Elsie Brewer, Individually and
as Next Friend of John George Brewer,
Samuel Lewis, Director of the Arizona Department of
Corrections, Et Al.,
Respondents-Appellees, John George Brewer, Real
Party in Interest.
Circuits, 9th Cir.
March 2, 1993
Appeal from the United States District Court for the
District of Arizona.
Before: BROWNING, NORRIS, and
HALL, Circuit Judges.
CYNTHIA HOLCOMB HALL, Circuit
Elsie Brewer seeks to appeal the
district court's denial of her petition for habeas
corpus and motion for stay of execution filed on
behalf of her son, John Brewer, who is scheduled to
be executed on Wednesday, March 3, 1993.
I. FACTUAL BACKGROUND
A complete description of
Brewer's offense and the state court proceedings
appears in State v. Brewer, 170 Ariz. 486, 826 P.2d
783 (1992). On November 19, 1987, Brewer was
indicted for the murder of Rita Brier. In July 1988,
Brewer expressed his desire to plead guilty to the
charge. The trial court held a hearing to determine
whether Brewer understood his rights and the
consequences of his plea, and to determine if he was
competent to ignore the advice of his attorney and
plead guilty. The state trial court had before it
the reports of Dr. Gerstenberger and Dr. Bayless
stating that Brewer was competent to enter a plea.
At the hearing, the trial judge questioned Brewer at
length and heard from his trial attorney. The court
On the basis of the record I find
that the defendant knowingly, intelligently and
voluntarily enters into a plea of guilty to the
charge of First Degree Premeditated Murder. That
there is a factual basis for it.
I find that upon review of the
psychological reports, the demeanor of the defendant,
his responses to the court's inquiries, his full
understanding of consequences of the sentencing
options available to the court, and there being only
two, Mr. Brewer. Further in light of his education
he has versed himself fairly in legal procedures and
he does understand the complexities of this case.
Based upon all of the foregoing I
hereby accept the plea of guilty.
The court, over Brewer's
objections, ordered Brewer's trial counsel to
present mitigation evidence at the sentencing
hearing. At the sentencing hearing, the state
presented evidence that the victim suffered great
pain. Brewer's attorney called the jail pastor to
testify that originally Brewer expressed
bewilderment and remorse for his actions. Brewer's
attorney also called Dr. Bayless to testify in
mitigation. Dr. Bayless testified that Brewer was
legally competent and has an IQ of 132. He stated
that Brewer showed no signs of hallucinations or
However, Dr. Bayless stated that
Brewer had a dependency on his mother and a phobia
of being alone. He stated further that when Rita
Brier told Brewer that she was going to leave him,
Brewer's willingness to look at reasonable solutions
and to depend on himself became impaired, and he
lashed out in anger and killed her. Dr. Bayless
stated, though, that Brewer was oriented to reality
and definitely had a capacity to appreciate the
difference between right and wrong.
Brewer addressed the court at
length, and said that he killed Rita Brier and that
he believed execution was the only proper punishment
for the premeditated murder of which he was guilty.
The sentencing court found the aggravating factor
that the murder was committed in an especially
heinous, cruel and depraved manner, and that
Brewer's capacity to appreciate the wrongfulness of
his conduct was not impaired. The court found that
the evidence and argument in mitigation was
insufficient to outweigh the aggravating
circumstances, and imposed a sentence of death.
Brewer then filed a letter with
the Arizona Supreme Court requesting that he be
allowed to abandon all appeals. The Arizona Supreme
Court denied his request because a direct appeal in
a capital case is mandatory under Arizona law.
Brewer, 170 Ariz. at 493, 826 P.2d at 790. The court
affirmed Brewer's conviction and sentence, stating
with respect to Brewer's competency that there was "sufficient
evidence to conclude that [Brewer's] ability to make
rational choices and to understand the attendant
consequences was not substantially impaired at the
time of the guilty plea." Id. 826 P.2d at 793.
Brewer's attorney filed a
petition for certiorari without Brewer's knowledge
or consent. After the United States Supreme Court
denied certiorari, --- U.S. ----, 113 S.Ct. 206, 121
L.Ed.2d 147 (1992), and pursuant to the Arizona
Rules of Criminal Procedure, the clerk of the
Arizona Supreme Court filed an automatic notice of
post-conviction relief on November 6, 1992. Brewer
then filed a motion to dismiss the post-conviction
relief, and on November 23, 1992, the trial court
held a hearing on Brewer's motion.
At that hearing, the trial judge
addressed Brewer personally, and after assuring
himself that Brewer understood his right to have
counsel, found Brewer competent to represent himself
in the proceeding. Brewer's former attorney
requested that a competency hearing be held in light
of an affidavit from a Dr. Rollins stating that
Brewer was not competent to proceed. Dr. Rollins's
affidavit was not based on a personal examination of
Brewer, was inconsistent with the opinions of two
experts who had examined Brewer, was contrary to the
trial court's previous holding and the Arizona
Supreme Court's finding on appeal, and was not
supported by any reports from the Arizona Department
of Corrections, which is required by law to file a
statement in state court if it determines Brewer has
a psychological problem. The trial court ruled that
Brewer's competency "has already been determined. It
has already been addressed by the Supreme Court of
this state. I do not see sufficient information in
the Affidavit of Dr. Rollins to change my position,
nor do I suspect that the Supreme Court would change
its position." After extensively examining Brewer
regarding his request to dismiss the state post-conviction
relief proceedings, the trial court found Brewer
competent to file the motion to dismiss and granted
the motion. The Arizona Supreme Court then issued a
warrant of execution for March 3, 1993.
Thereafter, Brewer's mother filed
her petition in the district court as next friend of
Brewer, which we review herein. The district court,
after hearing evidence, determined that Elsie Brewer
has failed to sustain her burden
[of proving that she has standing] and thus the
Court lacks jurisdiction to act on the motion for
stay of execution and it lacks jurisdiction to act
upon the petition for writ of habeas corpus on
behalf of a person in state custody. And accordingly,
the motion for stay and the petition for writ are
Elsie Brewer then appealed to
II. PETITIONER IS NOT ENTITLED
TO AN AUTOMATIC STAY UNDER NINTH CIRCUIT RULE 22-3
We must first consider whether
this case qualifies for an automatic stay of
execution under our Circuit Rule 22-3(c), which
On the first petition [for a writ
of habeas corpus filed pursuant to 28 U.S.C.
2254 for a petitioner under a
sentence of death],
if a certificate of probable cause and a stay of
execution have not been entered by the district
court ... upon application of the petitioner a
certificate of probable cause will be issued and a
stay of execution will be granted by this court
pending the issuance of its mandate.
The issue here is whether
petitioner Elsie Brewer, as purported next friend of
John Brewer, qualifies as the "petitioner" for
purposes of our rule prior to establishing her
standing as a next friend. We hold that she does not.
Until Elsie Brewer demonstrates that she has
standing to bring a petition on behalf of her son,
she may not obtain an automatic stay of the
execution of Brewer over his strong objections. To
interpret the rule as providing for the entry of a
stay at the request of a "next friend' without a
showing that the defendant is unable to act on his
own behalf would be inconsistent with the holding in
Demosthenes v. Baal, 495 U.S. 731,
737, 110 S.Ct. 2223, 2226, 109 L.Ed.2d 762 (1990),
that "[b]efore granting a stay, ... federal courts
must make certain that an adequate basis exists for
the exercise of federal power."
The dissent to this order asserts
that we are "reading language into the rule" on
first petitions. We read nothing into the rule. We
simply apply the rule in light of the fundamental
principle of jurisdiction that a party must have
standing to litigate in federal court. A grant of a
stay is an exercise of judicial power, and we are
not authorized to exercise such power on behalf of a
party who has not first established standing. See
Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197,
2204-05, 45 L.Ed.2d 343 (1975) ("In essence the
question of standing is whether the litigant is
entitled to have the court decide the merits of the
dispute or of particular issues."). Standing
determines the power of the court to entertain a
suit. Id. The dissent further contends that we have
decided the "merits" of the petitioner's claim, and
that this indicates we acknowledge she has made a
colorable claim of standing. We have simply decided
under relevant Supreme Court authority that the
district court correctly concluded that petitioner
has failed to establish her standing to petition the
federal courts. Standing is a jurisdictional
question that must be addressed at the threshold of
Finally, the dissent's citation
to Bell v. Hood, 327 U.S. 678,
66 S.Ct. 773, 90 L.Ed. 939 (1946), does not support
the argument that we have jurisdiction to consider
petitioner's appeal. That case did not concern
standing but rather the question whether the
plaintiff had stated a cognizable cause of action.
The Supreme Court has never cited Bell for the
proposition that a party has standing as long as her
claim is not "wholly insubstantial."
III. PETITIONER HAS FAILED TO
ESTABLISH HER STANDING
The district court held a hearing
on February 23, 1993, for the purpose of determining
whether petitioner has standing as next friend of
John Brewer, and correctly concluded she does not.
The facts of the present case are closely analogous
to those presented to the Supreme Court in Baal, 495
U.S. at 731, 110 S.Ct. at 2223. In Baal, the
defendant's parents filed a habeas petition in the
district court hours before Baal's scheduled
execution. The only evidence the petitioners
presented in support of their petition was the
affidavit of a psychiatrist who had not examined
Baal, and who opined that Baal "may not be competent
to waive his legal remedies." Id. 495 U.S. at 736,
66 S.Ct. at 2225 (emphasis in original). The
district court then conducted a hearing, after which
it concluded that petitioners failed to establish
their standing as next friends. Id. at 733, 66 S.Ct.
Upon review of the record, the
district court found that all the evidence, other
than the newly submitted affidavit, established
Baal's legal competence, and that the affidavit was
conclusory and lacking in sufficient foundation to
warrant additional examination of Baal. The Supreme
Court ultimately held that because petitioners had
not come forward with "meaningful evidence" of
Baal's incompetence, the district court correctly
found that petitioners had not established standing,
and correctly denied their request for a further
evidentiary hearing on the question of Baal's
competence to waive his right to proceed. Id. at
736, 66 S.Ct. at 2225.
The hearing which the district
court below held on February 23, 1993, was analogous
to the hearing which the district court held in
Baal. The hearings in both cases provided the
petitioners an opportunity to attempt to establish
their standing. The district courts in both
instances found that the petitioners had not
presented sufficient evidence to establish standing.
In Baal, the Supreme Court held that because the
petitioners had not supplied the "meaningful
evidence" necessary to support their claim of
standing, they were not entitled to a further
evidentiary hearing to explore the question of the
defendant's competence. In the present case, because
Ms. Brewer has likewise not presented such "meaningful
evidence," she was not entitled to a further
evidentiary hearing on her son's competence, and
therefore the district court did not abuse its
discretion by denying her additional time to examine
Brewer or conduct other discovery.
The district court determined
that petitioner did not meet her "burden of proving
by clear evidence" that the defendant is incompetent
to waive his appellate rights.
The standard which the district court applied in
reaching its determination is consistent with the
Supreme Court's declaration in Whitmore v. Arkansas,
495 U.S. 149, 110 S.Ct. 1717, 109
L.Ed.2d 135 (1990), that the "burden is on the 'next
friend' clearly to establish the propriety of his
status and thereby justify the jurisdiction of the
court." Id. at 164, 110 S.Ct. at 1727-28 (emphasis
added). In order to clearly establish standing, a
petitioner must present "meaningful evidence that [the
defendant] was suffering from a mental disease,
disorder, or defect that substantially affected his
capacity to make an intelligent decision." Id. at
166, 110 S.Ct. at 1728-29. The Court reiterated this
requirement in Baal. 495 U.S. at 736, 110 S.Ct. at
The district court did not err in
determining that Ms. Brewer failed to clearly
establish her standing, because the record shows
that she did not provide the meaningful evidence
which Whitmore and Baal demand. The evidence which
she submitted is indistinguishable from that which
the petitioners submitted in Baal, and which the
Supreme Court found insufficient. In Baal, the
petitioners presented an affidavit of a psychiatrist
who had reviewed and disagreed with reports of
experts who had examined Baal and found him
competent, but who had never personally observed
Baal. Id. at 735-36, 110 S.Ct. at 2225-26. Here,
petitioner has submitted brief affidavits of two
doctors who have never met Brewer, as well as an
affidavit of Dr. Bayless, who examined Brewer and
found him competent in 1988. Dr. Bayless speculates,
based on information not available to him at that
time, that Brewer's mental condition may have
deteriorated during his incarceration, and that
Brewer may now suffer from a major depressive
As in Baal, this conclusory evidence is insufficient
to outweigh the substantial evidence in the record
demonstrating the defendant's competence. Within the
last two and one-half months, no less than four
psychological experts have personally examined and
tested Brewer and found him competent.
IV. THE ARIZONA STATE COURT'S
DETERMINATIONS OF BREWER'S COMPETENCE ARE ENTITLED
TO A PRESUMPTION OF CORRECTNESS
Our conclusion that Elsie Brewer
has not established standing as next friend of John
Brewer is bolstered by our obligation to accord a
presumption of correctness to the state court's
determinations of his competence. The Supreme Court
has held that a state court's conclusion regarding a
defendant's competence is due such a presumption
where it is "fairly supported by the record." Baal,
495 U.S. at 735, 110 S.Ct. at 2225; Maggio v.
Fulford, 462 U.S. 111, 117, 103
S.Ct. 2261, 2264, 76 L.Ed.2d 794 (1983).
The state court's July 1988
determination that Brewer was competent to plead
guilty is without question supported by the record.
The state court's conclusion was based upon
psychological reports from Dr. Bayless and Dr.
Gerstenberger which evaluated Brewer's competence to
stand trial as well as his mental condition at the
time of the offense. Furthermore, the state court
conducted an in court colloquy with Brewer
concerning his desire to plead guilty and his
understanding of his circumstances.
On November 23, 1992, the state
trial court again found Brewer competent, in a
hearing on Brewer's motion to dismiss an automatic
notice of post-conviction relief. At this hearing,
the court itself extensively examined Brewer
concerning his reasons for wishing to forego post-conviction
relief proceedings. In light of Brewer's statements
in court, and based upon its review of the entire
record, the state court concluded that it found no
reason to change its previous finding that Brewer
was competent to act on his own behalf. Hearing of
Nov. 23, 1992, R.T. at 45. The court found further
that an affidavit of Dr. Rollins submitted by
Brewer's former counsel was insufficient to raise
questions concerning Brewer's competence. Id. at 25.
The two and a half page affidavit suggests in a
conclusory fashion that further psychological
examination of Brewer is needed to determine his
competence. Considering the complete absence of
contrary evidence, we must conclude that the state
court's determination of Brewer's competence at the
November 1992 hearing was fairly supported by the
record, and therefore entitled to a presumption of
correctness. See Lenhard v. Wolff, 603 F.2d 91,
93 (9th Cir.1979) (a determination of competence
remains valid where, even though time has elapsed,
there has been no showing of incompetence).
We note further that additional
evidence of Brewer's psychological condition
gathered within the last two and a half months
corroborates the state court's determinations. Four
psychological experts who have personally examined
Brewer have determined that he is competent, and
this evidence has been presented in various filings
with the Arizona courts, the district court below,
and this court on appeal.
Because we presume that the state
court correctly determined Brewer to be competent,
and because petitioner has not come forward with
meaningful evidence to undermine that determination,
we must conclude that she has failed to "provide an
adequate explanation" why Brewer cannot appear on
his own behalf. Whitmore, 495 U.S. at 163, 110 S.Ct.
Accordingly, we affirm the
judgment of the district court and dismiss Ms.
Brewer's appeal for lack of jurisdiction. The
application for certificate of probable cause and
the motion for stay of execution are denied.
WILLIAM A. NORRIS, Circuit Judge,
* Mrs. Elsie Brewer appeals the
district court's decision denying her standing to
file a "next friend" petition for habeas corpus
seeking to avoid her son's execution principally on
the ground that he is incompetent. She asks this
court to issue a certificate of probable cause and a
stay of his execution, now scheduled for March 3,
1993, at 12:01 a.m.
On February 19, 1993, the day
after she was finally denied relief from the state
courts in Arizona, Mrs. Brewer filed a habeas
petition with the district court. This is the first
federal petition for relief that has been filed on
behalf of this prisoner.
Ninth Circuit Rule 22-3
explicitly provides that a certificate of probable
cause and a stay of execution shall be granted
automatically on an appeal from the first federal
habeas corpus petition filed in a death case. The
(a) Definitions. This rule
shall apply to appellate proceedings involving a
first petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. 2254 for
a petitioner under a sentence of death. A "first
petition" for habeas corpus shall mean: the original
filing relating to a particular conviction or
sentence, and a subsequent or amended filing if the
original filing was not dismissed on the merits.
. . . . .
(c) Stays of Execution and
Certificates of Probable Cause. On the first
petition, if a certificate of probable cause and a
stay of execution have not been entered by the
district court or if the district court has issued a
stay of execution that will not continue in effect
pending the issuance of this court's mandate, upon
application of the petitioner a certificate of
probable cause will be issued and a stay of
execution will be granted by the special state death
penalty panel pending the issuance of its mandate.
By the plain language of this
rule, we have no authority to deny Mrs. Brewer's
request for a certificate of probable cause and a
stay of her son's execution.
The majority of this panel
justifies its refusal to comply with the clear
directive of this rule by reading language into the
rule that does not appear. Under the majority's
interpretation, the automatic stay rule for first
petitions does not apply to third-party petitioners
when the panel decides that it can resolve the
merits of petitioner's claim in time to meet the
scheduled execution date. The Rule says no such
thing. The Rule plainly applies to all "first
petition[s] filed ... for a petitioner under a
sentence of death." This rule was adopted by the
Court after considerable deliberation and comment.
If the majority is dissatisfied with this particular
rule, it may address its concerns to the Court and
seek an amendment. The power to revise the Circuit
Rules rests with the Court, not an individual panel.
Moreover, the majority's
amendment is fundamentally inconsistent with the
purpose behind the automatic stay rule. The purpose
of the automatic stay rule is to allow time for the
appellate court to exercise reasoned judgment when
it is faced, for the first time, with a death case.
It requires us to exercise deliberate judgment at
least once in a death case without the hydraulic
pressure of an impending execution only days, or
even hours, away.
The only gloss on Rule 22-3 that
is even arguably justified is that we have no
jurisdiction to consider the merits of Mrs. Brewer's
appeal if her standing claim is "wholly
insubstantial." See Bell v. Hood, 327 U.S. 678,
682-83, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946) (dismissal
for want of jurisdiction is appropriate when the
claim is "wholly insubstantial" or "patently without
merit.") The majority does not say that her standing
claim is so insubstantial that it gives no
jurisdiction to decide her appeal. Indeed, by
reaching and deciding her claim on the merits, the
majority holds that she has raised at least a
colorable claim that she can establish standing.
Moreover, the district court found that she had
raised a colorable claim because it ruled that she
was entitled to an evidentiary hearing on the
question of her son's competency. Unless the
majority is willing to declare her claim to be
frivolous, it must comply with Rule 22-3 by allowing
the automatic stay of execution to issue to permit
us to consider the merits of the standing claim
without the pressure of an imminent execution.
The complexity of the issues
raised in this case demonstrates the wisdom of our
automatic stay rule. This is not a case of federal
court delay. The case was filed in the district
court for the first time less than three weeks ago.
The notice of appeal to this court was filed exactly
two weeks ago. As I write, Mr. Brewer's scheduled
execution is less than 24 hours away.
In November of 1987, John George
Brewer ("Brewer") murdered his five-month pregnant
girlfriend and immediately confessed and pled guilty.
After a hearing, he was pronounced competent and
sentenced to death. For the next four and a half
years he languished on death row while the state
courts of Arizona conducted various proceedings,
notwithstanding Brewer's refusal to challenge his
death sentence and his repeated insistence that his
execution be carried out. On November 23, 1992, the
state trial court conducted another hearing and
again pronounced him competent to dismiss counsel
and to waive all post-conviction review. Finally, on
February 18, 1993, the Arizona Supreme Court
affirmed the state court proceedings.
On February 19, 1993, this case
entered the federal court system for the first time
when Brewer's mother filed a "next friend" habeas
petition challenging her son's competency as well as
the constitutionality of his sentence. On February
23, 1993, the federal district court, following an
afternoon hearing, ruled that Mrs. Brewer had no
standing to pursue a "next friend" habeas petition.
On the same day she filed a notice of appeal and
asked this court to issue a certificate of probable
cause and a temporary stay of execution. Arizona has
scheduled his execution for March 3, 1993 at 12:01
Mrs. Brewer supported her habeas
petition with new evidence not considered at the
November 23rd state court competency hearing:
(1) Two letters written by her
son while he was on death row, discussing his belief
in a planet called "Terracia," which is ruled over
by the God "Dantain." The letters refer to a person
called "Fro," who appears to be Dantain's child, and
who lives on Terracia, but who also lived on earth,
at which time she was Rita Brier, the girlfriend
(2) An affidavit by Dr. Michael
Bayless, who, after reviewing Brewer's letters along
with other new materials, had a change of heart
about the testimony that he gave at a 1988 state
court hearing in which he concluded that Brewer was
In the first letter, written to a
friend, Keith Lester, in early 1989, Brewer wrote in
part as follows:
"I am the one who killed Fro, the
savior of Terracia."
Fro was to "become a man elf when
we got to Terracia. However, I knew her ... only as
"It is hard to explain what I
understand Dantain's teachings to be, and my
reaction to them."
"Dantain told me I would be
executed in 1-7 years"
"I keep finding myself praying to
Christ to forgive me worshipping other Gods."
Brewer ends the letter with, "May
the Blessings of Dantain, Our Lord God, and Fro, His
Holy Son--our savior be upon thee."
See Dist.Ct. Exh. 5.
The second letter was written in
early 1992, and states, "I killed Fro because she
was going to follow Dantain's command for me to live
separate of (not from) her, and I didn't want to."
See Dist.Ct. Exh. 6.
In addition to this new evidence,
Mrs. Brewer also relied upon an affidavit by Brian
McKee, a friend of her son's from high school. McKee
states that Brewer told him that he believed Dantain
is the God of Terracia, and that when he dies he
will go to Terracia where Rita is waiting for him.
McKee also says Brewer claimed that Dantain would
speak to Brewer and Rita through each other. See
McKee Affidavit at 2-3.
At 6:00 p.m. on February 19,
1993, a Friday, the district court gave notice that
it would conduct a hearing on Mrs. Brewer's habeas
petition on the afternoon of the following Tuesday,
February 23, 1993. On the morning of the hearing,
the court issued an order granting Mrs. Brewer a
right to discovery of the notes and data on which
the state-retained mental health experts based their
opinion of Brewer's competency, and a right to have
Brewer examined by Dr. Bayless. After issuing the
discovery order, the court proceeded with the
hearing that afternoon, which, of course, rendered
the discovery order meaningless for purposes of the
The questions raised by Mrs.
Brewer's appeal are the following:
A. Is the State Court's Finding
of Competence at the November 23, 1992 Hearing
Entitled to a Presumption of Correctness?
The majority asserts that the
state court's finding on November 23, 1992 that
Brewer was competent to dismiss his counsel and
waive all post-conviction relief should be entitled
to a presumption of correctness on federal habeas
review. I disagree.
A finding on the issue of
competence is a finding of fact. A presumption of
correctness attaches to state court findings of fact
only when the court made its findings after a full,
fair, and adequate hearing. 28 U.S.C. 2254(d)(6).
The November 23 hearing was neither full, fair nor
adequate. The state court had before it an affidavit
from Dr. Rollins, in which he stated that he was
persuaded "to a reasonable degree of medical
certainty that Mr. Brewer is not competent to
participate in legal proceedings at the present
time." District Ct. Exh. B at 2. Yet the court
rejected Dr. Rollins' affidavit, even though it
heard no testimony from any medical professionals on
Brewer's current mental status. The court's finding
on Brewer's competence was based entirely on a brief
colloquy with the prisoner and on the state court's
original determination made four years earlier that
Brewer was competent.
The court's deference to a four
year old finding of fact is particularly troubling,
because the question of competency is not a question
of historical fact but a question that fluctuates
over time. The relevant question for purposes of
third-party standing is not whether Brewer was
competent before he spent four years on death row
waiting for Arizona to finish judicial proceedings
Brewer did not want or seek, but whether he is
competent now to waive his right to any further
legal proceedings. Because the state court failed to
adequately explore the question of current
competency, the state court's determination is not
entitled to a presumption of correctness in federal
Finally, the majority relies on
Demosthenes v. Baal, 495 U.S. 731,
737, 110 S.Ct. 2223, 2226, 109 L.Ed.2d 762 (1990) as
authority for accepting the state court's finding of
competency, arguing that Baal and this case are
indistinguishable. I believe the two cases are
plainly distinguishable. The "next friend"
petitioner in Baal relied on the same evidence that
was considered at the state court competency hearing.
Here, Mrs. Brewer produced several pieces of new
evidence--specifically including Brewer's letters
and Dr. Bayless' testimony concerning his change of
heart on Brewer's competency--that were never
considered at the state court hearing.
B. Did the District Court Apply
the Correct Standard of Proof?
The district court appears to
have held Mrs. Brewer to the "clear and convincing"
standard of proof on the competency issue. ("The
Court's obligation under the case law, as the Court
understands it, is to view that evidence in the
context of whether or not the petitioner, Elsie
Brewer, has sustained her burden of proving by clear
evidence that [Brewer is incompetent]. The Court
finds that the petitioner has failed to sustain her
burden...." Transcript of Dist.Ct.Hrg. at 112). This
raises a question whether the court erred in not
applying the much less rigorous preponderance of the
evidence standard. Mrs. Brewer cites Groseclose ex
rel. Harries v. Dutton, 594 F.Supp. 949, 953 (M.D.Tenn.1984)
as authority that the correct standard is
preponderance of the evidence. Neither the State nor
Brewer cites any authority whatsoever on the issue.
Under the time constraints of the execution schedule,
I cannot be confident which is the right standard.
But I'm inclined to think Mrs. Brewer is correct
that on a threshold jurisdictional question such as
standing, the preponderance of the evidence standard
is the appropriate one.
The majority's reliance on
Whitmore v. Arkansas, 495 U.S. 149,
110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) for the
proposition that a "clear evidence" test (presumably
one higher than a preponderance of the evidence) is
the correct standard to apply at a competency
hearing is entirely misplaced. Whitmore did not
address the standard of proof a district court
should use in making a determination on the ultimate
question of competency. In Whitmore, the third-party
petitioner was a fellow prisoner who proffered no
evidence whatsoever that would cast doubt on the
state court's determination of competency.
Whitmore's use of the words "meaningful evidence"
refers to the threshold showing Mrs. Brewer would be
required to make in order to get an evidentiary
hearing on the issue of competence. Whitmore clearly
did not involve the question of the standard of
proof applicable at the hearing on competence
granted to Mrs. Brewer by the district court.
Finally, although the Court said a "next friend"
petitioner has the burden "clearly to establish the
propriety of his status," it did not announce a
standard of proof by which a prisoner's incompetence
should be judged. In fact, the Court cited with
approval the case of Groseclose ex rel. Harries v.
Dutton, supra--a case holding that a preponderance
of the evidence is the proper standard to apply in
determining the prisoner's competence, and the only
case cited to us on the issue.
If the district court applied the
incorrect standard, which I believe it did, then the
case should be remanded so the district court as the
finder of fact can re-evaluate the evidence on
competency under the correct standard of proof.
C. Even if the District Court
Decided Brewer's Competence Under the Proper Legal
Standard, Was Mrs. Brewer Afforded a Full and Fair
In my view, the district court
did not afford Mrs. Brewer a full and fair hearing
on her son's competency. The record shows "there was
not sufficient opportunity for proper psychiatric
and psychological evaluation of [Mr. Brewer]." Hays
v. Murphy, 663 F.2d 1004, 1011
Whether the district court
hearing was adequate turns mainly on whether the
district court abused its discretion in failing to
give petitioner a fair opportunity to make use of
the court's discovery order, particularly the
opportunity for Dr. Bayless to examine Brewer. The
lack of time to do anything with the discovery order
rendered the hearing unfair for two reasons. First,
it rendered Dr. Bayless unable to express a
definitive medical opinion on the ultimate issue of
Brewer's competence. Without an opportunity to
examine Brewer, Dr. Bayless was only able to testify
that, based on evidence not available to him when he
testified in 1988 that Brewer was competent, he now
had "serious questions" as to the validity of his
original opinion. Second, without the assistance of
an expert who had an opportunity to examine Brewer,
counsel for petitioner was, as any lawyer would be,
handicapped in his efforts to cross-examine the
state's mental health experts.
In conclusion, even without the
automatic stay rule, I would issue a temporary stay
on any one of the following grounds: (1) that the
stay is necessary to preserve our jurisdiction by
giving us a fair opportunity to resolve the standing
issues raised by petitioner (see 28 U.S.C. 1651);
(2) that we should remand to the district court for
a redetermination of the issue of competency under
the preponderance of the evidence standard; and (3)
that the case should be remanded to the district
court to conduct a new competency hearing after Mrs.
Brewer has a reasonable opportunity to have Dr.
Bayless examine her son and engage in other
discovery as authorized by the court's discovery
The argument is made that we
should not take a reasonable time to consider Mrs.
Brewer's appeal because any additional delay in her
son's execution would frustrate the state's plan to
execute him on March 3rd and would only add to Mr.
Brewer's anguish waiting for the death he says he
wants. But to the extent this execution has been
delayed, however, it is not the fault of the federal
court system; the district court and appellate
courts combined have had this case for less than
three weeks. The blame, if any, rests with the State
of Arizona, which, over Mr. Brewer's continuous
objection, has taken four and a half years to
schedule his execution.
A human life is at stake. I fail
to understand the rush to judgment. This is not,
after all, a successive petition, and no one
suggests that in filing a first petition, Mrs.
Brewer has abused the Great Writ.
The petitioner's request for a
certificate of probable cause and stay of execution
whether he has capacity to
appreciate his position and make a rational choice
with respect to continuing or abandoning further
litigation or on the other hand whether he is
suffering from a mental disease, disorder, or defect
which may substantially affect his capacity....
Ms. Brewer also presented
affidavits from several friends and family members,
all of whom agreed Brewer had a difficult childhood
and showed signs of mental disorder from an early
age. These statements do not contradict the district
court's findings. The four experts who examined
Brewer determined he suffers from a personality
disorder, but all agreed that Brewer is competent.