In the

Supreme Court of the United States

VERNON MADISON,  PETITIONER

v.

STATE OF ALABAMA, RESPONDENT

 

BRIEF OF RESPONDENT

QUESTIONS PRESENTED

Although the Court granted certiorari on these two questions, Madison's brief changes the first question presented. The following are the questions on which the Court granted certiorari, not the questions as rephrased in Madison's brief.

(1) Consistent with the Eighth Amendment, and this Court's decisions in Ford v. Wainwright (1986), and Panetti v. Quarterman (2007), may the State execute a prisoner whose mental disability leaves him without memory of his commission of the capital offense?

(2) Do evolving standards of decency and the Eighth Amendment's prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition which prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution?

INTRODUCTION

This case is about the State's sovereign power to impose a just and constitutional punishment on a vi­olent criminal who murdered one of the State's own law enforcement officers. From the State's perspec­tive, the question is not just whether Madison may be punished for violating the State's criminal laws. It is whether the State can assure that there will be a police force to see that the criminal laws are enforced at all.

For his part, Madison clearly intends to "claim that he has become insane" no matter "the number of prior adjudications of the issue, until the very mo­ment of execution." Madison first claimed that he could not remember murdering Officer Schulte in 1990, long before he purportedly suffered from de­mentia-related amnesia. On the eve of his scheduled execution in 2016, he asserted incompetence for the same memory failure but blamed it on two recent strokes. After the Court rejected his position last year, Madi­son filed a new petition in the same state court under the same case number to make the same allegations based on the same evidence.

The Court granted certiorari again to address the question Justice Ginsburg noted last year: "whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense." But Madison's brief expressly chang­es the question presented from the one he posed in his certiorari petition.  And that brief proposes no cogent theory for why the Constitution would bar the execution of a prisoner "without memory" of his capital offense.

Despite Madison's arguments to the contrary, the trial court did not hold that dementia-related infir­mities can never render a person incompetent to be executed. Instead, the trial court held that Madison's dementia does not render him incompetent to be exe­cuted. As we explained the last time we came before this Court, Madison understands that he is being punished for a murder he committed and for which he has never accepted responsibility. He is "neither delusional nor psychotic." Madi­son's own expert confirmed that he is able to under­stand the nature of the pending proceeding, understands that the reason he was in prison was because of murder, understands that the State is seeking retribution for that crime, and understands the sentence, specifically the meaning of a death sentence. Alt­hough some other dementia patient could be incom­petent, the state court was well within reason to hold that Madison is not.

Like he did in 1990, Madison asserts that he can­not remember murdering Officer Julius Schulte. But Madison's ability to recall the killing has no bearing on the State's interest in punishing him for it. The community remembers Officer Schulte. His family remembers. The eyewitnesses who saw the murder ­they remember. Although Madison may not recall committing this crime, the Eighth Amendment does not bar the State from punishing him for it.

STATEMENT

In April 1985, Vernon Madison killed Officer Jul­ius Schulte during a domestic dispute. At the request of Madison's neighbors, Officer Schulte was protect­ing Madison's ex-girlfriend and her 11-year-old daughter while Madison moved out of their house. After pretending to leave, Madison retrieved a pistol, crept behind the car where Schulte was sitting, and fired two shots into the back of Schulte's head. After shooting Officer Schulte, Madison shot his ex-­girlfriend in the back as she tried to run away. Three eye witnesses - including the 11-year-old girl watched as Madison murdered Officer Schulte and tried to murder his girlfriend.

A. Trial and post-conviction proceedings. Madison was charged with capital murder be­cause he had murdered an on-duty police officer.. The government has a special interest in affording protection to these public servants who regularly must risk their lives in order to guard the safety of other persons and property. Be­cause of procedural errors, Madison was tried and convicted three times.

Although there has never been any doubt about Madison's guilt, he never accepted responsibility for murdering Officer Schulte. Instead, he has always concocted various theories to excuse his crime. For example, before his second trial in 1990, Madison was already telling psychologists that he could not remember the shooting. By the time of his third trial, he was claiming self-­defense.

After each trial, Madison was sentenced to death because of his lifetime of violent crimes. Madison had previously been convicted of robbery, assault and battery with intent to kill, aggravated assault, and other violent offenses. He was on parole from his most recent conviction when he murdered Officer Schulte. After his third conviction and sentence were af­firmed on direct review, Madison spent twenty years pursuing every conceivable avenue of state and fed­eral post-conviction relief.

Madison's state post-conviction petition lan­guished in the state court for years with little ac­tion. An evidentiary hearing was scheduled for February 23, 2000, but was continued on Madison's motion. One year later, the cir­cuit court issued an order notifying Madison that the post-conviction petition would be dismissed if coun­sel did not contact the court within 30 days. Madison requested that a hearing be delayed for at least a year. When that time came, he replaced his counsel. Eventually, the trial court concluded the long-delayed post-conviction proceedings by granting the State's motion to dismiss.

Madison filed his first federal habeas petition in 2009. The federal habeas court held an evidentiary hearing on Madison's claim that the prosecutor exercised six of his eighteen strikes against black jurors because of their race. The court noted that Madison's final jury was seven (7) blacks and seven (7) whites, even though the jury pool was 75% white. The prosecutor who tried Madison eventually became the Chief of the criminal division for the U.S. Attorney's Office in the Southern District of Alabama. Based on contem­poraneous notes, he testified that he struck these six jurors for specific race-neutral reasons. The fed­eral habeas court denied the petition, and this Court denied certiorari.

B. The first state court competency petition After the Attorney General asked the Supreme Court of Alabama to set an execution date, Madison filed a successive state-court post-conviction petition claiming he was incompetent to be executed. The petition asserted that Madison was incompe­tent because he had suffered ''both short-term and long-term memory loss.

The state court set a hearing to evaluate Madi­son's claims of incompetence and gave Madison the opportunity to submit evidence, including from his own psychological expert. Before the hearing, Madison was evaluated by Dr. Karl Kirk­land, a court-appointed psychologist, and Dr. John Goff, a neuropsychologist retained by Madison. At the hearing, the state court admitted Dr. Kirkland's report, Dr. Goff's report, and Madison's medical rec­ords. The state court also heard testimony from Dr. Kirkland, Dr. Goff, and the warden of the prison where Madison lived.

1. Dr. Kirkland's testimony. The state court ap­pointed Dr. Kirkland to examine Madison's claims as a neutral expert on behalf of the court. Dr. Kirkland concluded that Madison has had physical and cogni­tive decline as a result of strokes. Even so, Dr. Kirkland concluded that Mad­ison has a rational understanding that he is to be ex­ecuted for killing a police officer in 1985. Dr. Kirkland determined that Madison has a "rational understanding of the sentence, and the results or effects of the sentence." Dr. Kirkland also found that Madison had normal thought content and showed no symptoms of psycho­sis, paranoia, or delusion.

Dr. Kirkland learned from Madison's treating physicians that Madison did not suffer from psycho­sis or delusions. They also reported that Madison was asked for, and able to give, consent for medical procedures. Mad­ison refuses some of his medications because of side effects but his treating physicians felt that he knew what he was doing in making that choice.

At his evaluation, Madison gave Dr. Kirkland a detailed history of his life, his criminal record, and his conviction for murder. For instance, Madison said he was the son of Willie Seale and Aldonnia Madi­son, was born in an old Mobile Hospital for African Americans that no longer exists, and that he is the oldest of 11 children, seven boys and four girls, four of whom have died. Madison said he was raised on the end of Old Stan­ton Road in Mobile, where Stanton Street runs into Stanton Road. Madison remembers his multiple juvenile arrests and the details of these crimes, including shooting a man in Mississippi, and the time he escaped from the Mt. Meigs Department of Youth Services Camp, hitching rides all the way back home. Madison remembered trying to join the Army during the Vietnam War because he knew they would draft him one way or the other, and he remembers being excluded from the Army by the physical due to being rated 4F.

Madison also remembered details of his multiple trials, convictions, and appeals. Madison discussed each appeal and marveled each time with the fact that the whole process would end up being back in Judge McCray's court." Dr. Kirkland testi­fied that Madison was able to talk with me about very specific things that would indicate that he could remember specific things about the time of the of­fense even, as well as each trial.

Dr. Kirkland determined that although Madison had physical and mental limitations, Madison clear­ly was able to discuss his case in a very accurate manner, including being able to accurately tell this examiner legal theories about why Judge McCray should have recused himself and why he refused to do so. When asked if Madison had a rational understanding of the reason for his execution, Kirkland replied, “Certainly”. He talked specifically about death sentence versus life without in the original trial and the first retrial and in the second.

2. Dr. Goff's testimony. Madison's expert, Dr.

Goff, agreed with Dr. Kirkland that Madison experi­enced cognitive decline after suffering a stroke. He also diagnosed Madison with dementia or major neu­rological disorder. Even so, Dr. Goff concluded that Madison understands the meaning of a death sen­tence. Dr. Goff also concluded that Madison said his crime must have been a murder, that he had three trials, and that he felt his conviction was unjust. Dr. Goff concluded that Madison is able to understand the nature of the pending proceeding and he has an understanding of what he was tried for. Similarly, Dr. Goff tes­tified that Madison was not delusional or psychotic.

But, based on his interview with Madison, Dr. Goff opined that Madison had no independent recol­lection of the murder. According to Dr. Goff, Madi­son could not remember the name of the victim, and he did not think he killed anyone because he pur­portedly never went around killing folks. Because Madison purportedly could not remember the murder, Dr. Goff concluded that Madison did not understand the rationale of the cur­rent proceeding as it applied to him. Dr. Goff remarked, "I think he understands that he's being executed, but I don't think that he under­stands why, because I don't think he has those--those memories." Similarly, Dr. Goff concluded that "I think he understands that the State is seeking retribution" but "I don't think he understands the act that he's being -- that he's being punished for." When Dr. Goff formed that conclusion, he was unaware that Madison had always denied responsibility for the murder.

Dr. Goff gave three reasons for believing that Madison cannot remember killing Officer Schulte. First, Dr. Goff concluded that Madison had experi­enced a thalamic stroke. Second, Dr. Goff relied on Madison's state­ments that he does not recall the murder and that he never went around killing folks. Third, Dr. Goff relied on his evaluation of Madison, including a test he admin­istered showing Madison's trouble completing basic tasks and remembering basic information and Madi­son's tendency to speak in a rambling vague manner, which suggested to Dr. Goff that Madison can't re­member what it is that he's told me.

3. The Warden's testimony. The warden testified that when Madison received the death warrant set­ting his execution date, Madison expressed no confu­sion or lack of understanding of what it meant, com­menting, "My lawyers are supposed to be handling that." The warden also tes­tified that Madison was not receiving treatment for a mental condition in prison.

4. The state court's first decision. The state court issued a detailed order, finding Madison competent to be executed. The state court ex­pressly found that Madison is not delusional. The state court also found that "Madison has a rational understanding, as required by Panet­ti, that he is going to be executed because of the murder he committed and a rationalj understanding that the State is seeking retribution and that he will die when he is executed."

Alabama law provides no right to appeal this de­termination in the state court system. This is presumably because of the expe­dited nature of last-minute litigation about execu­tions and because the Supreme Court of Alabama is the body that sets an execution date in the first place.

C.   The court of appeals grants habeas cor­pus, and this Court summarily reverses.

Madison filed a habeas petition in federal court, raising the same claims he raised in the state court proceeding. Under the Anti-Terrorism and Effective Death Penalty Act, a habeas petitioner cannot obtain relief without showing that a state court's adjudication is contrary to, or an unreasona­ble application of, clearly established law, or based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. The district court denied Madison's application after concluding that "it is apparent that the state court adjudication of these claims applied the relevant Panettil-Ford standard for determining competency to be executed, considered all of Madison's factual averments, and found that any dementia, and the alleged deficits in memory associated with that condition, did not pre­vent Madison from having a rational understanding of his execution and the reasons for his execution."

The court of appeals reversed the district court and granted Madison's petition for writ of habeas corpus. That court explained that the mental conditions relevant here are de­mentia and related memory loss, not psychosis or delusions. The court adopted a bright-line rule that a man with no memory of what he did wrong can­not be put to death. The court held that a person cannot be executed if he doesn't remember the crime and he believes, to the best of his ability, he has never killed anyone.

This Court summarily reversed the court of ap­peals. The Court held that the state court did not unreasonably apply Panetti and Ford when it determined that Madison is competent to be executed because ­not withstanding his memory loss-he recognizes that he will be put to death as punishment for the murder he was found to have committed. The Court recognized that testimony from each of the psychologists who examined Madison supported the court's finding that Madison understands both that he was tried and imprisoned for murder and that Alabama will put him to death as punishment for that crime. The Court explained that neither Panetti nor Ford clearly established that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case.

Justice Ginsburg concurred. She noted that "the issue whether a State may administer the death penalty to a person whose disability leaves him with­out memory of his commission of a capital offense is a substantial question not yet addressed by the Court."

D.   Madison's second state court competency petition.

After the State again set Madison's execution date, Madison filed a second petition challenging his competency to be executed. It was filed under the same case number and assigned to the same judge as his first petition. Madison's petition relied on the previously established evidence of Mr. Madison's significant mental impairments and asserted un­specified "continued decline." The petition also as­serted that the court should discard its neutral ex­pert's previous testimony because he was accused of self-prescribing medications.

The State responded with three main arguments.

First, the State asserted collateral estoppel and res judicata, noting that Madison was merely seeking to relitigate decided issues. Second, the State noted that Madison had alleged no new evidence to war­rant relitigating his competency-such as a new di­agnosis or new expert opinion. Third, the State ex­plained that the neutral expert's legal problems were irrelevant because they had nothing to do with his methodology or conclusions and his testimony matched the testimony of Madison's own expert.

The court held oral argument limited to whether the court should vary from its previous order denying Madison's competency petition. The judge recalled from the prior hearing that there was nothing in Dr. Kirkland's demeanor, his testimony, his ap­proach to how he evaluated the case to be signifi­cantly different from Dr. Goff's and they pretty much came down the same except for a very few matters. After the hearing, the court orally denied Madison's petition from the bench. The court later en­tered a written order denying Madison's second peti­tion because it did not provide a substantial thresh­old showing of insanity sufficient to convince this Court to stay the execution.

SUMMARY OF ARGUMENT

The Eighth Amendment does not prohibit the State from executing a convicted murderer because he cannot independently recall committing a crime. The death penalty is justified by the State's interests in retribution and deterrence, and those interests are not diminished when a convicted murderer cannot remember committing his crime.

I. The lower court correctly applied this Court's Eighth Amendment precedents to deny Madison's competency claim.

A. Although the Eighth Amendment prohibits the State from executing someone who is insane and lacks a rational understanding of the reasons for his execution, the lower court correctly held that Madi­son does not meet that standard. Madison's mental disorder does not render him incompetent. Although his dementia purportedly precludes him from re­membering his capital offense, it does not preclude him from understanding that he is being punished for murdering Officer Schulte or from sharing the community's understanding of crime, punishment, retribution, and death.

Under this Court's precedents, a State may exe­cute a prisoner whose mental disability leaves him without memory of his commission of the capital of­fense. A failure to recall committing a crime is dis­tinct from a failure to understand why one is being punished for a crime. An inmate's personal recollec­tion of the crime is irrelevant to whether the inmate shares the community's understanding of the crime, has a moral responsibility for committing the crime, or understands why he is being punished for the crime.

B. Madison incorrectly argues that the lower court misapplied this Court's precedents. Although Madison suggests that the mere diagnosis of demen­tia means that he is incompetent to be executed, this Court has made clear that a prisoner's mental condi­tion does not establish incompetence unless that mental condition precludes the inmate from under­standing why he is being executed.

Nothing about dementia necessarily precludes a rational understanding of crime and punishment. Cognitive disorders like dementia exist on a spec­trum of cognitive and functional impairment and are accompanied by a wide variety of symptoms. Alt­hough another prisoner may be rendered incompe­tent by dementia, the lower court appropriately held that Madison has not been.

II. No part of this Court's Eighth Amendment doctrine suggests that the Constitution eliminates the sovereign power of the State to punish a convicted murderer who cannot remember committing a capital offense.

A. The common law supports the punishment of criminals who do not remember committing a crime. The common law prohibition on executing the insane narrowly applied to prisoners who lacked the capacity to reason or understand. Common law courts have held that amnesia does not constitute insanity.

Moreover, the rationales offered by common law authorities do not preclude punishing a murderer who lacks an independent recollection of his crime. The loss of memory does not undermine a prisoner's ability to appreciate the religious and moral significance of his crime. Nor does it affect his ability to participate in court proceedings after his guilt has been established.

B. There are no objective indicia that society has determined that it is inhumane to execute an inmate who cannot recall his crime. Despite several recent highly-publicized amnesia claims by death row inmates, no state has enacted legislation to preclude the execution of an inmate who cannot recall committing a crime. Standards promulgated by professional associations likewise suggest that an inmate's recollection is irrelevant to his competency to be executed.

C. Lastly, the State has two penological interests in punishing a murderer who cannot remember committing a crime: retribution and deterrence.

Retribution is concerned with whether a person is culpable for an offense that warrants punishment. The Court has recognized that the murder of a police officer is a grievous offense that warrants the harshest punishment. And, unlike the young or intellectually disabled, Madison is fully culpable for murdering Officer Schulte. Madison's mental condition does not preclude him from understanding that he is being punished for murdering a police officer or that such a murder is a grave moral wrong.

Deterrence also justifies the execution of an inmate, regardless whether he can recall his crime. Madison's execution will serve as an example to others that the intentional murder of a police officer will be punished. And an inmate suffering from amnesia is no less subject to deterrence than an inmate who remembers the crime that put him in prrson.

III. Madison's proposed rule would increase the potential for false claims and manipulation.

First, Madison's argument would preclude the execution of any inmate with dementia, giving that diagnosis an unwarranted importance. The diagnosis of cognitive disorders is not straightforward, and the difference between a minor disorder and a major disorder is essentially arbitrary.

Second, Madison's rule would allow many more inmates to assert incompetence claims. Many medical conditions can arguably result in the loss of memory. And few convicted capital murderers are willing to concede the facts of their crime or their moral responsibility for it.

Third, a prisoner's assertion that he cannot remember his crime is not objectively verifiable. Although there are ways to test cognitive decline and memory loss, the only person who can know for sure whether an inmate remembers his crime is the inmate himself.

The Eighth Amendment forbids the execution of a murderer who has lost his sanity, not his memory. This Court should affirm.

CONCLUSION

The Court should hold the line it established in Ford, Panetti, and its 2017 decision in this case. Sanity and recollection are two distinct concepts. Although the Constitution bars the execution of an inmate who has lost his sanity, it does not bar the execution of an inmate who has lost his memory. The Court should affirm.