Denying Petitioner an

Evidentiary Hearing on the Ineffectiveness Claims. .

- 1.

The Panel Opinion on the Ineffectiveness

Claims is Contrary to Controlling

Eleventh Circuit Precedent ..............

The Panel Opinion Cannot Be Reconciled
With the Panel Opinion in Leon County......

The Panel Opinion Cannot Be Reconciled

With the Supreme Court's Recent

Decision in Johnson v. Mississippi. . .

B. The Panel Committed Constitutional Error in
Affirming the Admissibility of Testimony

That the Florida Supreme Court Found to Be

Unreliable Due to State-Sponsored Hypnosis .......

The Panel Erred in Holding That

Hypnotically-Enhanced Testimony is not
Per Se Inadmissible Against a Criminal

Defendant ........ cece eee eens

The Panel Erred in Holding That

Hypnotically-Enhanced Testimony was
Properly Admitted in This Case .........

C. The Panel Decision on Competence is Contrary to

Fact and Law ........

The Panel Opinion Improperly Shifts

the Burden of Proof........

The Panel Failed to Address the Relevant

Question on Competence ......

Conclusion ...

The Panel Ignored the Testimony of

Petitioner's Counsel. .............005

TABLE OF CITATIONS

CASES

Agan v. Dugger, 835 F.2d 1337 (11th Cir. 1987), cert. denied, 56

USLW 3864 (1988) 6... eee cece cece eect tee t eter teense eenees o

Agan v. Dugger, 828 F.2d 1496 (11th Cir. 1987) (per curiam).............

Bundy v. Dugger, No. 86-3778, slip op. (11th Cir. July 7, 1988) 6... see

Bundy v. Dugger, 816 F.2d 564 (11th Cir.), cert. denied, 108 S.

Ct, 198 (1987) occ cece ete e eet ee tne eee eens

Bundy v. Dugger, 675 F. Supp. 622 (M.D. Fla. 1987), aff'd

No. 87-3773, slip op. (Lith Cir, July 7, 1988)... eee cece eee eee eee ees

Bundy v. State, 497 So, 2d 1209 (Fla. 1986)... . ee ccc cece eee eee eens

Bundy v. State, 471 So. 2d 9 (Fla. 1985), cert. denied,

107 S. Ct. 295 (1986) oo ec eee eee ee cece tenet ee eee t nee e ee ennee

Bundy v. Wainwright, 808 F.2d 1410 (11th Cir. 1987) 2... . cee ee eee eee

Bundy v. Wainwright, 805 F.2d 948 (11th Cir. 1986), application

to vacate stay denied, 107 S. Ct. 483 (1986)..... Penne teen nee eens

Bundy v. Wainwright, No. 86-968-Civ-ORL-18, slip op. (M.D. Fla. Nov. 17,
1986), rev'd and remanded sub nom., Bundy v. Dugger, 816 F.2d 564 (11th

Cir.), cert. denied, 108 S, Ct. 198 (1987) 2... cece e eee eee eee

Code v. Montgomery, 725 F.2d 1316 (11th Cir. 1984) (per curiam).........

Cromwell v. County of Sac, 94 U.S. 351 (1877)...... Fee eee e een eee
Drope v. Missouri, 420 U.S. 162 (1975)... ccc ce cee eee ete eee eee
Johnson v. Mississippi, 108 S. Ct. 1981 (1988)... ... cece eee ee eee eee
Kimmelman v. Morrison, 477 U.S. 365 (1986) 6... sce eee ce eee neces
Lokos v. Capps, 625 F.2d 1258 (5th Cir. 1980)... . cece cece eee eee
McCoy v. Wainwright, 804 F.2d 1196 (11th Cir. 1986).......... rrr ras

Miller v. Dugger, 838 F.2d 1530 (11th Cir. 1988), cert. denied,
56 USLW 3849 (1988)

Pate v. Robinson, 383 U.S. 375 (1966) 2... cece ee eee eee eter ee enes

Porter v. Wainwright, 805 F.2d 930 (11th Cir. 1986), cert denied,

107 S. Ct. 3195 (1987)... ....06- Deen erence e were neene

Price v. Wainwright, 759 F.2d 1549 (11th Cir. 1985)...........
Reed v. Ross, 468 U.S. 1 (1984)... cece cece ee eens

Rock v. Arkansas, 107 S, Ct. 2704 (1987)... ec cece eee eens

Slicker v. Wainwright, 809 F.2d 768 (11th Cir. 1987) ..........05

Smith v. Wainwright, 741 F.2d 1248 (11th Cir, 1984), cert.
denied, 470 U.S. 1087 (1985)... eee eee e eee ee eee eens

Strickland v. Francis, 738 F.2d 1542 (11th Cir. 1984) ..........

Thomas v. Zant, 697 F.2d 977 (11th Cir. 1983), cert. denied, 107
S. Ct. 1982 (1987)......... ee er ray

United States ex rel. Rivers v, Franzen, 692 F.2d 491 (7th Cir.

5) 7)
United States v. Gray, 421 F.2d 316 (5th Cir. 1970) ...........

United States v. Makris, 535 F.2d 899 (5th Cir. 1976), cert.
denied, 430 U.S. 954 (1977)... cece cece cece ee eee ee eee

Wallace v. Kemp, 757 F.2d 1102 (11th Cir. 1985) ....... See enee
Wiley v. Wainwright, 709 F.2d 1412 (11th Cir, 1983)...... te eeeee

Zant v. Stephens, 462 U.S. 862 (1983) 6... se eee cee eee eens

OTHER AUTHORITIES

Eisler, Bundy's Last Chance, Legal Times 1 (Dec. 21, 1987)......

STATEMENT OF ISSUES MERITING EN BANC CONSIDERATION

1. Whether a prima facie case of ineffective assistance of counsel may be denied

without an evidentiary hearing in any court.

2. Whether hypnotically-enhanced eyewitness testimony, which the state court

found to be unreliable, can nonetheless support Petitioner's conviction.

3. Whether the panel, in concluding that Petitioner was competent to stand

trial, properly applied the precedents of this Circuit and of the Supreme Court.

STATEMENT OF THE COURSE OF PROCEEDINGS

2 Petitioner was convicted of murder and sentenced to death on February 12,

1980./ The judgment was affirmed by the Supreme Court of Florida, and rehearing was
denied. Bundy v. State, 471 So. 2d 9 (Fla. 1985). Petitioner filed a petition for writ of

certiorari in the United States Supreme Court, seeking review of his conviction and sentence

of death, which was denied. Bundy v. Florida, 107 S. Ct. 295 (1986).

The Governor of Florida signed a death warrant on October 21, 1986. After

exhausting state collateral remedies, Bundy v. State, 497 So. 2d 1209 (Fla. 1986), Petitioner

sought a writ of habeas corpus and certificate of probable cause from the United States Dis-

trict Court for the Middle District of Florida. That petition was denied on the merits within

twenty-four hours after filing. Bundy v. Wainwright, No, 86-968-Civ-ORL-18, slip op. (Nov.

1/ Hereinafter this case will be cited as the "Lake City case." Petitioner is also

i
i 1
! q under sentence of death imposed six months earlier by the Cireuit Court of Leon County. This

Court stayed Petitioner's execution and remanded for a determination whether evidentiary
hearings were required for claims raised in a petition for writ of habeas corpus. Bundy v.
Wainwright, 808 F.2d 1410 (11th Cir. 1987) The United States District Court for the Southern
Distriet of Florida on remand has not ruled on the merits or on the need for evidentiary hear-
ings.

‘|

-2-

17, 1986). This Court granted a certificate of probable cause and stayed execution pending

appeal. Bundy v. Wainwright, 805 F.2d 948 (11th Cir. 1986), application to vacate stay denied,
107 S. Ct, 483 (1986).

Upon briefing and oral argument, this Court remanded the case to the District
Court with instructions to hold an evidentiary hearing into Petitioner's competence to stand
trial and held the remaining issues under advisement. Bundy v. Dugger, 816 F.2d 564 (11th

Cir.), cert. denied, 108 S. Ct. 198 (1987). On remand, the District Court conducted a hearing

and ruled from the bench that Petitioner had been competent to stand trial. Bundy v. Dugger,

675 F. Supp. 622 (M.D. Fla. 1987).2/

Petitioner appealed and this Court ordered supplemental briefing and oral argu-
ment on the competency question. At oral argument the panel indicated it would hear argu-
ments on any of the pending issues. This Court subsequently entered an opinion denying on
the merits all claims raised in the petition. Bundy v. Dugger, No. 86-3773, slip op. (11th Cir.

July 7, 1988), Petitioner seeks rehearing or rehearing en bane.
ARGUMENT

Although the panel's resolution of a number of issues raises serious questions,
Petitioner seeks rehearing on three sets of claims: (1) the ineffective assistance of counsel
claims; (2) the hypnosis claim; and (3) the competency claims. Justice, and the principle of

equality under the law, require that each of these issues be reheard.

2/ Though Petitioner presented voluminous evidence on incompetence, the district
judge ruled immediately following the last witness. There is some suggestion that the court
had prejudged the case. When asked on the first morning if the evidentiary hearing was a
waste of time, the district judge was quoted as replying "Absolutely." Eisler, Bundy's Last
Chance, Legal Times 1 (Dee. 21, 1987).

~3-

A. The Panel Erred in Denying Petitioner an
Evidentiary Hearing on the Ineffectiveness Claims

Petitioner presented six claims of ineffective assistance of counsel: inadequate
investigation of scientific evidence; failure to protect Petitioner's interests in plea
negotiations; failure to present a minimally adequate case in the penalty phase; failure to
challenge the use of prior convictions in aggravation; failure to challenge Petitioner's compe-
tence and sanity; and ineffectiveness at the appellate stage. At no stage of the proceedings,
at either the state or federal level, has any court granted an evidentiary hearing on any of
these claims. The panel's decision to deny Petitioner an evidentiary hearing on these claims
cannot be reconciled with this Circuit's law, or indeed, with the panel's own prior de-
termination in the related Leon County case.

1. The Panel Opinion on the Ineffectiveness Claims
Is Contrary to Controlling Eleventh Circuit Precedent

A habeas petitioner is entitled to an evidentiary hearing on his ineffectiveness

claims where he alleges a colorable claim: "facts which if proved, could merit relief 13/ The
Court cannot resolve such claims where, as here, it is without "the aid of an evidentiary hear-
ing at any level on this issue," and is thus confronted with claims that otherwise must be

resolved based solely upon conflicting "inferences which each side gleans from the record. Al

Until the present case, the law of this Circuit was that a hearing could not be

———————————
denied merely because the State posited "facts that could explain the conduct of

—
[ Petitioner's] lawyers."2/ Until now, where the evidence is mixed, and where no hearing on
paneniancsiniasiaaeennee matey —

3/ McCoy v. Wainwright, 804 F.2d 1196, 1199 (11th Cir. 1986) (emphasis added);
Ganson, 808 F.2d at 1419; Code v. Montgomery, 725 F.2d 1316, 1321-22 (11th Cir. 1984)
(per curiam).

Porter v. Wainwright, 805 F.2d 930, 933-37 (11th Cir. 1986); Wiley v. Wainwright,
709 F.2d 1412, 1413 (11th Cir. 1983) (where relevant factual issues not developed in state court
‘a hearing by the district court is mandated").

5/ Agan v. Dugger, 835 F.2d 1337, 1340 (11th Cir. 1987) (emphasis added),

3 -4-

ineffectiveness was held in state court, the factual picture "must be completed in the federal

district eourt,"8/ For that reason, both the Supreme Court and the Eleventh Circuit have rou-
pon ahaa

s tinely remanded colorable ineffectiveness claims for such hearings.2/

In its opinion, the panel denied the merits of each claim of ineffective assistance
of counsel because Petitioner failed to proffer sufficient factual support, while at the same

time denying Petitioner the opportunity for a hearing at which he could assemble such

evidence. Thus, this Court has, for the first time, imposed a rule under which a petitioner
——_——

must, at the outset, plead sufficient facts —- and anticipate any possible rebuttal -- to meet

the Strickland standard of ineffectiveness. A colorable claim and supporting facts are no

longer sufficient to warrant a hearing to develop those facts. The panel's result cannot be

squared with controlling precedent. On each ineffectiveness claim Petitioner has pleaded his
case with as much particularity as the meagerly developed state court record will allow. Nev-

ertheless, in this case, the panel felt unconstrained by the inadequately developed record, and

proceeded to reach and decide the merits, contrary to the settled law of this Circuit.

Its failure to order a hearing meant that the panel was merely speculating, both

when it held that Petitioner's appellate counsel made a "decision" not to appeal the trial
court's denial of Petitioner's original choice of counsel, and when it held that this "decision"

2 fell within the range of effective attorney conduct. There is nothing in the record to support
that conclusion. At other points the panel appeared simply to speculate about the types of
evidence that could have been produced at such a hearing, and its conclusions evidently derive

from this speculative process. For example, the panel found that, because Petitioner himself

6/ Id.

Y/ See, e.g., Kimmelman v. Morrison, 477 U.S. 365, 390-91 (1986); Agan v. Dugger,
828 F.2d 1496, 1496-97 (11th Cir. 1987) (per curiam); Slicker v. Wainwright, 809 F.2d 768, 770
(11th Cir. 1987); Porter, 805 F.2d at 935-37; Smith v. Wainwright, 741 F.2d 1248, 1252-54 (11th
Cir. 1984); Wiley, , 709 F.2d at 1413; Thomas v. Zant, 697 F.2d 977, 986 (11th Cir. 1983).

-5-

might have chosen to conduct a marriage ceremony at the penalty phase of this trial, rather
than presenting mitigating evidence, his counsel's performance was not inadequate. Likewise,
apparently mindful of the testimony by the only two examining psychiatrists that Petitioner
suffered from a mental illness at the time of the trial, the panel, again postulating as to what
the State might have argued, concluded that "{e]ven if such evidence [of Petitioner's mental
illness] were presented, the state could produce countering evidence, and thus, in light of the

»8/ The panel's attempts to fill in the gaps

in the State's ease, in order to dispose of this matter, are exceptional to say the least.

aggravating circumstances, no prejudice resulted.

t Petitioner is mindful of the public's impatience with the seemingly slow progress of justice in
¥ =<

his ease. But the federal courts must make no concession to that impatience, express or

implied.
conan

—=
2. The Panel Opinion Cannot Be Reconciled With
the Panel Opinion in Leon County
The complex and tangled procedural history of the Leon County and Lake City
cases, both handled by the same panel of this Court, has resulted in opposite and irreconcilable
decisions on precisely the same legal and factual questions in the two cases -- a result that

cannot stand.

For example, the panel in Leon County applied the proper legal standard and
remanded Petitioner's claims of ineffective assistance of counsel, including that regarding the
plea hearing, for additional consideration because "[n]one of these claims is shown by the
face of the petition to be tactical" and because "petitioner need only allege grounds and facts,
which he did for all or substantially all of his ineffective counsel allegations, and [thus] he

was not obliged to supplement his petition with other materials."2

8/ Slip op. at 17.

9 Leon County, 808 F.2d at 1419.

However, in this case the panel rejected, without hearing, Petitioner's same
claim of ineffectiveness due to counsel's disclosure of prejudicial information during plea

negotiations. The panel held that this claim, based on the same set of facts (including the

4 same counsel) as in the Leon County case, did not warrant development at an evidentiary

hearing because it was not pleaded with sufficient particularity 22/

the undisputed facts on the record,1// and cannot be reconciled with the panel's disposition of
. KG precisely identical factual and legal claims in Leon County.

The effect of the two panel opinions, read together, is to whipsaw Petitioner.’

This conclusion ignores

On the one hand, he was granted a remand on these very claims in Leon County at which he :
could have (and would had the case moved along expeditiously}2/ developed concrete factual
support for his identical contentions in the Lake City case. On the other hand, the panel

denied relief on the merits in Lake City because Petitioner was unable to place on the record

it evidence that the panel incorrectly demanded as the price for an evidentiary hearing, even

| though this same panel has already ruled that Petitioner is entitled to additional consideration

a of these very claims,43/ \'It is no hyperbole to characterize the result as a perversion of jus:
ie . tice. 4
ie
ea) 3. The Panel Opinion Cannot Be Reconciled With the Supreme
me Court's Recent Decision in Johnson v. Mississippi
| Finally, the panel's rejection of the ineffectiveness claim for failure to challenge
|
ine
qa 10/ Slip op. at 16-17.
a
: | Al/ 11th Cir. Brief at 28-29; R.O. 68-69 (Oct. 22, 1987 transcript); District Court
a Habeas Petition at 65-67.
He
Hue eK 12/ _ Inexplicably, the Leon County remand continues to stagnate in the Southern Dis-
j trict of Florida, seven months after the panel's remand.
; 13/ The panel opinion thus disregards ancient doctrine of collateral estoppel. See,

&.g., Cromwell v. County of Sac, 94 U.S. 351, 352-53 (1877).

-7-

the use of the three prior convictions, constituting the only aggravating circumstances, is
jneonsistent with the contemporaneous decision of the Supreme Court in Johnson v.
Mississippi, where the Court reversed a capital sentence predicated in part upon a
subsequently-invalidated conviction used as an aggravating eircumstance.14/ Johnson has now

made clear that a sentence imposed under such circumstances cannot stana25/

The panel in this case rejected this contention because it claimed no grounds
were stated to support a challenge to the Utah convictions, and because the Leon County con-
vietions were affirmed by the Florida Supreme Court 18/ Neither of the panel's contentions
ean stand. The panel's first contention is simply incorrect as a factual matter. 22/ Moreover,
in the Leon County case, this Court found colorable the claims of constitutional infirmity of
that conviction. But more importantly, the panel's reasoning again suffers by its imposition of
an improper standard of proof. Petitioner need not demonstrate at this stage in the proceed-
ings that a concrete Johnson violation has occurred -- that is, that his Utah and Leon County
convictions actually are invalid. He need only state a colorable claim that can be fleshed out

in an evidentiary hearing 28/ The panel opinion denies Petitioner that right. The panel

14/ 108 S, Ct, 1981, 1986-87 (1988).

15/ This change in the law is sufficient to excuse any possible claim of procedural
default. See Reed v. Ross, 468 U.S. 1, 14-16 (1984).

16/ Slip op. at 17. The panel also found no error because of the presence of three
other aggravating circumstances. Id. at 18. This holding is both factually and legally wrong.
First, there were only three aggravating factors (all prior convictions) in toto (one had been
rejected by the Florida Supreme Court, Bundy v. State, 471 So, 2d at 22-23) and Petitioner
challenged them all. Second, the panel's reasoning cannot be squared with Johnson, which
invalidated one of three aggravating factors and then required resentencing even though the
other two remained valid. Compare 108 S. Ct. at 1988-89, with id. at 1989 (White, J., concur-

ring), The fact that some Bggrayaling factors survive scrutiny while other fall does not.mean
the sentence may stand, because evidence of these invalid convictions wo not otherwise be

admissible under Zant v. Stephens, 4 <8. 862 (1983), and thus the error cannot be deem:
harmless,

17/ See 11th Cir. Brief at 32.

18/ See McCoy, 804 F.2d at 1199; Leon County, 808 F.2d at 1419.

-8-

cannot on the one hand cite the validity of the Leon County convictions for purposes of

rejecting the Johnson claim, while concurrently finding sufficient indicia of constitutional

error in Leon County to order a remand?

B. The Panel Committed Constitutional Error in Affirming the
Admissibility of Testimony that the Florida Supreme Court
Found To Be Unreliable Due To State-Sponsored Hypnosis

1 The Panel, Erred in Holding that Hypnotically
Enhanced Testimony is Not Per Se Inadmissible
Against a Criminal Defendant

In its recent decision in Rock v. Arkansas, the Supreme Court expressed grave
reservations about the reliability of hypnotically enhanced testimony, and of the efficacy of
eross-examination as a means for testing reliability 22 While a bare majority determined that
the defendant's constitutionally-guaranteed right to testify outweighed the risk of inaccuracy,
all nine Justices agreed that hypnosis is little understood by science and poses grave problems

for the legal system.21/

The Supreme Court's concern must give this Court pause before resolving the
question expressly left open by Rock but squarely presented in this case: whether the Consti-
tution requires a per se rule barring use of hypnotically enhanced testimony as to witnesses
other than the defendant.22/ The panel, with little analysis, decided this question in the nega-
23/

tive. But that result is contrary not only to the trend among the many state courts that

19/ . Thus, once again, Petitioner is penalized for the refusal of the Southern District
of Florida to follow this Court's now hoary remand instructions.

20/ See 107 S. Ct. 2704, 2713 (1987).

21/ See id. at 2714 ("inaccuracies the process introduces can be reduced, although
perhaps not eliminated, by the use of procedural safeguards"); id. at 2715-16 (Rehnquist, C.J.,

{ dissenting) ("[n]o known set of procedures . . . can insure against the inherently unreliable
nature of such testimony"),

22/ See id. at 2712 n.15.
23/ Slip op. at 24-25.

-9-

have considered this question, but to the decision of the Florida Supreme Court in this ease as

well, 24/ The panel's opinion itself notes the dangers of hypnotically-enhanced testimony, and

concludes merely that it is "not always .. . impossible" to cross-examine a hypnotized wit-

ness.: 25/ This conclusion, with its far-ranging implications for the law of this Circuit, bears
v more careful review by the entire Court.

2. The Panel Erred in Holding That Hypnotically-Enhaneed
Testimony was Properly Admitted in This Case

The Florida Supreme Court ruled that the alleged eyewitness testimony in this

ease was hypnotically enhanced and was so unreliable that its admission constituted constitu-

tional error. Sotto voce, the panel directly overruled the Florida Supreme Court's de-
——=

termination of these facts. It incorrectly coneluded that there could be no error because the
witness otherwise had a reasonably firm conviction that he recognized Petitioner before
hypnosis. The critical factor, which the panel failed to explain away, is the fact that the wit-
ness was able to offer a significantly greater level of detail about what he observed after
hypnosis, and that the witness apparently had no doubts about the correctness of these addi-

26/

tional observations.“ The Florida Supreme Court found that the testimony resulting from

the hypnosis sessions was tainted and unreliable, but held its admission "harmless error."

\rr as here, the only concrete evidence linking Petitioner to the erime22/ is constitution-

ally flawed, and is not suseptible of remedy, relief must be granted.

24/ See 107 S. Ct. at 2712 n.14 (collecting eases); 471 So. 2d at 12-19.
25/ Slip op. at 25.
26/ Cf. Rock, 107 S. Ct. at 2713-14, The panel dismisses this possibility with mere

ipse dixit that st sufficient care was taken to avoid undue suggestion. But t
Court itse d that the usual lactic s were not observe titioner's ¢: an
further, that even those sa eguards would be insufficient to protect the integrity of the testi-”
mony. 471 So. 2d at 13-19.

27/

See Bundy v. State 471 So, 2d at 23 (Boyd, C.J., concurring).

-10-

C. The Panel Decision on Competence is Contrary to Fact and Law

1. The Panel Opinion Improperly Shifts the Burden of Proof

The panel permitted the State improperly to avoid its burden of proof. Having
found sufficient indicia of incompetence, the panel remanded for further consideration. On
remand this Circuit requires a two-step inquiry that was not performed in this case. The dis-
trict court must "consider, first, whether it can hold a meaningful evidentiary hearing into the
petitioner's competency nune pro tune. If the district court [so] concludes . . . it may do so.
If, on the other hand, the distriet court concludes that it cannot hold such a retrospective

hearing, it must grant the writ of habeas corpus unless the state retries the petitioner."28/

The burden of proving that the hearing could be meaningful falls squarely upon

c= state.22/ It is only at the second step, the substantive determination of competence, that

he burden shifts to the Petitioner 22/ The State was allowed to skip over the first step and,

in effect, improperly to shift the burden to Petitioner to prove that such a hearing would not
be meaningful. Then, to compound the error, Petitioner was denied even the opportunity to
meet this new burden. His attempts to raise the issue -- and the error ~- with the District

31/ 32/

Court*~" and the panel" were ignored.

The error cannot be dismissed as harmless simply because the District Court sub-
sequently found Petitioner to be competent. In reaching that conclusion, the District Court

relied upon evidence without first determining whether it met the exacting standards for

28/ See Miller v. Dugger, 838 F.2d 1530, 1544 (11th Cir. 1988).
29/ See Lokos v. Capps, 625 F.2d 1258, 1262 (5th Cir. 1980).
30/

See Price v. Wainwright, 759 F.2d 1549, 1553 (11th Cir. 1985).
See Petitioner's Motion for a Status Conference, attached as Annex A.

32/ See 11th Cir. Brief at 63 n.57.

-i1-

33/

reliability and admissibility demanded by Pate v. Robinson. Indeed, it is precisely because

of their "strong. disapproval of retrospective competency determinations" that both the

Supreme and this Court have placed the first order burden of proof on the State, and made the

quantum of proof necessary to establish reliability extraordinarily nigh 24/

To dismiss this
failure as harmless error -- to permit district courts henceforth to assume conclusively that
such hearings would be meaningful -- would be to upset the carefully bifurcated process that
precedent demands, and would significantly increase the risk of decision predicated upon

unreliable information.

2) The Panel Failed to Address the Relevant
Questions on Competence :

The focus of. the hearing, and of the panel's review of that hearing, were totally

misconceived. The critical question on remand was whether Petitioner suffered from a men-

tal illness that left him incompetent to stand trial. That is the question posed by pate.35/

The State's case, in gist, was an attempt to deal with the "strong indicia" of incompetence

36/

that prompted the panel to remand*~’ -- in effect, to show that these could be explained away

and hence become indicia of competence. Because the State succeeded in keeping the focus
of the District Court and of the panel on this narrow question -- whether there were plausible

explanations for otherwise bizarre behavior -- it prevailed 22/ But Pate requires the court to

33/ 383 U.S. 375 (1966).

34/ Miller, 838 F.2d at 1544; Pate, 383 U.S. at 385-87.

35/ See 383 U.S. at 385-86.

36/ See Lake City, 816 F.2d at 566-67.

37/ ___ This was precisely the tack of the panel's analysis: "what appeared as 'strong
indicia’ prior to the hearing [now appear to be] happenings that are consistent with a de-
termination that Bundy was competent to stand trial." Slip op. at 12 n.13.

. The opinion observes evidence of certain episodes when Petitioner appeared to
exhibit indicia of competence -- his closing speech to Judge Jopling and his tape recorded

{ Footnote continued next page]

-12-

determine competence on the merits and on the complete record; the panel had already trig-

gered that requirement by finding symptoms of incompetence. The proper question thus was

not whether Petitioner was acting incompetent, but rather whether he was in fact incompe-
— et

tent 38/
—

The State was obliged, but failed, to take its analysis to this next, and constitu-

tionally required level. Regardless whether the symptoms of mental incompetence were oth-

erwise explanable, the question was whether there was underlying pathological cause for the

conduct -- namely, mental illness, The State's psychiatric expert, Dr. Mhatre, conceded that

x this is the critical inquir’ e's experts did not make it. When asked whether it

still would be possible to explain away Petitioner's bizarre behavior if it were the product of
mental illness, Dr. Mhatre said it would not 39/ When then asked if he had attempted to de-
termine whether Petitioner suffered from a mental illness, Dr. Mhatre could only equivo-

cate 40/ He assumed that if the symptoms could be explained away, there was no need to

[Footnote continued from preceding page]

observations for use in his memoirs. What the opinion fails to dispose of, or even to grapple
with, are the many indicia of incompetence that Petitioner exhibited at precisely the same
time. Notably, the panel made no attempt to explain how such clear episodes of incompe-
tence as Petitioner's repeatedly engaging in damaging uncounseled interviews, his decision to
conduct two murder eases simultaneously pro se, his periods of lethargy punctuated by bursts
of energy during which, for example, he took ninety depositions in six weeks, his use of drugs
and alcohol during the trial and sentencing, and the mock marriage ceremony in lieu of miti-
gating evidence at the penalty phase, could possibly be explained as rational behavior designed
to assist in his defense. Nor did the panel attempt to explain away the conclusions of all
defense counsel testifying at the hearing that Petitioner was unable to assist in his defense.

38/ ; In so focusing the debate, the State was able to justify the failure of its experts
to examine Petitioner or to attempt to secure a psychiatric profile, contrary to this Court's
preference for such testimony. Wallace v. Kemp, 757 F.2d 1102, 1108 (11th Cir. 1985);
Strickland v. Francis, 738 F.2d 1542, 1545 (11th Cir. 1984). So long as mental illness was not
the issue, the only question was whether the State's experts could offer ex post facto ratio-
nalizations for Petitioner's self-destructive behavior.

39/ See R, 658-59, 663-64, 668 (Dec. 17, 1987 transcript).
40/ See id. at 668.

-13-

determine their true underlying cause. The panel permitted that approach to substitute for

the medical and psychiatric analysis required to resolve the issue it set for hearing on remand.

By contrast, Petitioner offered the only psychiatric expert who had personally

examined him at the critical time of his trial -- Dr. Tanay. He also offered the only expert

who examined him, his medical and behavioral history, who diagnosed his mental illness, and
who provided the only comprehensive theory that was able to integrate and to explain ina

coherent fashion both the cause and the symptoms of Petitioner's mental state -- Dr. Lewis.

The District Court, and the panel, disregarded all this. Instead, they were con-
tent to pursue the easy explanation offered by the State's experts that Petitioner's behavior *

was the product of his alleged diabolical brilliance. Thus, both the District Court and the

panel failed to make the substantive determination that Pate requires.
3. The Panel Ignored the Testimony of Petitioner's Counsel

Most striking is the panel opinion's complete failure to deal with the voluminous,
and unanimous, testimony of every defense attorney, whether called for the State or for
Petitioner, that Petitioner's mental condition impeded his ability to consult with counsel with
a rational degree of understanding and to assist in his defense. The Supreme Court and the
circuits have repeatedly relied upon assessments of competence by lay observers, and
especially counsel, if they have on-going and intimate contact with the defendant during the

relevant time 4l/ Every person who met this standard testified that Petitioner's conduct was

bizarre, contrary to his own best interest, and substantially inhibited his ability to assist coun-

sel in defending this case. The testimony that the panel credits for the contrary conclusion
ee

Al/ See Drope v. Missouri, 420 U.S, 162, 177 n.13 (1975) ("An expressed doubt .. . by
One with the closest contact with the defendant is unquestionably a factor" supporting incom-
petence); United States v. Makris, 535 F.2d 899, 908 (5th Cir. 1976), cert. denied, 430 U.S. 954

(1977); United States y. Gray, 421 F.2d 316, 318 (5th Cir. 1970); United States ex rel. Rivers v.
Franzen, 692 F.2d 491, 500 (7th Cir. 1982).

-14-

comes uniformly from prosecutors, the trial judge, or other casual witnesses, all of whom con-
cen

ceded that they had no intimate contact with Petitioner and were not privy to his dealings

with his own counsel 42/ These witnesses were in no position to provide the evidence neces-

sary to overcome the unassailed testimony of Petitioner's many counsel. 42! They could not
assess Petitioner's ability to assist in his own defense or whether he had a rational apprecia-

tion for what was happening. That, however, is what the Constitution demands.

CONCLUSION

This case has become so tangled that justice has been lost. Rights recognized in ‘

"
one case are denied in another though the underlying facts are the same." The public persona

of Bundy as a "diabolical genius" permits ascribing calculating motives to acts of lunacy.” “the

two state psychiatrists who described him as "brillant" have never spoken. a.word with him,
“ - —_ u

and it is doubtful that their testimony would be seriously considered in any other case. But

both the panel and the District Court were willing to credit it in support of a conclusion belied

by overwhelming evidence of Petitioner's incompetence.

Perhaps worst of all, the federal courts have been taken in by the State's
atomistic approach to this case and thus have lost sight of the overall picture. Petitioner has
raised fourteen claims of serious error. The state offers explanations putatively adequate to
defeat each claim had it stood alone, but these explanations are mutually inconsistent and
cannot be used to paint a coherent view of the case as a whole. Moreover, the equally fatal

flaw in this one-by-one approach is that it fails to recognize that fourteen errors, compounded

42/ See 11th Cir, Supplemental Brief at 74-77.

43/- At the oral argument, the state misrepresented what Victor Africano,
Petitioner's counsel, told the State's psychiatric expert and tried to make a point out of the
fact that Mr, Africano did not testify. But the record is clear that Mr. Africano questioned
Petitioner's mental condition; indeed, as Petitioner pointed out in his Supplemental Brief, Mr.

Africano tried to raise the issue of Petitioner's competence at the close of the trial. See 11th
Cir. Supplemental Brief at 59-60.

tes : -15-

one on top of the other, are of greater constitutional significance to the invalidity of the
resulting conviction than merely the sum of the parts. But rather than recognizing this perni-

: yt cious synergy, the District Court and the panel all too readily acceded to the State's balkan-

ized view, and thereby erred gravely. Petitioner requests that this Court grant rehearing or

rehearing en bane.

Respectfully submitted,

Kh, bpm. phy ——
dames E, Coleman, Jr.
Polly J. Nelson

John Byron Sandage

WILMER, CUTLER & PICKERING
2445 M Street N.W.

Washington, D.C. 20037-1420
(202) 663-6000

Counsel for Petitioner-A ppellant

July 26, 1988

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

THEODORE ROBERT BUNDY,
Petitioner,
Vv. No. 86-968-CIV-ORL-18

RICHARD L. DUGGER, as Secretary,
Florida Department of Corrections,

Respondent.

MOTION FOR A CONTINUANCE OF THE EVIDENTIARY HEARING
AND FOR A STATUS CONFERENCE

Petitioner, Theodore Robert Bundy, by and through his
undersigned counsel, hereby moves that this Court continue the
evidentiary hearing currently scheduled for October 22, 1987 and, i
in its place, schedule a status conference at which the parties
can address preliminary matters that must be resolved prior to
any meaningful evidentiary hearing. In support of his motion,

the Petitioner states as follows.

In an opinion dated April 2, 1987, the United States
Court of Appeals for the Eleventh Judicial Circuit ordered that
this Court conduct evidentiary hearings concerning the issues
raised regarding Petitioner's competency at the time of his trial
for the so-called "Lake City case," No. 86-968-CIV-ORL-18,
involving the murder of Kimberly Diane Leach, and the so-called i
"Chi Omega case," No. 86-1421-CIV-WJZ, involving the murder of
Lisa Levy and Margaret Bowman. Bundy v. Dugger, 816 F.2d 564
(11th Cir, 1987), 56 U.S.L.W. 3247 (Oct. 6, 1987). |

This Court initially scheduled an evidentiary hearing
for April 20, 1987. By order dated April 15, 1987, however, that
hearing was cancelled because the State of Florida filed a motion |
for rehearing and rehearing en banc and to stay the mandate of
the Eleventh Circuit. Those motions were denied by the Eleventh
Circuit on May 15, 1987, Thereafter, in July, 1987, the State of
Florida filed a petition for writ of certiorari from the United

States Supreme Court. !

During the pendency of the State's petition to the
United States Supreme Court in this case, the United States Dis-
trict Court for the Southern District of Florida [hereinafter
“the Southern District"] moved forward in its consideration of
Petitioner's parallel petition for writ of habeas corpus in the
Chi Omega case. On July 9, 1987, a status conference was held

before the Southern District at which time Petitioner was

directed to file a Reply to the State's Response to Petition for

Writ of Habeas Corpus, Motion to Dismiss and/or Motion for Sum-

mary Judgment.

On September 18, 1987, Petitioner filed two documents,
totally approximately 175 pages in length, responding to the
issues raised by the State's motions. Accompanying these docu-
ments were affidavits from a psychiatrist, Dr. Dorothy Lewis, as
well as affidavits from trial counsel in the Chi Omega case. All

affidavits were directed to the competency question.

The United States Supreme Court, by order dated October
5, 1987, denied the petition for writ of certiorari. This Court,
by order dated October 6, 1987, and amended October 8, has sched-
uled an evidentiary hearing for October 22, 1987 into
Petitioner's competence. Counsel for Petitioner became aware of

this order on October 12, 1987.

Upon receiving word that the Supreme Court denied
certiorari, and in the interests of fair and expeditious consid-
eration of Petitioner's overlapping competency claims in the Chi
Omega and Lake City cases, Petitioner filed with the Eleventh
Circuit a renewed motion, dated October 8, 1987, requesting an
order to stay any proceedings on remand in the Lake City case
pending the decision of the Southern District as to whether
petitioner shall be granted an evidentiary hearing on the compe-

tency question in Chi Omega. That motion remains under

advisement by the Eleventh Circuit. At the time that Petitioner
filed his motion in the Eleventh Circuit, he was not aware of
this Court's order scheduling an evidentiary hearing. Petitioner
filed a supplemental memorandum on October 13 advising the
Eleventh Circuit of that hearing. Copies of Petitioner's motion

and supplemental memorandum are attached hereto.

Petitioner respectfully requests that this Court grant
a continuance of the evidentiary hearing sufficient to afford
adequate time to prepare for this hearing. Petitioner also
requests that this Court hold a status conference on October 22,
at which time the parties can address those matters preliminary
to any meaningful hearing into the complex issues of this

petition.

First, this Court should not proceed with an
evidentiary hearing while the Eleventh Circuit has before it a
Motion to consolidate this hearing with that to be held in the
Chi Omega case. Because the Eleventh Circuit's decision on this
Motion may obviate the need for two.separate hearings, judicial
economy counsels in favor of refraining from moving ahead in this
case, especially where waiting would result in no prejudice to

either party.

Second, a hearing held at this time would be fundamen-

tally unfair .2/ Counsel for Petitioner only yesterday received

l/ Moreoever, proceeding at this time with an evidentiary
hearing would sacrifice the important advantages that can be had

[Footnote continued next page]

notice that this hearing is to be held, providing only ten days

to prepare. Ten days does not provide sufficient time for coun-
sel to locate and to prepare witnesses, to depose witnesses who
cannot be compelled to appear, to subpoena documents and other
relevant evidence, or even to serve subpoenas for the appearance

of witnesses within this Court's jurisdiction.
Due to the Southern District's on-going consideration
of the Chi Omega case, and the quiescence of the Lake City case

pending the Supreme Court's action on the State's petition for

certiorari, Petitioner's counsel have concentrated their efforts

on the Chi Omega case. While the witnesses and affidavits pre-
pared for Chi Omega will be relevant to the issues pending before
this Court -- since there is substantial overlap in the issues --
obviously it will be necessary for counsel to undertake similar
preparations focused particularly on the Lake City issues. Had
this Court earlier granted Petitioner's Motion for the assistance
of experts, which Petitioner renews today in a separate motion,
much of this work could already have been completed and available
for this Court's review. This preparation cannot now be

accomplished on such short notice.

[Footnote continued from preceding page]

through a pretrial status conference. As the Advisory Committee
that drafted the rules governing habeas proceedings recognized, a
Status conference "may limit the questions to be resolved, iden-
tify areas of agreement and dispute, and explore evidentiary
problems that may be expected to arise." 28 U.S.C. § 2254 Rule
8(c) advisory committee note.

Third, the most crucial witness for this Court's
inquiry into competency is unavailable. Dr. Dorothy Lewis, a
professor of psychiatry at Yale University and New York Univer-
sity, has undertaken an extensive review of the materials related
to the Chi Omega case, and has met with Petitioner on several
occasions. Her efforts resulted in the lengthy affidavit sub-
mitted to the Southern District regarding her professional judg-
ment as to Petitioner's competence during the Chi Omega case.
Although her opinions in the Chi Omega case are relevant, Dr.
Lewis has not yet focused on the Lake City case and clearly will
not be able fully to do so on such short notice. Moreover, due
to longstanding commitments, Dr. Lewis is unable to appear before

this Court on October 22.

Fourth, Petitioner respectfully submits that it would
be inappropriate at this time to hold an evidentiary hearing
because this Court has not, as yet, indicated to the parties what
the scope of such hearing would be. 2/ These consolidated cases
Present at least three different claims relating to Petitioner's
competency to stand trial: (1) Petitioner claims that the compe-
tency hearing held by the state trial court in the Chi Omega case
was constitutionally inadequate, requiring the overturning of

Petitioner's conviction in both of the cases; (2) Petitioner

2/ Counsel was informed by telephone today that the
evidentiary hearing will be "unrestricted." That, however, does
not adequately guide the parties in the preparation of their
case, particularly given the short notice.

-6-

claims that on the basis of the trial court's observations call-
ing into question Petitioner's competency, hearings into
Petitioner's competency should have been held in both cases sub-
sequent to the truncated competency hearing in the Chi Omega
case, regardless of the adequacy of that hearing; and

(3) Petitioner claims that in fact he was incompetent to stand
trial in both cases. These three related claims require differ-
ent proof and different degrees of preparation. Moreover, the
burden of proof is different with respect to the claims. These

issues need to be sorted out prior to an evidentiary hearing.

Fifth, this Court's decision to limit each side to two
and one-half hours to present its case on all of the many diffi-
cult and complex issues posed by this case is simply inadequate.
While the rules governing habeas proceedings require that any
evidentiary hearing be conducted "as promptly as practicable,"
the rules and accompanying Advisory Committee Notes also make
clear that the need for promptness must be tempered by "regard
for the need of counsel for both parties for adequate time for
investigation and preparation." 28 U.S.C. § 2254 Rule 8(c) &
advisory committee notes. In fact the Advisory Committee made
clear that this Rule was drafted to provide courts with
“flexibility to take account of the complexity of the case, the
availability of important materials, the workload of the attorney
general, and the time required by appointed counsel to prepare."

In the case before this Court, two and one-half hours would be

insufficient to conduct the direct and cross-examination even of

one relatively minor witness, leaving aside the time necessary to
present a witness such (iar. Lewis. Petitioner respectfully sub-
mits that his counsel will need at least four days of trial time
in order to make even a minimally adequate presentation of testi-
mony and documents critical to this Court's consideration and

resolution of the claims at issue.

There is no prejudice to either party in continuing
this hearing. On the other hand, the current schedule places an
enormous burden on Petitioner and would effectively deny him the
evidentiary hearing to which the Eleventh Circuit has judged him
entitled. For these reasons, Petitioner respectfully requests
that this Court continue the evidentiary hearing it has scheduled
for October 22, and in its stead hold a status conference that
will make possible the fair and expeditious consideration of

Petitioner's claims,
Respectfully submitted,
a] 2p ,
(tee, 2 bm A IK

, James E. Coleman, Jr.
Polly J. Nelson

WILMER, CUTLER & PICKERING
2445 M Street N.W.
Washington, D.C. 20037-1420
(202) 663-6000

Attorneys for Petitioner

October 14, 1987

CERTIFICATE OF SERVICE

I hereby certify that the foregoing Petition for
Rehearing and Suggestion of Rehearing En Banc was sent by over-

night courier this 26th day of July, 1988, to the following:

Mark C. Menser

Assistant Attorney General
Department of Legal Affairs
The Capitol

Tallahassee, Florida 32301

Bh bpm bhp —

John Byron Sandage

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