Commonwealth v. Bruno

Dissenting Opinion by

Me. Justice O’Beien:

The majority opinion represents a resolution of the instant case that is abhorrent to fundamental notions of due process. . Although at all times strenuously maintaining his innocence, appellant has been incarcerated, in Farview State Hospital, an institution for the criminally insane, without being tried and convicted of a crime. Delineation of the institution as a hospital does nothing to remove the stigma of its housing only the' “criminally insane”, nor does it insure that the adequate treatment is taking place which alone can transform a Hades of punishment into a haven for the sick. 1 In fact; it appears that it is a rare “patient” *215 at Farview who receives the treatment he needs. One thoroughgoing study of that institution concludes, “It is difficult to deny that the type of psychiatric treatment available at Farview State Hospital, as well as that actually given, is inadequate. Patients at Far-view are fed, clothed, cared for, and amused; but few of them are treated.” 2

Yet even if appellant were not tainted by his confinement in an institution for the criminally insane, even if he were being given the best possible treatment in an actual hospital, he would still be denied the due process of law guaranteed by the Constitutions of this nation and this Commonwealth. The guarantee of a speedy trial was inserted into our Constitutions 3 both to afford an accused the opportunity to remove the cloud cast upon his name by an accusation, and also to prevent the loss of potentially exculpatory evidence. Both of these reasons apply to the case at bar.

Without any attempt to reason from the principles inherent in a right to a speedy trial, the majority simply asserts that the guarantee of a speedy trial does not require that an incompetent accused be tried, citing in this case of first impression in Pennsylvania four eases (only one appellate case) interpreting the federal guarantee. Although I agree with the majority that the guarantees in the federal and state constitutions are the same, I see no reason to accept blindly the language of the cases cited by the majority. In *216 none of these cases does it appear that the instant factual situation was thoroughly considered. Howard v. U. S., 261 F. 2d 729 (5th Cir. 1958), was a two-paragraph per curiam opinion. It relied solely upon the fact that the constitutionality of the ■ federal statute, 18 U.S.C.A. §§4244-4248 , providing for the commitment of those found to be incompetent to stand trial and dangerous, had been upheld in Greenwood v. United States, 350 U.S. 366 , 76 S. Ct. 410 (1956). Yet the issue of the denial of a right to a speedy trial was never raised nor decided in Greenwood . The issue was solely a jurisdictional one—whether the application of the statute to defendants who were “permanently” insane or unlikely to recover was an unconstitutional exercise of federal power, the federal government being without the parens patriae power over the insane that the states have. The Court in Greenwood , unable to conclude from the psychiatric evidence that Greenwood’s insanity was permanent, grounded the federal commitment on the federal authority to prosecute for federal crimes. Nowhere was the speedy trial problem considered. Similarly, the court in United States v. Miller, 131 F. Supp. 88 (D. Vt. 1955), also cited by the majority, based its decision largely on the fact that two United States Courts of Appeals had upheld the constitutionality of the federal statute. 4 Once again, however, the attacks on the statute were not on the basis of a denial of a speedy trial, but rather on the jurisdictional question which Greenwood eventually resolved.

In State v. Violett, 111 N.W. 2d 598 (S.D. 1961), a third case relied upon by the majority, the main basis for the decision was that the defendant had waived his right to a speedy trial by not asking for it and acquiescing in the incompetency proceeding. By *217 contrast, In the instant case, appellant objected to the appointment of a sanity commission and has at all times desired to be tried. The waiver theory also appears to be the basis of the final case cited by the majority, United States ex rel. Thomas v. Pate, 351 F. 2d 910 (7th Cir. 1965), cert. denied, 383 U.S. 962 , 86 S. Ct. 1232 (1966). 5

The above should not be considered any sort of an endorsement of the waiver theory. On the contrary, I believe that any procedure which requires a defendant, (or more likely, his counsel), to choose between ineompetency proceedings and a trial violates due process. 6 Here, however, appellant did not elect an incompetency proceeding and then seek release for violation of his right to a speedy trial. Nor did he even acquiesce in the ineompetency proceeding brought by the District Attorney. Appellant has maintained his innocence throughout and has at all times pressed for a trial. It is no answer to say, as the court did in United States v. Miller, supra, that where a defendant does not have the mental capacity properly to assist in his own defense, a fortiori he does not have the capacity to decide that he wants to stand trial. 7 Such *218 a view ignores several factors. First, although a defendant who is incompetent to stand trial may not be able to determine wherein lies his best course, his counsel does not suffer the same infirmity. And if the defendant refuses counsel, the court can appoint an amicus curiae to represent the defendant’s interests. 8 Secondly, such a view presumes that it is always in the best interests of the defendant 9 that he be committed if mentally incompetent. 10 Of course this is not true, nor would it be even if defendant were guilty of the crime charged. The choice between a prison term and a possibly lifelong stay in an institution for the *219 criminally insane is by no means always resolved in favor of the latter. 11

Most importantly, the Miller view works a grave injustice in those instances where the defendant is not guilty of the crime charged. He is sent to an institution for the criminally insane, he has the sword of indictment hanging over his head the entire time, and the means of proving his innocence may be irretrievably lost. Prosecution evidence may also be lost, but this is considerably less likely, for the prosecution is much more likely to have facilities for gathering and preserving evidence than is a committed person. In any event, the fact that the prosecution may in some cases be prejudiced in no way assures each particular defendant against prejudice. Certainly cases exist where an incompetent defendant, despite his incompetence, would not be convicted. One of the most flagrant examples is United States v. Barnes, 175 F. Supp. 60 (S.D. Cal. 1959). The facts in that case were summarized in Foote, Pre-Trial Commitment, supra, at page 832: “In 1949 four military prisoners killed a fellow prisoner in a California disciplinary barracks and were convicted of murder by a military court martial. Ten years later the Supreme Court sustained the defendants’ contention under section 92 of the Articles of War that the military court had had no jurisdiction over a case of murder committed within the continental United States in time of peace, [footnote omitted] Thereafter on March 4, 1959, defendants were indicted in the civil federal district court. As to three of the defendants, the court, relying principally upon United States v. Provoo, [ 17 F.R.D. 183 (D. Md.) aff’d per curiam, 350 U.S. 857 (1955).] granted a motion to dismiss on the ground that the ten-year delay, occa *220 sioned not through the fault of the defendants but as a result of a calculated tactical gambit by the government, had amounted to denial of the right to a speedy trial. However, the indictment against the fourth defendant, Coons, was not dismissed; he was recommitted to the custody of the Attorney General. Coons had been brought to court from Springfield, Missouri, where he had been serving his military life sentence in the federal institution for the criminally insane. This fact together with his conduct in court caused the judge to order a psychiatric examination pursuant to the 1949 federal statute governing determination of mental competence to stand trial, [footnote omitted] After examination and hearing, Coons was found to be ‘presently insane and so mentally incompetent as to be unable to understand the proceedings against him,’ and he was returned to Springfield until, presumably, he should be sufficiently recovered to ‘participate’ in the dismissal of the indictment against him.” Here is a man, obviously not convictable, who, as Foote laments, is forced to submit to a commitment procedure which is part of the criminal process and which will result in confinement with the criminally insane. No finding of dangerousness was made in Barnes , nor, as pointed out above, in footnote 9, is such a finding required in Pennsylvania. There are even worse cases than this. Barnes’ defense was based solely on a point of law; if he ever recovered his sanity, he would be freed if tried. But what of the defendant who has an affirmative defense that depends on witnesses who may not be available or who may not remember when he is finally tried?

Such a pretrial commitment procedure poses grave danger of furthering what our entire system of constitutional safeguards seeks to prevent—the loss of freedom of an innocent, nondangerous person. This machinery, in the hands of the most conscientious pub- *221 lie official, which we have every right to assume the Montgomery County District Attorney is, casts doubt upon the efficacy of our judicial system. In the hands of the unscrupulous, this procedure could prove to be a terrible instrument for tyranny. It is one of the glories of our system of government that our institutions are greater than the men who run them. We should strive to keep it that way, so that our well-being need not hinge upon the beneficence of those we choose to serve us. We must always remain “non sub homine, sed sub deo et lege.”

Finally, the view that says that an incompetent defendant cannot choose ivhether to stand trial or not is defective in assuming that by going to trial, a defendant would forego any opportunity to challenge his competency to stand trial. At least one common law court has held that the determination of the defendant’s competency must be deferred until after the trial on the merits, where the defense wishes to go to trial on the merits. 12 In Regina v. Roberts, [1953] 2 All E. R. 340 *222 [1954] 2 Q.B. 329, the court, Devlin, J., postponed swearing a jury to try the preliminary issue of competency to stand trial (fitness to plead) until the merits were tried. Devlin, J., cogently stated: “Counsel for the defense cannot he forced to accept [an institution for the criminally insane] for his client, if on a true view of the facts, he is of the opinion that he can properly obtain for his client a verdict of not guilty. Nor can he be forced to elect. He must be entitled to retain his rights to say that the accused is not in a position to instruct him and therefore he cannot put the accused in the witness-box to tell his own story. He cannot be forced to say to himself: ‘Shall I play for safety and obtain a verdict whereby this man is detained as a criminal lunatic, or shall I, in effect, gamble on the chance of my being able to get him off altogether with the knowledge that if my gamble fails he will be convicted of murder.’ . . . There must, in my view, be a procedure which would enable counsel for the defense to have the advantage of taking both points, and if there were no such procedure I think it would be necessary to invent it, because to insist on the issue of fitness to plead being tried [first] might result in the grave injustice of detaining as a criminal lunatic a man who was quite innocent; indeed, it might result in the public mischief that a person so detained would be assumed, in the eyes of the police and of the authorities, to have been the person responsible for the crime—whether he was or was not—and investigations which might have led to the apprehension of the true criminal would not take place.” 13

*223 I would allow the appellant his constitutional right to a speedy trial.

See generally, Birnbaum, The Right to Treatment, 46 A.B.A.J. 499 (1960). See also Rouse v. Cameron, 373 F. 2d 451 (D.C. Cir. 1966) ; Darnell v. Cameron, 348 F. 2d 64 (D.C. Cir. 1965) ; Miller v. Overholser, 206 F. 2d 415 (D.C. Cir. 1953), where the court ordered'a civilly committed sexual psychopath removed from a hospital ward for the criminally insane because the ward was a place of punishment-rather than of treatment.

*215 In Com. v. Williams, 432 Pa. 44 , 246 A. 2d 356 (1968), we held that treatment was not essential because Jones was incarcerated in a penal institution. Where, as here, appellant was confined in a hospital, treatment is certainly required.

Note: Hospitalization of Mentally Ill Criminals, 110 U. Pa. L. Rev. 78 , 107 (1961).

Article I, §9 of the Pennsylvania Constitution, and the Sixth Amendment to the United States Constitution, where federal trials are involved.

Wells v. Attorney General, 201 F. 2d 556 (10th Cir. 1953) ; Higgins v. United States, 205 F. 2d 650 (9th Cir. 1953).

Actually, the statement that there was no violation of the constitutional right to a speedy trial was at most an alternative holding. The court held that the grounds advanced has been advanced in a prior petition that had been decided on the merits, and thus could not be considered. Nonetheless, it then went on and did consider the speedy trial issue in one brief paragraph. The only citation was to Germany v. Hudspeth, 209 F. 2d 15, 19 (10th Cir. 1954), cert. denied, 347 U.S. 946 , 74 S. Ct. 644 (1954), the clearest possible case of waiver, where defendant himself initiated the ineompetency proceedings.

See the very excellent Comment by Caleb Foote, Pre-Trial Commitment of Criminal Defendants, 108 U. Pa. L. Rev. 832 , 845-6 (1960).

In Pate v. Robinson, 383 U.S. 381 , 384, 86 S. Ct. 836 (1966), the Court stated: “. . . [l]t is contradictory to argue that a de *218 fendant may be incompetent, and yet knowingly and intelligently ‘waive’ bis right to have the court determine his capacity to stand trial.” I read this not as support for the Miller view that an incompetent defendant can never go to trial, but as merely saying that his going to trial does not preclude his later raising the incompeteney issue.

This suggestion was made in Seidner v. United States, 260 F. 2d 732 (D.C. Cir. 1958), where the court anticipated that the defendant would refuse counsel on remand. See also Foote, Pre-Trial Commitment, supra, at page 845; Note, Incompetency to Stand Trial, 81 Harv. L. Rev. 454 , 467 (1967).

The commitment of all defendants incompetent to stand trial is not necessarily in society’s interests either, even if society should be permitted to work its will at the expense of trampling upon the rights of this unfortunate minority. The statute under which appellant was committed, the Act of June 12, 1951, P. D. 533, Art. III, §§344, 345, 50 P.S. §§1224, 1225, as well as another parallel section of the same Act, 50 P.S. §1222, requires no showing of dangerousness as a prerequisite for commitment. It is enough that the defendant be “mentally ill or in such condition that he requires care in a mental hospital.” Sending nondangerous persons to institutions for the criminally insane hardly redounds to society’s benefit.

The Miller Court stated, 131 F. Supp. at 94 -95: “The sound basic policy of Sections 4244 and 4246 of the United States Code is to protect people from facing charges against them when they are not mentally present.”

See authorities cited in Note, Incompetency to Stand Trial, supra, at n.16.

Of course, where the competency issue may be deferred until after a trial on the merits, there would be little to restrain a defendant from always seeking a trial on the merits. It is doubtful that this would add much burden to the judicial system, by requiring some trials in which a guilty verdict would be of no effect. Although statistics are sketchy, it appears that cases where defendants are held incompetent to stand trial are rare, and in many of those, defendant’s insanity at the time he committed the crime would be a defense on the merits.

Counterbalancing any added burden would be the probable aid to the determination of competency from the evidence of the defendant’s actual conduct at trial. See Pouncey v. United States, 349 F. 2d 699 (D.C. Cir. 1965), and Note, Incompetency to Stand Trial, supra, at page 469. The competency hearing should follow closely upon the heels of the trial, and could include reports of pretrial psychiatric examinations of the defendant in order to avoid the problems of an inquiry into a defendant’s mental condition in the distant past, as illustrated by Dusky v. United States, 362 U.S. 402 , 80 S. Ct. 788 (1960).

*222 In any event, the question of added burden on the courts is irrelevant to a decision based on a denial of due process.

[1954] 2 Q.B. 329, 332-33.

When the same issue later arose before a different judge, Byrne, J., on the Queens Bench, he refused to allow a trial on *223 the merits, R. v. Beynon, [1957] 2 All E.R. 513 (Cardiff Ass.), merely relying on a long line of authority to the effect that an insane man, who cannot defend himself, should not be forced to trial. Of course, as the commentators indicate, this misses the point. See Foote, Pre-Trial Commitment, supra, and Note, Incompetency to Stand Trial, supra.