Petition for Writ of Certiorari — Handy v. United States
Supreme Court brief1972
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mar 5as Eth
, MAY 20 07)
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SUPREME COURT GF ‘Hit wr danona HA OLE
October Term, 1972
No. bd
C. JON HANDY, ©
Vs.
Petitioner,
UNITED STATES OF AMERICA,
Appellee,
PETITION FOR A WRIT GF GRRTTGRART fo THE
UNETED STATAS COURT GF APPEALS
FOR THE NENTH GfREUET
ROBERT M,. TALCOTT and
RICHARD G, SHERMAN
8500 Wilshire Blvd,,
Beverly Hills, Calif, 90211
Attorneys for Petitioner
C. Jon Handy
Pee NAR ME BNI Hd
rag Site
i
SUBJECT INDEX
Opinions Below ..cccccccccccccccccccccce
Jurisdiction cecccccccccccccccccccccccce
Constitutional Provisions ..ccccccccccce
Questions Presented ..cccccccccccccccces
Statement of the Case ..cccccccccccccccs
Statement Of FactS cccccccccccccccccccce
Summary Of Argument ceccccccccccccccccces
Reasons for Granting Certiorari ....ceee
ARGUMENT
Sixth Amendment Right To Counsel
I. A Psychiatric Examination To Which
The Defendant Is Compelled To Sub-
mit Himself By The Court During The
Course Of The Trial, At The Request
Of The Government, Is A Critical
Stage At Which The Defendant InA
Criminal Proceeding Is Entitled To
Have His Attorney Present .......
A. The Cases Decided By This Court
Compel the Conclusion That Peti-
tioner Should Have Been Afforded
The Right To Counsel e@eeeeeoeaeae eee
1. Sixth Amendment Guarantee Attaches
At All Critical Stages of the Pro-
ceedings @eeeeoeaeeea eee eeaeaeceaeaea een eee
2. POWELL Proves To Be Prophetic In
Case At Bar @eeeeneeeane2eeceaeneaeoaea ea eeoe2d
B. A Compelled Court Ordered Psychia-
tric Examination, During the Trial
Of A Defendant Is Frought With Even
More Potential Danger Than The In-
terrogation, Identification or other
Pretrial Processes ..cccccccccccce
ARENA EDR wf OMY EBA a!
ii
Page
l. Throughout The Right To Counsel
Decisions in Gideon, Massiah, Mir-
anda, Escobedo, Wade, Gilbert, and
Coleman, There Runs The Thread Of
Recognition That Counsel Is Essen-
tial To Protect The Integrity Of
The Fact Finding Process At The
Trial Itself eeceeececesevreeeeeeeeeee8e@ 13
2. The Psychiatric Examination Involv-
ed Here Was A "Critical Stage" Of
The Criminal Trial (Proceedings) ....- 15
Cc. Due Process And The Meaning Of The
Sixth Amendment Clause Mandates
Reversal "Where Counsel's Absence
Might Derrogate From The Accused's
Right To A Fair Trial eeeoenevneaeve2cceseseee? 19
1. Barring Defendant's Attorney From A
Government Requested, and Court Com-
pelled Psychiatric Examination Is
Constitutionally Impermissible In
That It Severely Limits Counsel's
Right To Cross-Examine The Key Gov-
ernment's Witness (Without Whom The
Defendant Could Not Have Been Con-
victed) Because There Is No Record
Of What The Defendant Said ......---+ 20
2. Appropriate Sixth Amendment Safe-
guards Have Been Suggested In Various
Federal and State CaseS cecccccccccee 21
3. The WADE-THORNTON Rationale To The
Right To Have The Assistance Of Coun-
sel In Similar Civil Proceedings Is
Well Established eeevoocoeoaeveaea eee eoea eee eee 27
4. It Need Not Be Speculated Upon As To
Whether Prejudice Resulted From The
Exclusion Of Petitioner's Counsel
From the Psychiatric Examination .... 29
eee Cae
a - 05 EPR NOT POL SONNET SIDI ENON MT
IGOR
SPOT AT STAIN AIS eo TC WRN OEP gk ARIE TATION Rog ny
Ir.
iItr.
IV.
iii
Page
Petitioner Was Unconstitutionally
Deprived Of His Sixth Amendment
Right To Counsel And His Fifth
Amendment Right Against Self-In-
i 32
A Defendant's Sixth and Fifth Amend-
ment Rights Are Violated Where The
Trial Court's Order Compels The De-
fendant To Submit To An Oral Psychi-
atric Examination By A Psychiatrist
Because It Does Violence To Due
Process and Fundamental Fairness ....32
The Trial Court's Order, Over Defen-
dant's Objection, Compelling Defen-
dant To Answer Questions Of and To
Pully Cooperate With Court Appointed
Psychiatrist Or To Forfeit His Right
To Present Expert Testimony On The
Issue Of His Insanity Is Unconsti-
tutional Under the Self-Incrimination
Clause Of The Fifth Amendment Because
It Extracts (Exacts) A Price For Ex-
ercising His Constitutional Right
Against Self-Incrimination. e@eeeceeeee 37
Compulsory Self-Incrimination As A
Condition To Presenting Expert Testi-
mony Is Incompatible Witn Decisions
Of This Court Condemning Such Pro-
cess As Violative Of The Fifth
Amendment SCeeneceoosooesevecocceocceal
The Letter and Spirit O£# The Fifth
Amendment Denied The Lower Court The
Power To Compel Testimony Over Objec-
tion Of The Privilege Against Self-
Incrimination 000060400000 08606 00660600
This Court Should Grant Certiorari To
Settle Conflicts, Confusion and Uncer-
brs, | Among The Circuit Courts of
Appeal With Respect To The Guidelines
og To Be Established By The
Trial Court Governing The Examination
Of A Defendant By A Psychiatrist
aePointed By the Court At The Request
Se SS Gc ccccécsoceccccecces 4a
ELEM) Spe nage " aT Ne Ame mr, T= Pa, »- ORY
Conclusion
Appendix A
Appendix B
Appendix C
iv
?
SER LOLOL IT EE ere > * guy 7 z
Vv
AUTHORITIES CITED
Cases Page
Argent v. United States, 325 F 2d 162 (Sth Cir.,
1 Di ccccccocccooesoesseoocecoosoosecesoosece 23
Bancrof v. Board of Governors of Registered
Dentists, 1202 Okla. 108 (1949).........ss00- if
Bollenback v. United States, 326 U.S.607 (1944)... 30
Boyd v. United States, 116 U.S. 616 ....cceeeeeeees 32
Buatte v. United States, 330 F 2d 342 (9th Cir.,
1964) eeeeeee ee ee eeeeeeeeeeeeeeeeeeeeeeeeeeee 26
Chapman v. California, 386 U.S. 18, 23 (1967) .... 20
Coleman v. Alabama, 399 U.S. | (1971) neesenecccoe ,
Doherty v. United States, 30 L Ed 2d 149; 92 S Ct
OFS CUST2Z) ccccccccccccccccccccsccecccccccccs 7
Douglas v. California, 372 U.S. 353 (1963) ....... 10
Escobedo v. Illinois, 378 U.S. 478 (1964) ........ 7, 13
Fallon v. Wyoming State Board of Medical Examiners,
bh} P 2d 322 (1968) ....ccccccncesccccccccecs i
French v. District Court, 153 Colo. 10, 14; 384 P 2d
268, 270 (1963) eeeeeee ee eee eee eeeeeeeeeeeeee 4]
Gardner v. Broderick, 392 U.S. 273 (1968) ........ 35, 40
Garrity v. New Jersey, 385 U.S. 493 (1967) ....... 36, 40
Gideon v. Wainwright, 372 U.S. 335 (1963)...7, 10, 13, 30
Gilbert v. California, 388 U.S. 400 (1965)....10, 13, 38
Givens v. Dept. of Alcoholic Beverage Control,
176 C A 2d 529 (1959) ......2- TTT TITT TTT 1
Glasser v. United States, 315 U.S. 60, soe 76,
(1GRZ) ccccccccccccccccccccccccccccccccccsce 19,30
Goldberg .v. Kelly, 397 U. S. 254 (1970) . eeecee eee rh
Gonzi v. Superior Court, 51 C 2d 586 .........4.. 28
Great Lakes Screw Corp. v. NLRB, 409 F 2d 375,
(7th Cir., 1965)...... PTTTTTT TT TT eecesccecce 10
Hamilton v. Alabama, 368 U.S. 52 (1961) eccce ecce 7, 30
Haynes v. Washington, 373 U.S. 503, 518, 519
(1GED) cccccccocccesccccccccocooccesoscocess 30
Heyford v. Parker, 396 F 2d 393 (10th Cir. "1968) . iP
Huyren v. Landon, 219 F 2d 404 (9th Cir. 1954)... 10
Isaac v. United States, 284 F 2d p.168 (D.C. Cir.
(USER) ccccccccccccscccccccsecseosesesecsces 26
Lynumm v. Illinois, 372 U.S. 528 (1963) seeeeeses 30
McKenzie v. United States, 266 F 2d 524 (10th
Cire, 1959) ccccccescces eesccececcococessoss 26
Malloy v. Hogen, 378 U.S. 1, 8 (1964) ........... 40
Massiah v. United States, 377 U.S. 200 (1964) ... 7, 13
Mempa v. Rhay, 389 U.S. 128 (1967) ...... Snacasee iW
Miranda v. Arizona, 384 U.S. 436 (1966)...... 7, 13, 24,
37, 40
—_
es eeE——eeEeEeEeEeEeeeeeeeeeeeee
vi
Cont. Cases Page
People v. English, 31 I11. 2d 301, 201 N.E. 2d
445 (1964) SCPE HS HHH TESHHEEEEEEE 4]
People v. Morse, 70 C 2d 711, Cal Rptr 391 ..... 25
People v. Wax, 75 I11. App. 2d 163, 177-179; 220
N.E. 2d 600, 607-8 (1966) Cert. denied 387
U.S. 930s S$ CE 2051 (1967) ..ccccccccccccce 4]
Pointer v. Texas, 380 U.S. 400 (1965) .......... 10
Powell v. Alabama, 287 U.S. 45 (1932)....10,12, 13, 21,36
Re Gavit, 387 U. S. 1 (1967) eee eeeaeereeeeeeeeeeeee 10, "26
Reynolds v. Cochran, 365 U.S. 525, 531 (1961)..... 20
21
Schantz v. Eyman, (9th Cir. 418 F 2d 11, (1969)...
Schmerber v. California, 384 U.S. 757; 86 S Ct
1826 (1966).......... seeeceeeee 32, 33, 38, 39,amd 40
Schreiner v. United States, 30 L Ed 2d 222; 92
S$ Ct 326 (1972) ..... pecencoesnsnnseescosesce 10
Sharff v. Superior Court, 44 Cal 2d 508 (1955) ... 27
Shepard v. Bowe, 442 P 2d 238 (Ore. 1968) ........ 4]
Sheppard v. Maxwell, 384 U.S. 333 (1966) ......... 30
Sherbert v. Verner, 374 U.S. 398, 404-6 (1963).... 35
Spevack v. Klein, 385 U.S. 511 (1967) cocccccccces 36, &
State v. Olson, 274 Minn. 225, 143 N.W. 2d 69
1966) ere ee eee eee ee eee eee eeeeeeeeeeeee ee eeee 4]
State v. Whitlow, 210 A 2d 763 (1965) .........0.. 22
Steward v. Superior Court, 94 Ariz. 279; 388 P 2d
Tie GHD eevcseseagsocoeses peeaeccancccecs 22
Stromberg v. California, 283 U.S. "359 (1930) ..... 30
Thornton v. Corcoran, 407 F 2d 695, 702..... 18,27,28, 32
Thorpe v. Housing Authority, 386 U.S. 670, 679
(1967) SSCS SEETHER HEHEHE REO EE 35
Tumey ve Ohio, 273 U. Be 510 (1926) eee eee eeeeeeeee 30
Uniformed Sanitation Men Assoc. v. Commissioner
of Sanitations,392 U.S. 280 (1968) .......... 36, 40
U.S. v. Driscoll, 399 F 2d 135 (1968) "B10. 11, 24
U.S. v. Wade, 388 U.S. 218 (1967) ..... 1, 12, 13,
a, 18, 19, 3. 21
24, 27, 31, 32, 33,34
U.S. v. Westerhausen, 283 F.2d 844 (7th Cir. 1960), 26
U.S. v. Zeiler, 427 F 2d 1305 (3d Cir. 1970) ..... 10
Wade v. United States, 426 F 2f (9th Cir.
(1970) eeeee eee eee ee eee eee eeee eeeeeeee 28, 33, 4]
White v. Maryland, 373 U.S. 59 as
Whitfield v. Hanges, 222 F 745 (8th Cir. 1915).. 10
Whitus v. Georgia, 385 U.S. 545 (1967) .......... 30
Williams v. No. Carolina, 317 U.S. 287 (1943) ... 30
Counselman v. Hitchcock, 142 U.S. 547 at 562 .... 39
PR Se ey - WE tg MEET om OE hg
vil
Constitutional and Statutory Provisions
Page
Fifth Amendment, United States Constitution....... 15, 16,
32, 33, 34, 35, 36, 37, 38, 39, 46, 41, 42, 43
Sixth Amendment, United StatessConstitution....... 2, 5,11
12,16,19,21,22,23,24,27,32, 33, 34,35,36,42, 43
I is I 4
ee Meise GHURNER GREP cccccccccecccseccccensebees 33
gt eS OR eee eer te 4
ay as EE SEED chndcdbasconccanenmedoeunnte 4
Calif. Penal Code, Section 1026 .....cccccccccecns 25
Other Authorities
Danforth, Death Knell for Pre-Trial Examination?... 4]
Journal of Taxation, (1970) 322,326 ......ccsecccees 31
Privilege Against Self-Incrimination, 19 Rutgers
L Rev 489 (1965) eeeeeeeee eee eeeereeeeeeeeeeee 4}
Requiring a Criminal Defendant to Submit To a
Government Psychiatric Examination: An In-
vasion of the Privilege Against Sel f-Incrimi-
mntten, SP Gary. 6. Rivrccccccccnccoccoccccece 4]
end
Peary
PATS Tees
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1972
No.
C. JON HANDY,.
Petitioner,
VS.
UNITED STATES OF AMERICA,
Appellee.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Petitioner prays that a Writ of Certiorari
issue to review a judgment of the United States
Court of Appeals for the Ninth Circuit entered
in the above-entitled case on October 20, 1971
and amended on March 22, 1972.
OPINIONS BELOW
The opinion of the Court of Appeals is
reported at 454 F 2d 885 (1972). Said opinion
is printed and attached hereto and made a part
hereof as Appendix A and B.
JURISDICTION
The jurisdiction of this Court is invoked
under 28 U.S.C., Section 1254 and Rule 19.1 (b),
Supreme Court Rules in order to decide a grave
constitutional question of great public interest
which has not heretofore been, but should be,
settled by this Honorable Court and to resolve
conflict between the various Courts of Appeals
————— or
—7_"
on the same matter.
The United States Court of Appeals for the
Ninth Circuit affirmed the conviction of peti-
tioner on October 20, 1971. Petitioner's
petition for re-hearing and suggestion for
appropriateness of hearing en banc was denied
by amended Order on March 22, 1972 (infra Appen-
dix B). An Order extending time to file Peti-
tion for Writ of Certiorari to and including
May 20, 1972, was granted by this Honorable
Court on April 18, 1972, by Mr. Justice Douglas.
All questions raised in this instant peti-
tion were raised in the Court below and on
appeal to the Ninth Circuit Court of Appeals.
CONSTITUTIONAL PROVISIONS
1. The Constitutional provisions involved
are the Sixth and Fifth Amendments to the United
States Constitution. They are printed in l
U.S.C. XLVI. The Sixth Amendment provides in
pertinent part:
"In all criminal prosecutions,
the accused shall enjoy the right
e « « to have the Assistance of
Counsel for his defence."
QUESTIONS PRESENTED
I. This Court Should Grant Certiorari To
Determine Whether A Psychiatric Exami-
nation To Which The Defendant Is Com-
pelled To Submit Himself By The Court
During The Course Of The Trial, At The
Request Of The Government, Is A Critical
Stage At Which The Defendant In A Crimi-
nal Proceeding Is Entitled To Have His
Attorney Present.
II. This Court Should Grant Certiorari To
Determine Whether Petitioner Was Un-
constitutionally Deprived Of His Sixth
Amendment Right To Counsel And His
Fifth Amendment Right Against Self-In-
crimination.
EF PERE LIE INS NE LEC PERNT GP TE
Itt.
-3-
This Court Should Grant Certiorari
To Determine Whether The Trial Court's
Order, Over Defendant's Objection, Com
pelling Defendant To Answer Questions
Of and To Fully Cooperate With Court
Appointed Psychiatrist Or To Forfeit
His Right To Present Expert Testimony
On The Issue Of His ne Is Un-
constitutional.
This Court Should Grant Certiorari
To Settle Conflicts, Confusion and
Uncertainty Among the Circuit Courts
Of Appeal With Respect To The Guide-
lines Required To Be Established By
The Trial Court Governing The Exami-
nation Of A Defendant By a Psychia-
trist Appointed By the Court At The
Request Of The Government.
Re
-4-
STATEMENT OF THE CASE
The course of the proceedings, and the
facts, insofar as they are pertinent to the
questions presented by this Petition, are as
follows: 1/
A. The Course of the Proceedings
By indictment filed in the United States
District Court for the Central District of
California, in Case No. 5667, Petitioner was
charged with wilfully and knowingly submitting
to an Internal Revenue Agent, a false and fraud-
ulent Management Fee Agreement in violation of
18 U.S.C. Section 1001. In Case No. 37429,
Petitioner was charged, in five Counts, with
wilfully and knowingly attempting to evade
corporate income taxes for the years 1964 and
1965, in violation of 26 U.S.C. Section 7201
(Counts One and Two); assisting in the prepara-
tion and presentation of false and fraudulent
returns filed by Palm Springs Panorama, Inc.,
a corporation, for the years 1964 and 1965, in
violation of 26 U.S.C. Section 7606 (2) (Counts
Three and Four); and filing a false and fraudu-
lent return for the year 1965 on behalf of
Petitioner and his wife, in violation of 26
U.S.C. Section 7201 (Count 5). 2/
The indictments were consolidated for
trial and following an extensive and complicated
trial which consumed 15 days, the jury found
Petitioner guilty in Case No. 5667 and guilty of
the first four Counts in Case No. 37429. Peti-
tioner was sentenced to the custody of the
Attorney General for a period of five years on
each of the Counts, the sentences to run
concurrently.
1/ For a more detailed recitation, this Court is
Pie respectfully referred to the Opinion of the United
States Court of Appeals for the Ninth Circuit, which
is made a part hereof as Appendix ''A'' and "'B".
Petitioner was acquitted on Count Five of this
indictment.
a a eR YR ee wee s
-5-
B. Statement of Facts
Although the financial transactions at the
core of Petitioner's criminal case were simple
in outline, the facts and contentions relating
thereto were complex. Indeed, they were so
complicated and involved that the Government
consumed 11% days presenting their facts and
defendant 3% days presenting psychiatric evi-
dence. Furthermore, the complexity of the case
was compounded by the testimony of six doctors,
two of whom were court appointed, in connection
with Petitioner's insanity defense. The two
court appointed psychiatrists were appointed
and defendant was compelled over defendant's
objection, to meet with them and discuss the
facts of the case with them without his attorney
despite his Sixth Amendment right to counsel.
The Trial Court's Orders 3/appointing the
two psychiatrists each provided, inter alin,
that the Petitioner present himself at designa-
ted times and places, as each psychiatrist might
deem necessary; that Petitioner afford “such
cooperation and information as may be required
by said doctor properly to conduct the mental
examination" and that “such examination shall
not be in the presence of any counsel or steno-
grapher designated by defendant". (Emphasis
supplied)
Each of said Orders additionally provided
that if Petitioner did not comply with the
Orders, he “shall be precluded at tr.al from
presenting testimony upon the issue of his
alleged mental incapacity by any expert by whom
he has been interviewed".
All but one of the psychiatrists testified
that, at the time of the alleczd commission of
the crimes, Petitioner was suffering from
chronic paranoid schizophrenia, that Petitioner
lacked substantial capacity to appreciate the
3/ True copies of the Orders appointing psychiatrists
Davis and Deering, filed September 4, 1970, and being
po. 501-502 and pp. 511-512 of the Clerk's Record on
Appeal are reproduced and made a part hereof as
: Apoendix "'C'',
—_ e
a
4/ “Tr.". when used hereafter, refers to the Renorter's
-6-
wrongfullness of his conduct, that Petitioner
lacked substantial capacity to conform his con-
duct to the requirements of the law, that Peti-
tioner was not in control of his actions and
therefore, could not have a criminal intent to
defraud the Government and that Petitioner met
the legal definition of insanity in all respects.
Dr. Deering, the one psychiatrist who feiled to
join in the unanimous opinions of the other five
doctors, dissented rather than concurred from
the aforesaid consensus. Although he diagnosed
Petitioner as suffering from an obsessive conm-
pulsive neurosis, he also concluded that his
diagnosis was extremely difficult since Petition-
er was a “sick man“, since Petitioner's obses-
sive compulsive neurosis had many features sim-
ilar to chronic paranoid schizophrenia, since
Petitioner was sick since the age of two, and
since Handy was engaged in “self-destructive
behavior".
As is evident from a reading of the Court's
Orders appointing the psychiatrists, (Appendix
"c" hereof) Petitioner was precluded from having
counsel, or a stenographer, present at the
examination but the Orders did not preclude the
prosecution having counsel and/or a stenographer
present during the examination. It cannot be
faizly ascertained from the record whether or
not counsel for the Government or a Government
stenographer were actually present during the
psychiatric examinations of the Petitioner, as
ordered by the Court. However, the record is
clear that following a first examination of the
Petitioner, by court appointed psychiatrist Dr.
Deering, the doctor met with the prosecutor on
two occasions, during one of which the prosecu-
tor delivered certain “papers" to the doctor's
office. (Tr. 2247) 4/ 5/
Transcriot of Proceedings at trial.
-7=-
On one occasion, the prosecutor asked the
doctor to examine the Petitioner a second time.
Dr. Deering thereafter, did perform a second
examination of the Petitioner. (Tr. 2274) of
5/ Although the nature and identity of some of the
™ "papers" delivered by the prosecutor to Dr. Deerine
were made known during the course of the Cross-
Examination of Dr. Deering at the trial, it cannot
be ascertained from the record whether or not the
prosecutor delivered other papers or documents, not
alluded to in the proceedings. to the doctor. It is
here noteworthy that one of the "papers'' which was
delivered to Dr. Deering by the prosecutor was a
transcript of the prosecutor's Opening Statement to
the jury. We are hard pressed to determine why a
prosecutor's Opening Statement was in any way
essential to the doctor's diagnosis of the Petition-
er, while the Opening Statement of Defense Counsel
(which apparently was not qiven to the doctor by
the prosecutor) was somehow immaterial to the diag-
nosis. It is additionally noteworthy that while the
doctor accepted the "papers" proferred to him by the
prosecutor, the doctor declined to accept, or to
look at, certain "papers" which were offered to him
by the Petitioner.
6/ Although the reasons for, or the necessity of, a
Bid second examination of Petitioner by Dr. Deering
were not alluded to at the trial, and would be mat-
ters of conjecture, one might perhaps speculate that
the prosecutor was somehow unhappy with the results
of Or. Deering's first examination of the Petitioner.
It is noteworthy that after the second of the exami-
nations had been performed, Dr. Deering testified
that the Petitioner was sane at the commission of
his offenses, whereas, all of the five other experts,
including court appointed Dr. Davis, testified that
Petitioner was insane. (Dr. Deering did agree with
defense counsel, on Cross-Examination that there was
mo question but that the Petitioner was a sick man;
that there was no question but that his diagnosis
had been an extremely difficult one to make; and that
Petitioner could have been insane during 1964, 1965,
and 1966, (Tr. pp. 2247 and 2275).
OT oti e a ett rne Ear RS te a a ee
-8-
SUMMARY OF ARGUMENT
Reasons For Granting The Writ
A mid-trial psychiatric interview to which
a defendant whose sanity is in question is com
pelled to submit, under penalty of effectively
forfeiting his insanity defense, is a crucial
stage of the proceedings and the presence of
counsel is therefore essential to protect the
integrity of the fact-finding process at the
trial itself.
In light of the rationale of united states
v. Wade, such psychiatric interview is so fraught
with danger so as to require the guiding hand of
counsel during the proceeding.
This Petition seeks to have this Court now -
hold that a Court appointed psychiatric examina-
tion of a defendant whose sanity is in question,
is a "critical" stage of the Proceedings and
that in such a situation the defendant should
be afforded the “guiding hand of counsel” in
the very psychiatric examination upon which
hinges his guilt or innocence.
-9-
ARGUMENT
Sixth Amendment Right To Counsel
I A PSYCHIATRIC EXAMINATION TO WHICH
THE DEFENDANT IS COMPELLED TO SUB-
MIT HIMSELF BY THE COURT DURING THE
COURSE OF THE TRIAL, AT THE REQUEST
OF THE GOVERNMENT, IS A CRITICAL
STAGE AT WHICH THE DEFENDANT IN A
CRIMINAL PROCEEDING IS ENTITLED TO
HAVE HIS ATTORNEY PRESENT.
A. The Cases Decided By This Court
Compel the Conclusion That Petitioner
Should Have Been Afforded The Right
To Counsel.
The right of defendants in criminal cases
to be afforded the “guiding hand of counsel” at
crucial pretrial, trial and post-trial stages of
a criminal proceeding, has received the expand-
ing protection of the courts during recent years.
The right to counsel, commencing with
Gideon 7/, held that a defendant could not be
assured a fair trial in the absence of counsel.
By virtue of a plethora of decisions following
Gideon, this Court has now extended the right to
counsel to an individual suspect subjected to
surreptitious interrogation. 8/ In addition, both
the arraignment 9/ and the time of entering a
plea 10/ have been determined to be "critical
stages" requiring the presence of counsel.
This Court has guaranteed that even a sus-
pect (not yet a defendant) is entitled to counsel
prior to, and during interrogation 11/as well as
7/ See Gideon v. Wainwright, 372 U.S. 335 (1963)
See Massiah v. United States, 377 U.S. 200 (1964)
8/
9/ See Hamilton v. Alabama, 368 U.S. 52 (1961)
10/ See White v. Maryland, 373 U.S. 59 (1963)
1/ See Escobedo v. Illinois, 378 U.S. 478 (1964)
and Miranda v. Arizona, 384 U.S. 436 (1966)
ORES PNSERS 7 RRR Re EN os RN AREER IR IR CON a aa tee ge ATP AZPY OWL
AR aca mA GTI LET TNT RI ENE eT ae ter san ter UI
—
| -10-
during the course of a lineup. 12/ The right of
a defendant to counsel at a preliminary hearing
has recently been given expression. 13/ The
right to counsel during trial has, of course,
been recognized for sometime. 14/ The right to
counsel was then expanded to afford criminal
defendants the assistance of counsel in post-
conviction appeals, 15/ and even on a Petition
for a Writ of Certiorari. 16/
The right to counsel at photographic identi-
fications has been recognized by the United
States Court of Appeals. 17/ This Court has
further guaranteed the right to counsel in non-
criminal juvenile court proceedings. 18/
The right to counsel has further been guar-
anteed in proceedings which are neither criminal
nor quasi-criminal. Thus, the right has been
expanded to include an alien in a deportation
proceeding; 19/ an employee in National Labor
Relations Board proceedings; 20/ a doctor or
12/ See United States v. Wade, 388 U.S.218 (1967)
and Gilbert v. California, 388 U.S. 263 (1967)
13/ = See Pointer v. Texas, 380 U.S. 400 (1965)
and Coleman v. Alabama, 399 U.S. ! (1971)
14/ See Powell v. Alabama, 287 U.S. 45 (1932)
and Gideon v. Wainwright, 372 U.S. 335 (1963)
15/ = See Douglas v. California, 372 U.S. 353 (1963)
16/ See Doherty v. United States, 30 L Ed 2d 149; 92 S$ Ct
175 (1972) and Schreiner v. United States, 30 L Ed
2d 222; 92 S Ct 326 (1972)
l7/ See United States v. Zeiler, 427 F 2d 1305 (3d Cir
1970)
18/ = See Re Gault, 387 U.S. 1 (1967)
19/ See Whitfield v. Hanges, 222 F 745 (8th Cir. 1915);
and Hyun v. Landon, 219 F 2d 404 (9th Cir. 1954)
20/ See Great Lakes Screw Corp. v. NLRB, 409 F 2d 375
(7th Cir. 1969)
PE OUD MeN NAL ME NLT OE TPT IG IT IE TELR OLE BPs AG I8
alle
dentist in license revocation proceedings; 21/
a liquor licensee; 22/ and in numerous other
proceedings before various boards or administra-
tive agencies.
It has also been recognized that the men-
tally infirm are entitled to counsel in proceed-
ings involving their commitment to or release
from an institution, 23/ and probationers and
parolees have recently come under the protective
umbrella of the Sixth Amendment. 24/ Even wel-
fare recipients have been afforded counsel's
protection. 25/
It is thus apparent that the Sixth Amend-
ment right to counsel has been guaranteed and
implemented by this Court to afford the protec-
tion of counsel from the time that one becomes
a suspect, through and includitg appeal and
other post conviction proceedings.
l. Sixth Amendment Guarantee
Attaches At All Critical
Stages of the Proceedings
The foregoing decisions of this Court
flowed from a recognition of the fact that pro-
ceedings prior to trial may well settle the
accused's fate, thus reducing the trial itself
to a mere formality. Thus, this Court pointed
out in United States v. Wade, 388 U.S. 218, 224:
1/ See Fallon v. Wyoming State Board of Medical
~~ ExamIners, 441 P 2d 322 (1968) and Bancroft v.
Board of Governors of Registered Dentists, 202 Okla.
108 (1949)
22/ See Givens v. Dept. of Alcoholic Beverage Control,
ue 176 CA 2d 529 (1959)
See Heyford v. Parker, 396 F 2d 393 (10th Cir. 1968)
See Mempa v. Rhay, 389 U.S. 128 (1967)
See Goldberg v. Kelly, 397 U.S. 254 (1970)
se: er ae 3
—
@12<
“In recognition of these
realities of modern criminal
prosecution, our cases have
construed the Sixth Amendment
guarantee to apply to ‘critical’
stages of the proceedings."
This Court further, in U.S. Wade, supra,
defined the term "critical stage of the proceed-
ings" as follows: (388 U.S. 218 at 226,
“The accused is guaranteed
that he need not stand alone
against the State at any stage
of the prosecution, formal or
Ourt or out, where
counsel's absence might ogate
from the accused's right to a
fair trial." (Emphasis supplied)
It is clear that a defendant's right to
counsel at a given stage in a criminal prosecu-
tion is not linked “only to protection of sixth
Amendment rights", but rather, the essential
elements are "whether potential substantial pre-
judice to defendant's rights inheres in the par-
ticular confrontation and ability of counsel to
help avoid that prejudice" (United States v.
Made, Supra, at 227).
Thus the question presented by this peti-
tion is whether a psychiatric examination of a
defendant, ordered by the Court during the
course of a criminal trial, is a "critical"
stage of the proceedings. For reasons that we
shall point out herein, it is most respectfully
submitted that the very psychiatric examination
upon which may well hinge a defendant's guilt
or innocence is indeed a "critical" stage of
the proceedings, and that in such a situation,
the defendant should be entitled to the "guiding
hand of counsel” during the course of a psychia-
tric examination of that defendant compelled by
the Court during the course of a criminal trial.
2. POWELL Proves to Be Prophetic
In Case At Bar.
Indeed, this Court, as long ago as 1932,
recognized that it is the duty of the courts to
Se eR gp ROTI Ek i a
ee-
ee
-1]13-
protect the ignorant, the feeble-minded, the
illiterate and those otherwise incapable of
adequately protecting themselves, by providing
adequate counsel to assist and guide them in
their defense. In a statement which has now
proven to be prophetic, this Court said,
in Powell v. Alabama, 287 U.S. 45, 71:
"All that it is necessary now
to decide, as we do decide, is that
in a capital case, where the defen-
dant is unable to employ counsel
and is incapable adequately of mak-
ing his own defense because of ig-
norance, feeble mindedness, illiter-
acy, or the like, it is the duty of
the court, whether requested or not,
to assign counsel for him as a neces-
Sary requisite of due process of law;
and that duty is not discharged by
an assignment at such a time or
under such circumstances as to pre-
clude the giving of effective aid
in the preparation and trial of
the case."
What this petition seeks is to have this
Court now hold that a defendant whose sanity is
in question, be afforded the guiding hand of
counsel in the very proceeding upon which hinges
his guilt or innocence.
B. A COMPELLED COURT ORDERED PSYCHIA-
TRIC EXAMTNATTON, DURING THE TRIAL
OF A DEFENDANT IS FROUGHT WITH EVEN
MORE POTENTIAL DANGER THAN THE IN-
TERROGATION, IDENTIFICATION OR OTHER
PRETRIAL PROCESSES.
1. Throughout the Right To Counsel
Decisions in Gideon, Massiah, Mir-
anda, Escobedo, Wade, Gilbert, and
Coleman, There Runs the Thread of
Recognition That Counsel Is Essen-
tial To Protect the Integrity of
The Fact Finding Process At The
Trial Itself.
The potential prejudice which might inure
to a criminal defendant (suspected to be insane)
ELSE ME ELE EOE SIO AO Tg SONIA afoae PPO Sey EY
vr Meee Vw
-14-
at a psychiatric examination by a court appoint-
ed or government psychiatrist, in a situation
where the defendant is required to proceed with-
out the presence of his counsel or a record is
readily apparent.
This Court has recognized the necessity of
counsel to protect against suggestive influences.
In United States v. Wade, 388 U.S. 230-232:
“In any event, neither witnesses
r_ line articipants are t to
be alert for conditions prejudicial
to the suspect. And if they were,
it would likely be of scant benefit
to the suspect since neither wit-
nesses nor lineup participants are
likely to be schooled in the detec-
tion of suggestive influences. Inm-
proper influences may go undetected
by a suspect, guilty or not, who
experiences the emotional tension
Which we might expect in one being
confronted with potential accusers.
Even when he does observe abuse, if
he has a criminal record he may be
reluctant to take the stand and open
up the admission of prior convictions.
er, an rotestations by the
s ect of the fairness of the line
made at trial are likely to be in
vain; the jury's choice is between
the accused's unsupported version
and that of the police officers
present. In short the accused's
inability effectively to reconstruct
at trial any unfairness that occurred
at the lineup may deprive him of
his only opportunity meaningfully to
attack the credibility of the witness
courtroom identification." (Emphasis
supplied) (citations omitted)
The psychiatric interview presents a fact
finding process which is no less fraught with
danger of suggestive influences, improper con-
duct and difficulty of reconstruction, than the
lineup involved in Wade. No less than a lineup,
the psychiatric confrontation “is peculiarly
riddled with innumerable dangers and variable
EE ES SOREL EI IE SE TINT EIN IIIT TE De NEOTEL
-15-
“factors which might seriously, even crucially,
derogate from a fair trial " (United States v.
Wade, Supra, at 228).
2. THE PSYCHIATRIC EXAMINATION IN-
VOLVED HERE WAS A “CRITICAL STAGE"
OF THE CRIMINAL TRIAL (PROCEEDINGS)
In enumerating the various areas of poten-
tial prejudice inherent in the reliability of
the fact-finding process of the psychiatric con-
frontation, “where counsel's absence might dero-
gate from the accused's right to a fair trial",
we have chosen the following "variable factors"
to portray why the defendant whose sanity is in
question requires the aid of counsel:
a) The defendant would undoubtedly be de-
void of any ability to determine at some
point during the interview (should the same
become necessary) that it is in his best
interests to invoke his Fifth Amendment
privilege and terminate further inquiries
(even at the price, as here, of having his
insanity defense stricken). The presence
of counsel would ensure that such decision
was an enlightened one and made with a full
knowledge of all of the legal and other
ramifications inherent in the invocation.26/
b) By virtue of the inherent imbalance of
psychiatric expertise which exists between
the two par=ies present at such examination,
the alienist could completely dominate and
maneuver the defendant in his recitation,
the defendant being continually at a loss
te ever relate the actual proceedings to
either his counsel, or in court. 27/
26/
27/
—
We do not intimate that defendant's counsel should be
permitted to voice objections to the psychiatrist's
questions, or to otherwise interfere in any manner
with the examination. The presence of counsel, how-
ever, would most definitely ensure that the defendant's
Fifth Amendment rights would be protected and timely
invoked should the necessity therefor arise.
Reliance upon the doctor to protect the interests of
the defendant is an inadequate substitute for the pre-
sence of conscientious counsel.
PLEO SOLE LEER LL LER OLLIE IE OPE EE I NED LORE EGE NAN IEI NOS AAI STE
REE RR ee eee PRP MW SRL Ie he ss, ck
_——
BLS IRAE OLAS 2 OOK ORE
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]
-16-
c) Behind the closed doors of the psychia-
trist's office, an unscrupulous but skilled
practitioner could hypnotize or otherwise
brainwash an unprotected defendant. 28/
da) The same skilled, yet unethical psychi-
atrist could so design the interview,
through the power of suggestion, so as to
convince a suggestible defendant that the
defendant actually committed the crime,
where, absent such suggestion, the defen-
dant had no recollection of any of the acts.
29/
e) The interviewing psychiatrist might, in
the absence of counsel, spend only a brief
few minutes (or for that matter, no time at
all) with the defendant and thereafter
testify at the trial as to the factual
basis for his finding. 30/
28/
29/
Defense counsel's being permitted to record and ob-
serve the proceedings in an adjoining room through
the use of a one-way mirror and being permitted to
interrupt the interview only for the purpose of advis-
ing his client with respect to the invocation of the
client's Fifth Amendment privilege, would thus, not
only ensure the defendant's Sixth Amendment rights
while also preserving the privacy and dignity of the
examination, but would also be a solution to the con-
tention that the presence of defenee counsel in the
room during the psychiatric interview would impede or
otherwise interfere with the examining process.
Petitioner would suggest that a proper method for re-
cordation of the proceedings at the psychiatric inter-
view, and one which would not in any way interfere with
the examining processes, would be to record the entire
examination on video or audio tape. Thus, should any
question arise later as to the propriety or conduct of
the examination or any part thereof, the trial court
could (in an in-camera proceeding, just as is done in
cases involving confessions or the discovery of evi-
dence in the hands of prosecution) review the video or
audio tape for the purpose of determining whether or
not the course of the interview proceeded in such a
fair or proper manner so as to permit the psychiatrist
to testify as to his conclusion on the issue of sanity.
CT ERE, Fe a Ra dol cates
olF=
£) A defendant would undoubtedly experience
serious difficulty in reconstructing the
questions, answers and nuances involved in
the interview.
g) A defendant could not possibly relate
to counsel, so as to effectively assist
counsel in the cross-examination of the
psychiatrist, the amount of time interval
between each question of the psychiatrist
and the answer of the defendant (a factor
which counsel understands to be of some
importance in psychiatric practice).
h) The defendant might reveal 100 facts
during the interview, 5 of which support
the psychiatrist's conclusion of sanity
and 95 which would support the contrary
view Of insanity. 3)
i) A defendant unaided by counsel might
not recognize that the psychiatrist's fail-
ure to inquire adequately into a detailed
history of the patient would invalidate or
otherwise impune the credibility of the
psychiatrist's ultimate conclusion.
j) A skilled “prosecution" psychiatrist
examining a defendant can readily talk the
defendant into (or coerce) the defendant
to “confess" his guilt which he otherwise
would not have done absent the compelled
examination.
Cont.
One could hardly expect a defendant, untrained in the
art, to recognize that a proper psychiatric evalua-
tion involves a more lengthy discourse between
examiner and patient.
The presence of defense counsel or the recordation
of the proceedings would ensure a full and accurate
record of the questions and answers so that defense
counsel on cross-examination might be able, at the
trial, to establish by the psychiatrist's own testi-
mony, that the greater weight of the facts elicited
at the psychiatric interview balance in favor of the
conclusion insanity.
PRP IMAL SF
-18-
k) Supposing that during the course of a
psychiatric interview the psychiatrist
questions the defendant as to other crimes.
1) The defendant is incriminating him-
self and/or faces the possibility of
additional charges;
ii) Even if for some reason additional
charges could not be filed, for example,
i.e., statute of limitations, the defen-
dant's background revelations could come
before the jury, thus leading the jury
to believe that the defendant is more
likely to be guilty of the present charge.
1) The interviewing psychiatrist testifies
that the defendant told him, during the
interview, of having engaged in some immoral
conduct, and in thus relating the patient's
history to the jury, as the basis for the
psychiatrist's opinion, the jury is inflamed
or otherwise prejudiced.32/
i) The presence of counsel or a record
of the proceedings might reveal that no
such history was ever, in fact, given
by the patient. 33/
32/ Amore intelligent cross-examination of the court
~~ appointed psychiatrist could be conducted by the
presence of counsel at the interview,
33/ The Court of Appeals has recognized in Thornton v.
Corcoran, 407 F 2d 695, 702, that defense counsel in
insanity cases are "frequently unable to examine
government witnesses with sophistication" and that
‘much greater attention must undoubtedly be devoted
to the discovery of devices where this lack of
sophistication on the part of the bar can be combat-
ted. An obvious starting point in the search js
the hospital where the defendant receives a psychia-
tric examination."
re eness
_ ae
er
-19-
We shall notburden this Court further with
a lengthy recitation of the additional possibil-
ities which might be reiterated for cited) to
demonstrate the possibility of prejudice to the
reliability of the fact-finding process ata
compelled psychiatric examination.
"In short, the accused's in-
ability effectively to reconstruct
at trial any unfairness that occur-
red at the lineup may deprive him
of his only opportunity meaningfully
to attack the credibility of the
witness' courtroom identification.”
United States v. Wade, 388 U.S. at
230-232.
Indeed, the absence of defendant's attorney,
at the time he was interviewed by the Government's
psychiatric witness, is a “critical stage" and
the presence of defendant's attorney must aid in
the reliability of the fact-finding process.
Cc. DUE PROCESS AND THE MEANING OF THE
SIXTH AMENDMENT CLAUSE MANDATES
REVERSAL “WHERE COUNSEL'S ABSENCE
MIGHT DERROGATE FROM THE ACCULED'S
RIGHT TO A FAIR TRIAL."
The Court's Order appointing psychiatrist
to examine the petitioner which specifically pre-
cluded the presence of defense counsel at the
examination, while being silent with respect to
the presence of Government counsel, vitiated
the essential fairness of the proceedings and
deprived petitioner of due process of law and
his right to counsel.
In a case in which sanity is raised as an
issue, can it be seriously argued that there
can be any more critical stage than at a court
appointed psychiatric examination of the defen-
dant?
In short, the presence of counsel is part
and parcel of a fair trial is also manifested in
the Court's persistent refusal to search the
record of a trial for prejudice, once the right
to counsel is shown to have been violated.
Glasser v. United States, 315 U.S. 60, 75, 76
lla aaa i oe
oe
-20-
(1942); Reynolds v. Cochran, 365 U.S. 525, 531
(1961); White v. Maryland, 373 U.S. 59 (1963);
United States v. Wade, 388 U.S. 218, 236 (1967);
Chapman v. California, 386 U.S. 18, 23 (1967).
i. Barring Defendant’s Attorney From
A Government Requested, and Court
Compelled Psychiatric Examination
is Constitutionally Impermissible
In That It Severely Limits Counsel's
Right To Cross-Examine the Key Gov-
ernment's Witness (Without Whom The
Defendant Could Not Have Been Con-
victed) Because There Is No Record
Of What The Defendant Said.
The failure of counsel to be present at
deposition involving a critical witness ina
civil proceeding would probably be considered
gross negligence.
Compare this to the necessity of having
counsel present at a psychiatric examination
had during a criminal trial where the one crucial
issue is the defendant's sanity. 34/
It thus becomes evident that defendants’
counsel does not have an adequate opportunity to
impeach the testimony of an expert witness when
he has no idea, or reliable source from which to
determine whether or not the defendant provided
the psychiatrist with the necessary facts upon
which to base a conclusion. For example, what if
the defendant was feeble-minded, catatonic, or
otherwise stood mute during the examination. The
defense counsel cannot accurately determine, nor
can any appellate court ever review, what tran-
spired "behind the closed doors" at defendants‘
oral examination. 35/
34/ The accused has no control whatsoever regarding the
conduct ot the psychiatric examination,
35/ itis difficult to see how any proceedings could have
been more critical to petitioner than the compel led
psychiatric examination.
o CigT (Perse ecrz PTT RSE NR a
REPUTE ME YEH ete ty rer
af}-
This Court expressly held in Wade:
: ". . « the principal of Powell
v. Alabama and succeeding cases
requires that we scrutinize any |
pretrial confrontation of the
accused to determine whether the
: presence of his counsel is neces-
sary to preserve the defendant's
basic right to a fair trial as
affected by his Eeant meaningfully
to cross-examine e witnesses
against him and to have effective
assistance of counsel at the trial
itself." (388 U.S. at 227) (Em
phasis by the Court “any”.)
What this Petition seeks is to have this
Court now hold that a defendant whose sanity is
in question, be afforded the guiding hand of
counsel in the very proceeding upon which hinges
his guilt or innocence. 36/
oe
2. APPROPRIATE SIXTH AMENDMENT SAFE-
GUARDS HAVE BEEN SUGGESTED IN VARIOUS
FEDERAL AND STATE CASES,
The United States Court of Appeals for the
Ninth Circuit, in Schantz, v. Eyman, (9th Cir.
“418 F 2d 11, (1969) Cert. denied 397 U.S.1021
(1970) was faced with a situation involving the
post indictment questioning by a state psychia-
* trist, on instructions of the prosecutor, with-
out notice to, and in the absence of, counsel.
The procedure violated Petitioner's right to the
assistance of counsel at a critical stage of the.
proceedings against him. Said the Court of
Appeals, in Schantz, v. Eyman, Supra, at 13:
"The precise question, therefore,
is whether potential substantial pre-
judice inhered in petitioner's post
indictment pretrial confrontation with
the state's psychiatrist, and whether
counsel's presence would have helped
avoid the prejudice."
36/ If the psychiatric examination is improperly conduc-
ted, the defendant isthua deprived of the opportun-
ity of ever proving his innocence,
ARs Cpa eS RRO MATL CAP IV AR DD CoOL RRP? & wet 8 a RRS
eae ee IMT BY
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pi eae)
-22-
The Court of Appeals, rejecting the arju-
ment that the presence of counsel could not
have avoided prejudice because counsel could
have done no more than advise Petitioner to
refuse to submit to the examination (the same
course which Petitioner chose in the absence of
counsel). The opinion went on to point out
that counsel could have done much more. Counsel
could have told Petitioner that his refusal to
be examined might be admitted in evidence against
him and could have advised him whether, in light
of this fact, it would have been better to agree
to the examination, the court continued, 418 F
2d 11 at 14:
"If this course had been adopted,
counsel might have afforded Petitioner
further protection by insisting that
the examination be conducted under
appropriate safeguards, such as the
use of neutral experts, the presence
of a defense representative, and the
preparation of a taped or stenograph-
ic record of the examination." 37/
The Supreme Court of Arizona has held that
the courts of that State lack statutory or in-
herent power to compel a defendant to submit to
a pre-trial mental examination. 38/
The record here is devoid of any testimony
or evidence which would even remotely suggest
that the examination by the court appointed
psychiatrists would have been reduced in effec-
tiveness, or have been otherwise impaired, by
the presence of defense counsel or a stenograph-
er. The presence of such reasons on-the record
appears to have been essential to a determina-
tion of the question by the Supreme Court of
New Jersey in State v. Whitlow, 210 A 2d 763
(1965). Said the Supreme Court.of New Jersey,
at 776:
37/ The trial court in this pending petition, precluded
the petitioner from having either Counsel or a sten-
ographic reporter present.
/ See Steward v. Superior Court, 94 Ariz. 279 388 P 2d
191, (1963) decided upon other than Sixth Amendment
grounds.
PE ere De ier Ie PANEL ke FLEE NN ST OLE AP Ne ES oy
aR
"If, upon application by the
state for leave to examine, defense
counsel requests permission to be
present at the examination, the
court should require some showing
by the prosecutor as to the atti-
tude of the psychiatrists about
the presence of counsel. Of course,
if there is no objection, permission
should be granted. (In such case,
counsel should realize his atten-
dance is in the capacity of an
observer, not an active partici-
pant.) If, in their view the
presence of such a nonprofessional
would hinder or operate to reduce
the effectiveness of their exami-
nation, or if they assert they
cannot examine in his presence,
the court may in the exercise of
its discretion exclude counsel
from the examination. In this
event, if defendant requests,
consideration may be given to the
feasibility of permitting such de-
vices as recording instruments or
the like to be utilized at the
psychiatric interview. In any
case the court should allow a
defense psychiatrist to attend the
examination, if such a demand is
made."
As we have pointed out, the record here is
silent with respect to the feelings of the court
appointed psychiatrists as to the presence of
defense counsel, a stenographer, or a defense
psychiatrist.
It is suggested, however, that in any
event, the overriding weight of Sixth Amendment
guarantees afforded a defendant tips the scales
unmistakenly in favor of the presence of defense
counsel at a court appointed psychiatric exami-
nation. That counsel's presence might somehow
impede the effectiveness of the psychiatric
examination, must be balanced against the Sixth
Amendment guarantee of the presence of counsel
at proceedings where the results might well
determine the fate of a defendant. We believe
Ne EO OOM LLL ELIOT, LN LE COTE IL INE HEN VD SAB |? Teens
ween 7
~24-
that this court has spoken quite clearly as to
the direction in which the scales must tip in
such situations. In U.S. v. Wade, 338 U.S. 218,
237-238, this Court held:
“And to refuse to recognize the
right to counsel for fear that counsel
will obstruct the course of justice is
contrary to the basic assumptions upon
which this Court has operated in Sixth
Amendment cases. We rejected similar
logic in Miranda v. Arizona concerning
presence of counsel during custodial
interrogation, 384 U.S., at 480-481:
'(A)n attorney is merely exer-
cising the good professional judgment
he has been taught. This is not cause
for considering the attorney a menace
to law enforcement. He is merely carry-
ing out what he is sworn to do under
his oath-to protect to the extent of his
ability the rights of his client. In
fulfilling this responsibility the
attorney plays a vital role in the ad-
ministration of criminal justice under
our Constitution. '
In our view counsel can hardly impede
legitimate law enforcement; on the con-
trary, for the reasons expressed, law
enforcement may be assisted by pre-
venting the infiltration of taint in
the prosecution's identification evidence."
in United States v. Driscoll, 399 F 2d 135
(1968), the Court of Appeals for the Second Cir-
cuit, while not passing upon the appellant's
contention that under United States v. Wade,
supra, he was constitutionally entitled to have
his lawyer present during a psychiatric exami-
nation, nevertheless reversed a judgment of
conviction holding that counsel could have en-
sured certain procedural safeguards, under
appropriate conditions, such, as, if feasible,
having the appellant's own representative
present at, or requiring a transcript or video-
tape of the examination (399 F 2d 138).
pet
ses
Be Sea a ta Sea z4
AAPA A FAY
«ZS
The California Supreme Court has also had
occasion to comment upon the issue. In People
v. Morse, 70 C 2d 711; 76 Cal Rptr. 391, that
court commented:
"Recognizing the importance
of accurate psychiatric evaluation
in cases involving the mental con-
dition or state of mind of the
accused, we have thus endeavored
to preserve the effectiveness of
psychiatric examination within
the framework of constitutional
guarantees to the assistance of
counsel at all stages of the pro-
ceedings." (Emphasis added) 39 7
39/
California, unlike the Federal Courts, has formulated
an enlightened procedure with respect to the trial of
criminal matters in which the question of a defendants
sanity is put into issue. By virtue of Section
1026 of the California Penal Code, California
provides for a bifurcated trial. Most of the objec-
tions to a defendant's cooperating with a prosecution
or court appointed psychiatrist are thereby eliminated
since, under this procedure, the defendant's statements
with respect to the issue of guilt may be introduced
only at the sanity phase of the trial and the psychia-
trist may not testify, nor may any evidence of the
defendant's statements to the psychiatrist, be put be-
fore the jury at the guilt phase of the proceedings.
It is suggested, at a later point in this petition,
that this Court should, under its supervisory authori-
ty over the proceedings in the Federal Courts, adopt a
similar procedure so that both a defendant and his
counsel might be more freely inclined to cooperate
with court appointed psychiatrists, rather than,as
here, be placed between the Scylla of being forced to
cooperate with the Court appointed psychiatrist under
penalty of being precluded from introducing any expert
testimony of insanity and the Charibides of having the
psychiatrist testify from statements made by the defen-
dant during the course of such examination.
BN ROIS REET ME CER RE CR Ars ‘ . EE ap
a ———
Indeed the young and the mentally infirm
require as much, if not a greater degree, of
assistance than those who are merely criminally
suspect. This Court quite recently had occasion
to point out in Re Gault, 387 U.s. 1, 28 (1967),
that:
- =26-
“Under our Constitution,
the condition of being a boy
does not justify a Kangaroo
Court.*
This Court should grant certiorari here to
similarly hold that the condition of beirg in-
sane does not. justify a psychiatric examination
from which are precluded the defendant's counsel,
or any record of the proceedings.
If a criminal suspect is to be deemed
able of properly protecting himself at a police
station or a lineup, a defendant who is suspect-
ed of being insane could hardly be expected to
protect himself at a psychiatric examination
without the “guiding hand of counsel" being
present to ensure the essential fairness of the
proceedings. 40/
40/ While it could possibly be said that the psychiatric
examination is not an in-court proceeding as to thus
require the stenographic reporting of the psychia-
tric examination and the presence of counsel for the
purposes of insuring an accurate record, it is quite
apparent that any trier of fact relies most heavily
upon the opinion of the examining psychiatrist in
determining the question of sanity. Indeed, a long
series of cases (McKenzie v. United States, 266 F
2d 524 (10 Cir. 1 ; Unit tates v. Westerhausen
283 F 2¢ 844 (7th Cir. ; Argent v. Unit tates
325 F 2d 162 (Sth Cir. 1963); Tsaac v. Unit tates,
284 F 2d p.168 (D.C. Cir. 1960) a tte v. Unit
States 336 F 2d 342 (Sth Cir. 1964) reversed judg-
ments of conviction where the Government sought to
rely upon the testimony of lay witnesses to overcome
substantial evidence of insanity on the part of
professionals. The crucial importance of the psy-
chiatric examination is thus self-evident.
_ — RENE SEE Ty ing
i ll
—
—_~
sai -27-
3. The WADE-THORNTON Rationale to
The Right To Have The Assistance
Of Counsel In Similar Civil Pro-
We tablished
The right of a party to a civil action to
have the assistance of counsel and a court re-
porter present during a physical examination was
recognized sometime ago by the California
Supreme Court. In ffv erior Court, 44
Cal 2d 508 (1955), Chief Justice Gibson, speak-
ing for a unanimous Court, held that whenever a
doctor selected by the defendant conducts a
Physical examination of the Plaintiff,
"There is a possibility that
improper questions may be asked,
and a lay person should not be
every
plaintiff, therefore, should be per-
mitted to have the assistance and
The California Supreme Court rejected the
argument that objections by counsel might hinder
the examination, stating that the client should
not be left unprotected on the assumption that
the attorney might interfere and that should any
such interference occur, appropriate steps could
be taken by the Court.
The United States Court of Appeals for the
District of Columbia circuit, in Thornton v.
Gercorap, 407 F 2d 695 (D.c. Cir. 1969), similar-
ly rejected the government's argument that the
presence ‘of defense counsel during a psychiatric
staff conference might prove a disruptive influ-
ence or impair the eficacy of the examination.
Noting this Court's observation in United States
v. Wade, 388 U.S. 237-238, that:
"To refuse to recognize the right
to counsel for fear that counsel will
obstruct the course of justice is
contrary to the basic assumptions
upon which this court has operated in
Sixth Amendment cases.*
——_ IT LIE ID TE TS PS be yt a een
_—
The Court of Appeals, thus, was of the opinion
that:
-2e-
"the argument that a lawyer
will prove a fatally disruptive
influence at such a hearing is
not compelling.” (407 F 2d 701)
The Court of Appeals thereupon opined (407 F 2d
695, 702):
"The Petitioner's claim that
the logic of Wade v. United States
should apply to his staff conference
at St. Elizabeth's Hospital is
therefore anything but frivolous."
In Gonzi v. Superior Court, 51 C 2d 586
(1959), the California Supreme Court, again
speaking unanimously, recognized the right of
either party to a personal injury action to
have a reporter present during a physical exami-
nation, holding:
"If an injured plaintiff is not
. permitted to have a reporter present
at the court-ordered examination by
defendant's doctors there is no dis-
interested person present to report,
or later testify to, what occured
during the examination. If the
defense-employed doctor is called
upon to testify at the trial on the
issue of plaintiff's injuries his
version of the questions and answers
elicited at the examination might
differ materially from plaintiff's
counsel's version of the same ques-
tions and answers. It appears to us
that orderly procedure in the adminis-
tration of justice requires that per-
mission be granted at the request of
either party for a reporter's pre-
sence in such a situation as is here
presented.”
If there is a cognizable right to the pro-
tection and assistance of counsel during a
medical examination of a litigant in a civil
proceeding which seeks merely the recovery of
=... RTS EERE SEM. TRE ST i nN ae le cea
-29-
money damages, the argument that a defendant in
a criminal case, where life or liberty are at
stake, who is suspected of being insane should
be entitled to the protection and guidance of
counsel during a medical examination, becomes
an even more compelling one.
4. It Need Not be Speculated
Upon As To Whether Prejudice
Resulted From The Exclusion
Of Petitioner's Counsel From
The Psychiatric Examination
Assuming, arguendo, as we have contended
here, that the Court ordered psychiatric exami-
nation of Petitioner was a critical stage of the
proceedings, it becomes unnecessary to speculate
as to the various services that Petitioner's
counsel might have performed had he been per-
mitted to be present at the Court ordered psy-
chiatric examination of Petitioner. 4]/ 42/
4j)/ Counsel's presence, however, might well have
discouraged the prosecutor from subsequently
communicating with Dr. Deering following the
first examination. As we have previously
pointed out, the prosecutor here not only
delivered certain documents to the doctor, but
on at least two occasions held discussions with
him. We do not deem it pertinent to comment at
length upon the questions raised by the prose-
cutor's conversations with Dr. Deering. Suffice
it to say, that any such communication with a
trial juror would surely have resulted in the
imposition of sanctions. (The relationship of
Dr. Deering to the prosecutor was no different
than that of a prosecutor and a juror. Or.
Deering, like a trial juror, was in effect
ordered by the Court to reach a conclusion as to
an issue in the case.)
Ay It should also be remembered that the Court's
Orders, while prohibiting the presence of defense
counsel, did not similarly prohibit the presence
of the prosecutor.
P27 ase v7 ~ - epee a — —
——
-30-
As this Court had occasion to point out
long ago, in Glasser v. United States, (1942),
315 U.S. 60, 76:
". . « The right to have the assistance of
counsel is too fundamental and absolute to
allow courts to indulge in nice calcula-
tions as to the amount of prejudice arising
from its denial.
That indeed was the whole point of Gideon.
In dealing with the denial of counsel in
pretrial proceedings, this Court, in Hamilton
v. Alabama, 368 U.S. 52,55 (1961) speaking
unanimously through Mr. Justice Douglas, opined:
". « « We do not stop to determine whether
prejudice resulted."
In numerous other instances, this Court
has evidenced its views that reversals of
judgments of conviction would ensue as the re-
sult of a denial of fundamentally protected
rights without the necessity of any showing of
prejudice. 43/
43 / For examples of this Rule, see Tumey v. Ohio, 273
U.S. 510 (1926) (Judges financial interest tn re-
sult even though defendant clearly guilty); Lynumn
v. [llinois, 372 U.S. 528 (1963) (holding harmless
error argument to be an “impermissible doctrine!’
where confesseion erroneously admitted); Haynes v.
Washington, 373 U.S. 503, 518, 519 (1963) (reversal
for tmproperty admitted confession even though it
was unnecessary to the conviction); Sheppard v,.
Maxwell, 384, U.S. 333, (1966)-(reversal where
defendant exposed to adverse pretrial publicity,
no showing necessary that jurors were prejudiced);
Bollenback v. United States, 326 U.S. 607 (1944)
instruction on unconstitutional presumption even
though ample other evidence to sustain the convict-
tion); Whitus v. Georgia , 385 U.S. 545 (1967)
(discrtmination in selection of Grand or Petit
jurors); Stromberg v. California, 283 U.S. 359
(1930 ) and Williams v. No. Carolina, 317 U.S 287
(1943) ( reversal. of conviction based on unconsti-
tutionally impermissible grounds, although convic-
tion could have been sustained on valid alterna-
tive ground).
— PEELE IIE ORIOLES Nr OP LG ISR ROUBINI Oe snot
SPO RTD re OME ap
Be os
_—
ane
=3leq
CONCLUSION
The conclusion thus appears inescapable
that the trial court's Orders precluding Peti-
tioner's counsel from being present at the court
ordered psychiatric examinations affected the
fundamental faitness of the proceedings and
requires a reversal from a denial of counsel.
In holding that the defendant has the right
to assistance of counsel at the post-indictment
lineup, this Court, in United States v. Wade,
supra, pointed to the critical nature of the
confrontation between the accused and the victim
or witnesses and the possible dangers to the
accused. Dangers such as the domination of the
accused by a highly trained psychiatrist or the
suggestion by the psychiatrist that the accused
is guilty of a crime by virtue of the charge
against him are equally present in the confron-
tation between the accused and the psychiatrist.
As has been stated in a recent article
discussing the presence of counsel and a steno-
graphic record at psychiatric examination:
“Without the aid of a mentally
sound client, without the aid of a
stenographic record, and without
actual presence at the examination,
defense counsel, at best, could
merely speculate as to what actually
occurred. Arguably, when a defendant
is taken behind closed doors with a »
Government's expert mine-prober, the
Sixth Amendment and the due process
clause entitle the defendant to a
minimal degree of protection at least
in the form of counsel and a permanent
stenographic record of the examination."
1970 Journal of Taxation 322, 326
eee a a ts i a! tk PEDAL Oe TO
fe by a lineup. 388 U.S. at 221-223, 87
If. PETITIONER WAS UNCONSTITUTIONALLY
DEPRIVED OF HIS SIXTH AMENDMENT
RIGHT TO COUNSEL AND HIS FIFTH
AMENDMENT RIGHT AGAINST SELF IN-
CRIMINATION.
A. A Defendant's Sixth and Fifth
Amendment Rights Are Violated
Where the Trial Court's Order
Compels the Defendant to Submit
to An Oral Psychiatric Examina-
tion By A Psychiatrist Because
It Does Violence to Due Process
and Fundamental Fairness.
Mr. Justice Berger, in THORNTON, supra, at
705, while sitting as a Circuit Judge for the
United States Court of Appeals for the District
of Columbia commented:
"Moreover, I see no theoretical
or practical justification apart
from the Fifth Amendment for permit-
ting counsel to attend these pre-
trial encounters." (Emphasis added)
Petitioner agrees with Chief Justice Berger
that a Sixth Amendment violation becomes less
theoretical and more practical when coupled with
a compelled-violation of the defendants Fifth
Amendment privilege.
Thus, we proceed here to discuss the case
at bar under the proposition that the two rights
are of equivalent Constitutional Stature and
enjoy equal procedural protection and may even
unite into a whole under particular circumstances.
Boyd v. United States, 116 U.S. 616. Here, as
in Thornton, at 699:
". . « The Sixth Amendment claim
cannot be resolved without reference
to the privilege against self-incrimi-
nation. The Supreme Court disposed
of that issue in Wade on the ground
that no ‘evidence of a testimonial or
communicative nature' was extracted
S. Ct. at 1929; see also Schmerber v.
California, 384 U.S. 757, 86 S Ct.
"1826 (1966). This argument can
hardly do service in the context
of a psychiatric examination, how-
ever, where the words of the accused
are critically important in deter-
mining his mental condition." (at 700)
In addition, in the case at bar, it must
be remembered that the psychiatric examinations
in question were requested by the prosecution
and the Court compelled the defendant to choose
between his Constitutional Rights under the
Sixth and Fifth Amendments or be precluded from
exercising his equally Constitutional right of
presenting a meritorious defense on the issue
of his sanity.
In Wade se United States, 426 F 2d 64, 74
(9th Cir. 1970) (en banc),
“Finally, it must be noted that
Wade has presented in addition to
the insanity issue, a question of
great importance that has not as yet
been satisfactorily answered in this
or any other Circuit. This question
is whether a trial court, when appoin-
ting a psychiatrist to examine the
defendant pursuant to 18 U.S.C. Sec-
tion 4244 or pursuant to its inherent
powers, may properly order that the
examination cover both competency to
Stand trial and criminal responsibil-
ity at the time of the alleged off-
ense. More importantly, assuming
that this order is valid the question
is raised whether a court has the in-
herent power to order, as the District
Court here did, that the defendant
must cooperate and provide information
to the court-appointed psychiatrist,
or else be ‘precluded at the time of
trial from offering any evidence upon
the defense of insanity‘ ."
“This type of order requires the
defendant to supply the court-appoint-
ed psychiatrist with information on
the basis of which, in part, the
psychiatrist can form an opinion of
ERE TER RE BT PII, eer ae poe «<q
2 a ORES
li ie i ee
-
pon
nated by defendant." (Order Appointing Psychia-
-34-
“the defendant's mental state at
the time of the offense. If the
psychiatrist is subsequently per-
mitted to testify for the prosecu-
tion during trial, the result may
be that the defendant's own words
are used against him. Therefore,
coerced cooperation with a psychia-
trist not chosen by the accused may
violate the Fifth Amendment privilege
unless it can be justified on one or
more of various theories that have
been discussed by both courts and
commentators. . .”
"It is quite obvious that a
_ grave constitutional question is
presented."
In the case at bar, it is clear that, over
his objection, petitioner was compelled to
“afford such cooperation and information as may
be required by" court-appointed psychiatrists
outside the “presence of any counsel . . . desig-
trists Exhibit C, Supra),44/
In the words of the lower court (Ibid.):
"If the defendant does not comply
with this order he shall be precluded
at trial from presenting testimony
upon the issue of his alleged mental
incapacity by any expert by whom he
has been interviewed."
Accordingly, the compulsion on petitioner
to relinquish his Fifth Amendment right against
self-incrimination and his Sixth Amendment
right to counsel in order to assert his insanity
defense is clear.
The only question is whether such surrender
is constitutional.
447 Dr. Deering was called by and testified on behalf
of the prosecution herein.
’
veer ner s ;
REE OTR
or eee
~~ =
In Sherbert v. Verner, 374 U.S. 398, 404-
406 (1963), the Supreme Court held that the
exercise of privileges and rights cannot be
governed by conditions or qualifications which
erode or emasculate constitutional rights.
Handy's exercise of his insanity defense
was conditioned upon an unrestricted examination
by two court appointed psychiatrists, which ex-
amination violated his Fifth Amendment right
against self-incrimination and his Sixth Amend-
ment right to counsel. Here, as in Sherbert
to condition Handy's insanity defense upon his
willingness to surrender his Sixth and Fifth
Amendment rights effectively penalized the exer-
cise of his Constitutional rights. See also
Thorpe v. Housing Authority, 386 U.S. 670, 679
(1967):
“The right to continue the exer-
cise of a privilege granted by the
State cannot be made to depend upon
the grantee's submission to a condi-
tion prescribed by the state which is
hostile to the provisions of the Fed-
eral Constitution. . . If the State
may compel the surrender of one con-=
stitutional right as a condition of
its favor, it may, in like manner,
compel a surrender of all. It is
inconceivable that guaranties embedded
in the Constitution of the united
States may thus be manipulated out
of existence."
In sum, the trial court compelled Handy to
surrender his right to counsel and his right
against self-incrimination in order to raise his
insanity defense. In Gardner v. Broderick, 392
U.S. 273 (1968), this Court held that a New York
City Charter provision, under which a policeman
had been dismissed for failing to waive his
right against self-incrimination and to signa
waiver of immunity from prosecution, was uncon-
stitutional. Here, as in Gardner, the "mandate
of the great privilege against self-incrimina-
tion” cannot tolerate its surrender since it is
clear that Handy's examination by two court
appointed psychiatrists was unrestricted and
compelled solely to establish, as an element of
-36-
his alleged offense, his legal sanity beyond a
reasonable doubt. See also: Uniformed Sanita-
tion Men Assn. v. Commissioner of Sanitation,
392 U.S. 280 (1968); Spevack v. Klein, 385 U.S.
511 (1967); and Garrity v. New Jersey, 385 U.S.
493 (1967).
This Court in Wade held:
“Of course, nothing decided or
said in the opinions in the cited
cases links the right of counsel only
to protection of Fifth Amendment rights.
Rather those decisions 'no more than
reflect a constitutional principle
established as long ago as Powell v.
Aigbeme.* . « o*
However, in the case at bar the Petitioner's
Sixth Amendment rights are Closely linked to his
Fifth Amendment privilege.
For this reason alone, Handy's conviction
must be reversed.
PRI Pe
a3 f=
IIt. The Trial Court's Order, Over
Defendant's Objection, Compell-
ing Defendant to Answer Questions
Of and To Fully Cooperate With
Court Appointed Psychiatrist Or
To Forfeit His Right To Present
Expert Testimony On the Issue Of
His Insanity Is Unconstitutional
Under the Self-Incrimination Clause
of the Fifth Amendment Because It
Extracts (Exacts) a Price For Exer-
cising His Constitutional Right
Against Self-Incrimination.
In discussing the compelled self-incrimina-
tion issue at bar, petitioner will try to show
that in its application in reason here, it is
utterly incompatible with the historic dimen-
sions of the Fifth Amendment privilege, as con-
strued and applied by this Court; and that to
compel a sanity defendant to testify involuntar-
ily contravenes the plain command of that
Amendment.
A. Compulsory Self-Incrimination As
A Condition to Presenting Expert
Testimony Is Incompatible With
Decisions Of This Court Condemning
Such Process As Violative Of The
Fifth Amendment.
This Court has repeatedly noted that one of
the principal policies underlying the privilege
is "the inviolability of the human personality”
and that:
“Our accusatory system of crim-
inal justice demands that the Govern-
ment seeking to punish an individual
produce the evidence against him by
its own independent labors rather
than by the cruel, simple expedient
of compelling it from his own mouth."
Miranda v. Arizona,
384 U.S. 436, at p.
460 (1966)
While the trial court's order here did not
as ee
-
eee
ON MAT EY CPI mEr er,
—
-38-
technically purport to compel "communications"
or “testimony”, it is evident that any order
directing a defendant to submit to an unrestric-
ted psychiatric examination, by its very essence
compels communications and testimony.45/ It seems
certain that no competent psychiatrist would pro-
fess to conduct any examination of a defendant
for the purpose of determining his insanity at
the time of the commission of an alleged crime
without eliciting verbal responses from the def-
endant. The situation here thus differs from
Sch MGEDCE v.- California, 384 U.S. 757 (1966),
and Gilbert v. California, 388 U.S. 263 (1967).
Those cases involve “non-verbal" acts or
conduct and there was clearly no communication
or testimony involved. Indeed, this Court, in
lbert v alifornia, supra, while holding that
the taking of handwriting exemplars did not vio-
late the petitioner's Fifth Amendment privilege
against self-incrimination, pointed out that
(388 U.S. 263,266):
"The privilege reaches only com-
pulsion of ‘an accused's communica-
tions, whatever form they might take,
and the compulsion of responses which
are also communications, for example,
compliance with a subpena to produce
one's papers' and not ‘compulsion
which makes a suspect or accused the
source of "real or physical evidence"
- « «' “ (Emphasis added)
Thus, while the voice identification of a
defendant is an identifying physical characteris-
tic outside of the Fifth Amendment protection
(Wade, Supra), the communications which petition-
er herein was effectively compelled to engage in
with the examining psychiatrists were not for
the purpose of identifying physical characteris-
tics but, by the very essence of the communica=-
tions, appellant was effectively compelled to
4g As we have pointed out elsewhere the defendant could
—— have refused to comply with the order, or stood mute
at the examination at the price of foregoing his
insanity defense.
Re BR Bt ey
-39-
discuss not only the circumstances of his life,
but the circumstances surrounding the commission
of the alleged crimes.
We believe that the issue involved herein
was alluded to in Schmerber v. California, 384
U.S. 757, where this Court pointed out (384 U.S.
757 at 764-765):
“Some tests seemingly directed
to obtain ‘physical evidence' for
example, lie detector tests, measur-
ing changes in body function during
interrogation, may actually be direc-
ted to eliciting responses which are
essentially testimonial. To compel
a person to submit to testing in
which an effort will be made to de-
termine his guilt or innocence on
the basis of physiological responses,
whether willed or not, is to evoke
the spirit and history of the Fifth
Amendment. Such situations call to
mind the principle that the protec-
tion of the privilege ‘is as broad
as the mischief against which it
seeks to guard,' Counselman v.Hitch-
cock, 142 U.S. 547 at 562."
To compel petitioner herein to submit to
psychiatric evaluations, of necessity, required
testimonial compulsion. As this Court continued
in Schmerber, which held that blood tests did
not constitute testimonial compulsion within the
meaning of the Fifth Amendment (384 U.S. 757,765):
“Petitioner's testimonial capa-
cities were in no way implicated;
indeed, his participation except as
a donor, was irrelevant to the re-
sults of the test, which depend on
chemical analysis and on that alone."
While the donor's testimony is irrelevant
to the results of the test which depend upon
chemical analysis alone, the participation of
the patient in a psychiatric interview is the
very thing that is relevant to the results which
depend not upon any scientific or objective test
but solely upon the conclusions drawn by the
z
ord
SEs
v. Arizona, 384 U.S. 436, 442-444 (1966); Gardner
v. Broderick, 392 U.S. 273 (1968); Uniformed Sani-
tation Men Association v. Commissioner, 392 U.S.
-40-
psychiatrist from the verbal and testimonial
communications of the defendant.
The situation here far more closely resem
bles that of a defendant being compelled to sub-
mit to a lie detector test which the Supreme
Court has, in Schmerber v. California, supra,
pointed out would be violative of his Fifth
Amendment rights since the test was an effort to
determine his guilt or innocence on the basis of
physiological and verbal responses. A test in
which an effort is made to determine the guilt
or innocence of a defendant based, as here, on
his own verbal communicative responses certainly
must evoke the spirit and history of the Fifth
Amendment.
In sum, the privilege is fulfilled only
when the person is guaranteed the right “to
remain silent unless he chooses to speak in the
unfettered exercise of his own will." Malloy v.
Hogan, 378 U.S. 1, 8 (1964)
1. The Letter and Spirit of the Fifth
Amendment Denied The Lower Court
the Power To Compel Testimony Over
Objection Of the Privilege Against
Self-Incrimination.
The right against self-incrimination is one
of the most ancient and respected rights granted
in the United States Constitution. (see Miranda
280 (1968); Garrity v. New Jersey, 385 U.S. 493
(1967); and Spevack v. Klein, 385 U.S. 511 (1967).
The Court's reasoning in the Garrity and Spevack
cases is summarized as follows:
*. - e the Self-Incriminacion
Clause of the Fifth Amendment. ..
should not be watered down by impos-
ing. . . a price for asserting it."
Spevack v. Klein, 385 U.S. 51l, 514
(1967).
Application of such reasoning to the in-
stant case demands a holding that a court cannot
ah i al Si a Dee
=e
force an accused to choose between the defense
of insanity and his constitutional right against
self-incrimination. To hold otherwise would be
to force a defendant to choose between an impor-
tant and vital defense and the exercise of his
free choise "to remain silent."
The Ninth Circuit has recognized that the
issue obviously presents "a grave constitutional
question.” Wade v. United States, supra, at 74.
State courts have not been reluctant tc apply
the foregoing principle to closely similar situ-
ations.46/ Legal commentators have also recogniz=-
ed the logic and wisdom of this rationale.47/
46/ See Shepard v. Bowe, 442 P 2d 238 (Ore. 1968) (holding
that a defendant could not be compelled to answer at a
pretrial mental examination, a psychiatrist's questions
concerning his. conduct relating to-the offense charged);
: State v. Olson, 274 Minn. 225, 143 N.W. 2d 69 (1966),
‘ (defendant may not be compelled to a psychiatric exam-
= ination where unprotected against self-incrimination) ;
People v. English, 31 I11. 2d 301, 201 N.E. 2d 445(1964)
(invocation of Fifth Amendment privilege at psychiatric
examination upheld); People v. Wax, 75 Ill. App. 2d 163,
177-179, 220 N.E. 2d 600 607-008-(1966). cert-denied
387 U.S. 930, 87 S Ct 2051 (1967), (right of defendant
to remain mute during examination of court appointed
psychiatrist upheld, even though. defense of insanity
raised at trial); French v. District Court, 153 Colo.10
14, 384 P 2d 268, 270 (1963), (holding trial court's
order striking defendant's plea of not guilty by reason
of insanity because of refusal to cooperate with court
appointed psychiatrist improper as imposing a penalty or
forfeiture for the exercise of Fifth Amendment rights).
47/ See Canforth, Death Knell for Pre-Trial Examination?
Privilege Against Self-Incrimination, 19 Rutgers L.Rev.
489 (1965), ("if we are to remain true to the accusa-
: torial system with the privilege against self-incrimi-
é nation at its core, it seems necessary that a defendant
a who has raised the defense of insanity at the time of
the alleged crime cannot be compelled to respond to the
question of a court-appointed psychiatrist.'' See 19
Rutgers L.Rev. at 505); See alsoan article entitled
Requiring a Criminal Defendant to Submit to a Govern-
ment Psychiatric Examination: An Invasion of the Priv-
tlege Against Self-Incrimination, at 83 Harv. L.Rev.
ee RIE ES PT SLE FL ERIM NL EH
=43~
IV. This Court Should Grant Certiorari
To Settle Conflicts, Confusion and
Uncertainty Among the Circuit Courts
Of Appeal With Respect To The Guide-
Lines Required To Be Established By
The Trial Court Governing the Exam-
ination Of A Defendant By a Psychia-
trist Appointed By the Court At The
Request Of The Government,
This petition presents the Opportunity for
Constitutional interpretation that goes far be-
yond the geographical limits of the Ninth Cir-
cuit Court of Appeals, and indeed beyond the
interests of the petitioner herein in that the
principal issue here is one of recurring signi-
ficance,
Not only is the decision of the Ninth Cir-
cuit Court of Appeals clearly wrang, it is a
grave example of the depravation of due process
and the defendant's fundamental right to a fair
trial. Not only is the Ninth Circuit's opinion
herein worthy of review, but the paramount issue
is, likewise, of compelling national significance
in view of the confusion and uncertainty among
the various Circuit Courts of Appeal with respect
to the necessary guidelines that are required to
be established in order to conduct examinations
by court appointed psychiatrists within the
spirit and letter of the Constitutional dictates
of the Sixth Amendment to the Constitution, while
at the same time not offending the mandate of
the right against self-incrimination under the
Fifth Amendment to the United states Constitution,
Cont.
4y/ 4648 (sets forth.the values that this court has describ-
ed as being protected by the privilege against self-
incrimination, 83 Harv. L. Rev, 655-656. After analy-
zing the effect of a compulsory psychiatric examination
on these values, the note continues; ''since the psy-
chiatric examination elicits information akin to testi-
monial evidence and since the examination conflicts
with values protected by the privilege, it should be
found to be the kind of information gathering in which
participation cannot be required by the state. 83 Harv.
L. Rev. at 660."
:
—
-43-
The Second, Fourth, Seventh, Eighth, Ninth,
and D.C. Circuits have struggled to provide the
Government, in a sense of fair play, with the
prosecution's right (under appropriate rules)
to compel psychiatric examinations of defendants
by court-appointed physicians. In so doing,
great confusion and uncertainty has arisen, as a
result of the inherent conflict, with the Fifth
and Sixth Amendments arising out of the insanity
issue in Federal criminal trials. Unlike the
specific plea in most state courts of "Not Guilty
by Reason of Insanity" the Federal system pro-
vides that once the sanity of the defendant comes
into issue the Government must establish defen-
dant's sanity as an element of the crime, beyond
a reasonable doubt.
Naturally, to do so requires an appropriate
psychiatric interview where the defendant, of
necessity, must offer "oral testimony" on the
issue in order that the Government's expert may
make an appropriate determination. To do so,
without permitting the presence of the "alleged"
incompetent's attorney indeed shocks not only
the conscience of the Federal system of trial,
but clearly violates the mandate of the Sixth
Amendment even if the trial court is scrupulous-
ly careful to avoid the contamination of “con-
fession" and/or guard against the admission of
any such evidence at the time of trial.
Thus counsel, or at least the right to coun-
sel, has become the sine qua non of fairness at
every stage of a felony proceeding in order to
protect the integrity of the fact finding pro-
cess of trial.
No constitutional theory justifies limit-
ing that protection.
48/ Trial courts should be required to grant a bifurcated
trial where a defendant's sanity is drawn into issue
when court compels defendant to choose between an unre-
stricted oral psychiatric examination by court appoin-
ted psychiatrists, not restricted to defendant's sanity,
or forego presentation of expert testimony upon the
issue of his mental incompacity by any expert by whom
he has been examined.
—— spre
CONCLUS ION
For the foregoing reasons this petition
for a writ of certiorari should be granted.
ROBERT M. TALCOTT and
RICHARD G. SHERMAN,
Attorneys for C. Jon Handy,
Petitioner.
a ae eC 2 re ae ne es
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Unrrep States or AMERICA, ,
Plaintiff-Appellee,
ve + No. 71-1924
C. Jon Hanpy,
Defendant-A ppellant. 7
[October 20, 1971]
Appeal from the United States District Court
’ for the Central District of California
Before: CHAMBERS, Chief Judge, WEICK® and CARTER,
Circuit Judges.
WEICK, Circuit Judge:
In Counts 1 and 2 of a 5-count indictment returned by the
Grand Jury, Handy, as manager of Palm Springs Panorama,
Inc. (“P.S.P.”), was charged with filing false and fraudulent
income tax returns and wilfully attempting to evade income taxes
owed by said corporation for the calendar years 1964 and 1965,
in the respective amounts of approximately $350,020 and $241,030,
in violation of 26 U.S.C. § 7201. In Counts 3 and 4 Handy was
charged with wilfully aiding, assisting, counseling and procuring
the preparation and presentation of fraudulent income tax returns
for P.S.P. for said calendar years, in violation of 26 U.S.C.
§ 7206(2). In Count 5 he was charged with wilfully attempting to
evade taxes of about $6,000 in behalf of himself and his wife, in
violation of 26 U.S.C. § 7201. In a separate one-count indictment
he was charged with submitting to an Internal Revenue Agent a
*Honorable Paut C. Weick, Cireuit Judge, United States Court of
Appeals for the Sixth Circuit, sitting by designation.
APPENDIX "A"
Bre Sey see
mat ie
—_—
2 United States of America vs.
false document purporting to be a Management Fee Agreement, in
violation of 18 U.S.C. § 1001.
At the conclusion of a 15-day trial, Handy was found guilty by
a jury on counts 1, 2, 3 and 4 of the indictment, and acquitted
on count 5. He was found guilty also on the separate indictment
charging him with submitting a false document to an Internal
Revenue Agent. He was sentenced under the provisions of 18
U.S.C. § 4208(¢) to five years’ imprisonment on each of the
counts on which he was found guilty, the sentences to run con-
currently. He was released on a $10,000-bail bond pending
appeal.
The charges on which Handy was convicted stemmed from
alleged phony deductions taken in the income tax returns of
P.S.P. in the amount of $709,963, labeled “Management Services
and Consultant fee” in the year 1964, and $900,000 in the year
1965 fez forfeited deposit on an alleged purchase of land.
There was substantial evidence that the sum of $709,963 was
not pa‘d by P.S.P. to Handy in the year 1964, or at any other
time; that the alleged written contract providing for payment
of said sum was spurious; and further, that the forfeited deposit
which was deducted was fictitious. The alleged fictitious loss was
not entered on the corporate books until after the return had
been filed.
The profits of P.S.P. for ten months in 1964 amounted to
$762,000. It had made provision for federal taxes amounting to
$374,000. The deduction of $709,963, if valid, would have wiped
out most of the profits for that year and would have eliminated
most of the income tax.
Handy had entered into a written agreement with Messrs.
Kagan, Manchel and Silverman (the owners of all of the shares
of stock of P.S.P.) on December 14, 1964, to purchase their
shares of stock for $4,000,000. He negotiated a corporate loan
for P.S.P. from Transamerica Financial Corporation, the pro-
ceeds of which were used to pay for said stock.
There was evidence that the shareholders who sold their shares
to Handy refused to allow him any compensation for so-called
management and consulting services. In the written contract for
APPENDIX "A"
a
a i ee ae Aa ee ee a
Set A
sc. SI
C. Jon Handy 3
the purchase of said shares Handy waived any claim for such
services against either P.S.P. or said shareholders.
In appellant’s brief it is stated:
“During the trial witnesses for the prosecution testified
that the management fee agreement and forfeited deposit
documents were false whereas witnesses for the defense testi-
fied that they were truc.”
In our judgment, the overwhelming evidence supports the
Government’s contentions with respect to these two deductions.
Appellant's briefs are addressed to other issues which we will
consider.
I
The Insanity Defense
The principal defense of Handy was that he was insane at the
time the alleged criminal acts were committed. This, of course,
is not the usual defense in income tax evasion cases.
There was substantial evidence that during the period of time
in question Handy was able to and did engage in extensive ne-
gotiations in important and complex business transactions. At
one time he operated an imeome tax service in Las Veras, Nevada.
He held himself out as being an expert in income tax matters,
particularly in the area of tax deductions. He sct up an elabor-
ate scheme to avoid taxes in the present case. To people with
whom he dealt he did not appear to be insane.
Handy relies on the testimony of four psychiatrists and onc
psychologist to substantiate his claim of insanity. One of the
psychiatrists who testified for the defense was court-appointed.
They examined Handy in 1970, about five years after the critical
dates of 1964 and 1965.' They testified in substance that Handy
had paranoid schizophrenia: that he lacked capacity to appre-
ciate the wrongfulness of his conduct: that he was not in control
of his actions: and that he could not have criminal intent to de-
fraud the Government.
‘Ome psychiatrist, Dr. MeKeever, had previously examined Handy in
1952, while he was in the Air Force, in connection with Handy’s appli-
eation for a discharge. Dr. McKeever at that time thought Handy was
feigning mental illness in order to obtain a discharge from service.
APPENDIX "A*
> ay ewer Oe oa 2 eh Ry Ne:
a BY de adel
De tire
ere
United States of America vs.
Dr. Wilkens, who testified for Handy, admitted that where
a person is acting rationally in his business areas, that fact would
suggest that his disorder was minimized at that time. To the
same effect was some of the testimony of Dr. Suarez. Also, Handy
was able to advise one of the psychiatrists who examined him
as to the Ninth Circuit’s rule in insanity cases.
Dr. Deering, a court-appointed psychiatrist who testified for
the Government, was of the opinion that in 1964-1966 Handy
did not lack substantial capacity to appreciate the wrongfulness
of his conduct, or to conform his conduct to the requirements of
the law, and that he was legally sane. He admitted that Handy
had neurosis and that his case was diffenlt to diagnose.
In addition, the testimony of three tay persons was put in evi-
dence by stipulation.
Handy contends that the evidence supporting his claim of in-
sanity is overwhelming and that the District Court erred in deny-
ing his motion for judgment of acquittal. We disagree.
Handy’s evidence was sufficient to overeome the presumption
of sanity, and the burden of proof was then cast upon the
Government to prove sanity bevond a reasonable doubt. Hartford
v. United States, 362 F.2d 63 (9th Cir. 1966). The evidence must
be considered in the light most favorable to the Government.
United States v. Nelson, 419 F.2d 1237 (9th Cir. 1969) :
Glasser v. United States, 315 U.S. 60 (1942); Wendt v. United
States, 394 F.2d 627 (9th Cir. 1968).
While the testimony of lay witnesses, standing alone, cannot
rebut the testimony of Handy’s psvchiatrists and psvchologist,
Buatte v. United States. 330 F.2d 342 (9th Cir. 1964). it is im.
portant evidence to be taken into account with other evidence in
the case, particularly the testimony of the Government psychia-
trist, Dr. Deering, which conflicted with the testimony of defend-
ant’s experts.
The fact that the defense had more experts to testify than the
plaintiff had, is not of controlling importanee. The weight of the
evidence is not determined by the number of witnesses who testify
for either side, but by the quality of their testimony. The eredi-
bility of experts is to be determined by the jury, not by the court.
APPENDIX "A"
SUPP ae vogesue
Se
Mate OPE Yrs
ate
PE NON ee
CU. Jon Handy 5
In our opinion there was substantial evidence to support the
jury’s verdict and we will not disturb it.
We find no violation of the accused’s Fifth and Sixth Amend-
ment rights in the order of the District Court appointing two
psychiatrists to examine him.? The order provided:
“If defendant does not comply with this order he shall
be precluded at trial from presenting testimony upon the
issue of his alleged mental capacity by any expert by whom
he has been interviewed.”
This order was materially different from the order which was
questioned in Wade v. United States, 426 F.2d 64, 74 (9th Cir.
1970).
it would indeed be anomalous if defendant were permitted to
offer psychiatric testimony to support his defense of insanity,
and by refusing to submit to an examination by a court-appointed
psychiatrist preclude the Government from offering testimony to
the contrary. The examination ordered by the Court was au-
thorized by statute. 18 U.S.C. § 4244. The statute contains pro-
tective features barring the use of any statement made by an
accused person on the issue of guilt. Indeed the Court may even
have inherent power to make such an order.
The order entered here dil not compel “communications” or
“testimony”. It may be likened to compelling blood tests, hand-
writing exemplars, “fingerprinting, photographing or measure-
ments, to write or speak for identification, to appear in court,
to stand, to assume a stance, to walk, or to make a particular
gesture.”2* Schmerber v. California, 384 U.S. 757 (1966). See
also Gilbert v. California, 388 U.S. 263 (1967).
Other Circuits have upheld such an order. United States v.
Baird, 414 F.2d 700 (2d Cir. 1969); United States v. Bohle,
_.. F.2d —. (No. 18,604, 7th Cir. 1971); United States v.
Albright, 388 F.2d 719 (4th Cir. 1968); Pope v. United States,
372 F.2d 710 (8th Cir. 1967).
2One of the court-appointed experts testified for the defendant.
2°There is no claim here that the court-appointed psychiatrist who
examined Handy testified as to any statement made to him by Handy
relating to the issue of guilt.
APPENDIX "A"
Pa 5
United Stutes of America vs.
rT.
The Allen Charge?
The case was submitted to the jury on Friday morning, Sep-
tember 25, 1970. The jury deliberated all day Friday, until
6:00 p.m., and was excused until the following Monday at 9:30
a.m. It deliberated all day Monday, until 5-15 p.m., when it
.
reported to the Court that it was unable to reach a verdict.
The Court conferred with counsel for the Government and for
the defendant. The Court stated what transpired at this econfer-
ence, in denying the motion for a new trial:
“I think the record in this ease indicated . . . the fact that
before the court gave the Allen charge [defense counsel]
was asked if he had any objection to the charge. He was
given a copy of Mathes and Devitt to read. He was also
made aware of the fact that the charge had come in for
some fire in the Sullivan case. Then when he was asked,
after he had an opportunity to read the instruction, if he
had any objection to it, his answer was ‘No objection.’ ”
4
4
;
4
:
J
1
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4
’
Since neither counsel had any objection, the Court delivered the
Allen charge. The jury was exeused until 10:00 a.m. the follow-
ing morning, when it returned its verdict.
The charge which the Court gave was taken substantially from
Mathes and Devitt’s Federal Jury Practice and Instructions. The
charge contained the matters omitted from the instruction eriti-
eized by this Court in Sullivan 1. United States, 414 F.2d 714
(9th Cir. 1969), where the conviction was nevertheless affirmed
on the ground that the omissions were immatcrial.
The instruction has been consistently approved in the Ninth
Cireuit when it is in a form not more coercive than that in
Allen. Sullivan v. United States. supra, and cases therein cited.
United States v. Moore, 429 F.2d 1305 (9h Cir. 1970).
Counsel relies on an affidavit proeured from juror VanOrsdel,
who stated in substanee that she Was coereed by the instruction
into agreeing to the verdiet; and she further charged that juror
Maloviech was mentally ineompetent. Tf the affidavit has any
3The name of the charge is derived from the ease of Allen v. United
States, 164 U.S. 492. 501 (1896), where the giving of such a charge was
held not to be prejudicial error.
hella it as ¥ as i Ak Lae
es PONE RE a oe
the tree
As whee
CU. Jon Handy 7
truth in it, it is apparent that juror VanOrsdel ignored the in-
struction of the Court, the substance of which was repeated
several times:
«|. , [Y]ou should not surrender your honest convictions
as to the weight or effect of evidence, solely because of the
opinion of other jurors, or for the mere purpose of return-
ing a verdict.”
A juror may not impeach his verdict where the facts sought to
be shown cssentially inhere in the verdict. Bryson v. United
States, 238 F.2d 657 (9th Cir. 1956); Rakes v. United States,
169 F.2d 739 (4th Cir. 1948).
In Rakes, supra, Associate Justice Prettyman of the Court of
Appeals for the District of Columbia, sitting by designation,
stated :
“The same rule requires that jurors are not to be har-
assed in any manner because of a verdict they have ren-
dered. If jurors are conscious that they will be subjected to
interrogation or searching hostile inquiry as to what occurred
in the jury room and why, they are almost inesexpably in-
fluenced to some extent by that anticipated annoyance. The
courts will not permit that potential influence to invade the
jury room. He who makes studied inquiries of jurors as to
what occurred there acts at his peril, lest he be held as
acting in obstruction of the administration of justice. Much
of such conversation and inquiry may be idle curiosity, and
harmless, but a searching or pointed examination of jurors
in behalf of a party to a trial is to be emphatically con-
demned. It is incumbent upon the courts to protect jurors
from it.” (169 F.2d at 745-746)
Wright, Federal Practice & Procedure, § 554 fn 42.
Appellant relics on decisions from three other Circuits which
apparently no longer apply the rule in Allen.‘
We decline, as we did in Sullivan, to re-examine the rule in the
present appeal.
4United States v. Thomas, ........ an ces (D.C. Cir. 1970), 39 U.S.L,
Week 2306, reaffirmed in banc, 40 U.S.L.Week 2140 (1971); United States
v. Fioravanti, 412 F.2d 407 (3d Cir. 1969); United States v. Brown, 411
F.2d 930 (7th Cir. 1969).
APPENDIX "A"
ELC SOF Rh poo
a MIR PO TRNNT MGs Bere My PRE LE PRN CNIS Sah! eee a ae a
i
i
sma) eee
United Slutes of America vs.
Handy was represented in this case by capable and experienced
counsel who did not object to the giving of the instruction. Rule
30 Fed.R.Crim.P. provides that no party may assign as error
any portion of a charge or an omission to charge unless he ob-
jected before the jury retired.
Rule 52(b) permits us to notice plain error; but we do not
regard the alleged error as plain. We think it was intelligently
waived.
III
Misconduct of the Jury
The affidavit of juror VanOrsdel, filed more than a month after
the trial, not only stated that she was coerced by the Allen
charge, to return a verdict which she did not want to return,
but she also undertook to detail the seeret deliberations in the
jury room and the conduct and statements of fellow-jurors.
She further endeavored to pass upon the sanity of a fellow-
juror Evelyn Malovich.
Relative to charges concerning the mental processes of the
jurors, the Court ruled that evidence would not be allowed to
impeach the verdict. As to any extraneous influences on the
jurors, the Court did conduct two post-trial evidentiary hearings.
At the first hearing five jurors were examined and cross-examined
by counsel for the Government and for the defendant. At the
conclusion of the hearing the Court ruled that the charges of
misconduct made by juror VanOrsdel concerning her fellow-
jurors had not been proven. We agree,
There remains for consideration only the claim of juror Van
Orsdel that juror Evelyn Malovich was mentally incompetent.
The Court decided to conduct an evidentiary hearing on this
subject only after the Court had examined the Juror Qualifica-
tion Form which juror Malovich had filled out and signed.
Juror Malovich had answered question 7 on the form as
follows:
“7. Do you have any physical or mental infirmity impairing
your eapacity to serve as a juror
Yes (Yes or no) If so, deseribe it fully,
APPENDIX "A"
A eh Oa ge lle ee naman le ei ee
ai Pure < Ori 2 2
EAS
C. Jon Handy 9
The Court furnished a copy of the form to counsel for defend-
ant. It will be observed that although the first part of Question 7
was answered, the second part was left blank. The jury clerk
obviously did not notice the response.
Juror Malovich was called to the witness stand by the Court,
who conducted an extensive examination of her. When shown her
answer to Question 7 on the juror questionnaire form, she testi-
fied: “Your Honor, that is a mistake.”
She denied that she had any physical infirmities, or ever suf-
fered from any mental illness; she testified that she had never
been examined by any doctor for any possible mental illness.
She testified that the correct answer to Question 7 was a.
She also denied statements purportedly made in the jury room,
attributed to her by juror VanOrsdel. The Court tested her
recollection on a number of matters. The Court further asked her
who had the burden of proof, and she replied, “The Govern-
ment.”
The foreman of the jury had previously testified that there was
no question in his mind regarding the mental cape*ty of juror
Malovich and that she had capacity to understand the pro-
ceedings.
The District Court ruled in part as follows:
“T am reading (sic] to make my ruling on this issue.
“My ruling is that Juror Malovich is mentally qualified to
serve as a juror in this case. She certainly, in my opinion,
and based on her testimony, suffers from no physical or
mental infirmities I think she certainly possesses ordinary
capacity to observe, listen, understand, diseuss the evidence
in the ease, the arguments of counsel and the court's charge.
“f am certainly impressed with th: fact that we have a
woman here who for the past 11 years or 12 years has held
down a job as an electronic assembler where she is required
to deal with clectronie component parts and place them on
printed eivenits, solder. She has to look at drawings and
instructions am] follow those. She certainly, it would indi-
eate, has the ability to think and to reason... .
GPE POOLE ALE EET Be
_
10
United States of America vs.
“She appears to the court to have an average understand-
ing of the English language. Certainly I don’t remember the
exact time we started with her, but certainly the court ques-
tioned her for a period of probably a half hour and she
understood the court’s questions and her answers were in-
telligent and responsive.
“She appeared to the court to be completed [sic] oriented
and knew what she was doing. She indicated that at no
time had she ever been treated for or consulted with a
doctor about or suffered any mental illness. And her answer
to Question 7 on Court’s Exhibit A was just a mistake.
“Mrs. VanOrsdel told the court that she through [sic}
‘uror Malovich had problems with her hearing, but I could
detect no such problem. She testified she was able to under-
stand the questions that the lawvers asked and the answers
given by the witness. And though there were some occasions
when prehaps the testimony wasn’t too clear, or the question,
but it was cleared up later on for her.
“I might also add that as I commented during our last
hearing I detected nothing unusual about her during voir
dire or during the period of time that she sat as a juror in
this case. She appeared to be attentive, alert. I can recall
no time when she was late for jury duty.
“So my conclusion, as I have already stated it, is that she
suffers from no mental infirmity and that she appears to
this court to be a perfectly normal, ordinary juror. There is
not the slightest doubt about that in my mind.”
u
In our opinion there was substantial evidence to support these
findings of fact of the District Court, and they are not clearly
erroneous. We find no basis for setting aside a jury verdict
merely because a juror made a mistake in answering a question
on the form, which mistake went unnoticed by the jurv clerk.
Appellant has shown no prejudice. As found by the Court he
was tried by a jury of competent persons.
Furthermore. the challenge to the selection of jurors must be
made “before the voir dire examination begins. . . .” 28 U.S.C.
§ I867(a), (e). No challenge was made in this case until after the
verdict.
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C. Jon Handy ll
Appellant argues that he should have been granted permission
to cross-examine juror Malovich. The Court did permit counsel to
submit questions to be propounded to juror Malovich, but he did
not propound all questions that were submitted as the Court
thought that even some lawyers could not answer all of them.
As we previously pointed out, the Court was quite liberal in
permitting examination and crossexamination of five of the
jurors. It was discretionary with the Court when to call a halt
and avoid further harassment of the jurors. We find no abuse of
discretion.
Affirmed. -
PERN AU-WALSH PRINTING CO., SAN FLZANCISCO 10-22-71—380
mitre stam cost cr arn | LE D
PR TSE NoTe ciecvrir MAR 2 2 1972
WM. B. LUCK, CLERC
UIITSD STATES OF ALGTLICA,
Plainti?f-asceliss,
vs. Mo. 71-1°24
C. J RADY, GRDER
Defendcant-Acpellant.
Before: CHAMSISS, WHICZ and CAxTm, Circuit Judges.
The petition for renearing is denied.
The sussesticn for rehacring en sanc has been cazsed
te all active circuit judzes cf the Court ind none haz re-
quested an en banc hearing. ThereZor\s, tne suggestion for
remearing en Sanc is reijectad.
Te is ordered trat tna first sencamee in the para-
graph which is next to the last suresrsch cn paws 5 of the ali
> wee
opinicn Se amended 39 a3 to read:
Som, P he a2
a2 OFcer entere+ tere 2id not compel "eomne:2-
4 me : — a eres ‘
eaticers® cr *testizcmy® on the Lacue cf gudlt cf tre
devar 7.) + ae — «= gee es nina
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APPENDIX "B”
Satter sot s 2 MOM REL
> SEP 4 1970
CLERK U)S. DISTRICP COURT 7
CENTRAL OISiRICE a earn p<.
ALIEORN
<a
DEP
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
/
Nos. 5667 and 37429-HP-CD
UNITED STATES OF AMERICA,
Plaintiff,
Vv. ORDER APPOINTING PSYCHIATRIST
C. JON HANDY,
Defendant.
ee et et eet ee ee eet ee eet ee
The Court being advised that the defendant C. JON HANDY
intends to assert in this case the defense of mental incapacit:
at the time of alleged commission of the crimes charged, and
that defendant further intends to offer upon this issue the
expert testimony of psychiatrists who have interviewed him;
And the United States Attorney having moved the Court
for an order appointing a psychiatrist to examine the defendan)
on the question of his alleged mental incapacity at the time
of the alleged crimes;
And the matter having been submitted to the Court upon
the plaintiff's and defendant's memoranda of points and
authorities, and he Coext being fully advised in this enter.
IT IS HEREBY ORDERED that DR. ALVIN E. DAVIS, whom the
Court finds is a qualified and impartial psychiatrist, be
and he hereby is appointed to examine said defendant and to
report to the Court on the question of whether at the time of
~
APPENDIX "C"
PSEA ER TYR Tih, SE DPE EE PRS AORN TRL rt! S oe “
TPO LON IRAN RC MEIC ORDER
the allegedly criminal conduct defendant as a result of mental
disease or defect lacked substantial capacity either to
appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of law. Attached hereto are
copies of the Indictments in this case, which shall serve to
inform said doctor of the nature and times of the conduct
alleged as criminal in this case.
IT IS FURTHER ORDERED that said defendant be present at
the United States Court House, Room JS7$, 312 North Spring
Street, Los Angeles, California, on September 10, 1970 at
12:00 Noon, and at such other times and places as said doctor
may deem necessary for the purpose of said examination; and
that defendant afford such cooperation and information as may
be required by said doctor properly to conduct the mental
examination; and that such examination shall not be in the
presence of any counsel or stenographer designated by defendan
If defendant does not comply with this order he shall be
precluded at trial from presenting testimony upon the issue
of his alleged mental incapacity by any expert by whom he has
been interviewed.
IT IS FURTHER ORDERED that such examination be at the
expense of the United States Government.
IT IS FURTHER ORDERED that said doctor shall have
delivered to the undersigned Judge of this Court the original
and two copies of his report, the Court after examination of
said report and in its discretion to furnish identical copies
of the whole or part thereof to the United States Attorney
and to Richard G. Sherman, the attorney for the defendant.
Dated: September 4, 1970.
cL”
Ky Pee
Harry Pregerson
“United States District Judge:
WeyDE : .
REP y NAY aay pera, EB RON Ye oe OE RNS ROLY ee Gre et
ie — a — ae
SEP 4 . 1970
BE Sat
oer:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff, Nos. 5667 and 37429-HP-CD
ORDER APPOINTING PSYCHIATRIST
Defendant.
The Court being advised that the defendant C. JON HANDY |
intends to assert in this case the defense of mental incapacity
at the time of alleged commission of the crimes charged, and
that defendant further intends to offer upon this issue the
expert testimony of psychiatrists who have interviewed him;
And the United States Attorney having moved the Court
for an order appointing a psychiatrist to examine the
defendant on the question of his alleged mental incapacity at
the time of the alleged crimes;
And the matter having been submitted to the Court upen
the plaintiff's and defendant's memoranda of points and
authorities, and the Court being fully advised in this matter,
IT IS HEREBY ORDERED that DR. HAROLD C. DEERING, whom
the Court finds is a qualified and impartial psychiatrist, be
and he hereby is appointed to examine said defendant and to
report to the Court on the question of whether at the time of
o]-
; APPENDIX "C"_ : SFA}
a ada a ace ee at Be ean ee a . nes Y—
iinet veri
the allegedly criminal conduct defendant as a result of mental
@isease or defect lacked substantial capacity either to
appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of law. Attached hereto are
copies of the Indictments in this case, which shall sérve to
inform said doctor of the nature and times of the conduct
alleged as criminal in this case.
IT IS FURTHER ORDERED that said defendant be present at
the office of said Dr. Harold C. Deering, at 321 East 2nd
Suite 1002
Street,/Los Angeles, California, on September 6, 1970 at
9:00 A.M., and at such other times and places as said doctor
may deem necessary for the purpose of said examination: and
that defendant afford such cooperation and information as may
be required by said doctor properly to conduct the mental
examination; and that such examination shall not be in the
presence of any counsel or stenographer designated by
defendant. If defendant does not comply with this order he
eaten mn
shall be precluded at trial from presenting testimony upon
the issue of his alleged mental incapacity by any expert by
whom he has been interviewed.
IT IS FURTHER ORDERED that such examination be at the
expense of the United States Government.
IT IS FURTHER ORDERED that said doctor shall have
delivered to the undersigned Judge of this Court the original
and two copies of his report, the Court after examination of
said report and in its discretion to furnish identical copies
of the whole or part thereof to the United States Attorney
and to Richard G. Sherman, the attorney for the defendant.
Dated: September 4, 1970.
—- popes
‘ad mntees Seabee District Judge
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