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) |
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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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