Response to Petition for Writ of Certiorari — Eyman v. Schantz

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Office-Supreme Court, U.S, >

FILED

MAR 19 1970

IN’ THE

~ SUPREME COURT OF THE UNITE SMEs

Neer

October Term, 1969

No. -1187

FRANK A. EYMAN, WARDEN, ARIZONA | ‘

STATE PRISON,

Petitioner,

vs.

JOSEPH ALVIN SCHANTZ,

Respondent.

-—

RESPONSE TO PETITION FOR WRIT OF

CERTIORARI TO THE. UNITED STATES COURT

OF APPEALS FOR. THE NINTH CIRCUIT

LEWIS ROCA BEAUCHAMP & LINTON °

114 West Adams Street

Phoenix, Arizona 85003

By John P. Frank -—)

Michael J. LaWell¢

pelted ba) (for Respondent ce iy

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1969

No. 1187

FRANK A. EYMAN, WARDEN, ARIZONA

STATE PRISON,

Petitioner,

vs.

JOSEPH ALVIN SCHANTZ,

' Respondent.

Vv RESPONSE TO PETITION FOR WRIT OF

: CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

LEWIS ROCA BEAUCHAMP & LINTON

\ 114 West Adams Street

Phoenix, Arizona 85003

By John P, Frank

Michael J. LaVelle

Attorneys for Respondent

TABLE OF CONTENTS

Page

"ARs aid oye RE aR ee ena en aes Ame oe amare nae 2

QUESTION PRESENTED ee ee ee ee ee ek 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED....... Peer eee eee 2

amin, OF TRE CASE. ovécc ers ceeeees 3

REASONS FOR DENYING THE WRIT.......... 8

I. There is No Conflict

TE CTI TE Aer ere ee 8

II. The Decision was Correct....... 10

III. This. Case will Never

og 2 SS ee are ee coeedse 12 a

PION aes ene ks Se aah eueectecan Cres 14

MERE Bie nck du csvwes ee eUSE a Sa aCuO 15

APPENDIX B........-. ee hve aw hee 16

Petal

TABLE OF AUTHORITIES

Cases | Page

Escobedo v. Illinois,

375 U.S. 478, 84 S.ct. 1758,

Se bsEG. 28. 977 CI9G48}. 2. argh ste Serer 10

Massiah v. United States,

350 Veos. SCL, ba Ue, 1199, a

Ae WEG. 28 208 (IUGR) i oe 10

State v. Schantz, 98 Ariz. 200,

403 P.2d 521 (1964) cert.

denied 382 U.S. 1015 (1966).......... 5

Steward v. Superior Court,

94 Ariz. 279, 383 P.cd 191

RADIOS) 5 «cde cee ares esis ye oa ee CEE eee

Thornton v. Corcoran,

oUt F.2d 695 (D.C, Cir, 1969)... 0... <. ye:

United States v. Albright,

300 F.2d 719 (hth Cir; 1966):.... 9

United States v. Driscoll,

399: F628 235 ea Cll. 190) cue 9.

= é

United States v. Wade,

3UG U.S. 2am, 07 S.Ct. 1926,

16-b.Ed.2@ 2599 (1967) po 6,10

United States ex rel. Wax v.. | 4

Pate, 409 F.2d 498 (7th cir.

hl beer ere ene ‘ 89

TABLE. OF AUTHORITIES

Page

Statutes:

28 0.3,¢, § 125401);.,°: fees 7 e% Perey ae.

‘/ !

Arizona Revised Statutes:

PAHO 210107 cs hv eae lS oe ae 12

Constitution:of the United States:

RMB OMENE V, os 45 osc ys Pe ton weelera 2,15

AMON GHONG VTS bod oa een a Se Ses oe gee Be"

IBC OMENE KEV 5 eis hele ae CONE Oe ollie 3325

Other:

Compulsory Mental Examination

and the Privilege Against

Self-Incrimination, €

at page PS ed oy ET i SA ea eet rate eee 13

Model Penal Code § 4.05,

Comment (Tent. Draft No. 4,

LED Ta Pea Ee eae es ERE eee 13 -

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1969

No. 1187

FRANK A. EYMAN, WARDEN, ARIZONA

STATE PRISON,

Petitioner,

Vs.

JOSEPH ALVIN SCHANTZ,

Respondent.

RESPONSE TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

This is an opposition to a

petition for certiorari. The written

opinion of the Distriét Court, of which

petitioner is apparently meeeee. appears

as App. B. to this response. The opinion

of the Court of Appeals (App.A of Petitioner)

cop

‘is reported at 418 *.24 11.

JURISDICTION

The petitioner's motion for

rehearing was denied on December 8, 1969

and the petition here was filed on y

February 16,1970. This Court has juris-

diction under 28 U.S.C. § 1254(1).

QUESTION PRESENTED

If a state appointed psychiatrist

calls without notice on a criminal defendant

at his home after his indictment and demands

to administer a psychiatric examination,

may defendant, who is given no opportunity

to consult counsel, refuse the examination

without his refusal being placed in evidence

before the jury and becoming the subject of

closing argument?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the Fifth and

Sixth Amendments to the United States

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Constitution made applicable to the States

by the Fourteenth Amendment . The relevant

text of these amendments is set forth in

App. A. |

STATEMENT OF THE CASE _ “ee

Respondent was charged with-the

| murder of his wife. He pleaded not guilty

and served notice of his intent to rely re,

_ upon the defense of insanity. After a |

hearing in the district court, that court

accepted as accurate the following uncontested

factual allegations: |

! "Before trial, the ‘County Attorney

yof Maricepa County had’ made a moti‘on

in Maricopa County Superior Court seekine

an order allowing two State's psychia-

_trists to examine the petitioner. © On:

the day set for hearing this motion

the County Attorney withdrew it. The

Same day the County Attorney sent Dr:. \

Paul Bindelglas, a psych atrist, to

the petitioner's home, announced,

,and without notice to e&ther the :

. petitioner or his counsel :

At trial Dr. Maier Tuchler,:a

psychiatrist, was called by the

petitioner. He-testified that he had

examined the petitioner on numerous

occasions following the offense, and

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and gave as his opinion that the

petitioner, at the time of the offense,

did not know the nature and Significance

of his acts and did not know right from

wrong . Sees

' In rebuttal of this expert testi-

mony elicited by the petitioner, the .*

State offered no testgimony concerning

insanity or mental -cotidition. Instead, .

the County Attorney called Dr. Bindelglas

to the stand, qualified him as an expert, |

in psychiatry, and; had him testify, aved..

the strenuous objection of the petitioner

as follows: fo a | 7 é

Q. By [Prosecuting Attorney]: . You

went for the purpose’ of performing a

psychiatric examination?

A. Yes.

Q. Did you ask him.to take a

psychiatric examination?

A. Yes,

Q. And did you tell him you were

from the County Attorney's office?

A: Yes, I did.

Q. And. did he agree to a pschiatric

examination? |

A. He did not. (See 98 Ariz. at 213)

There was no question that Dr.

Bindelglas was a total Stranger to the

_ petitioner, and that no notice whatso-

ever of his proposed examination was

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Ait CALE RR TSA i ae OA ON * A —F

given to either petitioner or his counseé-

= "In summation, the County Attorney +

argued: ee 7

Now, ladies and gentlemen, there is

a Saying that. a person who seeks justice’

ina court of -law, should come in with

clean hands, and I submit to you, ladies

and gentlemen, that if this was a bona

fide, good faith defense of insanity,

why didn't he permit our psychiatrist

to examine him?

He said he. was from the County

Attorney's office. He said he was a

psychiatrist. He asked to examine him.

If this is a good faith defense, and

tis man has nothing to hide, why didn't

he let our psychiatrist examine him?

His refusal to let our man examine

him shows bad faith. We would have

liked to have him-examined . . Fs

Ladies and gentlemen, I submit to

you that this is not a-‘good faith defense

to insanity. " |

(Petitioner's Memorandum in Support of _

Petition for Writ of Habeas Corpus,

pp.2-3). 7

On appeal to the Supreme Court of

Arizona, Dr. Bindelglas' testimony was held

to have been propérly admitted. . State v.-

Schantz, 98 Ariz» 200, 403 P.2a 521 (1965) ,

-gert. den'd 382 U.S. 1015 (1966). -

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it by the County Attorney operated to

privilege against self-incrimination and

- vidlated petitioner's right to counsel.

o aA ek oe RR ATEN TSG HEN je ae

The District Court granted

respondent's petition for habeas corpus

for two separate reasons. ‘First, it

held /that the admission of Dr. Bindelgias'

testimony anid the subsequent comments on

a) Vs

penalize petitioner for éxercising his

was therefore unconstitutional. Secondly,

it held that the post- indictment ques-

tionnng of petitioner by a. ahare psychiatrist

at the County Attorney's behest without

notice’ and.in the absence of counsel,

The Ninth Circuit Court -of »

Ropenke attire. wastne 146 deck cick

primarily on the right of counsel. It

held. that under United States \. Wade,

388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2da

1149 (1967), a request to undergo state

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Sane, ated SERENE, DRIED MIT BIE MEE I ere Lae ‘

psychiatric examination required the

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assistance of counsel at a post+indictiment

pretrial confrontation. The Court noted

that: nis res /

"Had counsel been present he /

could have negated the strategy

by immediately informing Dr. wi

Bindelglas that the County At Corney! Ss

attempt, through the agency’of Dr.

Bindelglas, to communicate directly

with the petitioner rathér than with

the petitioner's counsél, was a gross

violation of professional ethics .’ oe

could have told

is refusal might be

dence against him,

and could have advised him whether,

, in the light of this fact, it would

- -have beer better to agree to an .

| ion... .« (CJounsel might

fforded petitioner further @ro-

ion by insisting that the exami-

tion be conducted under appropriate -

/safeguards, such as use of neutral

/ experts, the presence of a defense

representative, and the preparation

of a tape or stenographic record of

the examination 18 F.2d at 1,

Moreover couns

petitioner that

admitted in e

The Court specifically noted in a footnote:

"We do not reach the question whether

an accused has the right to have

counsel present at a pretrial mental

examination." §18 F.2d at 15, n.9.

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REASONS FOR DENYING-THE WRIT. P

I. There is No Conflict of Decision.

The State argues that the opinion

of the court below "flies in the face of

opinions expressed in other United States

Circuit Court ‘of Appeals" (Pet. at 17), but

cites only United States ex rel. Wax v.

Pate, 409 F.2d 498 (7th, Cir. 1969) as being.

- in conflict with the decision below. That

case involved the question of whether an

attorney had the right to be present during

the actual’ psychiatric examination of his

client. The case at bar raises an entirely

different question; that is, whether aos

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defendant has the right to counsel when he

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‘is .asked to undergo such an examination.

.. The Ninth Circuit recognized this,

specifically limited its opinion-and—_

expressly, naming the Wax case, declined

to consider the issue it raised.

"We do not reach the question

whether an accused has the right

to have counsel present at a pre-

trial mental examination." cating

United, States ex rel. Wax v-~ Pate,..

Supra; Thornton v. Corcoran,

407 F.2d 695 (D.C. Cir. 1969); and

United States v. Albright, 388 F.2q

719 (4th Cir. 1969). 418 F.2q at 15,

n. /

The Court below noted and followed the

only decision raising the precise question

before this Court. 418 F.2a at 14, n.7.

United States v. Driscoll, 399 F.2d 135

(2d Cir. 1968) holds that it is unfair to

Re a psychiatrist who was allowed to

examine the defendant to determine whether

he was ndipetent to stand trial to also

testify as to the defendant's sanity at the

time of the commission of the crime. The

Second Circuit said that the defendant must

be told of the dual Purpose of the examina-

tion so that his lawyers can ask for and

obtain the procedural Safeguards to which

the defendant is entitled.

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II. The Decision was (Correct.

As this Court's decision in

United States v. Wade, supra, states:

", . . [IJn addition to counsel's

presence at trial, the accused is

guaranteed ,that he need not stand

alone against the State at any

stage of the prosecution, formal

or informal, in court or out,

where counsel’s absence might

derogate from the accused's right

to a fair trial." 388 U.S. at 226.

The test as it has evolved from United

States v. Wade, Supra; Massiah v. United

States, 333 U.S. 201, 84 Ss.ct. 1199,

12 L.Ed.2d 268 (1964); and Escobedo v.

Illinois, 378 U.S. 478, 84 s.ct. 1758,

12 L.Ed.2d 977 (1964) is that the presence

of defendant's counsel is required if it is

necessary in order adequately to prepare

for the trial, meaningfully to cross-

examine the witnesses against the defendant,

or to preserve the defendant's right to a

-10-

“*

fair trigl by advising him of his rights.

The opinion of the court below has ade-

| quately stated the complexities which

suddenly faced the defendant when he was

confronted with a state psychiatrist who

asked to examine him. We merely note that

Mr. Schantz was asked to make a decision

with complicated legal consequences on a

moment 's notice and without the necessary

knowledge or advice. Further, he was

placed ina position‘of being alone while

the State sought evidence to be used

against him. The paises! on inte evidence

of his refusal to undergo the examination

under circumstances when the advice of

counsel not only would have better prepared

him to make Such a decision, but would /

have been of immense help in preparing for

trial, violated the defendant's constitu-

tional right “6 the posse rear’ of coungel,

under the Sixth Amendment to the Génshitibion

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of the United States. Apart from technical

considerations, this was unforgiveably

Shabby business. The making of the motion,

its withdrawal, and the visit to the house

on the same day was trickery not to be

encouraged.

III. This Case Will Never Arise Again.

When Schantz was pending trial,

Arizona had ho stlitutory authority for

court-ordered mental‘examinations and the

courts had no inherent power to order it.

Steward v. Superior Court, 94 Ariz. 279,

383 P.2d 191 (1963).

A 1968, post-Schantz statute,

s*®R.S. § 13-621, et seq. provides for

bifocated trials and further provides:

"In any case involving the defense

of not guilty by reason of insanity, |

both the defendant and the State

Shall have the right to have the

defendant examined by qualified

psychiatrists appointed by the Court

-for the purpose of presenting

testimony." A.R.S. § 13-621-1(J)

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Thus: Arizona has now joined the majority

of States which have, Similar legislation.

See Compulsory Mental Psantnation and

the Privilege Against “Self-Incrimination,

Wis. L. Rev. 671 (1964) and the collec-

tion of similar statutes appearing in

Model Penal Code § 4.05, Comment

(Tent. Draft No. 4, 1955). -State

psychiatrists no longer need bang on

defendants' doors and ask them if they

will submit to an examination. The _

request for examination and the appoint-

ment of exakining scours are now made

in span Siak. As P result, counsel

are always present when the ivpancenents

for the examination are made.” This

case will not reoccur.

an? Van

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CONCLUSION —

For all of the foregoing

“reasons, it is respectfully submitted

that the Petition for a Writ of Certiorari

should be denied.

Respectfully submitted,

LEWIS ROCA BEAUCHAMP & LINTON

By John P. Frank

Michael J. LaVelle

Attorneys for Respondent.

March, 1970.

Sthe

i” a

Constitution of the United States

Amendment y:

"No person shall . , - be compelled

in any criminal case to be a witness

against himself —

Constitution of the United States

Amendment VI:

"In all criminal prosecutions, the

accused shall enjoy the right

to have the assistance of counsel

for his defense."

Constitution of the United States

Amendment XIV:

"e « »« nor shall any State deprive

any person of life, liberty, or hy

Property, without due process of

_law; nor deny to any person within

its jurisdiction the equal pro-

tection of the law."

APPENDIX "a"

Petitioner filed herein on November “

1967, a petition for writ of habeas corpus

wherein he alleges he is being unlawfully

imprisoned ‘in the Arizona State Prison,

Florence, Arizona. Pursuant to an order of

this Court, respondent -herein filed a re-

Sponse to said- petition, and this cause

came on for hearing before this Court on

December 18, 1967. |

Respondent has not seen fit to file

herein a reporter's transcript of proceedings

of petitioner's state court trial, nde has

he denied petitioner s factual allegations ;

therefore this vaur®. accepts them as true

—_— finds them: sutPeeichs upon which to :

proses without an evidentiary hearing.

The facts pertinent to the issues herein

are as follows:

APPENDIX "Bp".

——E

Petitioner is presen y imprisoned

pursuant to a judgment of the Superior

Court of Arizona, Maricopa County, entered

on January 28, 1963, in| cause -number 40470,

wherein. he was adjudged) guilty of murder in

the second degree, and Sentenced gto not less

‘than 15 nor more than 16 years in the state

-.prison. Prior to petitioner's trial, but

sancecukt to his aerarbanencs the County

Attorney made a motion in Maricopa County

Superior Court Beh ae an order to allow

two state psychiatrists to examine petitioner.

‘On the date set for this hearing, the motion

was withdrawn by the County Attorney

(apparently due to a lack of authority for

such an examination. See State v. Schantz,

98 Ariz. 200, 403 See 521, 530).. The same

day Dr. Paul Bindelglas, a psychiatrist,

was sent by the County Attorney to the

petitioner's home, anbunoancen: and paras

notice to either the petitioner or his

-ii-

“

Qu 2 Cee i lett Ea i a et cat eg TO Bt TER

counsel. Dr. Bindelglas introduced himself

to seueToneD explained that he was from

the County Attorney's office, and pealeetee

that petitioner Submit to a psychiatric

examination, Petitioner refused to do so,

and Dr. binasietes left. Thereafter, at

petitioner's trial, he raised the defense

of insanity calling a qualified psychiatrist

to testify on his behalf. The state offered

no expert evidence in rebuttal. Instead it

called Dr. Bindelglas to the stand and,

over the objection of petitioner's counsel,

elicited from him the results of his ’con-

frontation with petitioner, These facts

were later argued by the County Attorney,

in his summation to the jury, as evidence

that petitioner's defense of insanity was

made in bad faith. | |

Although petitioner alleges that he has

exhausted his state court remedies in

accordance with 28 U.S.C. Section 2254,

-iii-

and respondent doce not contest that issue,

it is incumbent on this Court to determine

that issue before proceeding further.

Petitioner appealed his conviction to the —

Arizona Supreme Court and At was affirmed

by them on June 23, 1965. State v. Schantz,

Supra. Certiorari was denied by the United

States Supreme Court on January 24, 1966.

Schantz v. Arizona, 382 U.S. 1015, 66 $.Ct.

628. While the operative facts upon which

petitioner now bases his claim were before

the Arizona Supreme Court (State v. Schantz,

Supra), he did not litigate there the

precise issues he is now raising in this

Court. He is thus confronted with the rule

that state remedies are not exhausted with

respect to a eSrion not presented for

adjudication in an available state court

proceeding. United States v. Ragen,

222 F.2d 654 (7th Cir. 1955). However,

in the case of Daugharty v. Gladden, 257 F.24

750 (1958), the N@hth Circuit Court of

-iv-

Appeals, in dealing with an issue Similar

to the one presented here, stated at page

758:

", . . the state court having been

presented with all the operative facts

giving rise to the asserted constitu-

tional principle, exhaustion of state

remedies is not to be denied because

the Fourteenth Amendment was not

Specifically mentioned." [emphasis

added ]

The court in Daugharty distinguished

its holding from that in Ragen by pointing

out that in the latter the. facts upon which

the federal question was predicated. in the

federal habeas corpus proceeding had never

been submitted to t state court, while

such was not the “ase in Daugharty. Even

if one might détermine that the facts in

petitioner's case are not governed by the

rule in Daugharty, which this Court does

not, it is still necessary to decide if |

there remains an effective state forum in

which petitioner might obtain relief.

Although the remedy of habeas corpus is

available inthe State of Arizona (A.R.S.

Section 13-2001), it is limited in scope.

State v. Churt of Appeals, Division Two,

416 P.2da 699 (1966). Considering the facts

present here, in light of the above-cited

case, it is not unreasonable to assume that

petitioner could obtain no relief via a

State habeas corpus petition. In view of

the above, it is the opinion of this Court

that petitioner has exhausted his state

“pemedies within the meaning of 28 U.S.C.

Section 2254,

Petitioner's first contention, that

the introduction and receiving into evidence

of testimony of his refusal to submit to a

psychiatric exami pation, and the prosecutor's

comments thereon, was a violation of his

okt unnes the Fifth Amendment to the

Constitution of the United States, is well

founded. Respondent's reply to this

contention is that the evidence in question

-vi- 3

: bs

was relevant to the issues before the ‘court,

and therefore its admission in evidence and

the subsequent comment upon it, was not

errmeous. It is sufficient to aieotcs of

this argument by pointing out that numerous

items < of evidence, including confessions

obtained by coercion, may be relevant,

but are, nevertheless, inadmissible as

evidence if they do not otherwise conform

to the rules pertaining to their admissi- rid

bility. This Court, conceding the relevaney™

of the questioned evidence, must thus

determine if it otherwise qualifies as

admissible evidence. That the constitutional

protection of the Fifth Amendment is

the due process clause of the Fourteenth

Amendment is made clear by the decisions of

the Supreme Court in Malloy v. Hogan,

378 U.S. 1, 84 S.Ct. 1489 (1964), ana

Griffin v. California, 380 U.S. 609,

-vii-

85 S.Ct. 1229. (1965). Although neither

Malloy nor"Griffin had been decided at the

time of petitioner's trial, both had been

‘determined prior to the date of the Eee

in petitioner's case on direct appeal.

State v. Schantz, supra. The Supreme Court,

in discussing the retroactivity of its

decision in Griffin, stated in the case of

Tehan v. United States, 382 U.S. 406,

66S. cr, 459 (1966), at page 461, footnote 3:

"Nor is there any question of the

applicability of the Griffin rule

to cases still pending on direct

review at the time it was

announced,"

The court's reasoning in Tehan leaves

little doubt that a similar application of

limited retroactivity would apply to itsi-

decision in Malloy v. Hogan, supra. This

Court, then, considers itself governed by

the decisions obtained in Griffin and Malloy

in deciding the issues-before it.

-viii-

Saieieinieimeaieibeins Rdatioeitii nian

The decisions in Malloy and Griffin

make it abundantly clear that the privilege

against self incrimination includes not only

the right to remain Silent, but also the

right to Suffer no penalty for that Silence.

Other decisions condemning the use of evidence

° that an accused elected to rely on his Fifth

Amendment right and remain silent are:

Grunewald v. United states, 353.U.S. 391,

77 S.Ct. 963 (1957); Fagundes v. Unitea

States, 340 F.2d 673 (1st Cir. 1965).

ane facts of this: case, however, are

unlike those in Malloy and Griffin, for here

petitioner was not undergoing a Bites

interrogation, nor was there a comment on

his refusal to testify at trial; he was,

rather, being asked to submit to a psychiatric

examination at the hands of a State-selected

peyohiatrist. Respondent does not contend

that the county prosecutor was acting under

statutory or judicial authority in requesting

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cma

petitioner to submit to the psychiatric

examination, nor does it appear that such,

would have been possible. Steward v.

‘Superior Court of Maricopa County,

383 P.2d 191 (1963). ‘Although the decision

in Steward was not handed down until after

the petitioner's trial, it was decided prior

to the decision in petitioner's case on

appeal, and was in fact referred to by the |

court in State v. Schantz, supra, at page

530, footnote 9. The Arizona Supreme

Court's decision in Steward makes' it clear

that the state presently has no statutory

or inherent authority to force an accused ~

' to submit to a psychiatric examination

sehinee hie CMU: pointing out that to do

so would violate his rights against self

incrimination. In accord is a recent

decision of the Minnesota Supreme Court.

State v. Olson, 143 N.W.2d 69 (1966).

There is no question but what petitioner,

under the facts herein, was entitled to

remain silent, and refuse to submit to a

psychiatric examination if he so Shose..

such right being fundamental under the

Fifth Amendment to the Constitution of

the United States. Thus determining that

petitioner was exercising his constitutiond]

right to remain silent, when he refused to

submit to the psychiatric examination, the

introduction of such evidenge in his state

court trial and comment thereon by the

prosecutor falls squarely within the pro-

hibition of the Supreme Court in Malloy v.

Hogan, supra, and Griffin v. California,

supra. To provide that an accused may

lawfully refuse to submit to a psychiatric

examination, and when he does so, use his

refusal as evidence against him at his

trial, bespeaks of fundamental unfairness

and renders his rights void and empty

meanialities.

-xji-

Petitioner ies contends that the

conduct of Crue County Attorney in sending

Dr. Bindelglas to see him, withgut notice

to his counsel, violated his right to

effective assistance of counsel under the

Sixth Amendment to the Constituvion of the

United States. There is no question that

formal charges were pending against

petitioner at the -time he was approached

by Dr. Bindelglas, and that petitioner

was represented by counsel known to the

County Attorney at the time. It is,

furthermore, clear that Dr. Bindelglas was

acting as a representative of the county

attorney's office when c. contacted |

petitioner. The United States Supreme

Court has for some time Ket ceetaie that

* from the tin of arraignment. until the

beginning of the trial is a cPiticnl

period of the proceedings, wherein an

accused is entitled to the assistance of

-xii-

counsel. Powell v. State of Alabama,

287 U.S. 45, 53 S.ct. 55 (1932); Massiah v.

United States, 377 U.S. 202), 68 SuCe. as

(1964). The Supreme Court of Arizona in

the case of State v. Gallagher, 396 P.2d 241

(1964), decided subsequent to petitioner's

trial but prior to the determination of

his appeal, referred to’ the Supreme Court's

decisions in Powell and Massiah in declaring

that adute avons obtained from an accused

after an information had been filed and

without permission of his counsel, were

inadmissible aS a matter of law.

The primary distinction between the

facts in petitioner's case and the cases

cited above is that the petitioner chose

to remain SRlent during the unlawful

confrontat 1én' whereas the other accused

made ineriminating Statements. If

petitioner had Submitted to the examination

and made incriminating statements to Dr.

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Bindelglas, there could be no question but

what the statements would be inadmissible

under the upr elie Court's ruling in Massieh

: ,

v. Unit®d States. Supra. Should the law

be otherwise then, when petitioner elects

to exercise his constitutional right to

remain silent? This Court thinks not.

@he importance of an attorney's hee

and assistance during a confrontation

Such as here. with Dr. Bindelglas, can be

more graphically illustrated if one assumes

for the purposes of this example, that lb

_ @vidénee of petitioner's eerTUugal: 6 submit

to an examination would be properly

admissible against him. Then, more than

ever, would petitioner require the advice

and assistance of legal counsel. to Hae

the various consequences of his: ultimate

election. This Court is not unmindful .

of the oh 2 that an unlawful ee es

in and of itself, may.be harmless to an

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accused and that he must Wiss Show that

the unlawful act operated to ALS sub-

stantial prejudice. Such prejudice is

Obvious under the facts presented herein,

The sole evidence offered by the state in

petitioner's trial to rebut the testimony

of his psychiatrist, was the fact that

petitioner refused to submit to an

examination by Dr, Bindelglas. The

prosecutor's comments- thereon only empha-

Sized the importance that the state placed

thereon, F

In view of the fip ings reached herein,

it is the Opinion of this Ourt that

petitioner is entitled to a new trial on

the merits. Accordingly,

IT IS ORDERED that the judgment of

conviction in Superior Court , Maricopa

County, criminal’ cause number 40470,

‘State of Arizona’ v, Joseph A, Schantz,

dated January 28, 1963, is hereby vacated

and set aside, and petitioner is remanded

to the custody of the authorities of the

State of Arizona for appropriate proceedings

not inconsistent with the views expressed

herein; |

IT IS FURTHER ORDERED that unless the

State of Arizona affords tha petitioner a

\ enew trial within 90 days from this date,

a writ of habeas corpus shall issue for

the release of geet eenes from the custody

of respondent.

DATED this 25th day of January, 1968.

a nie

WM. P. COPPLE

United State? District Judge

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.