# United States of America Ex Rel. Alexander Little v. John J. Twomey, Warden > Court of Appeals for the Seventh Circuit · April 19, 1973 · 477 F.2d 767 URL: https://www.frixlaw.com/law-library/cases/9459438 ## Case - **Full name:** UNITED STATES of America Ex Rel. Alexander LITTLE, Petitioner-Appellant, v. John J. TWOMEY, Warden, Respondent-Appellee - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** April 19, 1973 - **Citations:** 477 F.2d 767; 1973 U.S. App. LEXIS 10415 - **Precedential status:** Published - **Opinion:** Concurrence by Fairchild - **Judges:** Fairchild, Pell, Stevens - **Cited by:** 34 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9459438 ## How later opinions describe it (automated extraction) - holding that reasonable delay caused by defendant’s established incompetency did not violate speedy-trial right, but noting that “[a] different matter, and one not argued here, would be involved if [defendant] had been held more than the reasonable period of 24 time necessary … - finding that incarceration for a “reasonable period of time” due to incompetency would negate speedy-trial claims, but noting that in some circumstances, an incompetent defendant could be “held more than the reasonable period of time” (quotations omitted) - holding that “a ‘reasonable period of time’ must be to some extent equated with the gravity of the offense involved” - stating defendant hospitalized for three years 26 but reevaluated twice by court during that period - finding four-year delay to be “presumptively prejudicial” even where reason for delay was defendant’s incompetence ## Opinion text FAIRCHILD, Circuit Judge (concurring). Defense counsel called as a witness the psychiatrist who had examined Little in December, 1965. The direct testimony, after qualifying the witness, went as follows: “Q. How long did that examination take? A. The examination took approximately one and a half hours. Q. And of what did this examination consist. A. The examination consisted of reviewing hospital records and interviewing the patient in direct question and answer type of interview.” * * * * * * “Q. Did you have sufficient material at that time, Doctor, to form an opinion as to the legal sanity of Mr. Little? [Prosecutor]: Objection, your Hon- or. THE COURT: At that time. [Defense counsel]: Up until today. THE COURT: Only as of December, 1965, when he examined him. [Defense counsel]: This was a preliminary question. Did you have enough material and was your examination sufficient to allow you to form an opinion? A. At the time of my examination ? Q. Yes. A. Yes. Q. And based upon your experience, Doctor, and your examination of Mr. Little and the hospital records, and from the knowledge which you know concerning this crime itself, the commission of this crime as charged, murder and robbery, do you have an opinion as of this date, as of today, as to the legal sanity — I would like to read that more carefully, to define it — whether or not a person, due to mental disease or mental defect, lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law; do you have an opinion as to whether or not Alexander Little *776 was legally sane on July 10, 1962? A. I do have an opinion, yes. Q. Will you state that opinion for the Court? A. My opinion is that it is quite possible, from a psychiatric point of view, that he was not competent to make the judgments necessary to conduct himself in accordance with the law on that date. [Prosecutor]: Object to that answer, that is not— THE COURT: Sustained, it is stricken. You will have to give him a hypothetical question with all the things that are here. How can he say what a man was back in — can you say definitely what a man’s condition was back in 1962 when you examined him in 1965? A. No, I could not. [Defense counsel]: Q. But based upon certain materials and your own examination — • THE COURT: Sustained. [Prosecutor]: Object. THE COURT: Sustained. [Defense counsel]: Well— THE COURT: Counsel, the only way he can give an opinion, you will have to lay the proper foundation, you will have to ask a hypothetical question with all the facts and circumstances, based on that. [Defense counsel]: I’ll ask a hypothetical. Would the Court permit me, in the hypothetical question, permit me to include the background upon which he made this examination? THE COURT: The only hypothetical questions are hypothetical things— or the matters that are presented here, that are before this jury. [Defense counsel]: Well, the doctor based his opinion upon certain examinations performed. THE COURT: He didn’t perform these examinations. [Defense counsel]: He performed one examination. THE COURT: In December of 1965. You can find out what his opinion was of the man in 1965 when he examined him, what his opinion was as to his mental condition then. [Defense counsel]: Well, that is half the problem. I’ll phrase the hypothetical, Judge. Do you have an opinion, Doctor, based upon your examination of December 1, 1965, as to Mr. Little’s mental capacity and condition as of that time? [Prosecutor]: Objection, your Hon- or, that is not the statutory definition. THE COURT: Sustained. [Defense counsel]: Q. Do you have an opinion as to Alexander Little’s legal sanity as of that date? [Prosecutor]: Object. THE COURT: Sustained. [Defense counsel]: Q. Do you have an opinion as to whether or not the defendant had sufficient capacity to conduct his conduct to the requirements of law and that he had sufficient capacity to appreciate the criminality of his conduct? [Prosecutor]: Objection, no foundation laid. THE COURT: Sustained. [Defense counsel]: I have no further questions. Any cross? THE COURT: And the part that the doctor said on possibility, that is stricken and the jury is instructed to disregard it.” With all respect, I must conclude that defense counsel was wholly unprepared to make any meaningful use of this expert. This was the only defense he was trying to present. There was no surprise or other excuse for failing to ascertain in advance what relevant opinions the expert was able to form and for failing to ask appropriate questions if such opinions warranted bringing this expert before the jury. It is most unlikely that it was trial strategy just to get the doctor before the jury and to ask improper questions in order to avoid unfavorable answers. The prosecutor, in final argument, made good use of the fact that the *777 judge struck out the answers the doctor “tried to give here to help this man.” Undoubtedly defense counsel failed to prepare himself by conferring with the doctor and learning what appropriately based and relevant opinions the doctor could state. It may well be he would have learned there was no purpose in calling him. If the doctor were able to state relevant opinions, upon an appropriate hypothesis, counsel was unprepared to adduce them. At the time the doctor testified, the jury had heard Little’s own testimony concerning his loss of memory, and that fact was available for a hypothesis. Counsel had not, however, brought before the jury other clearly available information which would seem likely to make a difference if any would, e.g., two suicide attempts and bizarre behavior during the three weeks following the murder and robbery, a jury’s finding on August 3, 1962 that Little was then insane, and hospital records during the period of his hospitalization. Defense counsel’s performance in this area appears dismal. Nevertheless the record contains much to demonstrate that the insanity defense lacked substance. Much of the material about Little’s bizarre behavior in jail and his hospitalization was later brought before the jury by Dr. Haines, a state rebuttal witness, who observed Little at the jail and thereafter. Dr. Haines thought that Little was malingering, although at the first observations he was unable to say whether Little’s conduct was malingering or a psychological reaction to his impending trial. The testimony of persons who observed and spoke with Little for a period of hours after the offense was convincing that he behaved normally, and correctly gave information concerning his identity, employment history, and family. In the entire examination of the defense psychiatrist, by both counsel and the court, there is a strong suggestion that his opinion would never have risen above the level of mere possibility, even if appropriate questions had been asked. Although aware that the harmless error doctrine can not be applied to denial of right to counsel. Chapman v. California, 386 U.S. 18, 23 , footnote 8, 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967), I can agree here that there was no substantial insanity defense to be “blotted out” and that the trial was not reduced to a sham or mockery. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9459438. Public record. Not legal advice.