By William Hornbeck, ACLR Featured Blogger


          It was not the sort of question Neal Katyal was hoping for from Justice Sotomayor: “Assuming the incredulity of my colleagues continues with your argument, which way would you rather lose?” While Justice Sotomayor’s question brought ripples of laughter through the courtroom, a great deal hung on the answer: the fate of death row inmate Scott Cheever (Katyal’s client) and the scope of the Fifth Amendment’s privilege against self-incrimination. If the Supreme Court does reverse the decision of the Kansas Supreme Court in Kansas v. Cheever, its reasons for doing so will either represent a minor hiccup in Fifth Amendment case law or a major obstacle to criminal defendants making arguments based on their mental state. For both procedural and substantive reasons, the Court should use the narrowest possible rationale to reverse the Kansas Supreme Court and remand the case for further proceedings.

            First, a little background. By the time the sheriff’s office showed up at his house to investigate reported drug activity, Scott Cheever had been taking steadily increasing amounts of methamphetamine as his body gained tolerance.[i] On the morning of the sheriff’s arrival, Cheever took enough methamphetamine to kill a non-user. Cheever had become paranoid, carrying a weapon with him at all times. When the sheriff showed up, Cheever hid upstairs, at the top of a concealed stairway. When the sheriff found the concealed stair and began to ascend, Cheever shot and killed him. He also shot at the deputy who attempted to retrieve the sheriff’s body, and the SWAT agents who later arrived on the scene. He was charged with capital murder[ii] of the sheriff, and attempted murder of the other agents.

            Cheever was originally charged in Kansas state court. But when the Kansas Supreme Court declared Kansas’ death penalty unconstitutional, the court dismissed the charges to allow the AUSA to file in federal court and seek the death penalty. Before the trial, Cheever gave the prosecution notice under Federal Rule of Criminal Procedure 12.2 that he intended to introduce expert testimony relating to his mental state at the time of the crime. In response, the federal court applied Rule 12.2(c)(1)(B),[iii] ordering Cheever to consult with a psychiatrist chosen by the prosecution. This psychiatrist, one Dr. Welner, met with Cheever for five and a half hours.

            After Welner interviewed Cheever but before Cheever’s case made it past voir dire, the Supreme Court of the United States restored Kansas’ death penalty.[iv] The federal court in Cheever’s case dismissed the charges against him, and the state prosecutors re-filed in state court. Under Kansas law, Cheever’s use of a “voluntary intoxication” argument (his methamphetamine use prevented him from forming the requisite mens rea) would not have entitled the government to compel him to meet with a psychiatrist. This would be true even though Cheever put on an expert witness to argue that Cheever’s methamphetamine use prevented premeditation. But because Welner had met with Cheever before the aborted federal trial, the prosecution was able to introduce Welner’s interview in their case-in-chief. Not only did Welner testify that Cheever possessed the requisite mens rea, he testified that Cheever had an antisocial personality disorder that led him to “identify with and look up to . . . bad boys or outlaws,” which led him to shoot the sheriff. The jury convicted Cheever and sentenced him to death.

            On appeal, the Kansas Supreme Court reversed Cheever’s conviction. They held that while a defendant who files a notice of intent to assert a mental disease or defect defense allows the court to order them to submit to a mental examination, a defendant like Cheever who uses mental status to undermine mens rea does not waive their Fifth Amendment privilege against self-incrimination. They held that the trial court may order the defendant to submit to a mental evaluation like Welner’s, but the prosecution cannot introduce evidence from this examination.

            In the U.S. Supreme Court briefing and at the oral argument on October 16, the conversation focused mostly on whether Cheever had waived his Fifth Amendment privilege by submitting the notice of intent to use expert testimony for a mental state argument. But Justice Alito asked the lawyer for Kansas whether Cheever had been “compelled” for Fifth Amendment purposes at all: if Rule 12.2(c)(1)(B) makes submitting to a court-ordered examination the price of making a mental state argument, then the defendant cannot be said to be “compelled” by the normal operation of the rules of criminal procedure. While Justice Kennedy showed interest in this no-compulsion argument, Justice Sotomayor seemed hostile to it and unwilling to reach any further than the argument advocated by Kansas and the Solicitor General— that allowing the state’s expert to examine the defendant was allowed under the Fifth Amendment to counter the defendant’s expert. It was in this context that Justice Sotomayor asked Katyal whether he would prefer to lose on a waiver theory or on a no-compulsion theory.

            The Supreme Court is unlikely to use a no-compulsion theory to reverse the Kansas Supreme Court, and should not do so. Kansas did not argue non-compulsion in their merits brief, and when pressed on compulsion at oral argument declined to follow Justice Alito’s invitation to argue a no-compulsion theory, instead focusing on their waiver argument. Cheever likewise did not address the compulsion argument in his brief, as it did not appear to be at issue. But not only was the no-compulsion argument not pressed by any of the parties or raised by the court below, it would also be wrong. That the Federal Rules allow a judge to order a mental evaluation of a defendant does not make statements made in that evaluation any less “compelled” under the Fifth Amendment. Where the defendant does not place his mental state at issue, he may not be “compelled to respond to a psychiatrist.”[v] It would defy both precedent and logic to suggest that a defendant who is ordered by a court to talk to a psychiatrist is not compelled to do so. The most that could be said about a defendant’s decision to put his mental state at issue is that it trumps his right to avoid compulsion, not that his unwanted conversation with the psychiatrist is not compelled.

            The Supreme Court is most likely to use some form of waiver theory to reverse the Kansas Supreme Court. If they do use a waiver theory, they should hold only that the Kansas Supreme Court improperly conflated Kansas’ rules of criminal procedure with the requirements of the Fifth Amendment, allowing Kansas to consider additional issues of state law on remand. As Justice Scalia noted, the odd procedural posture of the case made it all the more unfortunate that the Kansas Supreme Court even reached the Fifth Amendment issue. As Dr. Welner’s testimony would be inadmissible under Kansas law, the Kansas Supreme Court could have ordered a new trial on the basis that a state court cannot introduce testimony under a federal rule when doing so would violate the state’s procedural rules. A holding that Kansas wrongly interpreted the Fifth Amendment to include its own state rules would allow the Kansas Supreme Court to consider other issues on remand that were never fully briefed or argued before the United States Supreme Court, including whether Welner’s testimony about Cheever’s antisocial personality disorder exceeded the scope of any waiver. The Supreme Court seemed persuaded by the government’s policy argument that it was only fair for a prosecutor facing a defense expert to respond with their own expert. But as this expert-for-expert tradeoff is precisely what Kansas’ rules expressly forbid for voluntary intoxication, the government’s policy argument would not apply to Cheever on remand if Kansas applied their own Constitution, not the Fifth Amendment.

            The Supreme Court typically grants certiorari to decide major issues of law. But in the criminal context, the Supreme Court has occasionally tended towards error correction, responding to problems that are unlikely to recur without creating precedents that could complicate future cases that more squarely present an issue.[vi] It is very possible that Cheever could be such a case: the Supreme Court might prefer to send the case back down to Kansas to sort out the entanglement of federal and state law that resulted from Cheever’s detour into federal court, rather than crafting a broad new rule on the Fifth Amendment based on arguments that were not pressed by any of the parties. This is precisely what they should do.