# Response to Petition for Writ of Certiorari — Eyman v. Schantz > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1399%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Response to Petition for Writ of Certiorari - **Published:** January 1, 1970 - **Citation:** 397 U.S. 1021 ## Text 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... . —_. - . - . , ' ’ . Pa . ’ Mj . : ‘ - oe 2 ‘ i og SO IM le ee, ek hn ae ke - ¢ rez 4 Pe wr ¢ said ; ‘” te Be 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 — -3- e © SOI reca, 5 i z 5 of 7 a CE nein ~~ smessecinn Las: . : . , ; ‘ ¢ 7 . . ° ‘ e e ; ° . ait - - — f . . . x ‘ A . . x . ~ 2 - fs ‘ . . e ’ . ° . ‘ 2. ° - 5 : é J - : 4 7 . . is | . : . . . y ¥ — . . : e e . ae ~ ~ ? ' aye 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 oif.. . = ; ’ °. / 4 a > - » . ° 0 = v . « r , : » ” 2 . os J . i7- : , hes ‘ ° 4 : cf 3 4 a 2 $ f ¥ BO RE Ee rey os - SiS oa ARTs AGT arb sediments keene ° . > . - | - | Prey ¢ ; 4 . ‘ ‘ | , . . . *. ? . ’ bd . 4 . . 4 , . _* * . -~ ! 2 - . —* . e . . ’ ° . S ‘ : - e \ , ° ‘ « - . ‘ a o . . ¥ nN ’ ri © od e . * . " : - S ‘ ‘ ¢ . . . . « 2 ' ¢ * -% , ° - ) rm > ea * 2 C - i <> 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). - * hy ee ae 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, i 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2da 1149 (1967), a request to undergo state >. e Se, = + Ss “* TT Om ~ * a . A ; . at “ ~, f. . _ ° e 7 ~~ ‘ d P . . \ ? . . ; © . ce ’ . - > ° . = ‘ Ff ° ns ‘ © . 2 “4 tires pli . a5 - hod ¥ r ‘ , ‘ / if e ‘ . . o f . + ’ z © - . i f ~ > : “7 ‘ \ ca : * v : : s - @¢ a “ oy be) . . - ne . , - » . = ; . . . * * ea mt 4% J P ey . se 4 ; sree *", 2 \ « 4 e08 - ’ ‘ % ; ’ * Te nes SR EL Tn at it AAs Sa tt 0 ities a NR eid NR i IT cm 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 7 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 a as 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 b) 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 es : bs ak 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 applicable oO state court proceedings through © 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 -1i1x- 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, we 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 c -xii- ro +- 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. -xiii- 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 -Xiv-/ 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 -Xvi- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1399%3A2. Public record. Not legal advice.