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495 U.S. 963 (1990)

GRANVIEL v. TEXAS , 495 U.S. 963 (1990)
495 U.S. 963
Kenneth GRANVIEL, petitioner,
No. 89-6484
Supreme Court of the United States
May 29, 1990
The petition for a writ of certiorari to the United States Court of Appeals
for the Fifth Circuit.
Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.
This case raises the question whether an indigent criminal defendant's
constitutional right to psychiatric assistance in preparing an insanity
defense is satisfied by court appointment of a psychiatrist whose
examination report is available to both the defense and prosecution. The
Fifth Circuit, on habeas review, held that such an appointment is
sufficient. Granviel v. Lynaugh, 881 F.2d 185 (1989). This ruling is
squarely inconsistent with our decision in Ake v. Oklahoma, 470 U.S. 68
(1985), that a State must provide an indigent defendant a psychiatrist to
assist in preparing and presenting his defense. Ake mandates the provision
of a psychiatrist who will be part of the defense team and serve the
defendant's interests in the context of our adversarial system. To allow the
prosecution to enlist the psychiatrist's efforts to help secure the
defendant's conviction would deprive an indigent defendant of the
protections that our adversarial process affords all other defendants.
Kenneth Granviel was tried for capital murder in 1983. Prior to trial,
Granviel requested that the court appoint a mental health expert to help him
prepare an insanity defense. He specifically asked that the expert's report
not be made available to the prosecution. The trial court denied
petitioner's request for confidential expert assistance; it did, however,
appoint a disinterested ex- [495 U.S. 963 , 964]   pert whose report would
go to both the defense and prosecution, as authorized by Tex.Code
Crim.Proc., Art. 46.03, 3 (Vernon 1979 and Supp. 1990). That statute
"(a) If notice of intention to raise the insanity defense is filed . . .,
the court may, on its own motion or motion by the defendant, his counsel, or
the prosecuting attorney, appoint disinterested experts experienced and
qualified in mental health and mental retardation to examine the defendant
with regard to the insanity defense and to testify thereto at any trial or
hearing on this issue.
"(b) The court may order any defendant to submit to examination for the
purposes described in this article. . . .
"(c) The court shall advise any expert appointed pursuant to this section of
the facts and circumstances of the offense with which the defendant is
charged and the elements of the insanity defense.
"(d) A written report of the examination shall be submitted to the court
within 30 days of the order of examination, and the court shall furnish
copies of the report to the defense counsel and the prosecuting attorney."
See also Art. 46.02 (providing for court appointment of expert to determine
defendant's competency to stand trial).
Pursuant to this law, the court also allowed the prosecution, over
Granviel's objection, to rebut Granviel's evidence of insanity with the
report of a psychiatrist appointed at Granviel's request.
In Ake, we held that "when a defendant demonstrates to the trial judge that
his sanity at the time of the offense is to be a significant factor at
trial, the State must, at a minimum, assure the defendant access to a
competent psychiatrist who will conduct an appropriate examination and
assist in evaluation, preparation, and presentation of the defense." 470
U.S., at 83 (emphasis added). Ake was concerned not with establishing a
procedure whereby an independent examiner could determine the validity of a
defendant's insanity defense and present his findings to both parties and to
the court. Rather, Ake was directed at providing a defendant with the tools
necessary to present an effective defense within the context of our
adversarial system, in which each party marshals evidence favorable to its
side and aggressively challenges the evidence presented by the other side.
In that adversarial system, "the psychiatrists for each party enable the
[495 U.S. 963 , 965]   [court or] jury to make its most accurate
determination of the truth on the issue before them." Id., at 81. Thus, we
recognized in Ake that a defense psychiatrist is necessary not only to
examine a defendant and to present findings to the judge or jury on behalf
of the defendant, but also to "assist in preparing the cross-examination of
a State's psychiatric witnesses," id., at 82, and in determining "how to
interpret their answers," id., at 80. Just as an indigent defendant's right
to legal assistance would not be satisfied by a State's provision of a
lawyer who, after consulting with the defendant and examining the facts of
the case and the applicable law, presented everything he knew about the
defendant's guilt to the defendant, the prosecution, and the court, so his
right to psychiatric assistance is not satisfied by provision of a
psychiatrist who must report to both parties and the court.
Ake 's requirement of psychiatric assistance does not mean that a defendant
can shop around for a psychiatrist "of his personal liking" or " receive
funds" from the State to hire a psychiatrist on his own. Id., at 83. The
trial court retains the authority to choose the psychiatrist, as long as
that psychiatrist is competent. Nevertheless, the function of the
psychiatrist chosen by the court is still to assist the defendant in
preparing and presenting his defense. Of course, Ake does not guarantee a
psychiatrist "who will reach biased or only favorable conclusions." 881
F.2d, at 192. If the psychiatrist appointed to assist the defendant
determines that the defendant was not insane at the time of the offense, he
probably will not be able to provide much helpful testimony for the defense
on the insanity issue. But the psychiatrist's determination may not be
revealed to the prosecution for use as evidence any more than may the
results of the investigation and research of the defendant's court-appointed
Texas' provision of a "disinterested" expert thus does not satisfy Ake.
Texas may, of course, provide for appointment of such an expert to aid the
factfinder in determining the validity of a defendant's insanity defense.
Cf. Fed.Rule Evid. 706. Such an appointment, however, must supplement-not
take the place of-appointment of a psychiatrist to assist the defendant in
preparing and presenting his defense.
Granviel is entitled to a new trial because he was deprived of the
assistance required under AKE. Furthermore, as this result is dictated by
Ake, which we decided before petitioner's conviction became final,
Granviel's claim is not barred by this Court's deci- [495 U.S. 963 , 966]
sion in Teague v. Lane, 489 U.S. 288, 301 , ___d 334 (1989). Because the
Fifth Circuit's misinterpretation of Ake substantially undermines an
indigent defendant's ability to present an effective defense, I would grant
the petition to reaffirm our holding in Ake. Even if Granviel did not have a
meritorious Ake claim, I would grant the petition and vacate petitioner's
death sentence on the ground that the death penalty is in all circumstances
cruel and unusual punishment prohibited by the Eighth and Fourteenth
Amendments. Gregg v. Georgia, 428 U.S. 153, 231 , 2973 (1976) (MARSHALL, J.,