Use of State Facilities for Postconviction Mental Retardation Evaluations Did Not Violate a Defendant's Constitutional Rights; Potential Violation of Those Rights Are Redressable by Appeal

Facts of the Case

In 1980, the Powell County Circuit Court convicted Mr. White of three counts of capital murder and three counts of first-degree robbery and sentenced him to death for each of the murders. The Supreme Court of Kentucky affirmed his convictions and sentences. Mr. White's subsequent motion to vacate his death sentence was denied, and that denial was affirmed on appeal. He petitioned for a writ of habeas corpus in the United States District Court for the Western District of Kentucky, which was held pending the outcome of his claim that his execution was precluded by his mental retardation, per Atkins v. Virginia, 536 U.S. 304 (2002).

Despite no determination of his intelligence quotient (IQ) by testing, Mr. White's petition described deficits in adaptive behavior that convinced Special Judge Paisley that there was sufficient doubt to warrant an evidentiary hearing. The judge subsequently ordered the Finance and Administration Cabinet to pay up to $5,000 for mental health testing by an expert of Mr. White's choosing. The commonwealth sought a writ of prohibition, and the Supreme Court of Kentucky found that Judge Paisley had abused his discretion by ordering the Finance and Administration Cabinet to pay for a private psychologist without first showing that the use of state facilities was impractical, as set forth in Commonwealth v. Paisley, 201 S.W.3d 34 (Ky. 2006).

On remand, Special Judge Payne opined that KCPC was capable of providing a competent examiner for the mental retardation evaluation of Mr. White and ordered him to its custody for that evaluation. Seeking relief from Judge Payne's order that a KCPC examiner conduct his mental retardation evaluation, Mr. White sought a writ of prohibition. In the writ, he asserted that Judge Payne failed to comply with the court's mandate in Paisley by ordering a KCPC evaluation without first making a finding that the use of a state facility was not impractical. In addition, he contended that Kentucky law mandates and both the United States and Kentucky Constitutions mandate an independent confidential defense evaluation, and that KCPC is not statutorily authorized to conduct postconviction mental retardation evaluations. He claimed that if the KCPC evaluation proceeded, he would “lose his state and federal constitutional rights to confidential defense communications, his right to remain silent, and his right to a full and fair hearing on his claim that he is mentally retarded, constitutional rights which can never be returned to him on appeal” (White, 332 S.W.3d. at 50).

Ruling and Reasoning

In a unanimous decision, the Kentucky Supreme Court denied the writ of prohibition. Noting that the trial court was clearly acting within its jurisdiction, the court held that Mr. White's only avenue for relief was his claim that the court ordering the KCPC evaluation acted erroneously “in a way that would cause him to suffer great and irreparable injury for which an appeal would not be an adequate remedy” (White, Id. at 48). The court opined that, although Judge Payne's order did not specifically address the court's mandate for a finding on whether the use of a state facility was impractical before authorizing the use of a private examiner to be paid for by the Finance and Administration Cabinet, his finding that KCPC was capable of completing a competent mental retardation evaluation of Mr. White was the “functional equivalent.” Thus, Judge Payne complied with the court's mandate in Paisley and did not act erroneously on this basis. In an aside, the court referenced Mills v. Messer, 268 S.W.3d 366 (Ky. 2008), and instructed the circuit court to determine whether the defendant is entitled to state funding to procure expert testimony that is “reasonably necessary for a full presentation of the petitioner's case.” If so, such an expert should be appointed.

The supreme court, even assuming that the trial court had acted erroneously under one of the bases claimed by Mr. White, was not persuaded that Mr. White demonstrated an irreparable injury that could not be redressed by appeal. The court found no realistic threat to Mr. White's “state and federal constitutional rights to confidential defense communications” that would result from a KCPC evaluation. Moreover, if Mr. White could demonstrate that the disclosure of “confidential defense communications” affected the proceedings, the trial court's determination could be appealed. The court found Mr. White's Fifth Amendment right to remain silent would be minimally affected, if at all. Finally, the court found that if “unforeseen detriments” resulted from the KCPC evaluation, this problem would be redressable on appeal; otherwise, the court found Mr. White's claim that he would be permanently deprived of his right to a full and fair hearing to be “vague, speculative, and unpersuasive.”