Justices take up Fifth Amendment case

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By Kimberly Atkins

Washington — The U.S. Supreme Court showed little willingness Wednesday to rule that the introduction of evidence from a murder defendant’s court-ordered mental evaluation violated his Fifth Amendment protection against compelled testimony.

During oral arguments in Kansas v. Cheever, No. 12-609, the justices shot down several theories offered by the attorney representing Scott Cheever.

“Assuming the incredulity of my colleagues continues with your argument, which way would you rather lose?” Justice Sonia Sotomayor asked Cheever’s counsel, drawing laughter from the audience.

The case stems from Cheever’s federal trial for capital murder, where he was accused of shooting a sheriff to death and firing at other officers in Kansas. Cheever claimed that he could not form the necessary murderous intent because he had been high on methamphetamines for days. After the court was notified of Cheever’s planned voluntary intoxication defense, he was ordered by the judge to undergo a psychiatric evaluation. The trial was then put on hold when defense counsel fell ill.

By the time the case finally was ready to go to trial, the death penalty had been reinstated in Kansas and Cheever was charged in state court. He admitted to shooting the sheriff, but again argued diminished capacity due to his meth intoxication, and introduced a psychiatric expert in support of his defense.

The state called as a rebuttal witness the expert who evaluated Cheever during the federal proceeding, and he testified that Cheever did not suffer diminished capacity during the shooting.

Cheever was ultimately found guilty and sentenced to death. But the Kansas Supreme Court reversed his conviction, holding that admitting the testimony of the court-ordered analyst violated Cheever’s right against self-incrimination.

This issue has split the state and federal courts. Some courts, such as the 5th and 7th U.S. Circuit Courts of Appeals, allow the admission of evidence from court-compelled mental evaluations either directly or for impeachment purposes. Others, including state courts in Michigan and Minnesota, have held that the Fifth Amendment prohibits the introduction of statements made during a court-ordered competency examination.

The Supreme Court granted Kansas’ petition for certiorari.

‘He shot the sheriff’

At oral arguments, Kansas Attorney General Derek Schmidt said it was the defendant who “made the trial decision to make his mental status an issue and then supported his argument by introducing as evidence the testimony of a mental health expert.”

“We’re asking for a rule of parity that allows that once the defendant has opened the door by putting his own expert on, the government may respond in kind,” Schmidt said

Justice Anthony Kennedy wondered if the state’s requested ruling was overreaching.

“I take it, under your theory, even if the defendant had not called his own expert, we would still have the same issue before the court and you would [say] the expert can testify?” Kennedy asked.

Schmidt said in the result would be the same because the defendant waived his right against self-incrimination when the expert testimony was introduced in federal court before those proceedings were halted.

Justice Stephen Breyer pointed out that the government’s expert did more than simply refute the voluntary intoxication defense — he gave damning evidence against the defendant.

“We have the government expert saying no, he’s not insane, and the government expert going on to give an explanation of why he shot the sheriff,” Breyer said.

“If the court wishes to speak to scope, I think it could reaffirm the constitutional standard” that the evidence is allowed if it is “reasonably related” to the defendant’s diminished capacity defense, Schmidt said.

Justice Antonin Scalia wondered aloud if everyone was missing the point.

“The issue is not whether the state can call its own expert,” Scalia said. “The issue is whether the state can compel [the defendant] to speak to its expert.”

Clash of constitutional rights

Georgetown University Law Center professor Neal Katyal argued on Cheever’s behalf that “the state was trying to use Scott Cheever’s words against him” through the testimony of the state’s expert witness.

“It’s the clash between two different constitutional rights: the right to put on an effective defense on the one hand, or the right [against] self-incrimination on the other.” Katyal said.

But the justices were quick to challenge his argument.

“If this had played out entirely in the federal court, the examination of the defendant was pursuant to Federal Rule [of Criminal Procedure] 12.2,” Justice Ruth Bader Ginsburg said, referring to the rule governing expert examinations relating to diminished capacity pleas “Your argument seems to be that Rule 12.2 violates the Fifth Amendment.”

“Our argument ultimately does invalidate a small part of the application of 12.2,” Katyal acknowledged, “and for that reason we think that the court should avoid that constitutional question” by ruling that the introduction of the evidence in this case was unconstitutional.

“But that puts the government in an impossible position,” Breyer said. “The defense is allowed witnesses who’ve examined the defendant [but the prosecution is not.] I can’t imagine how the Fifth Amendment can say that.”

“I think the Fifth Amendment imposes a different value judgment of our founders based on this type of situation in which you are peering into the defendant’s mind,” said Katyal.

A decision from the court is expected later this term.