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Supreme Court Skeptical of Reversal in Kansas LODD

WASHINGTON (AP) — The Supreme Court on Wednesday seemed skeptical of a Kansas court decision that overturned the conviction and death sentence of a man who admitted killing a sheriff, with one justice asking a lawyer to choose the way the court would rule against him.

This came as justices debated whether to uphold a Kansas Supreme Court decision that threw out Scott Cheever's capital murder conviction and death sentence for the fatal shooting of Greenwood County Sheriff Matt Samuels.

The Kansas court said Cheever's rights had been violated during trial by prosecutors using a court-ordered mental evaluation from a different trial against him. Cheever's mental status had not been brought up in the trial under which Cheever received his death sentence, the court said, meaning the use of a court-ordered mental evaluation and the psychologist's testimony violated Cheever's Fifth Amendment rights against self-incrimination.

Several justices seemed to disagree with the idea that it would be unconstitutional for the government to order a mental evaluation of a defendant and use that evaluation against the defendant.

"The idea that the government can force someone to undergo a mental or, excuse me, a physical evaluation and maybe extract stuff from their body as the price for putting on a defense, yeah, I think that raises some Fifth Amendment questions," said Neal Katyal, Cheever's lawyer.

"Assuming the incredulity of my colleagues continues with your argument, which way would you rather lose?" Justice Sonia Sotomayor said to Katyal.

Cheever acknowledged shooting Samuels when the officer tried to serve a warrant at a rural home where meth was made. But Cheever argued at his trial that he was high on meth and incapable of premeditation when he opened fire on Samuels and four other officers in January 2005.

The Kansas Supreme Court said Cheever's rights were violated when a psychiatrist disclosed his psychological records during the trial without Cheever's consent. The testimony was based on Cheever's court-ordered evaluations when the case was in federal court before it was remanded to state court. The state court said Cheever had to consent to material from the psychiatrist's exam being used in court because he wasn't pursuing what amounted to an insanity defense. Instead, the justices said, he was arguing that he was drug-impaired, not permanently mentally ill.

Kansas officials asked the court to reinstate Cheever's conviction and sentence. Cheever had used an expert in psychiatric pharmacy to bolster his voluntary intoxication defense. Expert witnesses testified that Cheever demonstrated the effects of long-term meth use, including suspicious behavior toward those around him.

"Once the defendant puts on his expert ... the government may respond in kind," Kansas Attorney General Derek Schmidt said.

The Obama administration is supporting Kansas in this argument. "When a defendant puts his mental state at issue through the testimony of an expert who's examined him, the state may rebut that testimony with its own expert who examined the defendant," said Justice Department lawyer Nicole A. Saharsky. "The Fifth Amendment does not allow a defendant to put on his side of the story and then deprive the prosecution of any meaningful chance to respond."

A decision is expected early next year.

The case is Kansas v. Cheever, 12-609.

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