Appendix — Baxstrom v. Herold

Supreme Court brief1966

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— HE Sie ER Na Ae ED AR a

Supreme Court of the United States

OCTOBER TERM, 1965

No. 219

JOHNNIE K. BAXSTROM, PETITIONER

vs.

R. E. HEROLD, DIRECTOR, DANNEMORA STATE

HOSPITAL

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

OF THE STATE OF NEW YORK

INDEX

Original Print

Record from the Surrogate’s Court, County of Clin-

ton, New York

Application of W. C. Johnston, M.D. for certi-

fication of John K. Baxstrom, an alleged in-

Sane person, dated November 22, 1961............ 1 1

pune 11 11

Decision of Court after hearing, December 6,

RE REN REET et a= patent aeRO il 11

+ Order of certification, December 6, 1961.......... — 12

Transcript of testimony of December 6, 1961

before Honvrable Robert S. Long.................... 14 14

a

INDEX

Origina! Print

Record from the New York Supreme Court, shea

of Clinton 21 19

Writ of habeas corpus issued March 16, 1962.... 21 19

Return to writ of habeas corpus, March 29,

1962 22 20

Transcript of testimony of April 10, 1962 be-

fore Honorable Michael E. Sweeney................ 24 22

Transcript of testimony of May 3, 1962 before

Honorable Michael E. Sweeney........................ 29 24

Order dismissing writ of habeas corpus, May

8, 1962 ...... 39 31

Petition for writ of habeas corpus, dated May

16, 1963 41 32

Writ of habeas corpus issued June 13, 1963...... 45 36

Return to writ of habeas corpus, June 30, 1963 46 37

Judgment of Monroe County, dated April

23, 1959 48 39

Transcript of testimony of July 26, 1963 before

Honorable Harold R. Soden... 50 41

Order dismissing writ of habeas corpus, Au-

gust 2, 1963. 59 45

Order No. 5682 of the Apneilate Division of the

Supreme Court, State of New York, Third

Judicial Department affirming denial of writ 61 46

Order of Court of Appea2is of the State of New

York denying leave to apyveal to the Court of Ap-

peals, dated October 8, 1964..2...2..2....0.....:cseceeeceeeee 62 48

Order granting motion for leave to proceed in forma

pauperis and granting petition for writ of cer-

tiorari

STATE OF NEW YORK—DEPARTMENT OF CORRECTION

DANNEMORA STATE HOSPITAL

| -EIV 5

OFF icy ‘He

FORM FOR THE CERTIFICATION OF INSANE PRISONERS AFTER THE EXPIRATION OF THEIR

TERMS, PURSUANT TO ARTICLE 15, SECTION 384 OF THE CORRECTION LAW.

3( Section 384. “Certification of insane prisoners after the expiration of their terms. 1. Within thirty days

prior to the expiration of the term of a prisoner confined in the Dannemora state hospital, when in the opinion

of the director such prisoner continues insane, the director shall apply to a judge of a court of record for the

certification of such person as provided in the mental hygiene jaw for the certification of a person not in con-

finement on a criminal charge. The court in which such proceedings are instituted shall if satisfied that such

person may require cere and treatment in an institution for the mentally ill, issue an order directing that such

person be committed to the custody of the commissioner of mental hygiene to be placed in an appropriate state

institution of the department of mental hygiene or of the department of correction as may be designated for the

custody of such person by agreement between the heads of the two departments. The costs necessarily incurred

in determining the question of insanity, including the fees of the medical examiners, shall be a charge upon the

amount appropriated for the support and maintenance of the Dannemora state hospital, and be paid in the

same manner as are other expenses of such hospital.

“2. A patient committed to the custody of the commissioner of mental hygiene and placed in an appro-

priate institution in the department of mental hygiene or the department of correction pursuant to the pro-

visions of this section may at any time during the period of his commitment be transferred to an appropriate

state institution in the department of mental hygiene or in the department of correction, which has been des-

ignated for the custody of such patient by agreement between the heads of the two departments.

“3. All persons retained in Dannemora state hospital pursuant to a valid order of retention issued in

accordance with the provisions of this section prior to September first, nineteen hundred sixty-one shall be

deemed to have been committed to the custody of the commissioner of mental hygiene pursuant to subdivision

one of this section and shall be deemed to have been placed in the custody of Dannemora state hospital by

designation of the commissioner of mental hygiene and the commissioner of correction pursuant to subdivision

one of this section. Any such patient in the Dannemora state hospital may be transferred to any appropriate

state institution of the department of mental hygiene or of the department of correction as may be designated

for the custody of such patient by agreement between the heads of such departments.”

—

es

2

(fol. 2 |

wanes PETITION

STATE OF NEW YORK fe

_SURROGATE'S COURT: CLINTON COUNTY

IN THE MATTER OF THE APPLICATION OF

ton, Me De. dais

DIRECTOR OF DANNEMORA STATE HOSPITAL

FOR THE CERTIFICATION OF {

John K. Baxstrom #6887

AN ALLEGED INSANE PRISONER

The Petition of ___W,_ ©, Johnston, M- D- respectfully shows to this Court

(1) That he is the Director of Dannemora State Hospital, located in the Village of Dannemora, County of Clinton,

tate of New York.

(2) That the above named __ John K. Baxstrom — ; —

term of imprisonment is about to expire and, in the

risoner confined in said Dannemora State Hospital, that his

pinion of your Petitioner, such prisoner continues insane.

(3) That the facts upon which the application is based are as follows:

The petition should state the facts observed by, or the information known to, the petitioner, which would tend to show

he existence of mental illness, such as irrational acts or statements, attempts at suicide and attempts or threats to

4 in the behavior and charact of the patient.)

on June 1, 1961 from Attica Prisone

He is suffering from epilepsy and when having fits, he is violent

“and dangerous. He has had several epileptic seimures since his as

_ admission and is still in_ need _of medication and hospitalization.

_His diagnosis “4s Psychosis due to Convulsive Disorder, Epileptic

3 (4) That he verily believes it to be for the best interest of the said person that an order be granted directing his

3 certification to the custody of the Commissioner of Mental Hygiene.

names and addresses of living close relatives of the

4 (5) Upon information and belief that the following are the

5 patient: (All must be given.)

3

fol. 3]

rip ‘Appross

Name 7 Number sad street City, town or P.O.

Willie Baxstron Deceased

¢ gsaran(Carr) Baxstrom Deceased "1th

th. 2920 Westwood Ave. -Peltinore. Marylani

Alberta Ceiley 42 |§19 Dracena St. Bakersfield, Calif.

s ca] J

ecco @ « Bixstron +g ¥ bd

; "

{7 Tate? Be sisca 7 ed

fe en ; :

sheet if nypessery) "

tr

yeret aE h BOR STE OD ecical rtificate(s) of examining physicians hereto ahnexed, your petitioner

that an order be granted certifying that the said person is in need of care and treatment and committing him to

ustody of the Commissioner of Mental Hygiene.

Wh. hina B= fer

Directa

Dannemora State Hosp., Dannemora, N.Y.

(Petitioner's address)

4 _Movember 22, 1961,,_

MEDICAL CERTIFICATE(S) OF EXAMINING PHYSICIANS

(Medicai certificate(s) shall be filled out only by two examining physicians)

(a) ted LoL. by _——e

ormation furnished P. > a / MBL. Hae a A hietin Y.

sa 4 of the patient. ae

Patient is at KS Ant ete county ot ——“4eatenn ~

y: state or country LA Kt. '; if foreign, date of arrival in U. 8.

f entry ate or line

nd place of meen 2 Gg! ja Ptaakese Is he @ citizen of the Y. 8.

, legal resident of New York State? “If so, of what county, city or to ==

mg has be resided in New York State’. 2“He address of patient &/ / At.

(No. street) (City or town)

than five years in New York State, indicate number of years and States of p id

2; cotor Lue, pation nd La. WLS ewarrte, widowed, separated, diveseed. Religion. y a

it pot required)

ent a veteran? we a No—.——.. Which war? “A

1 of service ec trea eee — Service Serial No. A§sOZOS~ bs

of discharge 4 A Compensation or Pension No.

lity for which veteran is receiving compen- a or pension

——, Pek RMR RCRA MCE I REE eh a

[fol. 4]

| Birthplace of father Lge oe ae

¢ Legal residence of father, if living —

$ Legal residence of mother, if living

4 Name and wen nearest known relative mae

a

1 If so, state what relationship and whether paternal or

§ Have any of the relatives been in institutions for mental illness?

9 If so, state name and relationship and give name and location of institution

)

| Has the patient been considered as of normal mental darat 4?

} Institution or institutions where cared for in previous attacks, if afly (give dates) —

:

| Has patient been discharged from last institution?

; Has the patient bad treatment for syphilis? —AAL

AMS “SS as a draget 20

) When did present attack begin?

| What is characterized by depression, excitement, untidiness, destructiveness, suicidal or homicidal tendencies, delusions,

rn

) hallucinations, etc.?

)

.

j

: What was first noticed? AF Siddha Aska

}

}

| Past significant physical disease Eph jean

)

j

(b) Examination by Physician(s) hott

) Physical condition (including any special test report) —.. etal Math fcc

} Mental condition: The conduct of the patient (including the statements made to us by others) has been ————

| fae

a 2 @

eee eerste IR. w aan finaly

15 What dangerous tendencies does the patient show?

16

7 We er Jouwsex wrt at t Eta,

te “Ne ( name plainly)

18 county of State of New York and LA 47 Kownuson

‘ (Print same plainly)

~ 4

19 » legal resident of county of - I aoa 4, do ¢ iy) certity

20 with the exceptions which are he: noted, as follows:

S & I am & reputable physician, duly licensed to practice medicine in New York State, and have been in the actual

82 practice of my profession for at least three years.

3 6, I have with care and diligence personally observed dete of the cortjSente, namely, on the

=) aa Lp _ 0h,

Ee “SSE <i aS

6 such (joint) examination, find and hereby certify to the fact that hts condition is such as to require care and treatment

7 in a state iastitution for the mentally ill, under the provisions of the statutes.

8 3%. I have formed this opinion froin the history of the case and my examination of the patient as given above.

9 4 It is my opinion that personal service on said patient would be detrimental to said patient for the following

0 reasons:

1

A ee

1 5. I hereby certify that the facts stated and information contained in this certificate are true to the best of my

| knowledge and belief.

(fol. 6]

30 (e) Examination by Physician

40 +Physical condition (including any special test report)

44 Mental condition: The conduct of the patient (including the statements made to us by others) has been ——-—

49 The patient showed the following psychiatric signs and symptoms

55 Does the patient show a tendency to injure himself? --—__.. __...-. or to injure others?

56 What dangerous tendencies does the patient show?

57

Bh (Cum a legal resident of

(Print same pisialy)

59 county of , State of New York, certify with the exceptions which are hereinafter

60 noted, as follows:

61 LL Iam a reputable physician, duly li d to p i dicine in New York State, and have been in the actual

62 practice of my profession for at least three years.

63 2 Ihave with care and diligence personally observed and examined on the date of the certificate, namely, on the

DO cerca GRY Of cnc cen em, 19, — mene OW residing or

(Tneert nemo of patiens)

$5 being at =, fa the county of ....... .-...__... —....-_—.. —, and as a result of

66 such examination, find and hereby certify to the fact that his condition is such as to require care and treatment in

67 a state institution for the mentally ill, under the provisions of the statutes.

| 7

{fol. 7 |

168 3, I bave formed this opinion from the history of the case and my examination of the patient as given above,

169 «= 4,-«*It is my opinion that personal service on said patient would be detrimental to said patient for the following

t

170 reasons:

in

173

17} ~=—«6,_«T hereby certify that the facts stated and information contained in this certificate are true to the best of my

114 knowledge and belief.

16

176 = Dated , 19——

im CERTIFICATE OF JUSTICE OR JUDGE RELATING TO PERSONAL SERVICE

178 STATE OF NEW YORK

179 ____SURROGATE'S COURT, COUNTY OF CLINTON

180 Before the t S. Long a

”.

181 on the x aay of Vee ., 961,

183 IN THE MATTER OF

18 AN APPLICATION FOR THE CERTIFICATION

14 oF

- Jotm Ke Baxstrom #6887

186 AN ALLEGED MENTALLY ILL PERSON

187 (1): I do hereby certify that, as appears by the affidavit of service herein, personal service bas

been u the

Miss. Mary smith

188 alleged mentally {11 person abovégaymed - -November 2% 1961, ana upon Mr'Se Albert Smith

er

189 who is a of the alleged mentally ill person, asuit>

ee 2920 Westwood Avenue

190 whem be oes ides. 2. whose. bh Species énhr ils. eo n jmed) by

191 who resides in the city, teum-erauiliage of _Badtimer es Meer} iP sense

192 in the county of = Senne

(fol. 8]

Form 478a-).1.H—(May 1961)

STATE OF NEW YORK—DEPARTMENT OF CORRECTION

SERVICE OF NOTICE UPON THE ALLEGED MENTALLY ILL PERSON AND/OR OTHERS

STATE OF NEW YORK

SUBROGATE'S ss court, country or — CLINTON

IN THE MATTER OF

AN APPLICATION FOR THE CERTIFICATION

or

_ John K, Baxstrom #6887

AN ALLEGED MENTALLY ILL PERSON

ro Miss Mary Smith, 2920 Westwood Avenue, Baltimore, Maryland

(Name of person served)

TAKE NOTICE that on the petition of

and the certificate(s) of Doctors ____William W. Johnson

______Ira As Rowlson

and

Honorable -RObOTt Se Long

+ &0 application will be made before the

» duatioe Sur

éuige-ot the _Surrogate's

court at ne —Surrogate's Off1Ce in (city,tewrwr-visiege) Plattsburgh, New York —

2020086 wm on the 6th

day ot _Decembar

., 141,

tor an order certifying said alleged mentally ill person to the custody of the Commissioner of Mental Hvgiene.

a

AFFID.

IN THE MATTER OF ‘

AN APPLICATION FOR THE CERTIFICATI

OF

John K. Baxstrom #6887

AN ALLEGED MENTALLY ILL PERSON >

STATE OF NEW YORK: ;

county or —CLINTOW

penser ab nite nn ene

i > OF —— i ANY

qseoog

# 1-INSTRUCTIONS TO DELIVERING EMPLOYEE

1 ONLY to Show address where

0 ~ aA. delivered

(Additional charges required for these services)

RETURN RECEIPT

* Received the numbered article described oa other side.

>: CSGNATURE OR NAME OF ADDRESSEE (must-olways be filted in}

wary dnt

ADDRESS WHERE OFLIVERED (only f requested in item #1)

7, aa

— jo

i avetineediidll

Ce ui. i ae

Tee See held dake eee en ee 2 eee 2 we

2

Hesetgt iterated ‘i to parva nn iy shite in-dada Matha Rgsieteragy Return

(State whether person served le the alleged mentally ill person. If not, state relationship)

F 9

(fol. 9)

fore (Tte-DILE.—(May 1961)

STATE OF NEW YORK—DEPARTMENT OF CORRECTION

SERVICE OF NOTICE UPON THE ALLEGED MENTALLY ILL PERSON AND/OR OTHERS

STATE OF NEW YORK

___ SURROGATE’ SB _. court, counry or _CLINTON

—_—_—_

IN THE MATTER OF

AN APPLICATION FOR THE CERTIFICATION

or

John K, Baxstrom #6887

AN ALLEGED MENTALLY ILL PERSON

» —Mrss Alberta Smith, 519 Dracena St., Bakersfield, California —

(Name of person served)

sa the certifeate(s) of Doctors ——William W. Johnson =

______I re. A. _Rowlson | an application will be made before the

Robert &, Long plaction Surrogates Judge of the —Surrogate's

tie ts ores papery tae FR Mew.York.

1020080 m. on me —Gith ay ot F #]- :

— - eee — a Dw onere voms TO enue EMPLOYEE

certifying : bd (Additonal charges required for thee services)

RETURN RECEIPT

Received the bered article describ

SIGNATURE OR NAME OF ADDRESSEE (mat alway be Aliad la)

arroavit of F-42024 a |

Rg

d on other side. *

IN THE MATTER OF

AN APPLICATION FOR THE CERTIFICATION

or

__John K, Baxstrom #6887

AN ALLEGED MENTALLY ILL PERSON

STATE OF NEW YORK:

courry or CLINTON = |

aan Ae Teatro... sing auly cworn, cays that be to over

cieieiciinies tahitian Aeinanat Bint De a cain that on the 24th _ aay

« November______—, 19.61. at —Dannemora,_New-York

be served & notice of application for an order adjudging such person to be mentally tll UpOM amen

Wa. Alberta Smith, 519 Dracdna Street, Bakersfield, California

of, said notice personaity PL BAGG EdD MeGa HPAL ARCA RAs Return

Yecet pe hed quested. be Sige of alleged _nentell

whether person served is the alleged UW) person. If mot, state relationship

vor to betore me this 24th

uy ot November ba ica ‘TEL. OZ. Za

——_huar- Public___

ys, HENRY

vata poetic | i suatt A ia oe

: NN vases MARCH 20,

(Signature of wrver of notice)

a AL, OTR I

10

(fol. 10]

” STATE OF NEW YORK—DEPARTMENT OF CORRECTION

SERVICE OF NOTICE UPON THE ALLEGED MENTALLY ILL PERSON AND/OR OTHERS

STATE OF NEW YORK

01 ", SURROGATE! 8. courr, country or — CLINTON oo

02 IN THE MATTER OF

03 AN APPLICATION FOR THE CERTIFICATION

04 OF

o5 —_John K. Baxstrom #6887. _

= AN ALLEGED MENTALLY ILL PERSON

ot To —-yQ0n_ Ka Baxstrom. #6887 ieelnbenismbaseneninncammsitie nas

(Name of person served)

08 TAKE NOTICE that on the petition of —— ye D. caus

9 and the certificate of Doctors --. William W. Johnson. eine

» Ira A. Rowlson , an application will be made before the

11 Honorable ~Rohert.&. Long Juatice Sur on Sudeeot the SuUrrogate's Court

12 @enx at the _Surrogate's Office in (city, togmcmwiiione) Plattsburgh, New York a

i3 280200 2 an, on the — a ~@ay of _.._December _ > — 1961, for aa order

14 committing said alleged mentally {11 person to the custody of the Commissioner-of Mental Hygiene.

15 a Wincenty Natkanski, M. D.

(Mame of server of notice)

6 AFFIDAVIT OF SERVICE

7 IN THE MATTER OF

18 AN APPLICATION FOR THE CERTIFICATION

9 GF

___ John K, Bexstrom #6887

i AN ALLEGED MENTALLY ILL PERSON

2 STATE OF NEW YORK

s county or CLINTON... _}

4 —-Wincenty..Natkansk1,. Me...Do—......—, being duly sworn, says that he is over

$21 years of age, and resides at —.Dannemora, New York... tnat on the 24th aay

4 ot —November.._.._..__.._, 19.61, at ... Dannemora, New. York...

1 he served notice of application for an order adjudging such person to be mentally tll UPON ~....mermmrnrnm

ce A andi

(Name of person served)

9 by delivering a true copy of said notice personally and leaving the same with him. He further says that he knew

0) the person served as aforesaid to be —... alleged mentaily 11]. person _ © wes

(ftave whether person corved ls the alleged mentally Uli pereon. If not, etate relationship)

——————— Oe 0 OD eDOCS © REDS SUNS eee

2 Sworn to before me this —... At GES

eh Fae eb) | Kir eaecMadtaceed Lb

een ‘gnavare of server of notice)

s —______Notary.. Py icironsguncompase

(ome We) OREN F. HENRY

wr: d Nein Hod Gosutt*of' ion

LY COMMISSION PRPIRES MARCH 96, 184 2

—_—_— latter

11

(fol. 11]

$ ORDER OF HEARING

1 (If a bearing before a judge or referee be granted upon the demand of « relative or near friend or upon the

er aaa otherwise it should be omitted.)

STATE OF NEW YORK

SURROGATES couRT, county or —CLINTON

| Before the a , Jaation Surrogate om dudge=

oon ba AER]

IN THE MATTER OF

} AN APPLICATION FOR THE CERTIFICATION

j OF

___ John Ke Baxstrom #6887

AN ALLEGED MENTALLY ILL PERSON

. An application for an order’ of cértification of the above’ persdn, based upon the petition of __W. Cy ss

Johnston, M.Deand upon » medical certificate dated November.24 ____, 19.61, naving been

made, and (state name of relative and degree of relationship, or if none, name of near friend)"

_W. C. Johnston, M.D. baving demanded a hearing uyon sich apyilication, it is hereby

| ORDERED, That a hearing on such..application for an order of certification be had before the Honorable

__Robert S, _ Se —— estlas. Surrogate arniadge of the — Surrogate's ___ court at the

Surrogate's / in (city, sanpeoswtiace) —Plattsbur,

County ot —-Clinton on tne 6th _ aay or __ December _ , 981, 10200 #>

at, which time testimony shal! be heard touching the alleged mental illness of the aforesaid person, and if it be deemed

advisable, said person may be examined either in or out of court.

The judge may (or if a referee be appointed, the referee herein named shall) hear such testimony and make such

examination and report the same at once with the decision (or opinion) as to the mental illness of such person.

PTA IP SE Ie oral Lie RN oe Bierce , the petitioner, and the

following named

ohn K. Bexstr om #6887 tal

ee at Witeesl Ines . Bettfnore, Neryiags ,

-Mrs, Alberta Smith; 519 Dracene Street — -—— > Ly pe aan a

edie Pay £

amanecen

DECISION OF COURT AFTER HEARING

(Decision of court to be used only if a hearing is had)

IN THE MATTER OF

AN APPLICATION FOR THE CERTIFICATION

Clodn Kk. Baxstrom, 6287

AN ALLEGED MENTALLY ILL PERSON

A bearing having been bad upon the application of Ml (ttmater, 00040 . for an

order certifying that the said person is in need of care and treatm and committing him to the custody of the

Comvuissioner of Mental Hygiene to be placed in an appropriate state institution of the Department of Mental Hy-

giene or of the Department of Correction as may be ted for the cusjedy of such person by agreement be-

tween the heads of the two departments on the ee nda , 19.42, and testi-

mony having been taken as required by law, I do hereby decide that the said alleged mentally il)

of observation and a stat ution for the care and trea of the mentally ill.

a 19.07

is in need

dicen maces (\

12

(fol. 12]

1 ORDER OF CERTIFICATION

STATE OF NEW YORK

m2

an court, county or taste

oe 3S _A ange susie suronnte ae dataret

at nome plete

285 Gawess county, ty eo ot Zielladecanghe oa tx LE ty ot Leonel 2aZ,

286 IN THE MATTER OF

. AN APPLICATION FOR THE CERTIFICATION

OF

w chbe_k. Dena mm, GPR7__

AN ALLEGED MENTALLY ILL PERSON

291 Upon the petition of ME ahenaTox, 07 Aha dated << anatareee-s22 ne ZL

292 and (a) medical certificate(s) made by two examining physicians, which medical certificate(s) are dated’ on the

a. ae are ns Nall dit tae An os A ep

1 1242 and which are annexed hereto and upon such other facts and information as were produced betore me (or «

398 referee appointed by me), and being satisfied that the above alleged mentally {ll person may require mental care and

296 treatment in & state institution for care and treatment of the mentally {ll within the meaning of the statute, and that

297 he is not in confinement under a criminal charge, it is therefore hereby

28 ORDERED, that the said hw Le. Baar “2222 be committed

299 to the custody of the Commissioner of Mental Hygiene to be placed in an appropriate state institution of the De

300 partment of Mental Hygiene or of the Department of Correction as may be designated for the custody of such per

301 son by agreement between the heads of the two departments.

302 ORDERED, That the director of the said institution forthwith at the time of the admission of said alleged mentally

303 ill person to said institution, forward a verbatim copy of the entire proceedings herein to the office of the Clerk of

304 —— County.

205 ORDERED, That the said papers so sent shall be sealed in the office of the County Clerk of

306 County, and be exhibited only to the parties to the proceedings, or

Be ii ce nn, _@ Dh, at

(A copy of the entire proceedings must also be filed in the Department of Mental Hygiene when the patient is in a

Department of Corrrection institution.)

13

| fol. 13]

rae : 2 4

P| i @ aa

im te Diace b, ie ; 7 W& sn me ming i =:

of Mental Saasiene

(Net applicable to State Institutions in

December 7, i961

Copy sent to clerk of...

STATE OF NEW YORK

DEPARTMENT OF MENTAL HYGIENE

Bo. December. 7.

Copy sent to Department

> Dept. of Mental Hygiene)

Dannemora State Hospital,

Date of order of certification

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14

[fol. 14]

IN THE SURROGATF’S COURT, COUNTY OF CLINTON,

NEW YORK

[File Endorsement Omitted]

IN THE MATTER OF THE APPLICATION OF

W. C. JOHNSTON, M. D., Director of the Dannemora State

Hospital for the Certification of

JOHN K. BAXSTROM, # 6887, Criminal Index # 58

An Alleged Insane Prisoner.

A proceeding held at the Surrogate’s Court Chambers,

Plattsburgh, New York, at 10:00 A. M., before Honorable

Robert S. Long, Clinton County Surrogate, December 6,

1961.

THE COURT: Are you John K. Baxstrom?

PATIENT: Yes, sir.

THE COURT: Mr. Baxstrom, my name is Robert S.

Long and I am the Surrogate Judge of the County of

Clinton. Surrogate’s Court is known as a Court of Record

under the laws of the State of New York, and the Hos-

pital where you are a patient is located at Dannemora,

New York, which is within the boundaries of Clinton

County.

Dr. Johnston, as Director of the State Hospital, on or

about November 22, 1961 filed certain papers in Surro-

gate’s Court of this County, which had to do with you.

These papers, among other things, stated that the time

you owed the State of New York was about to expire,

(fol. 15] and that, in his opinion, you were still mentally

ill and still in need of hospital and institutional care.

Because of these facts, I asked Dr. Johnson, who is in no

way related to Dr. Johnston, Director of the Dannemora

State Hospital and Dr. Rowlson, both of the City of

Plattsburgh to go to the hospital and examine you and

your case history. These two doctors have certified to me,

in writing, that they did go to the Hospital at Danne

mora, New York, and they did examine you and your case

a

15

history and that, in their opinion, you are still mentally

ill and still in need of hospital and institutional care.

A notice that this hearing was to take place here today

was sent by registered mail to Alberta Smith, 519 Dra-

cena Street, Bakersfield, California, and also, a notice

was sent to Miss Mary Smith, 2920 Westwood Avenue,

Baltimore, Maryland.

Now, besides yourself and myself here today, Mrs Cath-

erine L. McCarthy is the lady sitting in front of you.

She is a stenographer and she is making stenographic

notes of what transpires at this hearing. Standing near

you is an officer on duty at the Dannemora State Hos-

pital, John Mytych of Cadyville, New York. On your

right, Mr. Baxstrom, is Charles H. Lewis, an attorney

who resides at Peru, New York. He is the Assistant

Attorney General, and it is his duty to appear for The

People of the State of New York in such cases as this. On

his right and my left is Dr. Ross E. Herold, Assistant

{fol. 16] Director of the Dannemora State Hospital, who

appears in such cases as this.

THE COURT: (Addressing Dr. Herold) Have you

heard from any member of this man’s family?

DR. HEROLD: No.

THE COURT: At this time, Mr. Baxstrom, I am go-

ing to take the testimony of Dr. Herold. At the conclu-

sion of his testimony you have the right to ask the Doctor

any question you care to regarding your matter and you

also have the right to ask Charles H. Lewis, the Assistant

Attorney General any questions, or myself—any one, two

or three of us, and you also have the right to make any

statement you care to regarding this whole matter.

DR. ROSS E. HEROLD, being duly sworn, testified as

follows: —

EXAMINATION BY MR. LEWIS.

Q Your full name, Doctor?

A Ross E. Herold.

Q What is your occupation? .

A Assistant Director of the Dannemora State Hospital.

Q Doctor, are you duly licensed to practice medicine

in the State of New York?

— aerate

16

A Iam.

Q Do you specialize in any field of medicine?

A Yes. Psychiatry.

Q Will you please state your qualifications and educa-

[fol.17] tional training and experience in the field of

medicine and psychiatry?

A Graduated in medicine from the University of

Toronto, Canada in 1924. Licensed to practice medicine

in New York State in 1925. I was with the Department

of Mental Hygiene until 1942. From 1942 to 1946 I was

on active duty with the United States Navy. Since Febru-

ary Ist, 1946, I have been Assistant Director of the Dan-

nemora State Hospital. I also am a qualified psychiatrist

under the laws of the State of New York and have taken

. post-graduate courses at Columbia University.

Q All right, Sir. Doctor, did you have an opportunity

to examine and observe the patient, John K. Baxstrom,

who is now before this Court?

I have.

When did you last see him?

Yesterday.

That would be December 5th, 1961, is that true?

Yes, sir.

Are you familiar with his case history, which is

kept in the regular course of business at the Dannemora

State Hospital, pertaining to this patient?

A Iam.

Q Doctor, from your medical training and experience

and from your observations and examinations of the

patient and from his case history, have you now been

able to form an opinion as to whether this man is now

eat, 38) mentally ill and in need of further institutional

care?

A I have formed an opinion that he is still mentally

ill and in need of institutional care.

Q Have you formed an opinion as to a diagnosis of

his particular type of mental illness?

A Yes. Psychosis due to epileptic deterioration.

Q_ And it is your opinion, Doctor, that he should have

further care in a hospital, such as the Dannemora State

Hospital?

OPOPOpP

17

A Yes. That is my opinion.

THE COURT: Has this man been examined by some-

one from the Department of Mental Hygiene?

DR. HEROLD: Yes. On November 27th, 1961.

THE COURT: Do you have any objection to his being

transferred to any other institution, a civil institution, if,

in the opinion of the Department of Mental Hygiene, he

should be transferred? ‘

DR. HEROLD: I have absolutely no objection.

MR. LEWIS: I move his commitment, pursuant to

Section 384 of the Correction Law.

THE COURT: Do you have any question you would

like to ask of Dr. Herold, Mr. Baxstrom?

THE PATIENT: Dr. Herold, I am at the Dannemora

State Hospital since June first, right?

DR. HEROLD: Yes. You came to our hospital June

first.

[fol.19] THE PATIENT: I asked—I know that it is

a mental hospital. Am I right? But I don’t know how I

got there.

DR. HEROLD: You don’t know how you got there?

You were sent to the Dannemora State Hospital by an

order of transfer signed by A. J. May, Acting Warden of

Attica Prison.

THE PATIENT: I know that I am an epileptic, but

I did not think that that is a form of insanity. I would

like to recommend, Sir, that the staff at the hospital re-

view my case.

THE COURT: The question before me today, Bax-

strom, is only what the doctors who are at the hospital

and the doctors I sent up to examine you, believe your

mental condition to be. Whether you stay at the Danne-

mora State Hospital, or' whether you are transferred to

some other civil hospital at or near your home is entirely

up to the Department of Menta! Hygiene and that has

hothing to do with Dr. Herold or myself.

(Addressing Dr. Herold) Has this man been examined

by Dr. Foster?

A Yes. November 27th, 1961.

THE COURT: (Addressing the Patient) You were

examined by Dr. Foster on November 27th. He is a rep-

—

18

resentative of the Department of Mental Hygiene. He will

make a report. If he reports that he thinks you are a

subject for transfer to a civil hospital, then you will be

[fol. 20] transferred. It is entirely up to that Department.

THE COURT: (Addressing Dr. Herold) Have you

any objection if this man is transferred to a civil hospital

if the Department of Mental Hygiene so decrees?

DR. HEROLD: None whatever.

THE COURT: And I, Sir agree with you. I have no

objection to his transfer if the Department of Mental Hy-

giene so finds.

I hope that you will be transferred to a civil hospital.

Good luck.

Hearing closed.

[Stenographer’s Certificate to foregoing

transcript omitted in printing.]

19

[fol. 21]

IN THE NEW YORK SUPREME COURT

COUNTY OF CLINTON

WRIT OF HABEAS CoRPUS—issued March 16, 1962

THE PEOPLE OF THE STATE OF NEW YORK

To Dr. W. C. Johnston, M. D., Director,

Dannemora State Hospital, Dannemora, New York

We command you, that you have the body of JOHN K.

BAXSTROM by you imprisoned and detained, as it is

said, together with the time and cause of such imprison-

ment and detention, by whatsoever name the said JOHN

K. BAXSTROM is called or charged, before Hon. Michael

E. Sweeney, a Justice of the Supreme Court of the State

of New York, at the Court House in the City of Platts-

burgh, New York, forthwith, on the 10th day of April,

1962 at 10 a.m. in the forenoon of that day, or as soon

thereafter as the matter may be heard, to do and receive

what shall then and there be considered, concerning the

said JOHN K. BAXSTROM and have you then there this

Writ.

Witness, Hon. Robert G. Main, one of the Justices of

the said Court, the 16th day of March, 1962.

HALSEY J. STARK

Clerk

The within Writ is hereby allowed this 16th day of

March, 1962.

/s/ Robert G. Main

J. 8S. C.

(fol. 22]

IN THE NEW YORK SUPREME COURT

COUNTY OF CLINTON

IN THE MATTER OF THE APPLICATION OF

JOHN K. BAXSTROM

RETURN TO WRIT OF HABEAS CorPUS—March 29. 1962

The following return to a Writ of Habeas Corpus here-

tofore granted by the Hon. Robert G. Main, Justice of the

Supreme Court, is hereby respectfully made:

I. That W. C. Johnston, M. D. is the Director of the

Dannemora State Hospital, and has the care and custody

of all patients committed to that institution.

II. That at a Term of the County Court, held in and

for the County of Monroe, at the Court House in the City

of Rochester, State of New York, on the 28rd day of

April 1959, John K. Baxstrom, the relator in the present

matter was convicted of the crime of Assault 2°—Viola-

tion Section 242-4 Penal Law, and was thereupon sen-

tenced to be imprisoned in the State Prison at Attica.

III. That the said relator was received at Attica

Prison April 9, 1959 and subsequently on June 1, 1961

was duly transferred to the Dannemora State Hospital,

where he is now detained. That such transfer from Attica

Prison to the Dannemora State Hospital was made pur-

suant to law; that the order for such transfer is now in

the possession of the respondent and the respondent begs

leave to refer thereto upon the argument of this writ.

IV. That the full term of sentence of said John K.

Baxstrom expired on December 18, 1961, and the patient

was regularly committed to this hospital on December 6,

1961 as an insane person on the order of Hon. Robert S.

Long, Judge of the Surrogate’s Court, Clinton County, in

accordance with Paragraph 384 of the Correction Law.

V. Section 384, Paragraph 3 of the Correction Law

states: “Any such patient in the Dannemora State Hos-

pital may be transferred to any appropriate state institu-

tion of the Department of Mental Hygiene or of the De-

—

21

partment of Correction as may be designated for the cus-

tody of such patient by agreement between the heads of

such departments.”

[fol. 23} VI. This patient was examined by Dr. Richard

V. Foster, Assistant Commissioner for the Department

of Mental Hygiene, on November 27, 1961 relative to a

transfer to a Civil Hospital and was not considered to be

suitable for care in a Civil Hospital.

VII. Deponent further alleges that the said John K,

Baxstrom is, in his opinion, an insane person, and that he

is in need of further hospital care and treatment.

VIII. That the said John K. Baxstrom is now presented

before the Court in obedience to the Writ recently issued.

All of which is respectfully submitted.

Dated at Dannemora, N. Y. this 29th day of March

1962.

/s/ W. C. Johnston, MD.

Director, Dannemora State

Hospital

[Duly sworn to by W. C. Johnston, MD.

jurat omitted in printing (all in italics) |

a ——

(fol. 24]

IN THE NEW YORK SUPREME COURT

COUNTY OF CLINTON

THE PEOPLE OF THE STATE OF NEW YORK, EX REL

JOHNNY K. BAXSTROM, RELATOR

v8,

W. C. JOHNSTON, M. D., Director, Dannemora State

Hospital, Dannemora, N. Y., RESPONDENT

Stenographer’s Minutes of Proceedings had in the

above-named matter, at a Regular Trial Term of the

Supreme Court, held in and for the County of Clinton, in

the Clinton County Court House, Plattsburgh, N. Y., on

the tenth day of April, 1962.

BEFORE: HON. MICHAEL E. SWEENEY, Justice.

APPEARANCES:

The Relator, in person.

Louis J. Lefkowitz, Attorney General of the State of

New York, by Charles H. Lewis, Esq., 24 Clinton St.,

Plattsburgh, N. Y., Assistant Attorney General, for the

People.

(fol. 25] THE COURT: You are Johnny K. Baxstrom?

THE RELATOR: Yes, sir.

THE COURT: All right, you may proceed. You may

go ahead.

(Mr. Lewis handed a copy of the return to the relator.)

THE RELATOR: (referring to photostatis document)

Sir, in November 1959 I was committed as follows: First

count. The deponent, on or about November 21, 1958, at

the city of Rochester, Monroe County, New York, wilfully,

wrongfully and feloniously assaulted Joseph M. C. Mc-

Carthy, thereby inflicting upon his person grievous bodily

~ oe

harm; to wit, puncture wound of the left arm and fore-

head, two counts. On April 9, 1959, an information was

read in open court to this defendant, by John C. Little, Jr.,

district attorney, charging the defendant with having

been previously convicted of the crime of robbery in Cir-

cuit Court, Baltimore, Maryland, on December 17, 1954;

defendant, having been duly advised of his rights by the

court, defendant admitted being the same person men-

tioned and described therein.

{fol.26] THE COURT: As I understand it, Mr. Bax-

trom, from reading your papers here, it is your conten-

tion that your time has expired and you are entitled to an

examination at this time as to your sanity, is that correct?

THE RELATOR: Yes, sir.

THE COURT: You feel your time has expired and

that you are being held because of your mental condition,

that vou are entitled to have an independent doctor exam-

ine you, to have that matter heard in court, is that cor-

rect?

THE RELATOR: Yes, sir. One of the things I most

care to refer to the court is I am a veteran of World War

II, and my people got me an application for a V. A. hos-

pital, which they got through New York also, and some

application was sent to me to sign here in Dannemora

State Hospital, which was mailed up to me and not to be

opened, folded like this, one afternoon, for me to sign, the

| application went in to Prairie Point Hospital in Balti-

more, Maryland, which is my home, and this is the receipt

that they mailed back to me, which I am epileptic, have

been ever since 1947, could have been before, I came out

[fol. 27] of the Army, I don’t know.

THE COURT: You have read the papers, Mr. Lewis.

Is there any question about this man being entitled to an

examination?

MR. LEWIS: No, sir, we would be happy to afford

him the examination by an independent psychiatrist.

THE COURT: All right. I am going to grant your

right to an examination here, and I would suggest Dr.

Ian M. Kerr, he is from Potsdam, to make the examina-

_, i. will you see that that is carried through, Mr.

8

—_—

_ Deane

MR. LEWIS: Yes, I will, sir.

THE RELATOR: I appreciate that, sir.

MR. LEWIS: I would like to state on the record, if the

officials in Baltimore will take this man, I am sure New

York State has no objection to it, we are more than happy

to have these fellows transferred to another institution

if they will take them. I will look into this.

THE COURT: All right.

THE RELATOR: Thank you, your honor.

[fol. 28]

. [Reporter’s Certificate to foregoing

transcript omitted in printing.]

(fol. 29] At a Regular Trial and Special Term

of the Supreme Court, held in and for the

County of Clinton, at the Court House,

Plattsburgh, N. Y.

* * * *

THE PEOPLE-OF THE STATE OF NEW YORK, EX REL,

JOHN K. BAXSTROM

-against-

Dr. W. C. JOHNSTON, Director Dannemora State Hospital,

Dannemora, New York.

7 * * +

May 3, 1962.

BEFORE: HON. MICHAEL E. SWEENEY, Justice.

APPEARANCES:

Louis J. Lefkowitz, Attorney General, by Charles H.

Lewis, Assistant Attorney General, for the People.

John K. Baxstrom was present in person.

ops

25

MR. LEWIS: Mr. Baxstrom.

THE COURT: You are John K. Baxstrom?

MR. BAXSTROM: Yes, sir.

THE COURT: And you have asked previously that

you be examined by a doctor and have him report to the

Court, is that correct?

MR. BAXSTROM: Yes, sir.

(fol. 30] THE COURT: And you have been examined?

MR. BAXSTROM: Yes, sir.

THE COURT: By Dr. Kerr here?

MR. BAXSTROM: Yes, sir.

THE COURT: All right. You may sit down.

DR. IAN MC DOUGAL KERR, being duly sworn as a

witness in behalf of the People, testified as follows:

DIRECT EXAMINATION BY MR. LEWIS:

Q. Your full name, Doctor?

A. Ian McDougal Kerr.

Q. Where do you reside, sir?

A. Days Mill, Town of Hopkington, State of New

York.

Q. What is your profession?

A. I am a physician and psychiatrist.

Q. Doctor, heretofore today I have asked you certain

questions and you have given certain answers regarding

your professional qualifications as a physician and psychia-

trist. If I were now to ask you those same questions,

Doctor, would you give those same answers?

A. I would, sir.

MR. LEWIS: I ask the Court to take judicial notice

of the Doctor’s qualifications as a psychiatrist.

THE COURT: I have heard the Doctor’s qualifica-

tions in a previous hearing and they will pertain to all

[fol. 31] the hearings here this morning.

MR. LEWIS: Thank you, sir.

Q. Doctor, heretofore and by order of this Court did

you examine the person of John K. Baxstrom a patient at

Dannemora State Hospital?

A. I did, sir.

Q. Where and when did that examination take place?

A. I examined John K. Baxstrom at Dannemora State

Hospital April 27, 1962.

Q. This was a psychiatric examination, was it, sir?

A. Yes, sir.

Q. Will you please tell the Court the results of your

examination?

A. During my examination Mr. Baxstrom told me he

was forty-three years of age; gave me his date of birth

as August 2, 1918. When I asked him why he had been

transferred to Dannemora State Hospital, he told me that

this was really a mistake.

He claims that whilst he was confined in Attica, that

another inmate there told him that Dannemora was a

much nicer place because they had television and so forth,

and the patient claims that he asked the psychiatrist at

Attica on three occasions if he might not be transferred

to Dannemora; and that the only way in which this could

(fol. 32] be achieved would be for the psychiatrist to say

that he was insane.

He then went on to tell me that he has suffered from

epilepsy since 1947. He first told me that he had his first

seizure in Baltimore in that year, but then went on to

say that while serving in the Army in Guam in 1945 he

had a blackout of some description, which may have been

an epileptic attack.

In 1947 he was admitted to Johns Hopkins Hospital,

and from there transferred to a Veterans Administration

Hospital, where he claims he remained for two or three

weeks under observation because of this epileptic condi-

tion. He states that any sort of irritation or excitement

will tend to bring on his siezures and claims that the

situation in Dannemora State Hospital, namely, the pres-

ence of mentally disturbed patients there, tends to make

his worse.

At the time of my examination he told me his last siez-

ure had been approximately one week prior to the date

on which I saw him, and that previous to this his last

previous siezure had been in December. He believes he

had about six siezures during the previous year. His

siezures are usually apparently proceeded by an odor, that

is to say, he gets some warning they are coming on, this

_

aura, the feeling of dizziness, and what he describes as

seeing things before his eyes.

He tells me that he never had any type of epilepsy

{fol. 33] in childhood, but he suffered from what he de-

scribes as fainting headaches. Now whether these symp-

toms were a manifestation of some type of epileptic form

disorder in childhood I do not know at this time. He

served in the United States Army from September ’42 to

March of 1946, and tells me he received an honorable dis-

charge.

I asked him about his previous health, and he at first

told me that he had never had any serious illnesses, but

then went on to tell me that in the summer of 1946 he

had a car accident in which he sustained a head injury,

and told me that he was unconscious he believes for a

period of four or five hours following this accident. He

admitted that he had been drinking prior to the accident,

and was admitted to Rochester Memorial Hospital follow-

ing this accident for a period of about one week.

He also told me that he was hospitalized in the VA

Hospital in Syracuse in 1957 and in 1958, as far as I was

able to ascertain because of a flare-up of these ep’ »ptic

attacks. He admitted that around these times he had

been drinking fairily heavily, and he does seem to realize

to some extent that drinking does tend to make his epi-

lepsy worse.

He was admitted to prison in April 1959, his crime be-

ing an assault second degree, since he apparently at-

tacked and stabbed a police officer in Rochester. And I

{fol. 34] understand that his term expired on December

18, 1961. He tells me that he has only had one previous

conviction. He tells me he was married in 1946 but was

separated from his wife in 1951 and that there were no

children by this marriage. His family history is essential-

ly negative, and as far as he knows there is no history

of epilepsy in his family.

Mr. Baxstrom’s hospital record indicates that following

his siezures he becomes quite confused and quite aggres-

sive and asaultive during the post-convulsive period, and

this, of course, is a not uncommon happening in cases of

epilepsy. I feel that even at the time I saw him, although

27

a

EE henoametmneiithdainaberiemenas

he had not had a siezure for a period of one week, I felt

there was still some confusion present. I felt his memory

was somewhat impaired. He had difficulty in recalling

some of the facts of his history, and his speech I think

is somewhat slurred. In my opinion this man is suffering

from epilepsy, the cause of which at the present time I do

not think we can definitely pin down. But according to his

history it began perhaps in 1945 whilst he was in Guam.

On inquiring further from him he informed me that he

did have malaria whilst he was in Guam and he also did

acquire a specific infection around that same time, and I

think either of these two conditions could be causative

factors in producing this epilepsy. It is my opinion that

(fol. 35] he is suffering from psychosis with epilepsy. It

is my opinion that there is some organic deterioration of

his brain present. His record indicates that he becomes

confused and is liable to have assaultive tendencies during

post-convulsive periods, and it is my opinion that he cer-

tainly requires continuing care and treatment in a hos-

pital.

Q. Doctor, when you say he has a psychosis, this is a

mental illness, is it, psychosis?

A. Yes, sir.

Q. So that in your opinion then he is now mentally ill,

is that true?

A. Yes, sir.

MR. LEWIS: That is all I have.

THE COURT: Mr. Baxstrom, you heard the Doctor?

MR. BAXSTROM: Yes, sir.

THE COURT: Do you have any questions to ask the

Doctor?

MR. BAXSTROM: Yes, sir.

THE COURT: Now you may ask the Doctor the

questions, but stick to the issues here and don’t go off on

any side issues or I am going to have to stop you.

MR. BAXSTROM: All right, sir.

THE COURT: All right. You may ask the Doctor

any questions pertinent to the issues here.

{fol. 36] MR. BAXSTROM:

Q. Dr. Kerr, sir, did I state to you in the interview

that we had, that a mental patient in Dannemora dis-

__ Tae nen eennenn

—~

turbed me and caused commotion and irritation and

caused me to have these epileptics? Sir, did I tell you

that during the interview?

A. Yes, sir. As I stated, you told me that the distur-

bance and so forth in the hospital did tend to bring on

your attacks.

Q. Yes. And I told you that they really did endanger

me instead of helping me and that Dannemora State Hos-

pital was only hurting me because of all these mental

patients around?

A. You made this statement, sir, yes.

Q. Yes. And all this commotions and things like this.

I also stated to you that my sisters tried to get all kind

of ways to get me back to Baltimore. If I could only get

back to Baltimore I could get to my own hospital. We

have our own hospital insurance. And I said this Danne-

mora State Hospital—I’m not saying anything about the

hospital, not the attendants or nothing at all—but Danne-

mora State Hospital is not doing me any good. I have

had two attacks—

THE COURT: Limit yourself to the questions to the

Doctor. Don’t make a speech.

MR. BAXSTROM: Yes.

THE COURT: If you have any questions, ask the

Doctor a question. Do you have any further questions

[fol. 37] to ask the Doctor?

MR. BAXSTROM: No, sir, I do not, sir.

THE COURT: All right.

Q. Do you feel, Doctor, from your examination and ex-

amining the records of this man, he needs additional

care? Is that correct?

A. Yes, sir. May I say something at this point, sir?

Q. Surely.

A. Since Mr. Baxstrom’s sentence has actually expired,

sir, I would like to say that in my opinion there is no

reason why he could not be treated in a civil mental hos-

pital. I would simply like to say that for the record, sir.

THE COURT: All right.

You understand what that means? That the Doctor

feels that perhaps you—or states this. That you could be

treated just as well—may I say, Doctor?

29

=7—~" Sr BAW as EARNS MRE 6 ERE eR NR eR?

WITNESS: Yes, sir.

THE COURT: —in a civilian hospital rather than

the state hospital.

MR. BAXSTROM: Yes, sir.

MR. LEWIS: May it please the Court. On behalf of

the institution I would also like to add that the people at

Dannemora State Hospital have absolutely no objection

to a transfer of any patient to a civil institution once his

(fol. 38] term has expired. It is up, however, to the De-

partment of Mental Hygiene to determine whether or not

in fact these men will be transferred, and up to the trans-

ferring institution. Or in other words, the institution to

which he might be transferred. We have been able to ef-

fect such transfers in many cases and I assume his case

will be given every consideration for this transfer.

THE COURT: Well, you then, Mr. Lewis, will ad-

vise the authorities what the Doctor has stated on that

subject. And also, I feel that if he should be in a civilian

hospital, and if it can be done under the circumstances it

should be done.

MR. LEWIS: Yes, sir, I certainly will.

MR. BAXSTROM: All right. Thank you.

[Stenographer’s Certificate to foregoing

transcript omitted in printing.]

—

31

[fol. 39] At a Regular Term of the Supreme Court

held in and for the County of Clinton at

Supreme Court Chambers in the City of

Plattsburgh, New York, On the 3rd day

of May 1962

PRESENT: HON. MICHAEL SWEENEY, JUSTICE

« * * *

PEOPLE OF THE STATE OF NEW YORK EX REL

JOHN K. BAXSTROM, RELATOR

-against-

W. C. JOHNSTON, M.D., Director, Dannemora State

Hospital, Dannemora, New York, RESPONDENT

ORDER DISMISSING WRIT OF HABEAS CorPUS—filed and

entered May 8, 1962.

Upon reading and filing the Relator’s Petition for a

Writ of Habeas Corpus sworn to the 13th day of March,

1962 the Writ of Habeas Corpus issued thereon by the

Hon. Robert G. Main, Supreme Court Justice, on the 16

day of March, 1962, and the return thereto dated the 29

day of March, 1962, and the matter having been set

down for a hearing on the 3rd day of May, 1962, and

the matter having been heard on the 3 day of May, 1962,

and the Court having heretofore appointed Dr. Ian M.

Kerr a psychiatrist, to examine and report to the Court

as to the mental condition of the said Relator, and the

original certificate of committment herein having been

exhibited to the Court and upon all of the previous process,

papers, pleadings, proceedings and testimony had and

taken herein and after hearing the Relator in person in

support of said Writ, and the testimony of Dr. Ian M.

Kerr and Charles H. Lewis, Assistant Attorney General of

the State of New York, in opposition thereto and due

deliberation having been had thereon,

(fol. 40] NOW, on the motion of Louis J. Lefkowitz, At-

torney General of the State of New York (Charles H.

_ ill Bia

Lewis, Assistant Attorney General, of counsel), attorney

for the Respondent, it is

ORDERED, that said Writ of Habeas Corpus be and

the same hereby is dismissed and the Relator be and he

hereby is remanded to the custody of the Respondent at

Dannemora State Hospital, Dannemora, New York.

DATED: 5/4, 1962.

ENTER:

/s/ Michael Sweeney

J. S. C.

[File Endorsement Omitted]

[fol. 41]

IN THE NEW YORK SUPREME COURT

COUNTY OF CLINTON

State of New York

Supreme Court. Clinton County.

W-6

THE PEOPLE OF THE STATE OF NEW YORK, EX REL.

JOHNNIE K. BAXSTROM, RELATOR

v8.

Dr. Ross E. HEROLD, M.D. Acting Superintendent,

Dannemora State Hospital, Dannemora, New York

Writ of Habeas Corpus

Respondent

PETITION FOR WRIT OF HABEAS CorPUS—May 16, 1963

I Johnnie K. Baxstrom being duly sworn deposes and

says that he is the above named petitution in the above

action and is presently confined at the Dannemora State

~~

33

Hospital as and alleged insane person after the full ex-

peration of his sentence and the above respondent of whom

he is so detained by entitled matters. The petitioners de-

tention at said hospital is by virtue of a commitment via.

Attica State Prison for the conviction of the crime of as-

sault in the second degree he was sentence out of the

Monroe County Court by Hon. Clarence Henry (Judge)

April 9-59 to State prison for a duration of two and one

half yrs. (21% to 3) to three the petitioner is not commit-

ted by virtue of any process or detained by law or Judge

thereof nor by virtue of any final Judgement of decree

[{fol. 42] of a competent tribunal of Civil or Criminal Jur-

isdiction made in a regular or special proceeding. There-

fore the purpose of this affidavit and order is to give the

respondent the opportunity to show cause why the said

petitioner is being confined and detained and why the said

petitioner should remain in the above mentional hospital

for the criminally insane where is he has fully recovered

and examine by an appointed Supreme Court qualified

independently establish Psychiatrist not in anyway con-

nected with or by dept. of correction or by the dept. of the

Mental Hygiene, and in the Courts 5-3-62 the independent

Dr. Ivan Kerr gave his findings of the examination in

which he and the Hon. Michael E. Sweeney reached this

decission that the assist. Charles Lewis D.A. to transfer

the petitioner to a civil institution, now if there had been

any doubt in Dr. Kerr’s mind or Hon. Sweeney then the

petitioner is more than sure this decission would not have

been made or reached. Therefore if this decission can not

be act upon by Law then the petitioner’s Civil rights,

Veterans army rights and Constitutional rights are be-

ing defrauded and depride. The petitioner feels that he is

being depride of his just liberty to society and denied

promply of his freedom because of the brutal and in-

human treatment that the Dannemora State Hospital and

is covered up by the D.S.H. Staff and Mental Hygiene.

The petitioner is aware of his everyday surroundings

and the atmosphere, comotion, irrition, brutallety, fear

the aforementional hospital offers and if have too are

willing to under go any mental examination by two three

or more independedly Drs. not in any way connected with

34

the Dept. of Correction or Mental Hygiene Dept. People

Ex Rel Marshall. vs. Webester 266 App. Div. 537-44.

(fol. 43] 2nd, further the petitioner are presently and has

full control over his so pretend mental faculties and a keen

sence of the medical handling as stated before. The peti-

tioner feels and does know that his continued confinement

and detention could and would serve to prejudice his

future and destroy his pride. The petitioner has his own

lawyers too. Pursuant to section 1234 of the Civil Prac-

tice Act. This writ of habeas corpus is on behalf of

Johnnie K. Baxstrom confined at the Dannemora State

Hospital and the person of whom he is detained and con-

fined by the aforementional Ross E. Herold the respond-

ent. The petitioner has not been committed by any proc-

ess of law held in N.Y.S. are any place in the United

States.

The petitioner has not been informed of any pretence

or cause for being restrained of his rightfulness and un-

just liberty. The petitioner is a sane person and has

served the two and one half years duration for a legal

sentence therefore the illegallity of being confined and

held in aforemention hospital is illegal.

The petitioner submitted a writ of habeas corpus in

the Clinton County Supreme Court in the city of Platts-

burgh and the Hon. Sweeney (Judge) presided that the

D.A. Charles Lewis see that the petitioner be transferred

to a civil institution, 5-3-62 but the Mental Hygiene

Dept. Dr. Forster, Dr. Hack refuse to release the peti-

tioner as both Staff says the petitioner is to smart for

putting in Writs and the petitioner has had a brutal

ruff way to go sence that writ was approved. If the

(fol. 44] Mental Hygiene Dept. can as it already has over

rule a Supreme Court Judge’s order’s and a qualified

independed establish Psychiatrist then already the peti-

tioner knows why Dannemora and the Mentai Hygiene

refuse to release any patient that could be helped by or

discharge in good health mentally or phys to a civil insti-

tution but contunelly hold him until he looses recolection

of his neutruel mind and only mostly transfer dopes thats

not aware. Under the United States Constitution Federal

Marshall Burke Asst. Attorney General this is kidnap-

a

35

ping and committing a Federal Crime Civilians in prison

with prisoners.

The petitioner believes if the Mental Hygiene and the

Staff of the aforementional hospital was rearranged then

lots of the D. S. H. wouldn’t be looseing their families and

homes when they are aware of reality.

Case Since Civil Practice act in effect.

In general where the statement of facts in a petition

for a writ of habeas corpus to inquire into the case of

relators detention substantiaily complies with require-

ments of Section 1234 Subdivision 4 and 5 of the civil prac-

tice act, the petition is sufficient peo. ex. rel. Van Buren

v. Superintent ete. (1922) 118 Mic. 145, 192 N.Y. Supp.

511. There it is hopeful and prayful that this writ be

granted and serve a legal purpose.

/s/ Johnnie K. Baxstrom

Sworn to before me this 16 day of May, 1963.

/s/ Oren F. Henry

Notary Public

OREN F. HENRY

Notary Public in the State of New York

Residing in the County of Clinton

My Commission expires March 30, 1964

[fol. 45]

IN THE NEW YORK SUPREME COURT,

COUNTY OF CLINTON

THE PEOPLE OF THE STATE OF NEW YORK, EX REL,

JOHNNIE K. BAXSTROM, RELATOR

-against-

Ross E. HEROLD, M.D., Director Dannemora State

Hospital, Dannemora, New York, RESPONDENT

Writ oF HABEAS CorPUuS—issued June 13, 1963

THE PEOPLE OF THE STATE OF NEW YORK

TO: ROSS E. HEROLD, M. D. Director, Dannemora

State Hospital.

GREETING:

WE COMMAND YOU, that you have the body of

JOHNNIE K. BAXSTROM by you imprisoned and de-

tained as it is said, together with the time and cause of

said imprisonment and detention, by whatsoever name

the said JOHNNIE K. BAXSTROM is called or charged,

before the Honorable Harold R. Soden, Supreme Court

Justice, at the Special Term of Supreme Court to be held

at the Court House in the City of Plattsburgh, New York,

on the 26th day of July, 1963, at 10 o’clock in the fore-

noon of that day, to do and receive what shall then and

their be considered concerning him, and have you then

and there this writ.

WITNESS: HON. HAROLD R. SODEN, Supreme

Court Justice, this 13th day of June, 1963.

LET THE FOREGOING WRIT ISSUE.

/s/ Harold R. Soden

Justice of the Supreme Court |

/s/ LeRoy McGee

Clerk

[SEAL]

RECEIVED

June 19, 1963

DANNEMORA STATE HOSPITAL

Medical Office

37

[avl. 46]

IN THE NEW YORK SUPREME COURT

COUNTY OF CLINTON

IN THE MATTER OF THE APPLICATION OF

JOHN K. BAXSTROM

RETURN TO WRIT OF HABEAS CorPUS—June 20, 1963

The following return to a Writ of Habeas Corpus here-

tofore granted by the Hon. Harold R. Soden, a Justice

of the Supreme Court is hereby respectfull made:

I. That Ross E. Herold, M.D. is the Director of the

Dannemora State Hospital, and has the care and custody

of all patients committed to that institution.

II. That at a Term of the County Court, held in and

for the County of Monroe, at the Court House in the City

of Rochester, State of New York, on the 23rd day of April,

1959, John K. Baxstrom, the relator in the present matter

was convicted of the crime of Assault 2°—Viol. Sec. 242-

4 Penal Law, and was thereupon sentenced to be im-

prisoned in the State Prison at Attica, New York.

III. That the said relator was received at Attica Pris-

on on April 9, 1959 and subsequently on June 1, 1961

was duly transferred to the Dannemora State Hospital,

where he is now detained. That such transfer from At-

tica Prison to the Dannemora State Hospital was made

pursuant to Law; that the order for such transfer is now

in the possession of the respondent and the respondent

begs leave to refer thereto upon the argument of this

Writ.

IV. That the full term of sentence of said John K.

Baxstrom expired on December 18, 1961 and the patient

was regularly committed to this hospital on December 6,

1961 as an insane person on the Order of the Hon. Robert

S. Long, Judge of the Surrogate’s Court of Clinton County,

in accordance with Section 384 of the Correction Law.

V. Section 384, Paragraph 3 of the Correction Law

states: “Any such patient in the Dannemora State Hos-

pital may be transferred to any appropriate state insti-

38

tution of the Department of Mental Hygiene or of the

Department of Correction as may be designated for the

custody of such patient by agreement between the heads

of such departments.”

(fol.47] VI. This patient was examined by Dr. Rich-

ard V. Foster, Assistant Commissioner for the Depart-

ment of Mental Hygiene on November 27, 1961 relative

to a transfer to a Civil Hospital and was rot considered

to be suitable for care in a Civil Hospital.

VII. Deponent further alleges that the said John K.

‘Baxstrom is, in his opinion, an insane person, and that he

is in need of further hospital care and treatment.

VIII. That the said John K. Baxstrom is now pre-

sented before the Court in obedience to the Writ recently

issued.

All of which is respectfully submitted.

Dated at Dannemora, New York, this 20th day of

June, 1963.

/s/ Ross E. Herold

Ross E. HEROLD, M.D.

Director, Dannemora State

Hospital

[Duly sworn to by Ross E. Herold, M.D.

jurat omitted in printing (all in italics) |

vas 6g

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—

41

(fol. 50]

IN THE NEW YORK SUPREME COURT,

COUNTY OF CLINTON

THE PEOPLE OF THE STATE OF NEW YORK EX REL

JOHNNY BAXTROM, RELATOR

-against-

Ross E. HEROLD, Superintendent, Dannemora State

Hospital, Dannemora, New York, RESPONDENT

STENOGRAPHIC TRANSCRIPT of PROCEEDINGS

had in the above-titled Matter, at a Special Term of the

Supreme Court held at the Clinton County Court House,

Plattsburgh, New York, on Friday, July 26, 1963, before

The HONORABLE HAROLD R. SODEN, Justice of the

Supreme Court.

(fol. 51] APPEARANCES

LOUIS J. LEFKOWITZ, Attorney General of the State

of New York; By: CHARLES H. LEWIS, Assistant

Attorney General.

THE RELATOR, personally present.

* * e *

THE COURT: You are Johnny Baxtrom?

THE RELATOR: Yes, Sir.

THE COURT: What is your number?

THE RELATOR. 6887.

THE COURT: And you are the same person who

heretofore has asked for a writ of habeas corpus, claim-

ing that you are now sane and being illegally detained in

an insane institution, is that true?

THE RELATOR: Yes, Sir.

THE COURT: And have you had an independent psy-

chiatrist to examine you?

THE RELATOR: Yes, Sir.

THE COURT: Who was it?

42

THE RELATOR: Dr. Kerr, from Potsdam, New

York.

THE COURT: Dr. Kerr?

[fol.52] THE RELATOR: Yes, from Potsdam, New

York.

THE COURT: All right, have a chair.

Mr. Lewis, this man isn’t represented. Do you want

to speak now as to what the contention is?

MR. LEWIS: Yes, Sir.

I’d like to bring to the attention of the Court the case

of The People ex rel O’Melia against Johnston, 238 N.Y.

Sup. 2nd, 999, which, in effect, states that there need not

be an opportunity afforded for an independent psychia-

trist to be appointed for the patient where this has been

done and there is no change produced by the Relator, and

that the court can rely upon the prior history as elicited

from the physician, as in this case, Dr. Kerr, and that

is pursuant to Section 226 of the Mental Hygiene Law.

THE COURT: Now, he has been heretofore examined

by Dr. Carson; and Dr. Kerr, I take it, has stated that he

[fol. 53] wasn’t presently sane, is that correct?

MR. LEWIS: That is correct, Sir.

THE COURT: And that he was in need of further

hospitalization?

MR. LEWIS: That is correct.

THE COURT: And that was when, did you say; did

you happen to say when he was examined?

MR. LEWIS: I can find that date, I believe.

THE RELATOR: It was May the 27th, Sir, 1962.

THE COURT: May 27, 1962?

THE RELATOR: April, I’m sorry, it was April.

THE COURT: April 27, 1962?

MR. LEWIS: That’s correct.

THE COURT: Now, Mr. Baxtrom, do you have any

other testimony, in the way of a psychiatrist, that would

disprove the statement of Dr. Kerr in 1962?

THE RELATOR: Well, Sir, I can read you my paper

of the decision of Dr. “err, and also the Honorable

Michael Sweeney.

[fol.54] THE COURT: Well, I know, but I’m not

going over the same hearing that we had in 1962 all over

again.

43

The thing that I’m asking you, Sir, if you understand

me, as there has been a doctor appointed, at your request,

to examine, report and testify concerning your present

mental condition at that time—

THE RELATOR: Yes, Sir.

THE COURT: Now, ina new case that has been hand-

ed down by the Appellate Division in April, 1963, if you

cannot produce or have no means of producing to me at

this time that there is any other psychiatric testimony

that would differ from Dr. Kerr’s, under the law I am

bound by his statement.

Do you follow what I’m saying?

THE RELATOR: Yes, sir.

THE COURT: Do you understand it?

THE RELATOR: Yes, Sir.

THE COURT: { take it you have no further or other

testimony to contradict Dr. Kerr, that is available to

{fol. 55] you at the moment?

THE RELATOR: I’m not contradicting Dr. Kerr or

Honorable Sweeney, but this decision was made May the

3rd, 1962, after my examination by Dr. Carson in Danne-

mora State Hospital.

THE COURT: Yes?

THE RELATOR: Dr. Kerr and Honorable Sweeney,

on the 3rd day of May, 1962, reached this decision: That

the Assistant D.A. here, Charles Lewis, transfer the peti-

tioner, me, Johnny Baxtrom, to a civil institution. That

has been approximately 15 months now, will be during

the next month, and there hasn’t been the first movement

made yet, because I have checked, my sister has checked,

my brother has checked, and there has been no—been

nothing made toward these papers.

THE COURT: If course, that is an administrative

procedure, isn’t it, Mr. Lewis?

MR. LEWIS: Yes, Sir. It’s not the decision of Judge

[fol. 56] Sweeney that he be transferred; he said that he

would recommend it, as he did in all the cases with these

fellows over their terms.

THE COURT: Of course, I wouldn’t have authority

to do that.

44

THE RELATOR: Sir, I have a court order of that

decision.

THE COURT: Well, I’m sure that Judge Sweeney

didn’t say that you were going to be taken from Danne-

mora State Hospital and put in a civil institution; he

recommended it.

THE RELATOR: No, Sir, his decision, he and the in-

dependent psychiatrist, Dr. Kerr—

THE COURT: That you should be transferred to a

civil hospital.

THE RELATOR: Yes, Sir.

THE COURT: And that is up to the administrative

officials in the State of New York, and not the judicial

branch. There isn’t anything I can do about that.

THE RELATOR: No, Sir, I’m not saying anything

about that, but what I’m saying is this: He asked the

[fol. 57] Assistant Attorney General here to see that this

be done, and Dr. Herold, Ross Herold.

THE COURT: Maybe they have, maybe they haven’t,

I don’t know. Mr. Lewis has no power over that.

THE RELATOR: Well,+he stood right there (indi-

cating) under oath, and said that he would see that

this be done, because he’s having trouble out of my sister

in Baltimore, Maryland, which is my home.

THE COURT: Anything further you wish to say, Mr.

Lewis?

MR. LEWIS: No, Sir, nothing further, except that I

believe—it’s difficult to remember back in this particular

case, but I’m sure that Judge Sweeney did say that he

wished this man would be transferred to a civil institu-

tion, as do I, but I have no power nor has the Court.

THE COURT: The writ is respectfully entertained

and denied, and you have an exception.

(Whereupon the proceedings in the above-titled action

[fol. 58] were concluded).

* * * .

[Stenographer’s Certificate to foregoing

transcript omitted in printing.]

f es

45

(fol. 59 | At a Special Term of Supreme Court

held in and for the County of Clinton at the

Court House in the City of Plattsburgh on

the 26th day of July, 1963.

PRESENT: HON. HAROLD R. SODEN, JUSTICE

STATE OF NEW YORK

SUPREME COURT COUNTY OF CLINTON

Criminal # 58

THE PEOPLE OF THE STATE OF NEW YORK EX REL

JOHNNIE K. BAXTROM, RELATOR

-against-

Ross E. HERoLD, Director, Dannemora State Hospital,

Dannemora, New York, RESPONDENT

ORDER DISMISSING WRIT OF HABEAS Corpus—dated

August 2, 1963

Upon reading and filing the Relator’s Petition for a

Writ of Habeas Corpus dated May 16, 1963 the Writ

of Habeas Corpus issued thereon by this Court dated

June 13, 1963 the Return thereto dated June 20, 1963 and

the matter originally having been scheduled for July 26,

1963 upon which day it was heard, and the original cer-

tificate of committment herein having been exhibited to

the Court and upon all of the previous papers, process,

pleadings, proceedings and testimony had and taken here-

in, and after hearing the Relator in person in support

of said Writ and Charles H. Lewis, an Assistant Attorney

General of the State of New York, in opposition thereto,

and due deliberation having been had thereon.

[fol.60] Now, on the motion of Louis J. Lefkowitz, At-

torney General of the State of New York, (Charles H.

Lewis, Assistant Attorney General, of counsel), attorney

for Respondent, it is

ORDERED that said Writ of Habeas Corpus be and the

same hereby is dismissed and the Relator, JOHNNIE K.

46

BAXTROM, be and he hereby is remanded to the custody

of the Respondent at the Dannemora State Hospital, Dan-

nemora, New York.

DATED: AUGUST 2, 1963.

ENTER:

/s/ Harold R. Soden

Justice of the Supreme Court

[File Endorsement omitted]

(fol. 61] At a Term of the Appellate Division of

The Supreme Court, State of New York, held

in and for the Third Judicial Department,

at the County Court House in the City of

Albany, New York, commencing on the 20th

day of April, 1964.

PRESENT:

HON. JAMES GIBSON,

Justice Presiding,

HON. J. CLARENCE HERLIHY,

HON. DONALD S. TAYLOR,

HON. FELIX J. AULISI,

HON. HERBERT D. HAMM,

Associate Justices.

Criminal Index # 58

Order No. 5682

THE PEOPLE OF THE STATE OF NEW YORK EX REL.

JOHNNIE K. BAXSTROM, APPELLANT

-against-

Ross E. HEROLD, as Director of Dannemora State

Hospital, RESPONDENT

The appeal from an order denying relator’s petition for

a writ of habeas corpus having been duly brought before

this Court during the April, 1964 Term thereof and hav-

ing been duly submitted by appellant and by Louis J.

Lefkowitz, Attorney General of the State of New York

(Anthony J. Lokot of counsel), attorney for respondent,

and due deliberation having been had, and a decision

having been handed down on May 22, 1964, it is

ORDERED, that the order as appealed from be and

the same is hereby unanimously affirmed, without costs.

No opinion.

47

/s/ John J. O’Brien

Clerk

[SEAL]

ENTERED: July 15, 1964

A TRUE COPY

/s/ John J. O’Brien

Clerk

FILED

July 21, 1964

CLINTON COUNTY

CLERK’S OFFICE

HALSEY J. STARK, Clerk

48

(fol. 62]

STATE OF NEW YORK,

IN COURT OF APPEALS

At a Court of Appeals for the State of New

York, held at Court of Appeals Hall in the

City of Albany on the Eighth day of Octo-

ber A.D. 1964.

PRESENT, HoN. CHARLES S. DESMOND, Chief judge,

presiding.

Mo. No. 693

THE PEOPLE &c. EX REL. JOHNNIE K. BAXSTROM,

APPELLANT

vs.

Dr. Ross E. HEROLD, Director, Dannemora State Hospital,

Dannemora, New York, RESPONDENT

A motion for leave to appeal to the Court of Appeals

&c. in the above cause having been heretofore made upon

the part of the appellant herein and papers having been

duly submitted thereon and due deliberation thereupon

had:

ORDERED, that the said motion be and the same here-

by is denied.

* * * *

49

(fol. 63]

SUPREME COURT OF THE UNITED STATES

No. 838 Misc., October Term, 1964

JOHNNIE K. BAXSTROM, PETITIONER

Vv.

R. E. HEROLD, Director, Dannemora State Hospital

ORDER GRANTING MOTION FOR LEAVE TO PROCEED IN

FoRMA PAUPERIS AND GRANTING PETITION FOR WRIT

oF CERTIORARI—June 7, 1965

On petition for writ of Certiorari to the Court of Ap-

peals of the State of New Yorkk.

On consideration of the motion for leave to proceed

herein in forma pauperis and of the petition for writ of

certiorari, it is ordered by this Court that the motion to

proceed in forma pauperis be, and the same is hereby,

granted; and that the petition for writ of certiorari be,

and the same is hereby, granted. The case is transferred

to the appellate docket as No. 1246 and placed on the

summary calendar.

SX ov. S. GOVERNMENT PRINTING OFFICE; 1965 787145 189

aeonaite

I

PETITION NOT Petr eHp NOV 1 21965

RESPONSE NOT PRINTED ee

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1965

No. 219

Jounnige K. Baxstrom,

Petitioner,

Vs.

R. E. Heroxp, Director, Dannemora State Hospital,

Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF THE

STATE OF NEW YORK

BRIEF AND APPENDIX FOR PETITIONER

Leon B. Potsky

The Legal Aid Society

Counsel for Petitioner

100 Centre Street

New York City, New York

Opinions Below

Jurisdiction

Constitutional Provisions and Statutes Involved ....

Questions Presented

Statement of the Case

The Proceedings Below

Introduction

os me nee

ARGUMENT

Port I

The commitment and continued detention of peti-

tioner are in violation of his rights under the

Fourteenth Amendment because of the failure to

afford him counsel at the hearing upon his sanity 11

Pont II

Section 384 of the New York Correction Law is

unconstitutional in that it arbitrarily singles out

one group of allegedly mentally ill persons and

denies to that group the jury trial to which all

other civilly committed patients are entitled .... 21

Port III

Petitioner’s commitment and retention in Danne-

mora State Hospital under Section 384 of the

Correction Law violates the equal protection and

due process clauses of the Constitution in that

the statute arbitrarily singles out one group of

mentally ill persons and permits their confine-

ment in an institution for the criminally insane

without the necessity of a judicial finding that

such confinement is necessary 23

ConcLuUsION

Bee

INDEX

APPENDICES

Appenpix A—State Laws relating to right to

counsel at commitment

Appendix B—Disposition of 5,715 commitment

proceedings in which the defendant was rep-

resented by assigned counsel

Appenpix C—Report of the Defender Associa-

tion of Philadelphia, June 4, 1965 ...................

Appenpix D—Letter from Hon. Michael DiSalle

to Hon. Sam Ervin relating to commitments

in Ohio

Appenpix E—New York laws relating to com-

mitment in force on December 6, 1961

TABLE OF AUTHORITIES

CasEs:

Armstrong v. Manzo, 380 U. S. 545 (1965)

Carter v. Illinois, 329 U. S. 173 (1946) -..............

Denton v. Commonwealth, 383 S. W. 2d 681 (Ky.,

1964)

Ex parte Perry, 137 N. J. Equity 161, 43 A. 2d

885 (1945)

Gideon v. Wainwright, 372 U. S. 335 (1963) ....

Goesaert v. Cleary, 335 U. S. 464 (1948) ...........

In Re Bryant, 214 La. 573, 38 So. 2d 248 (1948)

Interdiction of Scurto, 195 La. 747, 197 So. 417

(1940)

Lynch v. Overholser, 369 U. S. 705 (1962) ............

Minnesota ex rel. Pearson v. Probate Court, 309

U. 8. 270 (1940)

Olmstead v. United States, 277 U. S. 438 (1928)

One 1958 Plymouth Sedan v. Pennsylvania, 380

U. S. 393 (1965)

People ex rel. Brown v. Johnston, 9 N. Y. 2d

482 (1961)

eecereee

Page

43

61

” -2amamaeeemaaes

People ex rel. Kamisaroff v. Johnston, 13 N. Y.

2d 63 (1963) 9,11

Pointer v. Texas, 380 U. S. 163 (1965) ~-..............

Powell v. Alabama, 287 U.S. 45 (1932) ............-.-.

Skinner v. Oklahoma, 316 U. 8. 534 (1942) -......

Smith v. Bennett, 365 U. S. 708 (1961) -.........-....

Sporza v. German Savings Bank, 192 N. Y. 8

(1908)

State ex rel. Anderson v. U. S. Veterans Hospi-

tal, 268 Minn. 213, 128 N. W. 2d 710 (1964) ....

United States ex rel. Carroll v. McNeil, 294 F. 2d

117 (2d Cir., 1961), probable jurisdiction

noted, 368 U. S. 951, vacated and dismissed as

moot, 369 U. S. 149 (1962) 22, 24, 25

Walters v. City of St. Lovis, 347 U. 8. 231 (1954) 22

STATUTES:

11 Hen. VII, c. 12; 2 Stat. of the Realm, 578

(1495)

N. Y. Code of Criminal Procedure Section 454 ..

N. Y. Code of Criminal Procedure Section 662(b)

N. Y. Code of Criminal Procedure Section 872 ..

. Y. Code of Criminal Procedure Section 875 ..

. Y. Correction Law, Section 375 \

. Y. Correction Law, Section 383 ;

. Y. Correction Law, Section 3864 ............ 1, 9, 11, 15, 16

Y

Y. Correction Law, Section 385 ..................----

. Correction Law, Section 388

Y. Correction Law, Section 400

Y. Correction Law, Section 408 .......... ‘aleimebei

Y. Correction Law, Section 412 ............ 10, 16, 22, 25

Y. Mental Hygiene Law, Section 11 .............. 8

. Y. Mental Hygiene Law, Section 74 ..............-. 11, 21

. Y. Mental Hygiene Law, Section 76 ...............-

Y. Mental Hygiene Law, Section 85 ............ 10, 16, 25

AAAAAAAAA AAAZ

OtHER AUTHORITIES:

INDEX

3 Blackstone Commentaries *400

4 Blackstone Commentaries *355

Constitutional Rights of the Mentally Ill, Part I;

Hearings before the Subcommittee on Consti-

tutional Rights, Senate Judiciary Committee,

EKighty-seventh Congress, First Session (1961)

Maguire, Poverty and Cwil Litigation, 36 Harv.

L. Rev. 361 (1923)

New York Legislative Annual, 1950 -...................

Patients in Mental Institutions, 1963, Public

Health Service Publication No. 1222, Part IT,

p. II-17

Symposium, Js Counsel Needed at Commitment

Hearings? 23 Legal Aid Briefease 13 (Oct.

1964)

—ae

In THE

Supreme Court of the United States

Ocrozer TERM, 1965

No. 219

$<

Jounniz K. Baxstrom,

Petitioner,

vs.

R. E. Herotp, Director, Dannemora State Hospital,

Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF THE

STATE OF NEW YORK

—~>—

BRIEF FOR PETITIONER

Opinions Below

No opinions were rendered by the courts below.

Jurisdiction

The jurisdiction of this Court is invoked under 28 U.S. C.

§1257 (3). The writ of certiorari to the New York Court of

Appeals was granted on June 7, 1969.

Constitutional Provisions and Statutes Involved

This case involves Section 1 of the Fourteenth Amend-

ment to the Constitution of the United States and Sections

375, 383, 384 and 385 of the New York Correction Law.

These provisions are reprinted as Appendix E, infra.

Questions Presented

I

Whether due process of law requires a proposed patient

be afforded the opportunity to obtain counsel to represent

him at an insanity commitment hearing and whether the

due process and equal protection clauses require the assign.

ment of counsel to represent an unrepresented proposed

patient in such a proceeding.

at

Whether a state which affords all proposed civil patients

a jury trial upon the question of sanity may withhold this

right from felons whose commitment is sought upon the ex.

piration of sentence.

Ii

Whether a state may confine one class of civil patients ir

an institution for the criminally insane without a particular.

ized showing of need for such care and custody.

Statement of the Case

Petitioner was convicted in Rochester, New York, of As

sault in the Second Degree and, on April 23, 1959, wa:

sentenced to two and one-half to three years imprisonmen

(R. 39). After serving two years and several months ir

Attica State Prison, the Petitioner was “transferred” t

Dannemora State Hospital pursuant to Section 383 of th

Correction Law (R. 17).

ees

The Commitment

In November 1961, the Director of Dannemora State Hos-

pital filed a petition in the Surrogates’ Court of Clinton

County stating that Petitioner’s penal sentence was about

to terminate and requesting the certification and commit-

ment of the Petitioner pursuant to Section 384 of the Cor-

rection Law, alleging:

“This patient was admitted here on June 1, 1961 from

Attica Prison. He is suffering from epilepsy and when

having fits, he is violent and dangerous. He has had

several epileptic seizures since his admission and he is

still in need of medication and hospitalization. His

diagnosis is Psychosis due to convulsive disorder, Epi-

leptic Deterioration” (R. 2).

Annexed to the Petition was the joint certificate of two

doctors, unconnected with Dannemora stating that Mr.

Baxstrom lacked insight, “possibly” had a “tendency” to

injure others (R. 5) and that following his epileptic convul-

sions he was “irritable, confused [and] aggressive” (R. 4).

Notice that a commitment proceeding was to be held on

December 6, 1961 was served upon two relatives of the

Petitioner who lived in Maryland (R. 8, 9) and upon the

Petitioner himself (R. 10). It does not appear that the

Petitioner or his relatives were served with a copy of the

Director’s application for commitment.

On December 6, 1961 Baxstrom appeared before the Sur-

rogate of Clinton Cqunty. Present were Surrogate Long,

Doctor Ross Herold then the Assistant Director of Danne-

mora, and Assistanf Attorney General Lewis.

i

4

The Court advised Mr. Baxstrom that it had read the

certificates of the two independent doctors and that they

were of the opinion that he was still mentally ill. The Court

advised that it would hear the testimony of Dr. Herold

and then would allow Baxstrom to question either the doc-

tor, Mr. Lewis or make any statement he cared to regard-

ing the matter. Mr. Lewis then interrogated Dr. Herold,

eliciting the doctor’s qualifications and the opinion that

the Petitioner was mentally ill and in need of institutional

care with a diagnosis of psychosis due to epileptic deteriora-

tion (R. 15-16). In response to questions from the Court,

Dr. Herold stated that he would have no objection to the

Petitioner’s transfer to a civil hospital if the Department

of Mental Hygiene ordered it. The Court stated that it too

had no objection to a transfer to a civil hospital and told

Baxstrom that it hoped he would be transferred (R. 17, 18).

Mr. Baxstrom was asked by Surrogate Long whether he

had anything to say and the Petitioner replied:

“T know that I am an epileptic, but I did not think that

that is a form of insanity. I would like to recommend,

Sir, that the staff at the hospital review my case” (R.

17).

At no point in the hearing was the Petitioner advised that

he could be represented by counsel, either retained or as-

signed, or that he might subpoena or call witnesses on his

own behalf.

On December 6th, Surrogate Long signed an order com-

mitting the Petitioner to the custody of the Commissioner

of Mental Hygiene,

a ee

“ .. to be placed in an appropriate state institution

of the Department of Mental Hygiene or of the Depart-

ment of Correction as may be designated for the cus-

tody of such person by agreement between the heads

of the two departments” (R. 12).

The First Writ

Four months after this commitment the Petitioner sued

out a writ of habeas corpus in Supreme Court, Clinton

County (R. 19-32). The Director’s Return on the Writ

recited the history of the prior proceedings and stated

that Petitioner was then insane and had been examined on

November 27, 1961 by an Assistant Commissioner for the

Department of Mental Hygiene and “was not considered

to be suitable for care in a Civil Hospital” (R. 21). At a pre-

liminary hearing on the Writ, Justice Sweeney directed Peti-

tioner be examined by an independent psychiatrist and the

hearing was adjourned. On May 3, 1962 a hearing was held

before Justice Sweeney.

Dr. Ian Kerr testified that he had examined the Peti-

tioner and found him suffering from psychosis with epilevsy

and was of the opinion that there was some organic de-

terioration of the brain. He testified that according to the

hospital records, Mr. Baxstrom,

“ becomes quite confused and quite aggressive and

assaultive during the post-convulsive period, and this,

of course, is not an uncommon happening in cases of

epilepsy” (R. 27).

The doctor found that the Petitioner’s epilepsy could have

been caused either by malaria or a specific infection con-

ae

tracted by Petitioner in 1945 while in the Army and sta-

tioned in the Pacific (R. 28).

The doctor also related, but did not comment on the

fact that Mr. Baxstrom had told him during the examination

that the disturbances and irritations caused by the other

inmates at Dannemora tended to bring on the epileptic

attacks (R. 26, 28-29).

At the conclusion of the hearing the doctor, in response

to a question by the Court, stated that Mr. Baxstrom needed

additional care but added,

“ ... I would like to say that in my opinion there

is no reason why he could not be treated in a civil

mental hospital. I would simply like to say that for

the record, sir” (R. 29).

Assistant Attorney General Lewis then stated,

“On behalf of the institution I would like to add that

the people at Dannemora State Hospital have absolutely

no objection to the transfer of any patient to a civil

hospital once his term has expired. It is up, however,

to the Department of Mental Hygiene to determine

whether or not in fact these men will be transferred

** #9 (R. 30).

The hearing concluded with the Court’s direction to Mr.

Lewis that the authorities be advised of Dr. Kerr’s recom-

mendation in which the Court joined (R. 30).

On the following day (May 4, 1962), Judge Sweeney

signed the order dismissing the Writ (R. 31-32).

The Proceedings Below

On May 16, 1963, one year after the dismissal by Judge

Sweeney, Petitioner submitted to the Supreme Court of

Clinton County an application for a new writ of habeas

corpus claiming that he was then sane, or if insane should

be transferred to a civil mental hospital and that his civil

and constitutional rights had been violated. The Writ was

issued and the Respondent, Dr. Herold, filed his return

reciting the December 6, 1961 commitment, that Petitioner

was still insane and in need of further hospital care and

treatment and that Mr. Baxstrom had been examined on

November 27, 1961 by an Assistant Commissioner of the

Department of Mental Hygiene and “was not considered to

be suitable for care in a Civil Hospital” (R. 38).

A hearing was held before Justice Hareld Soden on July

26, 1963. At the hearing Assistant Attorney General Lewis

opposed the appointment of a new independent psychiatrist

claiming that the burden was on Petitioner to show that his

condition had changed since Dr. Kerr’s testimony that Peti-

tioner was in need of hospitalization and that until Peti-

tioner made such a showing the Court could rely upon Dr.

Kerr’s testimony on the prior Writ. Justice Soden asked

Petitioner,

“ .. do you have any other testimony, in the way of a

psychiatrist, that would disprove the statements of Dr.

Kerr in 1962?”

“ |. . if you cannot produce or have no means of produc-

ing to me at this time that there is any other psychiatric

testimony that would differ from Dr. Kerr’s, under the

law I am bound by his statement” (R. 42, 43).

ia oo

Petitioner indicated he had no additional testimony but

claimed that Judge Sweeney, after hearing Dr. Kerr, had

directed Mr. Lewis to have Petitioner transferred to a civil

institution and that nothing had been done. Judge Soden

said that this was an administrative matter and that there

was nothing his court could do about it. The Writ was dis-

missed by order dated August 2, 1963 (R. 45-46).

Upon appeal to the Appellate Division of the Supreme

Court, Third Judicial Department, the dismissal of the Writ

was affirmed without opinion (21 A. D. 2d 754). A motion

for leave to appeal to the Court of Appeals was denied with-

out opinion (14 N. Y. 2d 490) and this Court granted leave

to proceed in forma pauperis and the petition for a Writ of

Certiorari (381 U.S. 949).

Introduction

New York State maintains twenty-one non-transient in-

stitutions for the care of the mentally ill. These institu-

tions are under the exclusive jurisdiction of the Department

of Mental Hygiene and commitment to and matters con-

nected with these hospitals are regulated by the Mental

Hygiene Law. In addition the State maintains two other

institutions: Matteawan State Hospital and Dannemora

State Hospital. These institutions are under the jurisdiction

of the Department of Correction, although individual

patients may be in the custody of the Commissioner of

Mental Hygiene. See, Mental Hygiene Law, §11. Admis-

sion to these institutions is governed by various sections of

the Correction Law, the Code of Criminal Procedure and

the Mental Hygiene Law set forth below.

Dannemora State Hospital

Dannemora is a State hospital for the insane maintained

at a penal institution. It is under the jurisdiction and

control of the Department of Correction, subject to visita-

tion and inspection by the Department of Mental Hygiene.

Correction Law, §375. Its population is composed of three

classes of individuals:

1. Male persons, in the custody of the Commissioner

of Corrections, who were found to be insane while

serving felony sentences and were committed or trans-

ferred pursuant to Section 383 of the Correction Law.

2. Male persons, in the custody of the Commissioner of

Corrections, who after having been adjudicated to be

a javenile delinquent or having been convicted of any

crime were found, while serving their sentences, to be

“mental defectives” and transferred to the Eastern

Correctional Institute and while there were found to be

insane. Correction Law, §383 (see N. Y. Legislative

Annual, 1950, p. 52).

3. Male persons transferred to Dannemora under either

of the above classifications who upon expiration of

sentence were committed to the custody of the Com-

missioner of Mental Hygiene under Correction Law,

§384.

Matteawan State Hospital

Like Dannemora, Matteawan is a mental institution under

the jurisdiction and control of the Department of Correction

and subject to visitation and inspection by the Department

People ex rel. Brown v. Johnston, 9 N. Y. 2d 482 at 484 (1961) ;

People ex rel. Kamisaroff v. Johnston, 13 N. Y. 2d 66, 68 (1963).

10

of Mental Hygiene. Basically its purpose is to hold in cus-

tody and care for persons committed by other than civil

process and certain civilly committed patients. Correction

Law, §400. Its population is composed of five classes of per-

sons:

)

Persons charged with crime who have been judicially

found to be mentally incapable of standing trial (Code

of Criminal Procedure, §§662(b), 872 and 875). Prior

to September 1, 1965 such persons were committed to

the custody of the Commissioner of Corrections. All

commi.ments after that date were to the Commissioner

of Mental Hygiene. Laws of 1965, c. 540, §$1, 2, 3.

Persons declared insane while serving a misdemeanor

sentence or females declared insane while serving any

sentence. Correction Law, §§400, 408.

Persons acquitted by reason of insanity. Code of

Criminal Procedure, §454.

Persons who had previously been committed by civil

process to a state mental hospital and while there have

committed or are liable to commit acts which would

constitute homicide or felonious assault; or a person

so dangerously mentally ill that he is a danger to

other inmates, officers of the hospital or the com-

munity. Mental Hygiene Law, §85.

Persons who were committed by civil process to a state

mental hospital and who (1) had previously been sen-

tenced to imprisonment and (2) still manifest criminal

tendencies. Laws of 1904, ec. 525, §2 (Correction Law,

§412). This law was repealed by Laws of 1965, ec. 105,

$11; however, there apparently is no provision for

the transfer out of those inmates previously com-

mitted.

11

Under New York law, both at the time of Petitioner’s com-

mitment and at present, all defendants in non-emergency

commitment proceedings instituted under the Mental Hy-

giene Law were at some point in the proceeding entitled to a

jury trial on the issue of sanity. Laws of 1961, c. 504 as

amended by Laws of 1964, ¢. 738, §6 (mfra, p. 67). This

provision is inapplicable to commitments ‘o Dannemora

State Hospital under Correction Law, §384 and to the trans-

fers, listed above, of persons otherwise in custody to Danne-

mora and Matteawan. See People ex rel. Kamisaroff v.

Johnston, 13 N. Y. 2d 66 (1963).

POINT I

The commitment and continued detention of peti-

tioner are in violation of his rights under the Fourteenth

Amendment because of the failure to afford petitioner

counsel at the hearing upon his sanity.

A. The General Need for Counsel

It is perhaps assumed that counsel at commitment pro-

ceedings can perform no real function at the hearing, or at

best, will perform only the therapeutic function of demon-

strating to a patient that there was someone who is on

his side. This assumption is based upon the further as-

sumption that commitment proceedings, upon doctor’s cer-

tificates of insanity, are instituted only against the “obvi-

ously mad” and there is nothing further to be done except

go through the formal gesture of getting some evidence

upon the record and signing a commitment order. Both as-

sumptions are demonstrably false.

Random samplings of Legal Aid and Public Defender

offices throughout the country dramatically illustrate how

Es

12

defendants in commitment proceedings have successfully

resisted commitment in almost 20% of the cases where

counsel was assigned (see, Appendix B). Furthermore

just as representation of a guilty defendant at sentence is

required so that the court may make a just disposition of

a criminal defendant (cf., Carter v. Illinois, 329 U. 8. 173,

178), so is representation at commitment of concededly

insane persons required to enable the court to arrive at a

just and proper commitment. Even if it may be assumed

that there is no legal difference between commitment to

one state mental institution or another, certainly there

exist factual differences between certain institutions (see

p. 23, infra) and counsel may perform the necessary and

legitimate function of having the commitment reflect the

need for a particular type of institutionalization or even

out-patient care without confinement. This need is best

reflected by the annexed report (Appendix C) of the Public

Defender of Philadelphia who represents felony prisoners

in post-sentence expiry commitment proceedings.?

This need for counsel has been confirmed by the legis-

latures of an overwhelming majority of the states by their

enactment of statutes providing for representation at com-

mitment hearings—in some cases the statutes even ante-

dating the state’s guarantee of counsel in non. apital felony

cases (see Appendix A).

In the State of Ohio, Governor Di Salle reported in 1961

(Appendix D, p. 61, infra) that 25% of the patients in

* This representation is financed by a grant from the National

Legal Aid and Defender Association. It does not extend to rep-

resentation of defendants in ordinary civil commitments. No provi-

sion is made for the representation of such persons in Pennsylvania.

(See Appendix A, p. 38 infra.)

AACS SEEDS LEELA LAD: - SECC

———

13

his state’s mental hospitals were persons over 65 years

and that approximately one-half of these patients were not

mentally ill in the commonly accepted sense. He stated that

after his investigation 1,500 such patients were discharged

and that the total discharges might reach 3,000. One may

well wonder how these 3,000 persons initially came to be

committed and how long they would have remained ‘n the

asylums had not the Governor intervened in their behalf.

We do not know how many of these persons had counsel at

their commitments nor do we know how many of those per-

sons with counsel who successfully resisted commitment

would have been committed if unrepresented.* We offer

these figures only to show that a substantial number of

legally sane persons are in fact committed and that an

even more sul stantial number find themselves as defen-

dants in commitment proceedings.

Apart from all this, however, the need for counsel in this

type of proceeding is an obvious truth needing no docu-

mentation. Putting aside the rare case of malicious com-

mitment there will always be some kernel of truth to a claim

that a particular respondent or defendan is “not normal.”

The issue in almost every contested commitment is how

close does the proposed patient come to the elusive line

which divides the sane from the committable. Such a per-

son, even if falling upon the “sane” side of the scale, is

probably the one least capable of asserting his sanity. Cer-

8 Assignment of counsel in Ohio is discretionary. We are advised

by the Legal Aid Society of Cincinnati that it appears “in very

few commitment cases”; the Defender’s Office of the Cleveland

Legal Aid Society handled five civil commitment cases in the first

nine months of this year and the Legal Aid and Defender Society

of Columbus appeared in ten such proceedings during this period.

Of the fifteen persons represented by assigned counsel in Cleveland

and Columbus, eight were committed, six were not and one escaped

before disposition.

—

14

tainly such a person is no match for an Assistant Attorney

General who has probably handled hundreds of commitment

proceedings and such a person could hardly be expected to

effectively cross-examine a court-wise director of a large

mental institution or to cross-examine absent certifying

doctors.

We may allow New York to continue its uniform policy

of non-assignment of counsel only if we are prepared to

assume the infallibility of the certifying doctors‘ and that

the judicial process is merely a rubber stamp upon the

ineffectually contested opinions of expert witnesses. Such

assumption may be validly made only if the defendant’s

sanity may be conclusively presumed from the mere fact

that a commitment proceeding was instituted. Such as-

sumptions and presumptions run counter to a thousand

years of history.

B. Petitioner’s Need for Counsel

The proceedings had before the Surrogate of Clinton

County clearly reflect the need for counsel, both as to the

question of Petitioner’s sanity and the disposition to be

made:

*The notion that “insanity” is a determination solely for the

doctors rests upon the false premise that mental illness may be

scientifically measured and that the experts proceed upon uniform,

precise standards which result in opinions equivalent in accuracy

to the opinions of fingerprint experts. We need only look at the

conflicting expert testimony in any criminal case where insanity

is tendered as a defense to see the fallacy of this argument.

The basic question in commitment proceedings is not whether a

patient is insane (whatever that may mean) but is whether a per-

son’s mental capacity is such that his continued liberty is a poten-

tial danger to himself or the community. This is not a medical

judgment. It is a social judgment based upon contemporary com-

munity standards of what is or is not acceptable conduct. See,

Is Counsel Needed at Commitment Hearings?—A Symposium,

23 Legal Aid Briefcase 13-18 (Oct. 1964).

_ pcan

New York law (Correction Law, §384) requires that the

certification be upon the certificates of two doctors un-

connected with the hospital. The certificates filed at the

commitment proceeding before the Surrogate reflected that

Mr. Baxstrom, as a “psychiatric sign and symptom”, lacked

insight (R. 5, 1. 108); that following his epileptic seizures,

he was “irritable, confused, [and] aggressive” (R. 4, 1. 104)

and that he “possibly” showed a “tendency” to injure others

(RB. 5, 1. 115).

This diagnosis and prognosis of Mr. Baxstrom’s illness

is equally applicable to the two million epileptics in the

United States. Whether cross-examination of the certify-

ing doctors would have shown the Petitioner “insane” or

“sane” is a matter for conjecture. The fact remains that

the doctors were not even present and there was no one in

court who could have demanded their presence on Peti-

tioner’s behalf.’ In this connection it is noteworthy that

Dr. Kerr, the psychiatrist who examined Petitioner five

months after the commitment, volunteered in his testimony

at the first post-commitment habeas corpus hearing, that

“there is no reason why he could not be treated in a civil

mental hospital” (R. 29). Presumably such testimony was

related to Petitioner’s alleged tendency to be possibly dan-

gerous and is in direct conflict with the assumed adminis-

trative finding by the Assistant Commissioner of Mental

Hygiene that the Petitioner “was not suitable” for transfer

to a civil hospital.

5 See, State ex rel. Anderson v. U. S. Veterans Hospital, 268

Minn. 213, 128 N. W. 2d 710 (1964); Denton v. Commonwealth,

383 S. W. 2d 681 (Ky., 1964) holding the reliance upon the cer-

tificates of the absent doctors and the failure to allow for their

eross-examination to be a denial of due process. Cf., Pointer v.

Texas, 380 U.S. 163 (1965).

—

16

Even if the Petitioner were in fact insane the Surro-

gate, who concluded the hearing with the hope that Peti-

tioner would be transferred to a civil hospital, could have

refused to commit the Petitioner under Section 384 and

required the State to proceed under the Mental Hygiene

Law rather than the Correction Law. If such a procedure

had been followed then the Petitioner at such a commit-

ment proceeding would have been entitled to a jury trial on

the question of his sanity and if committed could have

been sent only to the civil hospital where everyone, except

the Commissioner of Mental Hygiene, seemed to agree he

belonged.*

C. The Right to Counsel

Every jurisdiction provides for some form of hearing

and judicial review or determination of the sanity of those

patients who wish to contest their commitment.’ The right

to a hearing and the opportunity to be heard in a meaning-

ful manner is a fundamental requirement of due process

whether the case be civil, criminal or somewhere in between.

Armstrong v. Manzo, 380 U. S. 545 (1965). Without coun-

sel to implement this right the commitment hearing be-

comes nothing more than a hollow gesture and the luck-

* If the Petitioner had been so committed he could be transferred

to Matteawan only upon showing that in addition to being insane,

there was a particular danger to others if he was allowed to remain

in a civil hospital. Mental Hygiene Law, §85; Correction Law,

§412 (repealed). See Point III, infra.

* We cannot help but note that in many jurisdictions this right

is an illusory one for it depends upon someone, usually the doctors,

advising a patient of his rights. See, Hearings before the Sub-

committee on Constitutional Rights, Senate Judiciary Committee,

Constitutional Rights of the Mentally Ill, Part I, Eighty-seventh

Congress, First Session (1961) (hereafter Senate Hearings), Ross

=v p. 185 ; Guttmacher testimony, p. 148 ; Chasan testimony,

p. '

— ee os

less defendant is packed away to custody “probably little

| less punitive than a sentence of death.” Ex parte Perry,

137 N. J. Equity 161, 43 A. 2d 885, 886 (1945).

It is one of the great anomalies of constitutional law

that the arguments for the absolute right to counsel in

criminal cases reach back for historic support to the much

older right to counsel in civil litigations. Thus both Jus-

tice Blackstone (4 Blackstone, Commentaries, *355) and

this Court in Powell v. Alabama, 287 U. S. 45 (1932), relied

upon the common law tradition of evil representation to

support the claimed right to ass\g»ment in criminal cases.

As Professor Maguire has pointed out the Year Books

and the reports of the Selden Society are replete with nota-

tions of the granting of in forma pauperis type relief and

the assignment of counsel to represent indigent civil liti-

gants in the Fourteenth and early Fifteenth Centuries.

Maguire, Poverty and Civil Litigation, 36 Harv. L. Rev.

361 (1923).

In 1495 the first extensive forma pauperis statute was

passed. 11 Hen. VII, c. 12; 2 Stat. of the Realm, 578. It

provided :

“|. every pouer persone or persones which have &

hereafter shall have cause of accion or accions ayenst

any persone or persones within the realme shall have,

by the discrecion of the Chauncellor of this realme, for

the tyme being writte or writtes originall and writtes

of Sub pena according to the nature of their cavses,

therfor nothing paieng to youre Highnes for the seales

of the same, nor to any persone for the making of the

same writte & writtes to be hereafter used. And that

the seid Chaunceller for the same tyme being shall

assigne suche of the Clerkis whiche shall doo and use

——~ sag

18

the making and writing of the same writtes to write

the same redy to be sealed, and also lerned Councel]

and attorneyes for the same, without any rewarde

taking therfor ...”

See also, 3 Blackstone *400-401.

The right to counsel in commitment proceedings is even

more fundamental than the general right to counsel in other

civil litigation.* As this Court noted in Minnesota ex rel.

Pearson v. Probate Court, 309 U. S. 270, at 276-77:

“We fully recognize the danger of a deprivation of due

process in proceedings dealing with persons charged

with insanity or, as here, with a psychopathic person-

ality as defined in the statute, and the special impor-

tance of maintaining the basic interests of liberty in a

class of cases where the law though ‘fair on its face

and impartial in appearance’ may be open to serious

abuses in administration and courts may be imposed

upon if the substantial rights of the persons charged

are not adequately safeguarded at every stage of the

proceedings.”

The argument will undoubtedly be advanced that the State

was acting for the benefit of Petitioner and other members

of the community by placing him in a mental institution.

Such a contention really only relates to the Government’s

* Louisiana has made just such a distinction, but in reverse. In

a proceeding to appoint an administrator of the property of a

person alleged to be incapable of managing his affairs, the Supreme

Court of Louisiana held that any judgment was void if counsel

was not appointed. Interdiction of Scurto, 195 La. 747, 197 So.

417. However, eight years later the same court held that notice

and hearing was not required in a commitment. In Re Bryant, 214

La. 573, 38 So. 2d 248 (1948). We reject as intolerable the dis-

tinction which gives greater value to property rights than to liberty.

19

power to commit, not to the means by which the commit-

ment is effectuated. The observation by Mr. Justice

Brandeis that, “Experience should teach us to be most on

our guard to protect liberty when the government’s pur-

poses are beneficent”® is particularly appropriate here.

At all of his hearings the Petitioner received sympathetic

attention from the judges presiding and the other persons

present. Concededly the State was acting out of motives

which generally may be classified as parental or charitable.

But this sympathy, courtesy and good intentions relate

to the therapeutic aspect of the hearing and commitment,

not to the legal question of whether an individual is com-

mittable, This question is to be ultimately resolved in the

same manner as are all other questions involving the liberty

and property rights of persons. Whether the Petitioner’s

conduct and condition fell outside those minimum standards

of mental responsibility tolerable to society can be deter-

mined with sympathy and understanding, but also with

justice.

The State of New York has labeled this commitment a

“civil” proceeding and because of this characterization,

denies Petitioner an attorney. We think the accuracy of

this label is debatable in all civil commitments to any

mental institutions; however, in terms of a commitment to

Dannemora, the civil tag is utterly without basis. At Dan-

nemora the Petitioner is mingled with convicted felons

° Olmstead v. United States, 277 U. 8S. 438, 479 (dissenting

opinion). ;

1° The New York Attorney General, two months prior to Peti-

tioner’s commitment, responded to an enquiry from one of the

judges of Clinton County that a Section 384 commitment is a civil

proceeding and, “.. . it is not necessary to so advise an inmate

fof his right to retain counsel] but if that inmate indicates that

he desires counsel an opportunity should be given to him to hire

counsel.” 1961 Op. Atty. Gen. N. Y. 180, 181.

—

20

serving out their sentence in a hospital located upon prison

grounds and operated under prison discipline. And by

virtue of his custody in Dannemora Petitioner must bear

a stigma even more onerous than that of a criminal pris-

oner. People ex rel. Brown v. Johnson, 9 N. Y. 2d 482. All

that has happened to justify the civil label is that one day

the Petitioner was taken from Dannemora and brought

before a judge who returned him from whence he came,

although now in some abstract sense, in the custody of the

Commissioner of Mental Hygiene.

Fundamental fairness as an aspect of due process of

law is not limited to proceedings strictly called criminal.

Smith v. Bennett, 365 U. S. 708 (1961) ; cf., One 1958 Plym-

outh Sedan v. Pennsylvania, 380 U. S. 393 (1965).

Those criminal cases involving the right to counsel which

rest upon a fundamental fairness test are ample authority

for the proposition that the due process requirement of a

fair hearing in civil proceedings includes the right to ap-

pear by counsel and to have counsel appointed in cases

where personal liberty is at stake.

21

POINT I

Section 384 of the Correction Law is unconstitutional

in that it arbitrarily singles out one group of allegedly

mentally ill persons and denies to that group the jury

trial to which all other civilly committed patients are

entitled.

Under New York law” all proposed civil patients are

entitled to a jury review of the question of their sanity.

Only persons who allegedly became insane and whose in-

sanity was discovered during service of a criminal sentence

are refused a jury trial on this question. While New York

may be under no constitutional obligation to provide a jury

trial in any of its civil commitments, having made it gen-

erally avaiiable to all it may not arbitrarily withhold it

from some. Each year New York admits approximately

30,000 persons to its civil mental hospitals.’* However

only the 487 inmates in Dannemora who are held under

Section 384 commitments are never given the opportunity

to demand the jury trial which all other civil patients could

demand incident to their commitment.

4 Jury trials existed in pre-Revolutionary New York for the -

purpose of “informing the conscience of the court.” By Chapter

135 of the Laws of 1842 a jury review was made a matter of right

‘n every civil commitment proceeding. Sporza v. German Savings

Bank, 192 N. Y. 8 (1908). The substance of this statute has re-

mained unchanged and at the time of Petitioner’s commitment

appeared in Laws of 1961, c. 504 (McKinney’s Mental Hygienz

Law, §76). At present the jury trial provision is a part of the

Laws of 1964, c. 738, §6 (McKinney’s Mental Hygiene Law, §74).

See Appendix E, p. 67 infra.

22 This figure includes temporary commitments, voluntary pa-

tients, involuntary patients and transfers. Patients in Mental

~~ 1963, Public Health Sve. Pub. No. 1222, Part II,

p. II-17.

sees manera at —

The sole factor which distinguishes Petitioner from the

other civil patients for whom a jury trial is available is

that Petitioner’s commitment follows the expiration of a

criminal sentence and an administrative determination of

insanity made during the service of that sentence. Neither

of these factors is sufficient to warrant the discriminatory

treatment afforded.

Clearly New York could not withhold a jury trial on the

issue of sanity only from ex-felons for that status bares

no rational relationship to the question of sanity. Walters

v. City of St. Louis, 347 U.S. 231, 237 (1954) ; Goesaert v.

Cleary, 335 U. S. 464, 466 (1948). Indeed New York seems

to have recognized this by not even including past criminal

convictions in any of the stated criteria for the transfer

of committed patients te Matteawan.*

The fact that there has been prior administrative deter-

mination that Petitioner was insane stands upon an even

more tenuous footing as a basis for denying a jury trial.

In every case where a jury trial is available there has been

not only an administrative determination of insanity but

there has also been a judicial determination. The New York

jury trial is a de novo rehearing of a judicial certification

of insanity, in most cases involving patients already being

held by a mental hospital on a temporary or informal ad-

mission.

While we concede that there may be a legitimate basis

for distinguishing between the “civilly insane” and the

*8 Under former Section 412 of the Correction Law a prior con-

viction plus manifestation of criminal tendencies would warrant a

transfer of a civil patient to Matteawan. This Section was re-

pealed in 1965. See, United States ex rel. Carroll v. McNeil, 294

F. 2d 117 (2nd Cir., 1961), probable jurisdiction noted, 368 U. 8.

951, vacated and dismissed as moot, 369 U. S. 149 (1962).

a |

“criminally insane” in determining the type of custodial

or medical care to be ultimately given, no such distinction

can be drawn when we are considering the procedure

whereby the fact in issue, the sanity of the proposed patient,

is to be determined.

POINT Il

Petitioner’s commitment and retention in Dannemora

State Hospital under Section 384 of the Correction Law

violates the equal protection and due process clauses of

the Constitution in that the statute arbitrarily singles

out one group of mentally ill persons and permits their

confinement in an institution for the criminally insane

without the necessity of a judicial finding that such con-

finement is necessary.

Dannewnore State Hospital is an institution maintained

by the Department of Correction of the State of New York

on the grounds of Clinton State Prison. Over one-half its

inmates are prisoners serving felony sentences.” While in

Dannemora the Petitioner is subject to the prison discipline

which applies to all inmates whether serving a sentence or

not, Even the social amenities granted to inmates in civil

hospitals are denied to Petitioner. He may not wear his

own clothes; he may not correspond freely with friends or

persons not approved by the Commissioner of Correction

(Correction Law, Section 388) ; his visitors must be finger-

printed; and the prison number (#6887) given to Peti-

tioner upon his transfer into Dannemora as a prisoner

14 As of September 1965 the population of Dannemora was:

1. Held under section 383 560

2. Held under section 384 487

3. Transfers from Eastern Corr. Inst... 13

~

boo A RE em OP —

24

remains his number which must appear upon all his cor-

respondence as a civil patient. If the Petitioner is no longer

a “prisoner” in Dannemora the State has done little to

make Petitioner aware of this fact. Indeed the Legislature

of the State of New York has by deliberate act set Danne-

mora and Matteawan apart from all other mental hospitals

in the state system. See, United States ex rel. Carroll vy.

McNeil, 294 F. 2d 117 (2nd Cir.), probable jurisdiction

noted, 368 U. S. 951, appeal dismissed as moot, 369 U. §S.

149 (1962). It has done this by placing these institutions

under the jurisdiction of the Department of Correction and,

in the act creating Dannemora designated it as a place

“ .. used for the purpose of confining and caring for such

male prisoners as are declared insane while confined in a

state prison...” (Correction Law, Section 375).

We have acknowledged that a state may discriminate in

the kinds of care and custody afforded to individual in-

mates. Particularly, a state may segregate within its

hospital system those persons whose mental illness poses

an especial danger to the hospital staff, fellow patients,

or to the person’s own well being and safety. However

the State has, in the instance of Section 384 patients, gone

too far.

Not only has New York provided for confinement outside

of its hospital system but it has done so at the expense

of the procedural safeguards discussed in Point II and

without establishing any criteria or standards which would

distinguish Petitioner’s class from other proposed civil

patients.

Under New York law only three classes of civil patients

are amenable to confinement in the institutions maintained

by the Department of Correction: (1) the patient already

25

committed by civil process to a civil hospital who after a

separate judicial proceeding is found to be homicidal or

liable to commit acts which would constitute felonious as-

sault or who is so mentally ill that he is a danger to others

(Mental Hygiene Law, Section 85); (2) those patients

already committed by civil process who are ex-felons and

who continue to exhibit criminal propensities (former

Correction Law, Section 412; see, United States ex rel.

Carroll v. McNeil, supra, holding part of this statute to be

unconstitutional); and lastly, those persons situated as

was Petitioner.”

In each instance where the transfer of a civil patient to

an institution of the Department of Correction is sought,

the State has the burden of showing that the inmate, in

addition to his insanity, belongs to a class of mentally ill

persons for whom stricter security is necessary. However

when the post sentence expiry commitment of a Dannemora

prisoner is sought, no finding need be made other than that

the prisoner-patient is insane. It even appears that a Sec-

tion 384 commitment may be made in spite of the fact that

the evidence adduced shows “... there was no reason why

[Petitioner] could not be treated in a civil hospital” (supra,

p. 6).

The statute under which the Petitioner was committed

and is confined sets him apart from all other civil patients

in both a physical sense and a procedural sense. Because

of this classification which is neither rationally based nor

uniformly applied, Petitioner has been deprived of rights

18 We may exclude from consideration those commitments to

Matteawan which flow from the criminal process as different con-

siderations of policy may be involved (see, Lynch v. Overholser,

369 U. S. 705, 715-717). In any event, such persons must have

counsel. Gideon v. Wainwright, 372 U. S. 335 (1963).

'

26

upon which all others have a claim. The statute challenged

here is subject to every vice found present in the steriliza-

tion statute considered by this Court in Skinner v. Okla-

homa, 316 U. S. 534 (1942) and is deserving of the same

fate.

CONCLUSION

For the foregoing reasons the orders appealed from

should be vacated and the case remitted with directions

to sustain the writ of habeas corpus.

Respectfully submitted,

Lzon B. Potsky

The Legal Aid Society

Counsel for Petitioner

100 Centre Street

New York City, New York

27

APPENDIX A

State Law Relating to the Right to

Counsel at Commitment Hearings

AtapamMa—Code of Ala., Tit. 21, $10:

“Tf, on the hearing of such inquisition, the person

alleged to be of unsound mind is not represented by

counsel the court shall appoint a guardian ad litem to

represent and defend for him.” See, Smith v. Smith,

254 Ala. 404, 48 So. 2d 546 (1950). See also, Title 21,

$15.

Ataska—Alaska Statutes, Title 47, Chapter 30, Section 070

(h) [47.30.070h] :

“An opportunity to be represented by counsel or ad-

visor shall be given to the proposed patient, and if

neither he nor others provide counsel or advisor, the

superior court shall appoint a counsel or advisor * * * ”

Arizona—Title 36 Revised Statutes, §514A:

“At the time of apprehension or during detention,

ee but before the hearing, the proposed patient appre-

hended shall be permitted to consult an attorney to

represent him at the hearing. If he is not represented

by an attorney, the court shall, before the hearing, ap-

point an attorney to represent him.”

ARKANSAS—

No provision relating to counsel.

28

Catirornia—Welfare and Institutions Code, §5054:

“The alleged mentally ill person shall be present a

the hearing, and if he has no attorney, the judge ma;

appoint an attorney to represent him, or if a request i:

made for an attorney by the alleged mentally ill person

the judge shall appoint an attorney to represent hin

.” See, In re People for Best Interest and Protec

tion of Campbell, 12 Cal. Rptr. 60, 190 C. A. 2d 253.

Cotorapo—Colorado Revised Statutes, 1963. Chapter 71

Article 1, §8:

“The court shall appoint an attorney at law who shal

represent the respondent as his guardian ad litem in al

proceedings thereunder. The guardian ad litem shal

be given at least two days notice of the time and plac

of the first meeting of the medical commission and shal

attend all meetings of the medical commission... ”

Connecticut—General Statutes (Revision of 1958), Titl

17, Section 178, as amended by Public Ac

199 (1963) :

“Upon such complaint being filed in the probate court

such court shall assign a time, not later than ten day:

thereafter, and place for hearing such complaint, anc

shall cause reasonable notice thereof to be given to the

person alleged to be mentaliy il]... If such court i:

satisfied that such person is a dangerous person to be

at large, it may make such orcer for his restraint anc

custody while the proceedings are pending as it deem:

advisable; but such person shall not be prevented fron

having all reasonable opportunities to consult counse

and friends and to prepare and make his defense t

such application * * * ”

29

DeLawaRE—Revised Code, 1953, Chapter 51; 16 Delaware

Code Annotated, 5101-5523. See also, Chancery

Court Rules, 100-108:

No provision relating to counsel.

See, Senate Hearings, Testimony of Hon. John Biggs,

Jr., pp. 127-129.

District or CotumBia—78 Stat. 944, §7 (d); D. C. Code,

§21-356 (d):

“The allegedly mentally ill person shall be repre-

sented by counsel ... and if he fails or refuses to obtain

counsel, the court shall appoint counsel to represent

him.”

Frormwa—tTitle 27, Chapter 394, §22 (4), 394.24 (4), Florida

Statutes:

« * * * The hearings shall be conducted in as informal

a manner as may be consistent with orderly procedure

and in a physical setting not likely to have a harmful

effect on the mental health of the proposed patient. The

court shall receive all relevant and material evidence

which may be offered and shall not be bound by the

rules of evidence. An opportunity to be represented by

counsel shall be afforded to every proposed patient, and

if neither he nor others provide counsel, the court may

appoint counsel.”

Title 27, Chapter 394, §22 (7):

“bh. At any stage of the proceeding the judge may,

upon the application of any alleged incompetent who is

indigent, appoint an attornce” to represent said per-

wes." =

eno some —

30

Grorcia—Georgia Health Code, Acts of 1964, pp. 449, 534;

Code of Georgia Annotated, Chapter 88, Section

506 (1964 Supp.) :

“(d) * * * Provided, however, that in the event the

allegedly mentally ill person shall be financially un-

able to employ counsel to represent said person in said

hearing, then the [court of] ordinary shall appoint an

attorney to represent said person * * * ”

Hawat—Revised Laws of Hawaii, 1955 (1963 Supp.), Chap-

ter 81, §19-21:

No provision relating to counsel in ihe original court

commitment. However upon what is apparently a

de novo review by an “appeals commission,”

“The appeals commission shall hear and determine

all cases brought before it on appeal. Upon such appeal

the appellant shall have the right to be represented by

counsel and to produce witnesses and to offer appro-

priate evidence for the person on whose behalf the ap-

peal is prosecuted.” Ch. 81, §40. See also, Ch. 14A,

§§32, 34.

IpanHo—Idaho Code, 66-329 (g) :

“ * * * An opportunity to be represented by counsel

shall be afforded to every proposed patient, and if

neither he nor others provide counsel, the court shall

appoint counsel and authorize a proper fee to be paid

such counsel from the county funds.”

31

Intinors—Chapter 91-14, Section 8-22.1, Illinois Revised

Statutes (as amended by Laws of 1965, June 9):

“(a) If the court determines that the person alleged

to be mentally retarded or to be in need cf medical

treatment is indigent, the court shall appoint as counsel

the public defender .. . ”

Chapter 91-14, Section 7-2 (as amended by Laws

of 1965) :

“The magistrate or judicial officer shall identify him-

self and his official position and in simple, non-technical

language and in a language known to the patient, shall

explain to the patient the patient’s rights under this

Act, including that the patient shall have a hearing on

the question of his need for medical treatment if he

shall indicate his desire for a hearing and that at such

hearing the patient will be represented by counsel and

shall have the right to present evidence and cross-ex-

amine witnesses.”

Inprawa—Acts of 1957, Chapter 359, Section 602 p. 1046;

Burns Indiana Stat. Anno., §22-1216:

« * * * [Unless the individual whose mental status is

being inquired into has employed other counsel, the

prosecuting attorney of the county of the allegedly

mentally ill person’s residence shall appear and rep-

resent such person in said proceedings.”

lowa—Acts cf 1959 (G. A.) Ch. 152, §98; Iowa Code An-

notated, Title 11, Ch. 229.5:

“Appearance on behalf of such alleged mentally ill

person may be made by any citizen of the county, or

by any relative, either in person or by counsel.

—_— a

If at said hearing such person appears without coun-

sel or appearance is made in his behalf without coun-

sel, the commission, before proceeding further, shall

inform such person or persons appearing for him of his

right to legal counsel, then if no counsel is employed,

the district court shall assign him counsel.”

See also, 1948 Op. Atty. Gen. 67.

e

Kansas—Laws of 1965, Ch. 348, Section 14:

“Mandatory preliminary orders; procedure. Upon

the filing of the application provided for in section 13,

the probate court shall issue the following:

aa.

G34"

(C) An order appointing an attorney to represent

the ‘proposed patient’ at all stages of the proceedings

* * * The ‘proposed patient’ shall have the right to

engage an attorney of his own choice and, in such event,

the attorney appointed herein shall be relieved of all

duties by the court.”

Kentucky—Kentucky Revised Stat. (1959) §202.050:

“Tn each inquest the court shall appoint a member of

the bar to represent the interests of the defendant, and

the attorney for the Commonwealth also shall prevent

the finding of any person to be of unsound mind who,

in his opinion, is not such.”

Lovistana—Revised Statutes of 1950, Title 28, Sections 53-

62:

No provision relating to counsel in sections relating

to commitment. However Section 141, relating to the

costs of the commitment provides:

sonitieahiiasliensammnsiniuemmaneniemmenammetia

—

33

“Tf financially able, the patient or his legally respon-

sible relative shall pay the costs of commitment, includ-

ing examination fees, expenses incurred in calling wit-

nesses, fees of counsel for the patient, and fees of the

commission, otherwise the parish of domicile in the

ease of a resident or the department in the case of a

non-resident shall pay these ccsts.”

Marwe—Revised Statutes, 1964, Title 34, §2334:

« * * * An opportunity to be represented by counsel

shall be afforded to every proposed patient, and if

neither he nor others provide counsel, the court shall

appoint couns. * * * ”

MaryLanp—Code of Maryland, Article 59:

No specific statutory provision.

See, State ex rel. Adams v. May, 196 Md. 152, 75 A.

2d 839, at 842:

« * * * The Attorney General informs us that in at

least one county the court appoints counsel for the

alleged insane person and has the testimony reported by

a court stenographer. We think the statute at least au-

thorizes this procedure.”

Massacuusetts—General Laws, Chapter 123, §51:

« * * * Upon receipt of an application for commit-

ment the court shall cause written notice to be per-

sonally served upon the person named therein, inform-

ing the said person of the application for commitment

and of his right to a hearing at which he can be present

and be represented by counsel * * * ”

—

Micuican—Compiled Laws of Michigan, 1948, $330.21:

“« * * * The court to whom the petition is directed

may dispense with such personal service or may direct

substituted service to be made upon some persona to

be designated by it * * * In such cases the court shall

appoint a guardian ad litem to represent such mentally

diseased person upon such hearing, and in other cases

it may appoint a guardian ad litem * * * ”

See, In re Wojtasiak, 375 Mich. 540, 1384 N. W. 2d

741 (1965) which seems to hold that there is a constitu-

tional right to counsel in proceedings to recommit a

felon in a post-sentence expiry case.

Minnesota—Laws of 1963, ch. 258, §2; M.S. A., §525.751 (4):

“* ** Tf the patient so requests or is held for observa-

tion under order of the court, the court shall appoint

counsel for him, if he is financially unable to obtain

counsel. In all other cases the court may appoint coun-

sel for the patient if it determines the interests of the

patient requires counsel.”

See, State ex rel. Anderson v. U. S. Veterans Hos-

pital, 268 Minn. 213, 128 N. W. 2d 710 (1964).

MississrppI—Miss. Code Anno., §6909-07, 08:

No provision relating to counsel.

Missovri—Vernon’s Annotated Missouri Statutes, §202.807

(4):

“The hearings shall be conducted in as informal a

manner as may be consistent with orderly proce-

dure ...An opportunity to be represented by counsel

— ears

35

shall be afforded to every proposed patient, and if

neither he nor others provide counsel, the court shall

appoint counsel.”

Montana—No provision relating to counsel.

Nepraska—Laws of 1947, c. 335, §16, p. 1061; Rev'd. Stat-

utes of 1943, §83-325:

«*** Any citizen of the county or any relative of

the person alleged to be mentally ill, may appear and

resist the application; the parties may appear by

counsel.”

See Senate Hearings, Testimony of Dr. C. H. Far-

rell, p. 163 to the effect that the Public Defender

represents all defendants requesting counsel.

Session Laws of 1963, ch. 524:

“Medical Care for Drug Users

(2) The alleged drug-using person, referred to in

sub-section (1) of this section shall be represented by

counsel. If the court determines that he is financially

unable to obtain counsel, it shall appoint counsel for

him ** #)»

Nevapa—Revised Statutes §433.200:

“(1) * * * The judge may direct the clerk of the

court to issue subpoenas for the attendance of wit-

nesses at the examination of the person, assign counsel

to defend such person... and enter such other orders

as he may consider necessary to permit a proper de-

termination concerning the mental condition of, and

to protect the rights of the person alleged to be men-

tally ill.”

36

New HampsHire—See generally N. H. Rev’d. Stat. (1964),

Chapter 135.

No provision relating to counsel.

New Jersey—-Laws of 1919, c. 97, $20, p. 234; N. J. S. A.

30 :4-41:

“Tn all cases where the patient is confined in an in-

stitution before the final hearing, the county adjuster

shall serve or cause to be served personally upon the

patient a written notice of the time and place of final

hearing and shall give notice to the plaintiff and the

patient’s nearest relative. The chief executive officer

[of the institution] shall afford the patient every op-

portunity to appear personally or by attorney at the

hearing, and assist him in communicating with his

friends, relatives or attorney * * *”

See Senate Hearings, Testimony Chasen, at pp. 226-

27:

“* * * T assume that he [the proposed patient]

would probably find the bar in our State responsive

were a request made for counsel. * * *

But I have never, in over 30 years of practice, heard

of an application being made . . . except where large

amounts of money are involved . . . very rarely is

there an actual adversary proceeding.”

New Mexico—Laws of 1953, ch. 182, §5; N. Mex. Stats.

Anno., §34-2-5:

“f, *** An opportunity to be represented by coun-

sel shall be afforded to every proposed patient, and if

neither he nor others provide counsel, the court shall

appoint counsel.”

— AIO TCO AT IES |

37

NortH Carotina—See generally, General Stats., §122-64

and 65:

No statutory provision relating to coun-

sel,

Cf., In re Wilson, 257 N. C. 593, 126 S. E. 2d 489

(1962).

Norra Daxota—S. L. 1957, ch. 196, §3; R. C. 1943, 1957

Supp., §25-0311 (6); N. D. Century Code,

§25-03-11 (6):

«*** An opportunity to be represented by counsel

shall be afforded to every proposed patient, and if

neither he nor others provide counsel, the mental

health board, upon request of the proposed patient,

shall appoint counsel. If it is determined that the

proposed patient is unable to pay for such counsel,

the attorney [sic] fees, upon approval of the mental

health board shall be paid by the county.”

Oxn1o—Baldwin’s Ohio Revised Code, $5122.15 (1964) :

«* * * The individual named [as defendant] in the

affidavit shall be notified by the court of his right to

secure counsel. The court may appoint, at any time

in the proceedings, an attorney to represent a person

who is alleged to be mentally ill* * *”

Oxtanoma—See generally, Laws of 1953, §55, p. 163, as

amended; 43A Okla. St. Ann., $55:

No provision relating to counsel.

Orrcon—O. R. S. 426.100:

“Tf the allegedly mentally ill person, when brought

before the court, requests the assistance of counsel to

—

38

represent him at the proceedings provided for by

O. R. S. 426.070 to 426.150, the court shall give such

person opportunity to obtain such legal counsel. If

no such request is made by the allegedly mentally ill

person, his legal guardian, relative or friend may, in

the order named, request assistance of legal counsel.

If no request for legal counsel is made by any party,

the court may, at its discretion, appoint legal counsel.

In all cases such legal counsel shall be present at the

hearing and examination and may examine all wit-

nesses offering testimony, and otherwise represent

such person.”

PennsyLvanta—See generally, P. L. 533, art. III, §327

(June 12, 1951) as amended; 50 P. §S.

§$1201-1208 :

No provision relating to counsel other than 50 P. S.

1202 (ce) which provides: +

“The commission shall hear such evidence as may

be offered or they may require, relating to the mental

condition of the person sought to be committed, as well

as, his or his counsel’s statement * * * ”

Ruove Istanp—Gen. Laws 1956, 26-2-13; G. L. 1938, ch. 71,

§7; General Laws of Rhode Island, Anno-

tated (1956), §26-2-13:

“Tn all cases, whenever a person is apprehended and

held for examination upon the question of his or her

sanity before any court or commission authorized by

' this chapter to hear such question, and such person

is by reason of poverty unable to employ counsel . . ¢

39

The court or commission before whom any such hear-

ing shall be had shall forthwith, upon the apprehen-

sion of such person, appoint counsel to make the

defense provided for in §26-2-11 * * *”

SourH Carotina—Code of Laws, 1962, §32-962:

«*** An opportunity to be represented by counsel

shall he afforded to every proposed patient, and if

neither he nor others provide counsel, the court shall

appoint counsel for him.”

Sourn Daxota—Laws of 1953, ch. 178; Laws of 1959, ch.

174; Code of 1939, §30.0107 :

«“* ** Tn its examination, it [the board] shall hear

the testimony for and against such application, if

any is offered ... The person charged with being men-

tally ill or any citizens of the county or any relative

of the person alleged to be mentally ill may appear

and resist the application, and any person authorized

to appear may appear with counsel * nas

TennessEE—Acts of 1919, ch. 17, §10; T. C. A., §33-508:

“The county judge or chairman shall proceed with

the hearing to determine whether the person in ques-

tion is insane or not. Before proceeding, however, the

court shall appoint a guardian ad litem to look after

the interest of the person in question, but said guardian

ad litem need not be, but may be, an attorney at law,

but he shall be present at the hearing and manage the

case in behalf of the person suspected.”

—

40

Texas—Acts of 1957, ch. 243, §43; Vernon’s Annotated

Texas Statutes, 5547-43:

“When a Petition and the required Certificate of

Medical Examination for Mental Illness are filed, the

county judge shall set a date for a hearing to be held

within thirty (30) days of the filing of the Petition,

and shall appoint an attorney ad litem to represent the

proposed patient.”

Uran—Laws of 1963, ch. 160, §1; Utah Code Anno., 464-

7-364:

“* * * An opportunity to be represented by counsel

shall be afforded to every proposed patient, and if

neither he nor others provide counsel the court shall

appoint counsel.”

Vuermont—Laws of 1959, No. 185; 18 Vt. Stat. Anno., 42602:

“In any proceeding before a county, municipal or

probate court involving the involuntary commitment

of an alleged insane person to a mental institution,

such person, or any resident or non-resident guardian

or next friend or relative of such person, acting for

such person, shall be afforded counsel, and if the al-

leged insane person is unable to pay for same, com-

pensation shall be paid by the state to counsel assigned

by the court...”

Vincinta—Laws of 1958, c. 595; Code of Virginia, 437-62:

“In any proceeding for commitment under this title,

the judge upon whose warrant such proceeding is being

held shall ascertain if the person whose commitment

is sought is represented by counsel. If such person is

41

not represented by counsel such judge shall appoint

an attorney at law to represent such person in such

proceeding * * *”

Wasnincton—Laws of 1959, ch. 25; RCWA, §70.02.190:

“If no guardian of the person has been appointed,

the court may appoint a guardian ad litem to repre-

sent the patient during proceedings. The person filed

against shall have the right to be represented by an

attorney if requested.”

See, State ex rel. Richey v. Superior Court, 59 Wash.

872, 371 P. 2d 51 (1962).

West Vircrnra—Acts of 1965, ch. 98; W. Va. Code of 1961

(1965 Supp.), §2661:

«“* * ®* The mental hygiene commission shall appoint

a guardian ad litem who shall be a competent attorney,

for the individual, and said guardian shall be present

at the hearing and protect the interests of the indi-

vidual «een

Wisconstn—West’s Wisconsin Statutes Annotated, Title 7,

§51.02 (4):

“At any stage in the proceedings, the court may, if

it determines that the best interest of the patient re-

quires it, appoint a guardian ad litem for him.”

Wyrominc—Laws of 1963, ch. 188, §12; Wyoming Stat.,

§25-60 (d):

“ .. Tf the court has reason to believe that notice

would be likely to be injurious to the proposed patient,

and so finds in its order for notice, notice to him may

Ae naam mec —

42

be omitted, but in such case notice shall be given to

legal counsel appointed by the court to represent the

proposed patient if no relatives, spouse or guardian

reside within the county * * * In addition the notice

shall apprise the person of the purpose of the pro-

ceeding . . . the identity of legal counsel appointed by

the court to represent the proposed patient and the

latter’s right to counsel of his own selection...”

43

APPENDIX B

Cases HanpLep By LEGAL Arp orn DEFENDER AGENCIES

Period Cases Com- jae

Agency Covered Handled mitted mitted

Mass. Defender’s

Committee, Worcester

County 7/1/63-

6/30/65 6 5 1

Public Defender,

San Francisco 7/1/64-

6/30/65 101 61 40

Atlanta Legal

Aid Society ? 10 M7) 7

Public Defender

Cook County, Il. 12/1/63-

11/30/64 6,174 5,223 951

Legal Aid

Agency, D. Col. 1964 639 416 223

Public Defender,

Benton County, Wash. 2/1/65-

9/15/65 7 7 0

44

APPENDIX C

DEFENDER ASSOCIATION OF PHILADELPHIA

STIITE 800 DEWEY BUILDING

PBiLADELPHIA, PENNSYLVANIA

DEFENDER’S REPORT FOR THE MONTH OF MAY

June 4, 1965

Lunacy Commission HEARINGS

Aided by the grant from the National Defender Project,

the Association is supplying counsel to sentenced clients

whom the prison authorities claim are mentally ill and

committable to a state hospital for mental diseases. Rep-

resentation follows the filing of a petition for a lunacy

commission and the appointment of such a commission to

examine the prisoner and report whether the prisoner is

mentally ill or mentally defective and, if so, whether he

is of criminal tendency. If a prisoner is found to be

mentally ill or defective and of criminal tendency, the

commission recommends commitment to Farview State

Hospital for the Criminally Insane. On the other hand,

if the prisoner is found to be mentally ill or defective

without criminal tendency, the commission recommends

that he be committed to an ordinary state mental hospital.

Our attorneys have appeared at lunacy commission hear-

ings for the last six months. During that period, it has

become increasingly clear that our services in this area

are vitally needed for the protection of clients who become

the subject of lunacy proceedings. The scope, nature and

value of our services are illustrated in the following re-

ports submitted by Association lawyers who appeared at

lunacy hearings:

— ee

45

1. November 30, 1964

Lunacy Commission Hearing: Frank W

On November 24, 1964, a lunacy commission was convened

to examine Frank W, an inmate at the State Correctional

Institution, 21st and Fairmount Avenue, Philadelphia. The

Commission, which met at the prison where the inmate was

incarcerated, was composed of Frank A. Bove, M.D.;

Horace J. Prescod, M.D.; and Richard H. Knox, Esq.

Following is a report of the proceedings :

Prior to meeting with the Commission, I interviewed

the inmate for an hour and a half. He was suspicious of

me because he felt everyone was attempting to send him

to Farview. He realized that his sentence would be served

in a year and he felt that the officials were attempting to

detain him in any way possible. I showed him my creden-

tials and assured him that I was there to protect his rights

before the Commission. Having won his confidence, I pro-

ceeded to get him to tell me his story, all of which he

would retell to the Commission later that day.

The Commission met at 1:30 P.M. It commenced the pro-

ceedings by questioning the prison psychiatrist who had

examined the inmate and whose report on the mental con-

dition of the inmate is part of the findings submitted to

the Court. This report was made on the basis of one in-

terview of an houi’s duration and was admittedly very

inconclusive because of lack of observation of the inmate.

The discussion with the psychiatrist preceded the inter-

view of the inmate by the Commission and was held out

of the presence of the inmate.

The interview with the inmate lasted over two hours, the

inmate doing over 95 percent of the talking. He retold

the story of his trial and of how his lawyer did a very

46

poor job (his major complaint was that the woman he was

accused of raping had lived with him for ten years and

that he-had photographie proof of this, in addition to

witnesses to testify to this, but that the lawyer proceeded

to trial without the witnesses and photographs. This is

borne out by the record but the defendant agreed at the

commencement of his trial, according to the record, to

proceed without this testimony necessary to his defense.)

He related that he had been promoted in almost all his

work assignments in prison and cited all his skills and

accomplishments while working in prison. At almost all

points of his narration however, he inrplied he was per-

secuted by others and this is how he accounts for serving

over nine years of a four to ten-year sentence.

He concluded his interview by telling the Commission of

his recent invention which would allow an airplane to land

safely if it lost all of its power while in flight. He noted

he did not have a working model of this device for lack

of equipment. He refused to give details of this device

to the Commission, except for a drawing of an airplane

with numbers placed at various spots around the plane.

This refusal stemmed from his feeling that if he gives in-

formation to anyone except a potential investor, he will

be left out of the development of the device. He wrote a

letter to the F. B. I. to inform them of this invention, and

in censoring the mail, the prison authorities came across

the letter. This letter was apparently one of the prime

reasons motivating prison officials to initiate proceedings

to determine whether the inmate needed treatment at a

mental institution.

After the Commission concluded its interview, the prisoner

left and I reiterated to him how the decision of the Com-

47

mission is reached. I then went before the Commission

and advanced my opinion to them, namely, that I felt the

inmate was in need of medical treatment but that he was

not a violent person and definitely would be harmed by

an institution like Farview. I recommended that he be sent

to an institution which does not have maximum security,

like Norristown. At this time, I requested a copy of the

Commission report which will be filed with the Court.

It seems to me that our vital service in this area is coun-

selling the Commission in the different natures of the in-

stitutions to which an inmate can be committed. To do this

well, we must be familiar with the institutions themselves,

their facilities and what type of persons they will accept.

At the same time, it is necessary to interview the inmate

before the hearing to apprise him of the nature of the

proceedings, to calm his anxieties about being “sent away”,

and to aid him in communicating his story to the Com-

mission.

Martin K. MILLER

2. December 9, 1964

Lunacy Commission Hearing: William R

Commission consisting of Manuel Sall, M.D., psychiatrist,

Richard J. Chodoff, M.D., and John A. Geisz, Esq., met

at 1:10 PM, this day, at the Eastern State Penitentiary

with a prison psychologist, Mr. Wadell, and the Defender

present and interviewed the prisoner, William R, for about

40 minutes, and as a result of the interview, recommended

that the prisoner required psychiatric treatment, was a

prime object for treatment at a mental hospital, and did

not require incarceration at a maximum security institu-

tion, such as Farview, and that he was not dangerous to

society but only to himself.

a —

48

As Defender, I asked Dr. Sall, psychiatrist to explain the

commission proceedings to the prisoner and then I intro-

duced myself as the defender and determined that he un-

derstood the proceedings and that he desired the presence

of the counsel of the Defender, and that he desired to be

sent to a mental hospital for treatment. At that point, I

stood mute and allowed two or three questions at the close,

and remarking after the prisoner left, that hopefully he

could be transferred to a luw security mental institution,

since that was his desire.

The prisoner appeared to this defender to merit the diag-

nosis and recommendations of the commission. He was

guilt ridden, talked about hearing his deceased father’s

voice suggesting suicide to him, about being uninterested

in social contact or activities, admitted hating the voice

and figure of authority, ie., cops, guards, which the good

doctor diagnosed as an identification with his hatred of

his father. The doctor said he was not having a true hal-

lucination but relating his own thoughts through this

medium.

Since psychiatric questioning is a method of carefully

suggesting answers and attempting to elicit the prisoner’s

true behavior, the only way we can serve the defendant’s

wishes, is to be qualified in the same methods. I feel that

when the commission is not agreeable to the prisoner’s

desires for or against transfer, I would have been at a loss

to either intelligently cross-examine in order to demon-

strate more or less of the prisoner’s behavior or to argue

psychologic theory calculated to persuade the commission

with the prisoner’s desires.

MicHaeEL HiueGass

3, December 16, 1964

Lunacy Cominission Hearing: Michael C

On December 2, 1964, a lunacy commission was convened

to examine Michael C, an inmate at Holmesburg Prison,

serving a sentence for burglary, larceny, and receiving

stolen goods (1114 to 23 months.) C had 70 days time until

the expiration of the minimum sentence. The commission

was composed of Laurent B. Houle, M.D., Thomas B. Force,

M.D., and John B. Hannum, Esquire, and had been ap-

pointed by Judge Griffiths upon petition of the prison war-

den (the prison psychiatrist had made the recommendation.)

Prior to the hearing, I spoke with C. I informed him of

the nature of the hearing and the power of the commission.

I stated that he could confide any special concerns or feel-

ings in me. Speaking coherently, though nervously, he said

that he knew he needed some mental treatment; he had had

treatment in a Kentucky hospital for the use of drugs and

had found it helpful; he had rejected the suggestion of our

office at the time of trial in June 1964 that he be committed

to a mental institution in lieu of sentence and now thought

he had been unwise; he was concerned, however, that he

not be sent to Farview because he knew of two persons who

had returned from Farview with obvious welts and bruises

from beatings; he would accept a commitment beyond the

70 days remaining time for his minimum sentence at

Holmesburg. Questioned about his prison experience, he

stated that he preferred to be in “OBS” which he explained

was “observation” because it was quiet, and when he had

been returned to the cell block, [another prisoner] beat

him up; therefore, to escape the harassment on the cell

block, he slit his wrists for the sole purpose of being re-

turned to OBS.

50

The commission met at 6:15 p.m. at the prison. The prison

psychiatrist was not called (as in the case of Frank W),

the commission relying solely on written reports. Further-

more, the hearing—which lasted about a half hour—con-

sisted simply of a talk with the defendant. After members

of the commission had finished questioning the defendant, I

elicited the information he had confided to me because ]

felt it would help him. In particular, I had him tell the

commission of his fear of Farview and preference of By-

berry or Norristown hospitals. After the interview with C,

I simply stated to the commission that I felt it would be

inappropriate to find C had criminal tendencies (which

would result in his commitment to Farview.) Although

neither of the two doctors on the commission were psy-

chiatrists, I felt that any objection of a legal nature should

not be made in the presence of C and I made none.

The commission submitted its report to Judge Griffiths

(Form MH 46-3-63) containing the following:

1) finding that C ts in need of care in a mental in-

stitution for the following reason: “that he is in such

condition as to require observation, diagnosis and treat-

ment” (as opposed to finding him either mentally “ill”

or mentally “defective”) ; &

2) opinion that C is not of criminal tendency.

On December 7, 1964, Judge Griffiths approved the report

and signed an order committing C to Philadelphia State

Hospital at Byberry until further order of court or until

otherwise dischargeable under the provisions of section

348(b) of the Mental Health Act of 1951, as amended. This

office was given the statutory ten days to object.

51

4, January 14, 1965

Lunacy Commission Hearing: Thomas A. C

On January 14, 1965 at 8:30 AM at the County Prison,

Holmesburg, Pa. a lunacy commission was convened to ex-

amine and evaluate Thomas Augustus C. Present were the

following:

James P. Ramsey, M.D.

Paul Sloane, M.D.

Hardy Williams, Esq.

Eugene V. Alessandroni, II, Esq.

Defender Association of Phila.

Before the inmate was brought into the room, Dr. Sloane

read the reports prepared by the prison psychiatrist and the

prison warden. These reports stated the inmate’s prison

behavior. In essence they were as follows:

The inmate was a model prisoner for the first two

years of his incarceration. His trouble began approxi-

mately seven months ago. Since then he has been in and

out of the OBS and maximum supervision blocks. He

set fire to bedding, destroyed furniture, threatened the

Prison nurse and guards with violence, assaulted fel-

low inmates, slashed the outer portion of his arm, and

had a hypodermic needle and syringe in his possession.

He has been on medication and was on medication at

the tie of the Commission’s meeting. Parole was

denied in April 1965. This decision is to be recon-

sidered in 1965.

Inmate was then brought into the room. He appeared to be

calm and collected and gave no outward signs of insanity

or mental problems. He was introduced to all the Board

52

members and I explained the purpose of my being at

the meeting.

The members of the board then took over and asked the in-

mate many questions about his prior behavior. C answered

all the questions and was quite polite and well aware of

what was going on. .

He stated that he would have moods and that he was capable

of violence at these times. He does not want to hurt anyone

and does not want to be hurt himself. He stated that most

of his misbehavior was planned and that he did these acts

so that he would be transferred to a State Penitentiary. He

explained that he had applied for a transfer on at least two

prior occasions and that he had been turned down without a

reason being given. He feels that he would be happier in

the penitentiary. His knowledge of the penitentiary

has been gathered from talking with other inmates. He was

asked if he would want to go to a hos,ital and he said

that it might not be a bad idea because he would like to

find out why he has the moods which seem to cause some

of his problems. ~~

After the inmate left the room, we all discussed the case

and it was decided that this man should be sent to Norris-

town State Hospital and that on his release he could be

sent to the penitentiary if that was desirable in light of

any findings at Norristown.

KucEene V. ALESSANDRONI

5. January 15,1965

Lunacy Commission Hearing: Carmen S

This took place at Graterford in the presence of Lewis S.

Cali, Esquire and Drs. William A. Harvey and John B.

MeNally.

53

Dr. Harvey conducted most of the hearing. The defendant

presented a very pitiful appearance. He had been, since

the middle of November, in a state of mental stress con-

sisting of delusions and hallucinations. He had broken win-

dows in his cell, flooded it, torn sheets and blankets. He

inflicted superficial wounds on himself, has refused to eat,

speaks of hearing voices. Had taken some medication and

refused others and from time to time refused to eat, stating

that this was dictated to him by voices he heard. Dr.

Harvey and Mr. Cali had prior to the hearing intervie

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