Reply Brief — Jones v. Kentucky

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SUPREME COURT: U O€T 16

In The

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1975

No. 75-423

JERRY TIMOTHY JONES _. _.......... PETITIONER

Vv.

COMMONWEALTH OF KENTUCKY __. -_-- RESPONDENT

RESPONSE TO PETITION FOR WRIT OF

CERTIORARI TO COURT OF APPEALS OF KENTUCKY

ED W. HANCOCK

ATTORNEY GENERAL

CARL MILLER

ASSISTANT DEPUTY

ATTORNEY GENERAL

STATE CAPITOL

FRANKFORT, KENTUCKY 40601

COUNSEL FOR RESPONDENT

In The

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1975

No. 75-423

JERRY TIMOTHY JONES aN . PETITIONER

V.

COMMONWEALTH OF KENTUCKY ____ RESPONDENT

RESPONSE TO PETITION FOR WRIT OF

CERTIORARI TO COURT OF APPEALS OF KENTUCKY

MAY IT PLEASE THE COURT:

The respondent accepts the petitioner’s statement on

Opinions Below, Jurisdiction, and Question Presented.

The respondent takes exception to the petitioner’s state-

ment of the statutory provisions involved in this case.

STATUTORY PROVISIONS

The petitioner has cited 18 U.S. Code, §4244, as

being pertinent to this case. The case sub judice is a crimi-

nal case in the state court and therefore the statutes of the

United States have no application to the case. Specifically,

18 U.S. Code, §4244, has no application to this case be-

cause it applies only to criminal trials in the United States

District Court.

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The petitioner has also cited Kentucky Revised Statute

203.015 as being pertinent in this case. Respondent dis-

agrees and submits that said statute has no application to

the case because it pertains to the civil procedure for ad-

judication of incompetency. [egal competency to stand

trial is not identical to civil competency to manage one’s

affairs and KRS 203.015 deals only with the latter.

The only Kentucky law which is applicable to the

case sub judice is Kentucky Rule of Criminal Procedure

8.06, which the petitioner has also cited. This court rule

has the full effect of a statute. The issue in this case is

whether said rule is constitutional under Section 1 of the

Fourteenth Amendment to the United States Constitution.

STATEMENT OF THE CASE

The respondent accepts the petitioner’s statement of

the case.

ARGUMENT

THERE IS NO CONSTITUTIONAL QUESTION FOR

WHICH A WRIT OF CERTIORARI SHOULD BE

GRANTED, BECAUSE THE KENTUCKY COURT OF

APPEALS HAS COMPLIED WITH THE ORDER OF

THE SUPREME COURT OF THE UNITED STATES

ON REMAND TO RECONSIDER THE CASE IN THE

LIGHT OF DROPE V. MISSOURI, AND THE PETI-

TIONER IS ATTEMPTING TO INVOKE A NON-

EXISTENT RULE OF LAW.

The Kentucky Court of Appeals, the court of last

resort of the state, has complied with this Honorable

Court’s order issued April 28, 1975 (Petitioner’s Brief,

oes [SBE EAR

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Appendix A, p. la), to reconsider its prior decision affirm-

ing the judgment of conviction of the petitioner for willful

murder entered October 12, 1973 (Petitioner’s Brief, Ap-

pendix C, p. 7a), in the light of Drope v. Missouri, 420

U.S. (decided February 19, 1975). After recon-

sideration, the Kentucky Court of Appeals again affirmed

the conviction by a Per Curiam Opinion rendered June 20,

1975 (Petitioner’s Brief, Appendix B, p. 3a). Respondent

requests the Court to examine said Per Curiam Opinion

in order that this Honorable Court may find that the Ken-

tucky Court of Appeals has carefully considered the issue

in the case. The Opinion analyzes Drope and finds, inter

alia, as follows:

'. . . Drope reaffirms the proposition that when a

court is put on notice that a defendant coming on for

trial lacks the capacity to understand the nature and

object of the proceeding, to consult with counsel, or

to assist in preparing his defense, he may not be sub-

jected toa trial. Although this is the ancient common-

law rule, Drope promulgates guidelines which must

be considered by a trial court in determining whether

the trial should proceed, the trial court being required

to take into consideration evidence of the defendant’s

prior irrational conduct, his demeanor at trial, and any

medical opinion on his competence to stand trial.”

(Petitioner’s Brief, Appendix B, p. 4a)

The Kentucky Court of Appeals concluded from the

record that the trial court had fulfilled the requirenients

of Drope and, further, that: “Counsel for Jones did not

at any time prior to or during the trial indicate to the

court that they were of the opinion that Jones was not

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competent to stand trial or to participate in his defense.”

(Petitioner’s Brief, Appendix B, p. 5a).

We will not prolong the discussion of Drope, because

the petitioner has virtually conceded that his trial was not

deficient when measured by Drope. Petitioner’s brief

states: “The facts of the case at bar do not fit the pat-

tern of Drope....” (Petitioner’s Brief, p. 10). The peti-

tioner accurately points out that in Drope and Pate [Pate

v. Robinson, 383 U.S. 375, 86 S.Ct. 836 (1966)] there

was evidence of bizarre behaviour by the defendants such

as would lead a layman to conclude that the defendants

were insane. The petitioner is asserting that, even if a

defendant appears to the trial judge and to other laymen

to be in possession of his rational faculties, if a motion

for a psychiatric examination is made at any time the trial

court has no discretion in the matter but must grant said

motion. This assertion has no basis in state law and is

not constitutionally mandated.

The standard of mental competency to stand trial is

not the same as the standard set forth by statute for “in-

competency proceedings”, to wit:

“(2) ‘Incompetency’ or ‘incompetent person’

shall apply to a person of unsound mind who from

confirmed bodily infirmity is unable to make known

to others by speech, sign or otherwise his thoughts or

desires and by reason thereof is unable to manage his

estate, or one whose mind because of mental illness or

infirmity or old age has become so disabled as to render

him unable to manage his estate. (1968 H 533, §37.

Eff. 9-1-68. 1962 c 106, Art 11, §7; 1960 c 66, §1;

1954 c 16, §2; 1952 c 50, §26).”

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In criminal law it has never been held that persons to

be held criminally accountable must be shown to be ration-

ally able to manage their estate, or that such incompetency

excuses the defendant from standing trial. The standard

promulgated by statute and the decisions of the Supreme

Court such as Drope v. Missouri, supra, is that the defend-

ant must have the “capacity to understand the nature and

object of the proceedings against him, to consult with coun-

sel, and to assist in preparing his defense.” (Drope, 95

S.Ct. 903). A person may be otherwise mentally disabled,

but if he has the capacity just described he is required to

stand trial.

Professional estimates as to the incidence of mental

illness at some time during a person’s life range as high

as one-third of the population.’ But this does not mean

1/See “Introduction to Psychology” by Ernest R. Hilgard,

Stanford University; Richard C. Atkinson, Stanford Univer-

sity; Rita L. Atkinson, Stanford, University; published by

Harcourt Grace Jovanovich, Inc. of New York-Chicago-San

Francisco-Atlanta 1971 (Fifth Edition): ‘Severe mental

illness is an important social problem. At any given

moment approximately 750,000 patients are being cared for

{n the mental hospitals of the United States, and they occupy

more than half of all hospital beds. This means that more

people are presently hospitalized for mental illness than

for cancer, heart disease, tuberculosis, and ali other

diseases combined. Estimates indicate that one out of

every ten babies born today will hospitalized for mental

illness at some time during his life.”” (p. 482) ** “The exist-

ing data suggest that neurotic disorders are far more pre-

valent than one might expect. Two community studies, one

in New York City and another in a small town in Nova

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that all such people should be excused at all times, or at

any time, from being tried on criminal charges.

The mental disability as to excusing from trial is

special and must be measured by the trial court according

to the peculiar standard set by the law, i.e., inability to un-

derstand the nature of the charge and the procedure and

to assist in his defense. The defendant’s history as to

mental health and his mental health generally, while being

of some significance, are not controlling.

The case relied on by the petitioner for his proposi-

tion that a trial judge has no discretionary power in ruling

on a motion for psychiatric examination before trial except

as to whether it is frivolous or not in good faith (Peti-

tioner’s Brief, p. 11) is a case applying 18 U.S.C. §4244:

United States v. Walker, 301 F.2d 211 (6th Cir. 1962).

This federal statute does not prevail in state courts and

the petitioner has cited no authority that 18 U.S.C. §4244

States the constitutional minimum for due process of law.

Scotia, give some measure of the extent of symptoms of

of disturbed mental health. The New York study estimates

that 30 percent of the population have clinical symptoms

sufficient to disturb their everyday lives. That this high

figure is not due solely to the strains of urban life is in-

dicated by the figure of 32 percent for the small town (Srole

and others, 1962; Leighton and others, 1963).” (p. 483);

Srole, L., Langner, T.S., Michael, S.T., Opler, M.K., and

Rennie, T.A.C. (1962) Mental health in the metropolis: The

Midtown Manhatten study. N.Y.: McGraw-Hill.—483, 484;

Leighton, D.C., Harding, J.S., Macklin, D.B., MacMillan,

A.M., and Leighton, A.H. (1963) The character of danger:

Psychiatric symptoms in selected communities.

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CONCLUSION

Petitioner concedes that the courts of Kentucky have

followed the standard of Drope v. Missouri, supra, in his

| case, but he seeks the pronouncement by this Court of a

different standard. Since Drope is the extant standard,

the petition for writ of certiorari should be denied.

Respectfully submitted,

ED W. HANCOCK

| ATTORNEY GENERAL ,

| Van tf Vt le4

| Assistant Deputy Attornéy General

State Capitol

Frankfort, Kentucky 40601

COUNSEL FOR RESPONDENT

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