# Petition for Writ of Certiorari — Handy v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0921%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 409 U.S. 846 ## Text rene Dour, UW. mar 5as Eth , MAY 20 07) iN (HH 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 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 > 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 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 —~ = woe see VO APPENDIX "B” Satter sot s 2 MOM REL > SEP 4 1970 CLERK U)S. DISTRICP COURT 7 CENTRAL OISiRICE a earn p<. ALIEORN