# Reply Brief — Lee v. County Court of Erie County

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1971
- **Citation:** 404 U.S. 823

## Text

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Mn es As | Supreme Court, U.S
_ . LIBRARY. FILED.
SUPREME COURT, U. &

IN THE x JUN 1S isi ;

Supreme Court of the United States" SEAVER, CER
mom FO-I2-)

October Term, 1970

pungataa je. , |
: Petitioner,
VS. |

COUNTY ( ov RT OF THE COUN TY OF ERIE, HON. iy
ERNEST L. COLUCCT, Individually and as a Judge
thereof, and MICHAEL F. DILLON, spin Attorney
of Erie County,

Residents.

RESPONSE TO PETITION FOR WRIT OF CERTIORARI

MICHAEL F. DILLON,
| District Attorney of Brie’ County,
Attorney for Respondent,
200 Erie County Hall,
25 Delaware Avenue, |
pues, New York 14202.

PETER .J. Noraro, -
Assistant District Attorney, ry ; | * z
_» Chief, Appeals Burean, , ma
Of Cownsel.

_ BATAYIA TIMES, LAW PRINTERS, ; ae EFa.
0 BATAYIA, N.Y. :

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TOPICAL INDEX TO BRIEF.

oe oe | PAGE
re Pe i oe Cary Mae ~. 1
sdittiassoacra-aeeap ME COL EET OR TR ODOR te ee ee 2
Questions Presented ......-...... Or Sar, ore
Statement of the Case pelgaGeas ye PET em ee ee verers
Argument ...... a Rene whee ek rrr Sverre ee a. Se
Coriclusion ................ ohare Pisa, oh ene 8
; ‘Srarurss.

New York Code of Criminal Procedure, § 658 (as is set ©
forth in Appendix A at page 16—Petition for a Writ.

of Certiorari—filed by retitioner)™........ ks... 2
: pltice ma yee oF Cases. a |
Alexander v. United States, 380 F. 2d 33 (1967 eer oe
Arceneaux v. State of Louisiana, 376 U.S. 336, 84S, -
Ct. 777 (1964) :.5...... Pe Caras eed eave Peers
Battle v. Cameron, 260 F. Supp. 804 (1966) ......... al
erman v. United States, 302 U.S. 211, 58 S. Ct. 164
LS aera ee ips ioe oa Moe eos ree abe i 2
Cobbledick v. United States, 309 U. S. 323, 60. S. Ct.
040 (1940). ........ PEP arcoess LITE erer rer NPD Leg
Cohen v. Beneficial Industrial Loan Corp., 337 U8.
,, 41, 69 S. Ct..1221 (1949) SMe a nage i< sas pease 3
Gospel Army v. City of Los Angeles, Cal., 331 U: S.
943, 67 S. Ct. 1428 (1947) Veni cseeatee tee. |e
Heike v. Unitéd States, 217 U. S. 423, 30 S. Ct. 539
CMR rae AES ie ae rains ek ay 3
Mills v. State of Alabama, 384 U. S. 214, 86 S. Ct. 1434

“CIID onccscas ete CoS rere eee Pe re yo AS ana 3
People v. DiPiazza, 24 N.Y. 2d 342 ns ee Dy 7
People v. Esposito, 287 N. Y. 389 gs Oe: 6
Pope y. United States, 373 F. 24 C80 (20GT) oon cea 7

ee

St Louis, Iron Mountain and Southern R. Co." ¥.
— Expréss Co., 108 U. S. 24,2 S. Ct. 6...
Teen Bega Curt oa a

United States v. Albright, 388. F. 2d 719 (1968) ..... . 4,5
United States v. Baird, 414 F. 2d 700 (1969) .-...:...
United States v. Driscoll, 399 F. 24-135 (1968) ....__ 7
United States v. Weisser, 428 F. 2d 932 (1969) ......

<a

IN THE

Supreme Court of the United States.

ees

No. 1570

October Term, 1970.

RUFUS LEE, JR., — |
Petitioner,

vs

COUNTY COURT OF THE COUNTY: OF ERIE, HON. .
“ERNEST L. COLUCCI, Individually and as a Judge

"thereof, and. MICHAEL ¥. DILLON, District Attorney -

« of Erie County, ° . oe et
Pes cer ee ay

RESPONSE TO PETITION FOR WRIT OF CERTIORARI

- Opinion Below

The opinions of the New York State Court of Appeals
are reported at 27 N. Y, 2d 432. The decision of the New
York Court of Appeals modifies and affirms, as modified,

_ the decision of the Supreme Court, Appellate Division, —
Fourth Judicial Department whose opinion is Teported at:
33 A.D. 2410938" | a ak

2

Jurisdiction

- The petitioner, while invoking the jurisdiction of this |,

Court under the provisions. of 28 U. 8. C. 1257(3), has

. failed to demonstrate that his due process Claims, relating —

to Section 658 of the New York Code of Criminal Procedure

(C. C. P. See. 658), eithet exist or are in such a stage as .
would jurisdictionally permit this Cgurt to. review the

matter as a judgment which is “ final’,

4

The decision of the Appellate Division herein clearly
directed that a new psychiatric examination be held without
* counsel present. Although the Court of Appeals. properly
‘modified that order to allow for the presence of counsel,

it clearly affirmed the direction of an examination. No.

~ trial has yet been ha@.! {
Tt. is therefore. respectfully urged. by: the Respondents

that an order,directing a psychiatric examination is merely
an interlocutory order, and clearly not a “‘final’’ judgment

reviewable at this time and in this manner. - Gospel Army
v., City of Los Angeles, Cal., 331 U. 8. 543, 67 S. Ct. 1428
* (1947) ; Arceneauax v. State of Louisiana, 376 U. 8. 336, 84
S. Ct. 777 (1964). See also Whitus v. State of Georgia, 385
U.S. 545, 87 S. Ct. 643 (1967) ; Cobbledick v. United States,
_ 309 U.S. 323, 60 8. Ct. 540 (1940) ; St. Louts, Iron Mountain
_ and Southern R. Co. v. Southern Express Co., 108 U. S. 24,
2S. Ct. 6 (1883) ; Berman v. United States, 302 U. S. 211,
58 S. Ct. 164 (1987). |

Nor is this ease one wherein the trial court, in view of .

the Court of Appeals direction, has nothing more to do
than go through the formalities of finding the petitioner
guilty. The psychiatrists, should the petitioner cooperate,
might very well conclude that he was legally irresponsible

DOE RN CO me prey

3 .

for his actions thereby rendering his prosecution an im-
. possibility. Mills v. State of Alabama, 384 U. S. 214, 86
S. Ct. 1434 (1966); Cohen v. Beneficial Industrial Loan
- Corp. 337 U.S. 541, 69 S. Ct. 1221 (1949). -

In an “effort, therefore, to insure the time banned ap-

proach of this Court not to decide interlocutory matters

(thereby avoiding piece-meal review), it is urged that the
Court dismiss the writ as not within its jurisdiction: Parr
_v. United States, 351 U. 8. 513, 76 S. Ct. 912 (1956) ; Heike -
v. United States, 217 U.S. 423, 30 S. Ct. 539 (1910).

~

Quéstions Presented

Although the questions presented as. they appear in peti-
_tioner’s brief are acceptable under the factual cireum-
stances herein, respondent suggests that the f ollowing more :
adequately frame the issues. :

1. Where insanity will be i a : dettane at a criminal trial,
is a defendant’s right against self-incrimination violated by
compelling the defendant to give pre-trial testimonial re-
sponses to psychiatrists appointed by the court upon the re-

“quest of the prosecution? |

2. Does the action of the courts va New York i in order-
ing a defendant in a capital case to give testimonial re- ©
sponses to court appointed psychiatrists or lose the right
to present psychiatric evidence at the trial violate a de-.
fendant’s, right to due process?

‘

| Statement of the Case

. The respondent adopts the statement of the petitioner set
forth at pages three through five of his brief.

aN POE

ee nw ks TORE PPR AS RBS an LES
.

4
é ' Argument ‘
Tf the petitioner is allowed to put in issue his mental re-

rats ’ spohsibility at the’ time: of the criminal act, and .simultane-

ously is not compelled to answer questions of the court
ordered psychiatrists, such a défense would in almost all

cases be insurmountable as a matter of law. The law in

New York compels such a result since once the defense is.
raised by a defendant, it is the duty of the prosécution.to
establish the sanity of the defendant beyond a reasonable ~
doubt.: A duty has also been judicially imposed upon the .

prosecution to insure that a proper pre-trial ‘medical ex-

~ amination is secured whenever it has reason to believe that

the accused’s state of mind will be an issue at the trial.

Winn.v. U. 8., 270 F. 2d 326, cert. den. 365 U.S. 848. .

‘Tn the absence of such an examination, to rebut: defend-

~ ant’s proof of insanity, the People would be forced ‘to rely,.

as was suggested below by petitioner, upon. cross examina-

__ tion of: defense experts, upon tay testimony if such were

available, and upon the testimony of experts predicated on
court room observations and hypothetical questions. These —
are certainly poor substitutes for testimony. based upon
extensive interviews between the psychiatrist and the de-
fendant. As was observed by the court in United States

-y, Albright, 388 F.' 2d 719 at 725 of ihe opinion, ‘‘ Half
_ truths derived from these unsatisfactory substitutes do

more to violate h personality than full disclosure,
especially ae is always the possibility that the
psychiatrist who examines for the government, and thus
has full knowledge of the defendant, may corroborate his
contention that he is.legally insane.’’

~The order of the Court. below directing..the psychiatric
examination herein, specifically provided that the appointed
doctors determine the mental condition. of the defendant

at the time of the act in oumitin.” either can there be a
question herein as to the intended use of the examination
by the prosecution.. The affidavit of the assistant prose-
_eutor, in support of the motion seeking the order ‘of ex- |
amination, clearly assured the defendant and the Court that
the prosecution did not intend to offer any of the defend-
ant’s answers into evidence. Such an examination, for -
such a limited purpose, does not violate his privilege against
sélf-incrimination. - United States v. Baird, 414 F. 2d 700
(1969) ; United States v. Albright, 388 F. 2d 719 (1968):

_ People v. DiPiazza, 24 N. Y. 2d 342.

Petitioner argues,- also, that his due-process rights. are
violated when his constitutional rights to plead: not .guilty
by reason of insanity is conditioned upon a relinquishment

of his Fifth Amendment privilege against self-incrimina- —-v

tion. Such an argument presumes, however, that the right
of a défendant to introduce. expert psychiatric opinion evi- ©
dence, based upon an after-the-act interviews with the. :
fendant, is constitutionally guaranteed. This simply is not
so. United States v. Baird, supra, 414 F.2d at.712. Such
an argument also presumes that compliance in the examina-
tion would be self-incriminatory. - However’where the ex-
amination is intended to (and indeed limited. to) elicit in-
formation regarding a defendant’s mental capacity so as to
determine his criminal ‘responsibility for his. actions, as
(listinguished from whether he in fact committed-the act,
the privilege against self-inerimination is notwviolated. See

Umted States v. Albright, swpra. ( :

The petition suggests that he was willing to ied to
a certain extent with the court-appointed psychiatrists by © ”
giving them access to his prior medical records and the
benefit of reading the psychiatric testimony from a previous
trial. His offer however falls far short of the prerequisite

Bt OP A bn Lichids Tegel

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cooperation of the petitioner deemed necessary by the ex-

amining psychiatrists. As was so aptly pointed out by the
New York Court of Appeals in its decision herein, in re-
ferring to the case of People v. Esposito, 287 N. Y. 389,

~ ‘Courts, under the circumstances presented heré, may not
control the methods which have been determined by: the

medical profession to be proper means for discovering or-
treating mental diseases’’. -.

+ The court-appointed psychiatrists herein, have indeed

reported to the Court that without the cooperation of the
petitioner, in those’ areas wherein ‘he has refused to co-
operate, it is medically impossible for. them to render an
opinion as to his mental ey at the time of the
eriminal act. ce

Furthermore, the invocation by the ‘petitioner of the a

privilege against self-incrimination is not well taken since
it must be presumed that he has given all of the informa-
tion to the defense psychiatrists which he has refused to ,
give to the court-appointed psychiatrists. Hopefully what |
““jhstice i is seeking is the truth, and not surprise on. behalf

= of éither party. To uphold the invoking of the privilege in

such a’ case as this would in effect be allowing the privilege
to be used not as a shield, but as a sword. This would in- —
deed be a distortion of the Fifth Amendment.

Petitioner suggests that the prosecution has examined the

'. defendant prior to his first trial, and that simply because

his first conviction was reversed, the People ‘‘eannot have
another bite of the apple’’. » | . .

There are two answers to such an argument. The first
is that the order directing the original examination was
limited to a determination of defendant’s capacity to stand »

- “trial. Secondly, i in view of. the reversal, the — have a,

7 2

duty to make inquiry into ‘the defendant’s State of mind at
the time of the alleged act; knowing that it wilk be an issue
at the retrial; See Winn v, United States, 270 F. 2d 326,
327, cert. den. 365 U.'S. 848; People v. DiPiazza, supra.

- Identical questions, to those considered hereirfhave been
' considered recently by this Court in the case of Parkin v. |
Florida, 8 Cr. L. 4183 (March 24; 1971) wherein the Court
denied certiorari. In the Parkin. case the Florida court
conditioned the right to offer any evidence at trial on the
_ issue of insanity upon petitioner’s cooperation with court-
appointed psychiatrists. The New York Court has con-
, ditioned the offer of only psychiatric evidence upon such
cooperation. This approach seems much less harsh.

The decision of the New York Court of Appeals makes *
it- clear that the privilege against self-incrimination exists’
and obtains at-a pretrial psychiatric examination of the
defendant. However, it is their view that where the defense
is insayity, a defendant cannot remove the only source of

_ information from which to find mental responsibility, that is
-his own thoughts. On the other hand, ‘Tt would violate .
judicial common sensé to permit a defendant to irivoke the-
defense of insanity and foreclose the government from the
benefit ,of a mental examination to meet this issue’.
~» Alexander v. United States, 380 F. 2d 33, at page 39 (1967) ;
United States v. Weisser, 428 F. 2d 932 (1969); Pope v.
Umited States, 373 F. 24-710 (1967); Battle v. Cameron,
260 °F. Supp. 804 (1966) ; United States v. Driscoll, 399 FP.
2d 135 (1968). 7 ao 4

%

_Stitutional rights, either state or federal.

In any event, the writ should be dismissed since it is di- «-
rected against a non ‘‘final’’ intermediate order in a

8

_ Conclusion _

Saiaeibeaiiie respectfully submits that iii the
petitioner to cooperate with court-appointed psychiatrists,

pursuant to his plea of insanity i in no way violates his: con-

a

criminal proceeding that has not yet pi to trial, let alone

Respectfully nn y

MICHAEL F. DILLON,
District Attorney of Erie County,

: ———

Attorney for Respondent, re

‘200 Erie County Hall, ~
25 Delaware Avenue,
Buffalo, New York 14202.

e<

Pras J. Notano,. _* pe
Assistant District Attorney, aie
Chief, Appeals Bureau,

Of Counsel.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1233%3A2. Public record. Not legal advice.