Aaron Proctor v. David W. Harris

exists situation of a the needs lightly order here. Courts testamentary inchoate production of into matures never which instrument the exe- Subsequent destruction will. render intent to evidences draft cuted purposes for invalid, but will sought does copy is now efficacy. legal depend on its dependent rela- Moreover, the doctrine testamentary instru- of a revocation

tive attorney if the frustrated ment would attorney- use could for a testator shield to privilege claims as client prior Linkins v. wills.

vent access Episcopal Founda- Cathedral Protestant

tion, U.S.App.D.C. also 18 28 A.L.R.2d (1967 ed.). In what- D.C.Code § to hold capacity claims ever they sought, papers

the documents subject processes of the court. to the

are

Affirmed. PROCTOR, Appellant,

Aaron HARRIS, Appellee.

David W.

No. 20986. Appeals States Court

United District of Columbia Circuit.

Argued Oct. April

Decided George Cohen, Washington, Mr. H. D. (appointed court),

C. appel- lant. Rhyne, Jr., Washing- Mr. S. White court), ton, by independent psychiatric (appointed also examination and D. C. February 3, appearance appellant. on an for 1967 the District Court entered Legal Psychiatric ordered Service III, Treanor, Asst. A. Mr. James report examine Proctor and render a Atty., Messrs. David G. whom U. S. Bress, days. within 30 The Court’s also Order Q. Atty., Nebe- and Frank U. S. provided copy report was brief, Atty., ker, on the were Asst. U. S. Appellant. be sent to counsel for cordingly, Ac- appellee. for Goldberg, Dr. Donald a staff Service, for the examined Judge, and Chief Before Bazelon, Appellant reported opin- and Judges. that in his Burger, Circuit and Danaher* ion Proctor “continues to suffer from a mental tion, Schizophrenic disorder i. e. reac- Judge: BURGER, Circuit type chronic undifferentiated is confined Appellant and has been partial my feeling It remission. is also Hospital pursuant to a Elizabeths St. patient dangerous that the could be 301(d) D.C.Code § under 24 commitment himself and others if released from Saint guilty following (1967) of not a verdict Hospital Elizabeths at the time”. charges car- insanity by on reason of Thereafter, 1967, hearing in March dangerous weapon assault. rying on Appellant, was held the writ and Dr. petition for writ filed a Goldberg, Schwartz, and Dr. William alleging corpus2 he re had of habeas Elizabeths, staff at Saint dangerous, covered, and was not was Essentially, Appellant testified. testi- eligible requested in He an for release. fied that he was not satisfied with the dependent psychiatric examination con receiving treatment he was at St. Eliza- tending for that he had been confined beths, insane, that he was and that and had not re than nine months more he would anybody not want to hurt if he ceived examination. Goldberg were released. Dr. was then U.S.App.D.C. Watson called the Government and reiterated (1962); De Marcos v. 312 F.2d 878 opinion expressed report in his Overholser, U.S.App.D.C. F. Court. He also testified that he could Appellee’s (1943). response was 2d 698 affirmatively predict that Proctor Elizabeths’ staff was of that St. dangerous released, would be if he but opinion that Proctor had not recovered certify was unable to that Proctor would condition, from his “abnormal mental dangerous not be if released. Dr. schizophrenic reaction, undif chronic agreed Schwartz Goldberg’s with Dr. type” Appellee could ferentiated and that characterization Appellant’s mental certify not be that Proctor would being illness as substantially then in re- dangerous to himself others within mission, potential danger- but toas his released, the foreseeable future if ousness, he believed: “He seems have eligible short release. that he for was not passivity and extreme assaultiveness there much doesn’t seem in be- be Appellant’s court-appointed counsel tween, say so I it would would more be for thereafter his motion renewed * 301(g) (1967) provides: 2. 24 D.C.Code Judge § Cir- Senior Danaher became Circuit Nothing herein contained shall Judge January 23, 1969. cuit on person clude a confined under au- 301(d) provides: 1. Section thority of this section from establish- upon any person indict- If tried ing eligibility his for release under offense, or for an ment or information provisions of this section a writ of Dis- juvenile tried in the corpus. habeas offense, ac- trict of Columbia Harris, See Bolton v. ground was solely quitted that commission, its time insane at shall order the court mentally hospital confined in a ill. danger- wealth, experts employ im- medical likely Proctor would that Mr. him, used, partially to be if people”. examine other than most ous ” necessary, in his behalf.’ as witnesses concluded The District Court claiming there his burden to sustain Proctor failed had to effective assistance eligibility for release3 proving illusory by the court’s had been rendered Appellee’s fail- not shown had assigned failure “to make to available eligible release certify for him ure to may means as such financial According- capricious. arbitrary or was necessary develop to to enable him and discharged. ly, the writ was appropriate an Id. 188 defense.” against background we must this It is Recognizing person F.2d that at 155. a ap- argument on Appellant’s examine though means, “indigent,” of modest an peal4 that invol- in essence which is ability is also limited in to marshal seeking untary indigent patient release entourage attorneys, experts, an entire corpus habeas from St. Elizabeths investigators, and the First Circuit con- independent adequate does not receive disposed provide cluded it was psychiatric prosecuting his assistance every person auxiliary with these aids a petition has he the assistance unless long so as fundamental fairness “friendly” expert. that the He asserts achieved. present procedure provides for McGarty hypothetically en- The court non-partisan psychiatric independent, obligations in a case the state’s visioned supply Petition- examination fails to non-partisan where the and as- er and his counsel with the “ * * expert psychiatric arrived at the same set their efforts most critical expert professional conclusion as namely, psychiatrist of a assistance A from institution. the Government preparing appellant’s presenting and person financial re- with unlimited corpus proceeding.” case at the habeas perhaps find a sources could favorable assumption is that unarticulated psychiatrist, court does the therefore “shop since affluent can indigent duty provide the have de- a psychiatrist around” until he a finds who to continue to fendant with “shop” means hear, tells him he what wants and expert? for favorable guides lawyer then in how conduct First found constitutional de- Circuit no psychiatrists, cross-examination of other expenditures mand where provide Appellant the court must with already supplied independent state had expert the same kind service. McGarty, F.2d 188 examinations. ap This is not first time at 157. pellate had court has to consider this sort prob- court similar This encountered a McGarty O’Brien, of claim. In 188 States, Naples lem in App.D.C. 281, v. United 154, Cir., denied, 151, F.2d 1st cert. 341 (1962). 307 618 F.2d 928, 794, U.S. L.Ed. 71 S.Ct. There, the defendant wanted the Gov- (1951), the First faced Circuit was pay ernment cost of a a contention that an accused by him. no We found error selected had been convicted in of his violation ruling the trial court’s that he would process Fourteenth Amendment due rights “permit any defendant, Massachusetts courts at Government “ expense, had lowed, employ denied his motion that he ‘al expense choosing, at the of the Common- own which means Harris, supra justice, appel- 3. In Bolton v. note In the interest of specifically lant, indigent, and re-evaluated reaf- entitled to Court- appointed psychiatric firmed this allocation of the burden of assistance in proof corpus proceedings. paring presenting in habeas his case in the corpus proceeding. note 7 instant habeas infra. Brief for at 3. Appellant’s presents brief in this court points appeal: one of shop McGarty, a fa- defendant can around for at 155. witness, then have vorable Although Appellant’s brief disclaims pay it. I don’t Government advocate,” “psychiatric for a it desire good consider that administration really clear us envisions seems that he justice.” relationship petitioner between analogous existing psychiatrist as to that Id. at F.2d at 623. We see no petitioner court-appointed between reason resolution. deviate Indeed, although Judge Bazelon counsel. Baldi, Cf. rel. United States ex Smith v. seems to disclaim a desire to “psychiatric advocate,” 97 L.Ed. 549 U.S. S.Ct argues (1953); Crose, Ariz. State v. the “central tenet adversarial P.2d 136 process attempt is that each side Appellant’s posture, psychia- From no to ‘neutralize’ the of the other evidence really adequately trist can “assist” him description side.” This of the central agrees Appellant’s posi- unless he with purpose adversary process of the has Stripped verbiage tion. Appel- of its very application expert to the limited position lant’s that he is is entitled to a witness, is, medical who as we have psychiatrist sufficiently sympathetic so noted, bound to a neutral if he is to preparing assist he will counsel in discipline. the observe canons of own favorably claims, and, his case to his ac- theory Appellant Under the of—and cordingly, structuring in cross-examina- concurring opinion reports the obtained — hospital tion of the doctors so as to neu- the examinations conducted testimony. tralize their Neither sound “friendly expert” would be submitted administration, fairness, basic nor con- directly not, petitioner’s to counsel and require stitutional standards such a present as practice, is the to the court. course. If report helpful counsel found the to his The situation entirely would be dif- case would then be to call the free ferent if had been expert a denied as an on behalf of meaningful hearing petitioner, where he otherwise, could the “be if but call counsel, with opportu- have an grave that witness at all. We have doubt nity heard, to be be confronted physicians with wit- would relish the idea against him, nesses cross-examine, right lending have any role, to the themselves to de- meaning and to offer evidence of profes- both to them and their Specht Patterson, own.” v. 386 sion. U.S. 605, 610, 1209, 1212, 87 S.Ct. 18 L.Ed.2d attempting In further to the evaluate (1967). Appellant granted 326 a position by Appellant, taken are we well hearing. meaningful full and thinkWe holdings aware of rationale the of our McGarty that the in court’s observations relating psychiatric to assistance for in particularly appropriate voluntary indigent are here: patients contesting confinement. In De Marcos v. Over * * * designated to [doctor] holser, U.S.App.D.C. 131, 132, 78 F. make the examination [a [is] denied, 2d cert. though partisan] prosecution, (1943), S.Ct. 88 L.Ed. 472 we ob state, any paid fee is [his] served : assigned more than for the is counsel bring [T]he corpus habeas prosecution defense beholden to would be person indigent of little value to merely is, here, compen- because he as expert testimony unless given were by the sated state. Each is available to him opinion rebut purely job professional to do—counsel evidence of the staff of the institution represent the defendant to the best who believed he should be continued in ability, designated psychia- of his custody. impartially

trists to examine into and report upon mental condition of judge likely No careful is to assume the accused. responsibility allowing an al- arriving go in his medical free advocate at leged insane opinion, we see no for assum record but basis expert opinion sole ing court-designated expert one is dan- a course that such him advises * ** psychi community. needs surveillance of another gerous atrist essentially is thrust who into what would Therefore, con- where partisan v. role. See Lake hospital habeas seeks in mental fined Cameron, U.S.App.D.C. 264, F. important to corpus is it more 2d 657 de Such course would psychiatric with him very prive the resource give him inde- than examination Marcos, supra our decisions which in De (Emphasis pendent counsel. U.S.App. Watson opinion serve expert concern Our sought (1962), D.C. provide.5 expert opinion de- other a check on re- striving picts Court assist solving issues complex and elusive question whether inde kind, but of this proceedings sented pendent psychiatrist hospital staff process is holdings mean the do our “cooperate” ad, infinitum; not be go it should to forgotten depends one who confined pro- legislation the 1938 provides “coop on who the definition of viding of the Com- establishment for the erate”. We no have occasion to doubt Health, 21 D.C.Cooe Mental mission on that the will his utmost and ex do (1940), focus which was the § judgment ercise the best he is Marcos, was in De attention Court’s capable aiding By in the court. the same give to “part of movement a nationwide expect token canwe that will assist experts of unbiased courts the assistance by making relevant available by parties the to selected are not who information, medical and technical Marcos, at proceeding,” De id. by deemed him perti to be reliable and supra. McGarty, 700; at F.2d discipline nent cf. in his that the views so experts may of other Marcos, an be in cross- in of tested the case Before De techniques by indigent, examination. the Such them faced with the court was through having process selves unsatisfactory the the illumi prospect of of comprise upon nation in a psychiatrist the basis which aid institution staff of may to “cooperation” the court its rest. If petitioner confined as the was which achieved, is thus opinion only expert no more need of evidence. be asked. source psychiatrists But the fact the remains a that reasonable check on To afford physicians, advocates; are experts, not the of never views the institutional theless, they express sought expert who views which court to not arriving are in its accord with those the in at harbored would assist court patient the counsel, suggests confined Appellant there now determination. regard partisan is tendency a to the such an traverse the full circle and make we hearing expert adversary. as experts It in to a absurd contest which suggest psychiatrists seemingly expert partisan al- Government owes each legiance litigant. reject context; “uncooperative” are in this we to some We concept. readily judicial that over take notice can years the medical views dozen or more a previously, Appellant insists As noted psychiatrists, aas of these Government expert that his will (maj. adversary proceedings.” strictly Notwithstanding indications some dicta J.) opin. Bazelon, Corcoran, per contrary note 7 C. Thornton v. the in to (Jan. U.S.App.D.C.-, 407 F.2d infra. 3, 1969), in Lake v. proper 6. For court’s articulation this App.D.C. expert psychiatric at witness role the majority (1966), the both States, trial, Washington see v. United recognized opinions dissenting 390 F.2d involving “[proceedings care the mentally ill are the treatment right whole, generally out to more lant cannot claim turned to favorable testimony prosecu- “friendly” expert. from a than favorable to defendants guilty by reason of of not tors in verdicts uncertainty surrounding diag- observing insanity. do so In this we prognosis nosis of and for mental illness any acknowledge, and not sense patient is such that an affluent able challenge, independent their stance thorough may likely search finance professional people. expert testimony find an whose honest will be favorable to his cause. But de- totally support fails This record spite suspicion law any rele- Appellant denied idea that upon views distinctions based wealth legitimate as- or other information vant proceedings, yet it has not been government employed psy- sistance practicable found assure seeks aid chiatrists.7 If patient scope psychiatrist- same any capacity act shopping patient enjoys. the rich profession- other than as an indigent patient may perhaps claim al function is to aid whose some voice in choice inde- issues, prepared trier of the we are pendent expert qualified who is im- oblige him. partial; majority out, points as the Affirmed. cannot demand an who “agrees” with him. Judge (concur- BAZELON, Chief appellant’s request; But this is not the ring) : explicitly counsel in fact refuses to upon roost man may play straw erected roles A several majority. Mr. corpus proceeding Proctor claims a initiated in a habeas by not to testimony psy- favorable patient committed under 24 D.C. chiatrist, but 301(d) (1967). psy- to the assistance of The failure of Code § preparing chiatrist in distinguish among majority his case. these produces roles needless confusion con- psychiatrist plays A quite different cerning appellant in the of the claims testifying roles in providing and in as- proper case the of the this and resolution sistance off the pa- witness stand to a presented. issues seeking tient Testimony release. ring clear premise and true. First, obviously, psychia- But the and the of most our law is by that truth may petitioner, report is best trist examine insured the struggle. an adversarial so, concerning testify Because this is to the and his court majority the quite role, psychia- enters In the another conclusions. realm when it by slides from patient, ap- the trist pointed by the whether hired self-obvi- proposition ous by employed the the is not court or entitled to the testimony favorable Hospital im- of a Saint Elizabeths is oath quite partial. majority merely to the different The the con- states appel- that “neither obvious it the clusion sound administra- concludes that ously hospital confining held that must assist must make That institution acquiring in all the court the relevant its records available to the court and oth- patient’s condition, cooperate providing on the erwise in information information treatment, (Emphasis added.) patient about was made clear in our eie.64 supra supra opinion Harris, Lake note in Bolton v. note U.S.App.D.C. at 364 F.2d at F.2d at explained: at 661. The court made clear where we “[plroceedings involving and the care the traditional rule in habeas cor- But mentally pus proceedings petitioner treatment of the ill are not is that adversary strictly proceedings.” prove, by preponderance Ibid. must of evidence, rules as to who has is il- Thus technical that his detention bringing legal. the burden of relevant evi- We con- [Footnote omitted] rule should dence to the attention of court [sic] clude the traditional previ- apply. particularly apply, we have do since which can cross-examination effective contitutional nor tion, fairness basic opposing witnesses. appellant and “neutralize” may entitle standards” to assistance appointed counsel his indigent patient needs But if an structuring “in qualified psychiatrist may lawyer, more far to a entitled hospital doctors of the psychia cross-examination aof the assistance need also testimony.” their neutralize so as to This his case. preparation of in the trist difficulty out the pointed has often the adversarial central tenet The mys in the arcane lawyer untutored attempt process each side should is that may encounter when psychiatry teries other of the “neutralize” evidence iswho represent appointed explains the purpose alone That side. attorney is mentally If the disturbed.2 right cross-exami- to confrontation expert assist all sources off from cut suggests majority opinion The nation. may matters, patient ance these psy- hopsital impartiality right effectively denied ef- the need for all chiatrist but obviates his mental determination adversarial argu- This cross-examination. fective dangerousness. likely health might only if our concern ment be valid possibility of or bad faith. bias were is, however, to announce far easier It right serves But the to cross-examination indigent patient and principle that an testimony of needs. The direct broader psychi- attorney some are entitled to expert may be, impartial how- even an par- preparing for and assistance atric unintentionally, incomplete other- ever hearing than ticipating in an adversarial misleading unversed wise to fact-finder imple- map means to out workable psychiatry. multiplied in risk is right. pointed out This ment the Court attorney the fact that a Government duty Corcoran, swpra, the Thornton v. testimony. this direct It is un- elicits professional staff at Eliza- Saint necessary to accuse either the neutral Hospital cooperate beths attorney or the Government represent indigent patients. appointed to of bad faith order to conclude that psychia- more that a It seems even clear vigorous cross-examination is essential independ- trist to conduct the fullest and most balanced be available ent examination should also presentation to the fact-finder. by appointed counsel. for consultation appointment counsel, rendering while independent psychiatrist An in habe matter of constitutional must of course distin- such assistance appropriate corpus proceedings,1 2*is guish scrupulously role as between his * * necessary petition “where impartial reporting to the the clear presents issue of fact a triable testifying, role court and ability requires presentation of which psychiatric adviser on matters organize call wit or to factual data questions patient’s counsel. Delicate logical testimony in will, course, independ- nesses elicit arise. But an * * ex rel. seem, United fashion States could, ent it would Wilkins, 707, 715 281 F.2d Wissenfeld v. attorney advise an of the nature of (2d 1960). In addition to structur abnormalities, Cir. mental client’s case, ing petitioner’s affirmative degree surrounding uncertainty lawyer necessary is also to conduct diagnoses illness, of this sort.of U.S.App. 1. 122 ary 1969) ; See Brown v. 3, Henderson v. United 835, 297, 1, n. 380, 385, D.C. n. 353 F.2d 836 States, 298 123 360 U.S.App. Dorsey (1965); Gill, (1966) (concurring 1 v. 80 514, F.2d 518-19 9, 857, 877, 29, States, de opinion) ; 148 F.2d cert. D.C. nied, Rollerson v. United 1580, 890, L. U.S.App.D.C. 400, 406, 269, 89 65 S.Ct. F.2d (1945) ; (1964) ; Ed. 2003 but see Roach v. Ben 274-275 Jackson v. United 1968). (8th nett, 743, States, U.S.App.D.C. 341, 346, 392 F.2d Cir. U.S.App. Corcoran, 2. See Thornton v. (Janu- D.C. 407 F.2d AND POTOMAC CHESAPEAKE might help inquiry best lines of TELEPHONE COMPANY OF VIR- his client. al., Petitioners, et GINIA not dem- in this case does The record v. psychiatrist, appointed onstrate that FEDERAL COMMUNICATIONS COM- hospital doctors matter or for that and United States MISSION themselves, cooperate refused to America, Respondents, appellant. Corporation, Inc., Teleprompter National Consequently, not conclude I can Assn., Inc., Cable Television Storer of the sort has denial shown Broadcasting Company, City of New prepara- psychiatric in the assistance York, Cox-Cosmos, Inc., Intervenors. is entitled. tion of his to which he case Accordingly, in the result I concur NATIONAL ASSOCIATION OF REGU- majority. reached LATORY UTILITY COMMISSION- ERS, Petitioner,

v. FEDERAL COMMUNICATIONS COM- MISSION United States America, Respondents, Corporation, Teleprompter al., et Nation- Assn., Inc., al Cable Television Storer Broadcasting Company, Intervenors. GENERAL TELEPHONE OF COMPANY 22106,22112,22113,22116, Nos. 22143. al., Appellants, CALIFORNIA et Appeals United States Court of v. District of Columbia Circuit. FEDERAL COMMUNICATIONS COM MISSION, Appellee, Argued Feb. 1969. Broadcasting Company, April Storer Tele Decided prompter Corporation, Cable National 27, 1969. Certiorari Denied Oct. Assn., Inc., Television United States of See 90 S.Ct. America, Intervenors. UNITED TELE INTER-MOUNTAIN al., PHONE COMPANY et Appellants,

FEDERAL COMMUNICATIONS COM MISSION, Appellee, Broadcasting Company, Tele

Storer prompter Corporation, al., Sterling et Services, Ltd., Information National Assn., Inc., Cable Television United America, States of Intervenors.

UNITED TELEPHONE COMPANY OF al., Appellants, OHIO et

FEDERAL COM COMMUNICATIONS MISSION, Appellee, Broadcasting Company,

Storer Warrens burg Cable, Inc., Teleprompter Corpo ration, al., Sterling et Serv Information

ices, Ltd., National Cable Television

Assn., Inc., America, United States

Intervenors.

Case Details

Case Name: Aaron Proctor v. David W. Harris

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Apr 29, 1969

Citation: 413 F.2d 383

Docket Number: 20986_1

Court Abbreviation: D.C. Cir.