IN THE COURT OF CRIMINAL APPEALS OF TEXAS IN AUSTIN, TEXAS

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EX PARTE EMILE PIERRE DUHAMEL,               )
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                                                            APPLICANT    )
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SUBSEQUENT APPLICATION FOR WRIT OF HABEAS CORPUS AND MOTION FOR APPOINTMENT AND COMPENSATION OF COUNSEL

THIS IS A DEATH PENALTY CASE.

Gregory W. Wiercioch

Texas Bar No. 00791925

TEXAS DEFENDER SERVICE

412 Main Street, Suite 1150

Houston, Texas 77002

Counsel for Emile Duhamel

IN THE

COURT OF CRIMINAL APPEALS OF TEXAS

IN AUSTIN, TEXAS

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EX PARTE EMILE PIERRE DUHAMEL, )

) CAUSE NO.

APPLICANT )

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SUBSEQUENT APPLICATION FOR WRIT OF HABEAS CORPUS AND

MOTION FOR APPOINTMENT AND COMPENSATION OF COUNSEL

Applicant EMILE PIERRE DUHAMEL is presently incompetent to be executed under Ford v. Wainwright, 479 U.S. 399 (1986). Nearly a decade has passed since the state courts first heard evidence regarding his mental competence. A substantial amount of new evidence has arisen since 1988 that provides compelling documentation of Mr. Duhamel’s progressive mental deterioration. However, no court has ever examined this new evidence, because this factual basis for the Ford claim was, of course, "not ascertainable through the exercise of reasonable diligence" at the time Mr. Duhamel’s initial application for writ of habeas corpus was filed. See Tex. Code Crim. Proc. art. 11.071 § 5(e). The Attorney General of Texas, the Cameron County District Attorney, and a federal district court judge all agree that Article 11.071 authorizes this Court to consider the new evidence. Accordingly, undersigned counsel asks this Court to find that this subsequent application satisfies the requirements of Section 5 of Article 11.071 and to appoint and compensate counsel pursuant to Section 2(h) of Article 11.071.

Because of the inherent tension between the subsequent application provisions and the appointment of counsel provisions found in Article 11.071, undersigned counsel seeks leave to amend this application after being given a full and fair opportunity to develop the facts of the competency claim. Although Part II of this pleading sets out in detail new facts in support of Mr. Duhamel’s Ford claim, this Court should keep in mind that this evidence is necessarily incomplete for several reasons. First, both the state and federal courts have refused to approve funds statutorily-mandated to enable indigent death row inmates to retain experts to assist them. Nearly two years ago, this Court, by a bare majority, held that Mr. Duhamel was not entitled to the prepayment of funds to hire mental health experts, because undersigned counsel had not been appointed by the Court to represent Mr. Duhamel on his initial state habeas application. Ex parte Duhamel, Writ No. 17,001-05 (Tex. Crim. App. Nov. 6, 1995) (unpublished). Financial restraints have prevented undersigned counsel from retaining mental health experts to conduct a thorough evaluation of Mr. Duhamel. Second, the state and federal courts have refused to authorize discovery. Without court-ordered depositions, interrogatories, or subpoenas, undersigned counsel has been unable to speak with Texas Department of Criminal Justice ("TDCJ") medical professionals, correctional officers, or fellow death row inmates familiar with Mr. Duhamel’s mental status and behavior. Finally, because Mr. Duhamel has steadfastly refused to meet undersigned counsel in the prison visiting area, and because TDCJ has refused to allow undersigned counsel to visit Mr. Duhamel cell-side without a court order, counsel has not spoken with Mr. Duhamel since January 4, 1996. Consequently, undersigned counsel has been unable to secure a current release from him to obtain his most recent TDCJ medical and psychiatric records. In sum, without the immediate appointment and compensation of counsel, and the cooperation of the courts in authorizing discovery, cell-side visitation, and the payment of funds for expert assistance, Mr. Duhamel will be unable to prepare an amended subsequent application containing the facts necessary for this Court to make a reliable determination of his competency to be executed.

I. PROCEDURAL HISTORY Section 5 of Article 11.071 states authorizes this Court to consider the merits of a subsequent application for writ of habeas corpus, if the claims in it could not have presented in an initial application, "because the factual or legal basis for the claim was unavailable." Tex. Code Crim. Proc. art. 11.071 § 5(a)(1). Section 5 explains that a factual basis of a claim is unavailable at the time the initial application was filed, "if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date." Tex. Code Crim. Proc. art. 11.071 § 5(e). Although the procedural history of Mr. Duhamel’s case is lengthy and convoluted, it clearly demonstrates that a federal district court judge, the Attorney General of Texas, and the Cameron County District Attorney, believe that Mr. Duhamel’s competency claim encompasses facts that were previously unavailable through the exercise of reasonable diligence and that the subsequent application provisions of Article 11.071 provide a viable means of presenting the claim in state court.

In 1987, former habeas counsel filed an application for post-conviction relief in the state trial court, raising numerous constitutional grounds challenging Mr. Duhamel’s conviction and sentence, including a claim that he was not competent to be executed. After the trial court held a competency hearing on November 14, 1988, it concluded that Mr. Duhamel was competent to be executed. This Court adopted the trial court’s recommendations denying relief. Ex parte Duhamel, No. 17,001-02 (Tex. Crim. App. Jan. 6, 1989).

Having exhausted state post-conviction remedies, former counsel for Mr. Duhamel filed a petition for writ of habeas corpus in federal court. The federal district court originally granted relief on a claim of ineffective assistance of counsel at sentencing. However, the United States Court of Appeals for the Fifth Circuit reversed and vacated the federal district court’s decision and remanded the case for consideration of Mr. Duhamel’s other claims. Duhamel v. Collins, 953 F.2d 962 (5th Cir. 1992). On remand, the federal district court denied relief on the remaining grounds, and the Fifth Circuit affirmed the decision. The United States Supreme Court denied Mr. Duhamel’s petition for writ of certiorari. Duhamel v. Scott, 115 S.Ct. 1114 (1995). On August 29, 1995, the trial court scheduled Mr. Duhamel’s execution for October 11, 1995.

With the passage of Article 11.071 on September 1, 1995, death row inmates were no longer permitted -- except under limited circumstances -- to file more than one application for habeas relief. Because a competency claim had previously been raised in state court, undersigned counsel concluded that there was no "available State corrective process" to review Mr. Duhamel’s current Ford claim and, therefore, proceeded directly to federal court. See 28 U.S.C. § 2254(b). In support of the claim, undersigned counsel included evaluations of Mr. Duhamel that Dr. Allen Childs, a psychiatrist, had conducted in 1993 and 1995. In addition, counsel provided a thorough review of Mr. Duhamel’s TDCJ medical and psychiatric records from the time he entered death row in 1985 through October 1993.

In response to the habeas petition, the Attorney General of Texas asserted that Mr. Duhamel had not exhausted available state remedies. Specifically, the Attorney General argued that:

Duhamel has not presented his Ford claim, as it is now presented in light of additional newly acquired evidence, to the Texas Court of Criminal Appeals either by direct appeal or by means of a state writ application. Duhamel alleges that he is not required to exhaust his state remedies because, pursuant to abuse-of-the-writ provisions in the newly amended state habeas statute, he would not be entitled to raise his Ford claim a second time in a subsequent writ application in state court. However, Duhamel fails to recognize that, under the new provisions, a state court may consider claims raised in a subsequent application if the factual or legal basis of the claim was previously unavailable. See Tex. Code Crim. Proc. Ann. art. 11.071 § 5(a)(1). Because a Ford claim necessarily involves a contemporaneous determination of competency, because seven years have passed since the state courts last considered Duhamel’s Ford claim, and because Duhamel now seeks to present newly acquired evidence in support of his Ford claim, the successive writ provisions of the newly amended statute would not bar reconsideration of his Ford claim in the state courts.

Respondent Scott’s Motion to Dismiss for Failure to Exhaust State Remedies at 6 (emphasis added). The federal district court agreed with the Attorney General and dismissed Mr. Duhamel’s petition without prejudice for failing to exhaust state remedies. Duhamel v. Scott, No B-95-158 (S.D. Tex. Sept. 28, 1995). The court held that: In light of the fact that apparently seven years have passed since the state courts last considered evidence pertaining to Petitioner’s incompetency claim, and it is alleged that there is new evidence with regard to the issue, this Court agrees with the state that the matter should be revisited by the state for a more current adjudication of the issue.

Id. (citation omitted) (emphasis added).

The day after the federal district court dismissed Mr. Duhamel’s petition, the Cameron County District Attorney filed a motion to vacate the October 11, 1995, execution date. State’s Motion to Stay or Vacate Order of Execution (filed Sept. 29, 1995). As an exhibit to the motion, the District Attorney attached a copy of Mr. Duhamel’s federal petition for writ of habeas corpus. Id. at 1. The District Attorney stated that the evidence contained in the federal petition "shows that Duhamel is presently incompetent to be executed, and that said status, based on his deteriorating condition, is unlikely to change between the last time he had been examined and the date set for his execution." Id. (emphasis added). Because of this new evidence, the District Attorney recommended that the trial court appoint "a psychiatrist who shall conduct such examination(s) of the inmate...as is necessary for the purpose of apprising the Court as to the inmate’s present and future competency and such other information on the inmate’s mental condition as directed by the Court." Id. at 2.

On October 4, 1995, the trial court granted the District Attorney’s motion to vacate the execution date and appointed a psychiatrist to evaluate Mr. Duhamel. State v. Duhamel, No. 84-CR-563-C, Order Vacating Execution Date (197th Dist. Ct. Oct. 4, 1995). The trial court appointed Dr. Robert Collier to examine Mr. Duhamel. Id. The court also ordered TDCJ to return Mr. Duhamel to the Cameron County Jail "so long as is necessary for the psychiatric evaluation of him by Dr. Robert Collier and pending further order of the Court." Id. at 2. Finally, the court indicated that it would hold a hearing after the completion of the psychiatric examination. Id.

On October 6, 1995, the trial court sent counsel a letter requesting proposed instructions regarding the standards that Dr. Collier should apply in determining Mr. Duhamel’s competency to be executed. In his response to the request for proposed instructions, undersigned counsel set out his objections to the manner in which the trial court was proceeding with the competency determination. Specifically, counsel for Mr. Duhamel sought compensation, along with funds to retain a mental health expert. The trial court failed to address these complaints. The court’s failure to address these problems and its decision to resolve the merits of the competency issue -- despite the absence of an application for writ of habeas corpus pending before the court -- compelled undersigned counsel to notify this Court of these concerns. On October 30, 1995, counsel filed an ex parte motion for prepayment of expenses to retain mental health experts.

On November 6, 1995, this Court held in a five-to-four decision that Article 11.071 does not mandate the appointment of counsel if the applicant has previously been denied relief in a prior habeas corpus proceeding under Article 11.07. Ex parte Duhamel, Writ No. 17,001-05 (Tex. Crim. App. Nov. 6, 1995) (unpublished). This Court also concluded that Article 11.071 does not provide authority for it to grant a request for prepayment of expenses "filed by counsel other than counsel appointed by this Court to litigate an initial application for writ of habeas corpus." Id. Because Mr. Duhamel had sought habeas relief under Article 11.07 on two previous occasions, this Court found that he was not entitled to appointed counsel or prepayment of expert expenses. Id. at 1-2. This Court did not address the remaining jurisdictional and procedural issues that undersigned counsel had raised.

On the same day this Court issued its decision, undersigned counsel received Dr. Collier’s report concluding that Mr. Duhamel was competent to be executed. The following day, the trial court scheduled a competency hearing for November 20, 1995. On November 14, 1995, undersigned counsel submitted a motion for leave to file an original application for writ of prohibition, asking this Court to prevent the trial court from holding a competency hearing which did not comply with the federal due process protections announced in Ford v. Wainwright. On November 17, 1995, this Court denied the motion.

On November 20, 1995, the trial court held a fourteen-minute competency hearing. Mr. Duhamel was unrepresented by counsel at the hearing. He was without the assistance of mental health experts to perform a psychiatric evaluation, conduct psychological testing, or lend their specialized knowledge and experience in attacking Dr. Collier’s conclusions. Mr. Duhamel did not cross examine Dr. Collier. Mr. Duhamel did not testify on his own behalf. The trial court heard only the brief testimony of Dr. Collier, in which he stated that he stood by the conclusions of his three-page written report, admitted as the sole exhibit at the hearing. The court found Mr. Duhamel competent and set his execution date for December 27, 1995, which it later amended to January 24, 1996.

Back in federal court again, undersigned counsel immediately applied for funds to retain mental health experts and sought leave to conduct discovery. The court denied these motions. However, because Mr. Duhamel had regularly refused legal visits, counsel was able to obtain an order allowing him to visit Mr. Duhamel in front of his cell. Duhamel v. Johnson, No. B-95-192 (S.D. Tex. Dec. 28, 1995). On January 4, 1996, undersigned counsel conducted a tape recorded interview of Mr. Duhamel through the bars of his prison cell. Counsel had the tape recording transcribed. Counsel also obtained a release from Mr. Duhamel for his TDCJ medical and psychiatric records after October 1993. The tape recorded interview, the transcript, and the additional records formed the centerpiece of Mr. Duhamel’s federal habeas corpus petition and motion for stay of execution, filed on January 16, 1996.

On January 18, 1996, the Attorney General of Texas stated that "having reviewed the audiotape and transcript of opposing counsel’s cell-side interview with Duhamel, the Director is of the opinion that new facts have arisen calling into question the state court’s finding of competence." Respondent Johnson’s Non-Opposition to Petitioner’s Motions for Stay of Execution and Evidentiary Hearing at 7 (emphasis added). The Attorney General agreed that a stay of execution and an evidentiary hearing were needed to evaluate Mr. Duhamel’s current mental status. Id. On January 19, 1996, the federal district court stayed Mr. Duhamel’s execution and scheduled a competency hearing for February 16, 1996. Duhamel v. Scott, No. B-95-192 (S.D. Tex. Jan. 19, 1996). However, a few days later, the court issued another order "Deferring to State Court Jurisdiction." Duhamel v. Scott, No. B-95-192 (S.D. Tex. Jan. 22, 1996). The court stated that, because Mr. Duhamel was not represented by counsel at the state court competency hearing, and because "there is additional evidence available that pertains to the issue, a fact to which the State concurs, it is the opinion of this Court that the issue of Petitioner’s competency to be executed...should again be deferred to the State Court." Id. (emphasis added). The court then held that, "[i]f the state court exercises jurisdiction accordingly, the Stay of Execution heretofore issued by this Court will no longer be in effect." Id. at 1-2.

In March 1996, the Attorney General filed a motion asking the court to vacate its orders deferring to state court jurisdiction and staying the execution, and dismiss the habeas petition without prejudice for failure to exhaust state remedies. Respondent Johnson’s Rule 60(b) Motion for Relief from Order and Motion to Dismiss for Failure to Exhaust State Remedies (filed Mar. 8, 1996). In the motion, the Attorney General noted that the federal district court had specifically conditioned the lifting of the stay of execution on the presumption that "the state courts [would] conduct a competency hearing at which Duhamel is represented by counsel and is given the opportunity to present all facts relevant to his claim." Id. at 4 (emphasis added). On March 15, 1996, the federal district court granted the Attorney General’s request and dismissed Mr. Duhamel’s petition without prejudice. Duhamel v. Johnson, No. B-95-192 (S.D. Tex. Mar. 15, 1996).

On October 30, 1996, the Cameron County District Attorney submitted an unopposed motion asking the trial court, among other things, to schedule a deadline for the filing of a subsequent application for writ of habeas corpus. On July 15, 1997, after the passage of nearly nine months without any action by the trial court, the District Attorney filed a motion asking the court to set an execution date. Motion for Setting. Upon conferring with the District Attorney, undersigned counsel stated that he would submit a subsequent application and motion for appointment and compensation of counsel by September 1, 1997. See Jul. 17, 1997, Letter from Gregory W. Wiercioch to Hon. Darrell B. Hester. The District Attorney agreed to ask the trial court to refrain from setting an execution date while this Court considers whether Mr. Duhamel is entitled to raise his competency claim in a subsequent application. See Jul. 23, 1997, Letter from Cameron County District Attorney to Hon. Darrell B. Hester.

II. THE PREVIOUSLY UNAVAILABLE FACTS The evidence set out in this section has never been presented to the state courts. Nearly a decade has passed since the state courts held a hearing on Mr. Duhamel’s competency to be executed. Because Mr. Duhamel’s mental condition has steadily deteriorated since the 1988 competency proceeding, the compelling facts presented here were, by definition, previously unavailable through the exercise of reasonable diligence. Consequently, this new evidence should allow this Court to consider the merits of Mr. Duhamel’s subsequent application under Section 5 of Article 11.071. A. The January 4, 1996, Cell-Side Interview On January 4, 1996, undersigned counsel conducted a lengthy interview with Mr. Duhamel through the bars of his prison cell. In the tape recorded interview, Mr. Duhamel says that he believes he has already been wrongfully executed for the crime of capital murder. Appendix 5 at 7, 9, 11, 22, 48, 58. He vehemently denies that he has an execution date on January 24, 1996. Id. at 1-2. He believes that he is on death row for a "blackmailed" charge of burglary. Id. at 3-4, 5, 19, 58. He thinks that the 1995 competency hearing in Cameron County was actually a proceeding to extradite him to Huntsville for a new jury trial to prove his innocence of the blackmailed burglary charges. Id. at 3, 18-20, 39, 43, 44. He thinks that everyone is entitled to three jury trials. Id. at 30-31. Mr. Duhamel thinks that Dr. Collier concluded that he was not guilty of murder. Id. at 16, 40-41. Nevertheless, Mr. Duhamel is unconcerned, even if the State does decide to execute him, because he believes "everybody’s got five life terms." Id. at 11. He maintains that, having already been executed for the capital murder, he will still have three lifetimes remaining if the State executes him for the burglary. Id. at 12-13, 48-49. If he is executed, he believes that he will come back to life after the "universe touches" him. Id. at 12, 23-24. Each time he is executed, his body changes form from male to female. Id. at 13-14, 18. Mr. Duhamel has refused legal visits, because he believes that he has an attorney in Massachusetts working on his case. Id. at 1-4, 6, 28-29, 37-38. He believes that the State put a machine in his body when they arrested him, to "keep an eye" on him. Id. at 9-10, 12.

The tape recorded interview provides a striking portrait of Mr. Duhamel’s cognitive functioning, remarkably consistent with the testimony of Dr. James Hays at the 1988 competency hearing. See S.F. (1988 competency hearing). Dr. Hays testified that Mr. Duhamel is mentally retarded, has a full-scale I.Q. of 56, has long-term, permanent organic brain impairment, and is functionally illiterate. S.F. (1988 competency hearing) at 41-50. The January 4, 1996, interview confirms that Mr. Duhamel has an extremely limited ability to comprehend and retain new information. He consistently failed to recall the date of his execution or the names of undersigned counsel, even though counsel gave him this information several times throughout the interview. Appendix 5 at 18, 23, 35, 69. He did not know his own age. Id. at 26. He did not know who the President of the United States was. Id. at 56-57. Mr. Duhamel was unable to read any but the simplest words of the last sentence of the federal district court’s order permitting counsel to visit him at his cell. Id. at 64-66.

Delusions invade other facets of Mr. Duhamel’s life, besides those infecting his ability to comprehend his current legal predicament. For example, Mr. Duhamel stated that he has won millions of dollars gambling on slot machines. Id. at 36-37, 49, 54-55. He also believed that he is adopted and that his adopted family strangled him three times. Id. at 5-6, 13, 64. Finally, he thought that he has an evil twin in Florida who tried to frame him for murder. Id. at 61-63.

B. The Evaluations and Observations of Allen Childs, M.D. 1. September 13, 1995, Competency Evaluation On September 13, 1995, Dr. Allen Childs conducted an evaluation of Mr. Duhamel’s competency to be executed. See Appendix 13. According to Dr. Childs’s report, Mr. Duhamel vehemently denied that he was going to be executed after Dr. Childs informed him of his execution date scheduled, at that time, less than a month away. Id. at 1. Mr. Duhamel vigorously asserted that the United States Government and the "Housing County" were releasing him. Id. He also stated that he was a police officer and would have Dr. Childs arrested if he continued to bother him. Id.

Dr. Childs’s review of the TDCJ medical and psychiatric records since 1993, as well as his conversation with Steve Guilliland, one of Mr. Duhamel’s treating therapists, provides another example of Mr. Duhamel’s delusional behavior:

Mr. Duhamel believes that all lawyers involved with the case are in a conspiracy with someone named Randy Duhamel whom Emile believes is an adopted family member. He, therefore, will not cooperate with [his] attorneys...because of his conspiratorial delusions.

Id. at 1-2. Dr. Childs determined that Mr. Duhamel’s "obvious psychotic condition is quite serious and leaves him completely out of touch with reality." Id. at 2. Furthermore, Dr. Childs noted that Mr. Duhamel’s delusions were resistant to treatment with antipsychotic medication: I should stress that these delusions which render Emile incapable of accepting or recognizing that he is to be executed for a murder he committed, are quite persistent in spite of adequate doses of antipsychotic medication. Although he is cleaner and more compliant with daily routines, the antipsychotic medicine has not touched the delusions outlined in my previous letter [see Appendix 14, infra] as well as the above psychotic beliefs.

Id.

Dr. Childs concluded his report by stating that:

[Mr. Duhamel] is incapable of understanding that his execution is drawing near....He is too psychotic to cooperate with attorneys defending him and he cannot recognize that the impending execution is for a murder he committed.

Id. 2. December 28, 1993, Competency Evaluation Dr. Childs stated in his 1995 report that his conclusions were consistent with the findings he had reached after his December 1993 competency evaluation of Mr. Duhamel. Cf. Appendix 14 (Dec. 28, 1993, Competency Evaluation by Allen Childs, M.D.). In his earlier evaluation, Dr. Childs described the belligerent and inappropriate reactions of Mr. Duhamel toward him. Like the more recent evaluation, Mr. Duhamel said he was a police officer and threatened to arrest Dr. Childs. Id. at 1. Mr. Duhamel referred to himself in the third person and accused Dr. Childs of interfering with his life. Id. at 1, 2. Many of Mr. Duhamel’s comments to Dr. Childs were extremely aggressive and offensive. Id. Mr. Duhamel’s delusions included confabulating his lawyer’s name and claiming to have fired all of his attorneys. Id. at 2. Dr. Childs’s review of Mr. Duhamel’s TDCJ medical and psychiatric records revealed that Mr. Duhamel has been consistently delusional about the lawyers who have handled his case. For example, he accused Dr. Childs of having an affair with his attorney.

Mr. Duhamel continued to misinterpret Dr. Childs’s motivation in evaluating him and to respond inappropriately and aggressively to Dr. Childs’s inquiries. Mr. Duhamel’s responses to Dr. Childs’s questions about his place and date of birth were wholly confabulated. He thought that he had been on death row for twenty years. He could not tell Dr. Childs what day of the month it was. Id. at 3. Consistent with his review of the medical records, Dr. Childs stated that Mr. Duhamel has never been oriented to time.

Like the more recent evaluation, Mr. Duhamel refused to believe that he was scheduled to be executed. He protested, "I’m getting released by the county housing, the United States of America." Id. He accused Dr. Childs of threatening him and refused to accompany him to the medical dispensary for a psychiatric interview in a clinical setting. Dr. Childs stated in his December 1993 report that "there is no area of Emile’s life which is not suffused with delusional thinking." Id.

In his review of the extensive medical files, Dr. Childs found that TDCJ treating psychiatrists and psychologists have consistently diagnosed Mr. Duhamel as psychotic, suffering from paranoid schizophrenia. Id. at 4. Furthermore, the records indicated that Mr. Duhamel may also have organic brain disease and has been diagnosed as suffering from dementia as well. Evidence of impairment in the functioning of Mr. Duhamel’s brain included written comments from associate clinical psychologist and professional counselor Louise Allen, M. Ed., along with an abnormal EEG reading that was administered ten days after Mr. Duhamel suffered an epileptic seizure in December 1991. Dr. Childs believed that Mr. Duhamel’s excessive use of alcohol accounted for his dementia. Dr. Childs also reported that the records documented Mr. Duhamel’s memory disturbance and inability to orient himself to date and time. Dr. Childs stated that Mr. Duhamel confabulates answers to questions about time frames and doubted whether Mr. Duhamel knew how long he had been on death row.

Dr. Childs concluded that:

Emile Duhamel is an actively psychotic individual with underlying brain disease complicating the diagnostic picture. He has no rational understanding that he is going to be put to death because he committed a murder. Neither, for that matter, does he appear to have a rational understanding of anything else surrounding his incarceration, defense attorneys, his culpability, or the impending execution. It is my understanding that according to the Ford decision, an individual must have a rational understanding of the fact that he is being put to death for a crime he committed. In no way is Emile Duhamel capable of such an understanding. Also, he is incapable of cooperating meaningfully with an attorney in his defense, or even remembering who the attorney is. His psychosis is so pervasive that he remains wholly incompetent in spite of compliance with antipsychotic medication regimens. In this way he is very much like the many patients I have seen at the maximum security state hospital at Vernon, Texas. A major difference between him and some of these other psychotic murderers is the fact that he is also demented.

Id. C. TDCJ Medical and Psychiatric Records from 1988-95 Voluminous medical and psychiatric records from TDCJ since the 1988 competency hearing provide an additional and invaluable source of evidence that was previously unavailable through the exercise of reasonable diligence. Since Mr. Duhamel entered death row at the Ellis Unit of TDCJ in 1985, his treating psychiatrists, psychologists, and other mental health professionals have carefully documented his severe mental illness and delusional thinking. The information contained in the extensive medical files demonstrates that Mr. Duhamel has been suffering from a severe mental illness for years, that his condition has steadily deteriorated, that he has been continually plagued by a variety of auditory and visual hallucinations, and that he cannot appreciate the fact of his impending execution and the reasons for it.

Upon returning from Cameron County, Texas, after the trial court held a hearing in November 1988 to determine whether Mr. Duhamel was competent to be executed, he told his primary therapist, Louise Allen, M.Ed., that the purpose of the hearing was to decide if he was entitled to a new trial. He could not remember anything else about the hearing and insisted that he had never had a jury trial. Two months later, Ms. Allen received a call from Mr. Duhamel’s attorney informing her that the Texas Court of Criminal Appeals had determined that Mr. Duhamel was competent to be executed. She told Mr. Duhamel about her conversation with his attorney. Mr. Duhamel replied that his attorney should "give them a lie detector test." Ms. Allen concluded that Mr. Duhamel had no comprehension of the legal proceedings in his case.

In February 1989, a psychiatric interview of Mr. Duhamel was conducted, "because his mental condition has deteriorated over the past two weeks in the sense that he frequently makes animal like noise particularly at night." The report stated that Mr. Duhamel appeared

overtly psychotic to the point of a silly laugh and open admission of hearing scary noises and voices. As a matter of fact, he stated that he hears "a woman’s voice" a woman that says "she saw what happened" and it scares him. Whenever he hears "the little voice" he asks who is talking to me? And then he checks it out but nobody is in his cell....The ongoing mental decompensation indicates an active schizophrenic disorder for which the low dose of Navane is not good enough.

By the middle of March 1989, Mr. Duhamel had ceased making the animal noises, but continued to report the occurrence of frequent auditory and visual hallucinations. For example, he stated that he heard his mother calling his name and saw little robots coming through his cell wall and sitting on his bed. A few months later he reported auditory hallucinations at night of a woman saying, "Hello, Emile, how are you?" Visual hallucinations grew more frequent in September 1989. Mr. Duhamel said that as many as twelve little people would come through the door of his cell. They upset him because he could not make them go away. In addition, he heard a voice asking, "Do you need it now?"

In October 1989, the auditory and visual hallucinations continued. Mr. Duhamel reported seeing Elvis Presley, as well as the "little people." He also heard voices saying, "hello" and planning to sell a 1957 Chevrolet automobile. In January 1990, he began hearing voices outside his cell, which kept him awake at night with their talk about his trial, the evidence, and the judge. He also said that a young woman would come into his cell and talk about his trial. Ms. Allen feared that Mr. Duhamel was again beginning to decompensate. The hallucinations continued into April 1990.

By June 1990, Mr. Duhamel’s hallucinations and delusional thinking had grown more severe. He said that "Mother Nature told him the President is going to release him." Ms. Allen reported that Mr. Duhamel claimed he was Jesus Christ, and that he could make a baby and change the world. He believed that everybody who had kept him in prison would get sent to Hell.

The visits from "Mother Nature" continued. By August 1990, he told treating professionals about "Mother Nature saving all the animals and people from ice bombs." He also claimed that people from another universe kept him awake all night talking to him about his case and telling him that he is innocent. He later claimed to have ESP, which enabled him to learn that a witness did not want to testify against him.

In March 1991, Mr. Duhamel could not recall the country the United States had recently defeated in the Persian Gulf War. He did not know the name of the President. He did not know what year it was.

In August 1991, the medical records indicated that Mr. Duhamel believed that a "woman he grew up with ha[d] sent him 475 dollars and that Western Union spoke with him on the telephone about three weeks ago." He also reported hearing people talk at night about his appeal. The voices were optimistic about his case, saying that "everyone must take a lie detector test and this will prove him innocent." His delusional thinking continued.

In September 1991, he said that he once worked in Massachusetts as a police officer. However, the government and the President were keeping this information secret. Auditory and visual hallucinations still troubled him.

On December 27, 1991, Mr. Duhamel had an epileptic seizure. Shortly after the seizure, he became more hostile toward the prison staff and his delusional thinking steadily worsened. He threatened to call his attorney when the staff ordered him to get a haircut. He then named a person who was not his attorney. Ms. Allen noted that, even when Mr. Duhamel complied with his medication regimen, his auditory and visual hallucinations continued, his delusional thinking remained frequent, and he continued to exhibit psychotic symptoms.

In May and June 1992, Mr. Duhamel reported that the robots still came to his cell to visit. He believed that he was adopted and that his family was trying to take his money. He insisted that he was "not Duhamel, but a police officer." He contended that his identification card did not resemble him, because "Duhamel is dead." He claimed that the inmate in the neighboring cell had a machine that controlled him. He said that a machine connected to his body would broadcast news to him from the State of Texas and the police department about his sentence being overturned. A few months later, he claimed that his attorney had placed a machine in his body and that he heard himself being talked about on the television.

By 1993, Ms. Allen wrote that Mr. Duhamel had demonstrated little change in his behavior from a year earlier. He still could not orient himself to the day, date, or year, and he still received visits from the robots. Furthermore, his delusional behavior had become more bizarre. For instance, Mr. Duhamel believed he had a seed in his mouth, which grew into little animals and robots that would fall out whenever he opened his mouth. He also stated that "the seeds of the universe were falling down and landing on him." He continued to believe that the State had implanted machines in his body.

The records from July to October 1993 reveal that Mr. Duhamel believed the United States Army was talking to him through the robots. He was visited by his attorneys, but he could not remember their names. He claimed that they had told him that the State of California had placed him with a different family than his biological one, because his mother had committed a murder.

The more recent medical records, covering the period from October 1993 through December 1995, indicate that Mr. Duhamel continued "to have a delusional belief that he is not at risk for execution." Appendix 16 (Synopsis of TDCJ Medical and Psychiatric Records of Emile Duhamel, October 11, 1993 through December 21, 1995) at 8. The records also indicate that he still suffered from delusions and auditory and visual hallucinations despite adequate doses of psychotic medications. See, e.g., id. at 7 (noting that "he continues to seem quite delusional"); id. at 6 (stating that Mr. Duhamel "hears voices and has visions of machines and robots"); id. (noting that he believes "robot machines are manipulating him and his family"); id. at 1 (noting that he "hears the army, navy, and air force talking about him"). Furthermore, the records indicate that TDCJ mental health specialists consistently diagnosed him as having chronic paranoid schizophrenia and alcohol-related dementia. Id. at 3, 5, 6. Finally, the records show that Mr. Duhamel repeatedly refused to cooperate with his attorneys. Id. at 6 (noting that "Patient still believes family and attorneys are out to get him"); id. (noting that "he still refuses to cooperate with attorneys....He will not even let them get voluntary consent for obtaining his records"); id. at 4 (stating that Mr. Duhamel is "[s]till very resistant to suggestions of help from attorneys," because "he gets help from U.S. government"); id. (noting that he is "not willing to work with attorneys on case -- definitely self-defeating behavior and most likely delusional"); id. at 3 (noting that Mr. Duhamel thinks that his lawyers are working for his adopted family).

D. The Conclusions of Jorge A. Cardenas, M.D. While in private practice in Brownsville, Texas, in 1984 and 1985, Jorge A. Cardenas, a psychiatrist, evaluated Mr. Duhamel’s competency to stand trial. In 1988, while working for the Diagnostic Unit of TDCJ in Huntsville, Texas, Dr. Cardenas examined Mr. Duhamel several times. On March 3, 1995, Dr. Cardenas met with Mr. Duhamel’s former habeas counsel. He agreed to review the extensive TDCJ medical and psychiatric records from 1985 to October 1993, the 1993 Competency Evaluation by Dr. Childs, and a number of other documents related to Mr. Duhamel’s mental status. See Appendix 17 (Affidavit of Jean Terranova with Attachment). Although TDCJ legal counsel advised Dr. Cardenas not to sign the affidavit that former counsel had prepared after her interview with him, Dr. Cardenas did not dispute the accuracy of the affidavit. Id. at 2-3. Based on his review of the documents, Dr. Cardenas concluded that "Mr. Duhamel is a severely mentally ill individual whose paranoid delusions have replaced reality-based thought processes. Even with chemotherapy, Mr. Duhamel is incapable of rationally understanding why he is on death row, and the significance of his sentence." Id. (Attachment at 1).

Dr. Cardenas also specifically addressed Dr. Collier’s conclusions:

In 1988, Dr. Collier concluded that Mr. Duhamel suffers from depression with psychotic features, and observed that treatment with haldol was sometimes appropriate to alleviate the psychosis. The duration of Mr. Duhamel’s paranoid delusions, coupled with the fact that medication has failed to restore Mr. Duhamel’s rational thought processes, leads me to conclude that Mr. Duhamel experiences Paranoid Schizophrenia, as opposed to depression with psychotic features. **** Since 1988, the records indicate that Mr. Duhamel has continued to deteriorate. I have reviewed a report of Dr. Allen Childs dated December 29, 1993. I agree with both the diagnosis and prognosis of Dr. Childs. The incoherent manner in which Mr. Duhamel addressed Dr. Childs during the clinical evaluation is strikingly similar to the manner in which he addressed me in 1985 and in 1988. Just as Mr. Duhamel lacked any understanding of the reason he was in jail when I saw him in 1985, he now lacks any understanding of the reason he is on death row. **** I am of the opinion that he is incompetent to be executed, incapable of consulting with counsel with a reasonable degree of rational understanding, and unable to manage his own legal affairs. I am also of the opinion that Mr. Duhamel will not regain competence for any of these purposes, despite treatment with antipsychotic medication.

Id. (Attachment at 3-4).

III. THE RELEVANT LEGAL PRINCIPLES In Ford v. Wainwright, 477 U.S. 399 (1986), the United States Supreme Court held that "[t]he Eighth Amendment prohibits the State from inflicting the penalty of death upon a prisoner who is insane." Id. at 410. In a concurring opinion, Justice Powell concluded that the State may not constitutionally execute those who, because of a mental illness, do not rationally understand "the fact of their impending execution and the reason for it." Id. at 422 (Powell, J., concurring). Ford recognizes the extreme "inhumanity and cruelty" of executing a man "who has no comprehension of why he has been singled out and stripped of his fundamental right to life" and "has no capacity to come to grips with his own conscience or deity." Id. at 409. Justice Powell explained that: The more general concern of the common law -- that executions of the insane are simply cruel -- retains its vitality. It is as true today as when Coke lived that most men and women value the opportunity to prepare, mentally and spiritually, for their death. Moreover, today as at common law, one of the death penalty’s critical justifications, its retributive force, depends on the defendant’s awareness of the penalty’s existence and purpose. Thus, it remains true that executions of the insane both impose a uniquely cruel penalty and are inconsistent with one of the chief purposes of executions generally. **** If the defendant perceives the connection between his crime and his punishment, the retributive goal of the criminal law is satisfied. And only if the defendant is aware that his death is approaching can he prepare himself for his passing. Accordingly, I would hold that the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it. Id. at 422-23 (Powell, J., concurring).

Since 1988, Mr. Duhamel’s condition has progressively deteriorated. Dr. Childs concluded in 1993 that "[e]ven if one accepts some accuracy regarding Collier’s evaluation in 1988, the mental state of Mr. Duhamel is vastly different now." Appendix 14 at 5 (emphasis added). For example, the more recent TDCJ medical and psychiatric records clearly indicate that antipsychotic medications have done little to alleviate Mr. Duhamel’s severe mental illness. Furthermore, Mr. Duhamel’s 1991 epileptic seizure caused a noticeable change in his mental status and in the intensity and frequency of his delusional thinking. The 1995 and 1993 competency evaluations by Dr. Childs reveal that Mr. Duhamel’s delusions remain powerful and persistent. As Dr. Childs emphasized in 1993:

I should stress the mental status I observed on 12/28/93 is now characteristic of Mr. Duhamel in spite of quite adequate doses of antipsychotic medication. His records contain meticulously documented evidence of the chronic nature of his psychosis and brain disease. Contrary to the picture in 1988, all observers now identify the deterioration of his chronic schizophrenia as well as the dementia. It is my conclusion that he will never regain competence to participate in or understand an evidentiary hearing. Nor...does he have any rational understanding that he is going to be executed because he committed a murder.

Id.; see id. at 4 (reporting that Mr. Duhamel’s "psychosis is so pervasive that he remains wholly incompetent in spite of compliance with antipsychotic medication regimens"); Appendix 13 at 2 (reporting that "these delusions which render Emile incapable of accepting or recognizing that he is to be executed for a murder he committed, are quite persistent in spite of high doses of antipsychotic medication").

Plainly, the medical and psychiatric records from objective TDCJ mental health professionals lend solid support to the results of the evaluations that Dr. Childs performed in 1995 and 1993. The records also demonstrate that Mr. Duhamel’s primary treating professionals since 1988 have noted the progressive deterioration of his mental condition despite the use of antipsychotic medicines. Finally, undersigned counsel confirmed the well-documented delusions, hallucinations, and dementia of Mr. Duhamel during his January 4, 1996, cell-side interview.

Emile Duhamel is presently incompetent to be executed. He is a severely mentally ill individual suffering from chronic and powerful delusions, in addition to significant memory disturbance secondary to organic brain disease. These intense delusions have steadily distorted his perception of reality. Psychiatrists and psychologists familiar with Mr. Duhamel’s mental illness agree that, because of his measurably worsening psychotic condition, he is incompetent to be executed. Nearly a decade of TDCJ medical and psychiatric records meticulously document his mental illness. In short, Mr. Duhamel’s severe mental illness, exacerbated by his mental retardation, prevents him from understanding either the fact of his impending execution or the reasons for it.

PRAYER FOR RELIEF

As required by Section 5 of Article 11.071, this subsequent application contains new facts, previously unavailable through the exercise of reasonable diligence, supporting a meritorious claim that Emile Duhamel is presently incompetent to be executed. In addition, the Attorney General of Texas, the Cameron County District Attorney, and a federal district court have conceded that the subsequent application provisions of Article 11.071 provide a viable means of presenting this claim in the state courts. Accordingly, this Court should:

1. Appoint and compensate undersigned counsel to assist Mr. Duhamel in fully developing the facts of his competency claim and in preparing an amended subsequent application for habeas relief;

2. Remand this claim to the district court with instructions to conduct a full and fair competency hearing in accordance with the procedural due process protections outlined in Ford v. Wainwright;

3. Grant undersigned counsel adequate funds to retain competent mental health experts to conduct essential psychiatric and psychological testing of Mr. Duhamel, including an extensive psychiatric interview in a clinical setting, along with a complete battery of tests to determine the extent and severity of his mental retardation;

4. Order the district court to allow undersigned counsel the opportunity to conduct discovery in preparation for the competency hearing, including the right to take depositions and to subpoena witnesses and documents, including the TDCJ medical and psychiatric records from 1996 to the present, necessary to the fair presentation of Mr. Duhamel’s claim; and

5. Grant such other relief as law and justice require.

Respectfully submitted,

Gregory W. Wiercioch

TEXAS DEFENDER SERVICE

412 Main Street, Suite 1150

Houston, Texas 77002

Counsel for Emile Duhamel

CERTIFICATE OF SERVICE

I hereby certify that on the day of August 1997, I deposited in first class U.S. mail a true and correct copy of the foregoing pleading upon opposing counsel:

John A. Olson

Assistant District Attorney

Cameron County District Attorney’s Office

Cameron County Courthouse

974 E. Harrison Street

Brownsville, Texas 78520

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