David Hollis v. Harold J. Smith, Superintendent, Attica Correctional Facility, Respondent

MOORE, Before FRIENDLY and TIM- BERS, Judges. Circuit FRIENDLY, Circuit Judge: This well argued briefed well habeas appeal questions raises some difficult of the procedures of the constitutionality accorded petitioner David Hollis with respect to his indeterminate sentence of one life statute, under a New York former New York Penal repealed, Law now § permitted such sentence for sex offend- ers.

Hollis was indicted in County, Nassau N.Y., August, 1964 in a three-count in- dictment charging attempted rape degree first and two counts of assault degree including second assault with intent rape.1 to commit During trial September, Hollis, in satisfaction of indictment, pleaded guilty to one count of assault degree in the second with intent to commit At rape.2 that time 243 of the New York Law provided: Penal liability pun- three counts all related same act. informed of his to further law, ishment under the New York recidivist plea decidedly inadequate 2. The 335-b then minutes seem Code of Criminal Proce- or, dure, prevailing explain possible standards now we should life sen- suppose, Although charge even plea in 1965. the court tence entailed under a Colorado statute that carried a punish- degree in the second Assault years. or A penitentiary separate maximum sentence of imprisonment able exceeding statute, Act, five provided Offenders for a term Sex prison state than one not more a fine of if the trial court was “of the years, both; how- dollars, provided, person . . thousand [convicted of assault ever, convicted any person offenses], if specified large, sex at consti- assault for an degree second tutes a threat bodily of harm to members of felony intent to commit another public, or is an habitual offender and in the degree, rape the first rape in ill,” mentally might receive an indeter- degree, in the first sodomy degree, second day minate sentence of from one to life. or carnal degree in the second sodomy New York Law Like the Sex Offenders imprisonment punished by may be abuse an statute examination Colorado term, the minimum an indeterminate for by psychiatrists report judge and a the maxi- day and be one which shall but, said, “there Douglas as Mr. Justice of his be the duration of which shall mum sense, right no no hearing normal L.1950, c. As amended life. natural and so on.” On review of a confrontation 1950. April eff. § corpus, of federal habeas the Colora- denial specified: 2189-a holding Section on the in Williams do warden relied punish- York, of a crime convicted v. New 69 S.Ct. person No U.S. the court with in the discretion process

able L.Ed. 1337 due term, indeterminate for an imprisonment the Fourteenth Amendment “did clause of day and a minimum of one having a judge hearings a to have and to require life, natural shall of his maximum give person opportunity a convicted an examination until sentenced when he participate hearings in those came com- of him and a have been made shall imposed”— to determine the sentence to be have thereof shall written plete in that instance a sentence of death as exam- the court. submitted to Such been of life im- against jury’s recommendation pre- in the manner shall be made ination prisonment. 87 S.Ct. at fifty-nine, by sections six hundred scribed Williams but 1211. The Court adhered to sixty-one sixty, six hundred six hundred extend it to the invitation to “decline[d] sixty-two-e of the code and six hundred It radically different situation.” report shall procedure. Such of criminal Offenders stressed that the Colorado Sex findings necessary include all facts Act not make the commission of “does A imposing sentence. the court assist sentencing,” for specified crime the basis transmitted copy thereof shall be did, literally New Penal Law 243 of York super- of the court to the warden clerk “the rather made one conviction basis but of the correctional institution intendent proceeding under commencing another is committed. Add- prisoner which the a person another Act to determine whether 23; L.1950, L.1951, amended c. ed bodily a threat of harm to the constitutes July c. eff. and men- public, or is an habitual offender reports rendered approval tally quoting ill.” After December are not before us. On that time from the Freedman 8, 1965, received an indeterminate Maroney, ex rel. Gerchman United States appeal No day of one to life. sentence 1966), dealing with 312 Cir. taken. statute, Pennsylvania comparable hereafter, character- the Court Supreme Court decided which more In 1967 the Sex Offend- Patterson, of the Colorado 87 S.Ct. ized invocation Specht v. charge new making of a as “the L.Ed.2d 326. ers Act and cited liberties, leading punishment” to criminal taking indecent convicted for consequences rape. not understand he did with intent to commit assault petitioner plea. ground sought on the has not release holding recidivist statutes New York cases statutory scheme might lend receive reasonable notice “must a defendant support to the argument advanced heard,” Oyler to be opportunity accepted Appellate Divi- 448, 452, 501, 504, Boles, sion that the sentencing court ‘complete Fretag, Chandler discretion’ to life,” sentence for one 99 L.Ed. It the court concluded that examination “[a]n concluded, 386 U.S. at statutory purpose as well as the under the Colorado Sex Offenders Act weight of judicial authority indicate that required that the defendant due the discretion of the sentencing Judge to counsel, present with have an must “be mete one-day-to-life out a sentence is limit- heard, opportunity to be be confronted with ed to those cases in which the record indi- him, have the witnesses cates some basis for a finding that cross-examine, and to offer evidence of his defendant is a to society or is capa- there must findings adequate own. And be ble of being by benefited the confinement meaningful any appeal to make that is al- envisaged under the statutory scheme.”3 lowed.” The need for such an finding, additional the indicated, Specht express- As did not deal said, “clearly brings this case within ly a sex offender indeterminate sen- the Specht ambit of the holding and entitles which, tencing provision like New York’s at those sentenced under the statute to a hear- time, require proof did not the of a new ing.” The court therefore remanded all simply enlarged fact but on its face the three resentencing.4 cases for court’s sentencing any discretion without Shortly Bailey decision, after the the standards whatever. Had matters rested Nassau County Court directed a new psy- way, arguable that it would have been that chiatric examination of Hollis prelimi- as a the procedural protection even items of ac- nary hearing. The two exam- to Specht, corded much less the additional ining psychiatrists apparently did not them- Hollis, sought by ones were not here re- court; report selves to the a report, alleged- quired, since the case would have continued ly based on findings, by their was made the However, be attracted Williams. that chairman the psychiatry department only issue is of light academic interest in Hospital.5 hearing Meadowbrook Later a developments later in New York law. was held at which Hollis represented People Bailey, In 21 N.Y.2d by counsel. At the start hearing, N.Y.S.2d N.E.2d a case trial; jury counsel demanded a judge the repeal decided after of the New York sen- psychiatrists denied this. who had ex- tencing provision question, here in the amined Hollis were called People the Court of Appeals had appeals before it from were cross-examined. Hollis also testified. indeterminate sentences three of- sex judge thereafter handed down an opin- fenders who complained both of lack of the ion in which he found procedure required by Specht and of inade- quacy of psychiatric capable the the defendant is not reports being 2189-a of the New society; York Penal Law. returned to that he definitely Acknowledging that reading literal present danger society, would if re- “[a] 3. particularly People The court mandatory relied directed these two cases made it Jackson, change A.D.2d 245 N.Y.S.2d 534 the sentence to a fixed term or (1963). People Kaganovitch It also cited ex rel. People opportuni- whether the were to have an Wilkins, 23 A.D.2d 259 N.Y.S.2d 462 ty psychiatric reports. to submit new (1965); People Vallee, ex rel. Piatt v. La A.D.2d 274 N.Y.S.2d 475 and Peo- respects report goes beyond 5. some the ple Chunley Mancusi, ex rel. 26 A.D.2d testimony given by later 274 N.Y.S.2d 477 hearing. was not of- hearing nothing fered at and there is In two of the three cases the court found any judge gave weight indicate that to it. psychiatric report inadequate. It is not alto- gether clear resentencing whether the that was time, petitioner’s a con- As to and that claim proc- leased at this that due environment, possibility there is a requires trolled ess further applicable treat- be benefited that he proof standard be “beyond a reasonable will afforded. which he doubt”, (then Mr. Justice Judge) Paul Kelly has filed an affidavit herein where- sentenced Hollis to the court Thereafter in he applied states that he the beyond a to life. term of one indeterminate doubt petitioner’s reasonable standard at Division appealed Appellate re-sentencing hearing. petitioner’s While Department. argued He Second attorney vigorously questions this sworn conform psychiatric report statement of Mr. Kelly Justice in an un- of 2189-a and requirements signed and unverified memorandum filed Bailey, and also that he had been supra, thereto, opposition he has not served or rights in three re- denied his constitutional filed affidavit or other evidence (1) that the court had refused to spects: directly indirectly refutes the trial; (2) procedures “that grant a same. examination prescribed for the Assuming arguendo petitioner self-incrimina- privilege violated correct in his contention that the applica- attorney well as his to have an tion as ble is “beyond standard a reasonable every stage of the during each and present doubt”, appear there would to have been (3) “that proceeding”; no error committed at least at the State capable benefiting being of his extent, all, Court trial level. To the if at or of his confinement Appellate the State Courts beyond a society should have been shown have applied appeal such standard on merely by pre- and not reasonable doubt evaluating the the Appel- sufficiency the The of of evidence.” ponderance affirmed, 786, 311 to meet Judge Kelly, 34 A.D.2d such standard as did late Division (1969), in a brief memoran- petitioner’s application appropriate 968 for an N.Y.S.2d dum, saying merely: appear properly writ would to be more addressed to the Courts than to this State

Defendant’s main contention is that Court. 83 Harvard Law Review See upon by relied the re- (lines 7-10). 1096 sentencing court was “insufficient as a law” permit imposition matter of portion A motion for reconsideration of this life the one sentence. record the opinion granted was but the district at the developed hearing, including original court adhered to its decision. psychiatric report, provided a sufficient order, for a certifi- the same Hollis’ motion which the basis court could exercise probable cate of cause was denied. This (cf. McCraw, its discretion granted court the certificate. 299). A.D.2d It is our N.Y.S.2d view that imposed prop- the sentence was Discussion light er in the of that record. We have that consideration of argues also considered defendant’s other conten- petitioner’s process three due claims is fore- tions find them to be without merit. they go beyond specific closed because appeal Appeals Leave to to the Court of rights list of constitutional to which was denied. Supreme Specht Court in held a defendant entitled, petition concededly Hollis thereafter filed a for habe- to be all of which Hollis corpus in the District Court for the East- granted. petitioner Counsel for an- Judge ern District of New York. Platt from negative swers that such a inference opinion. portion this in an In the two rea- Specht denied would be unwarranted for which dealt with the claim that due Specht sons: The first is that when proof of his process required Supreme condition be- decided in Court had not doubt, opinion yet yond process a reasonable includ- determined that the due clause a state to following: ed the accord a trial crimes, Specht that, serious see Duncan author of thought de- prosecutions Louisiana, 20 pending on the subsequent course of Su- adduce in a (1968), and to preme decisions, persons L.Ed.2d Specht like would demonstrate the trial might jury trial, be entitled to a he would beyond a guilt reasonable defendant’s least have possibility. mentioned the doubt, Winship, 397 U.S. 90 S.Ct. In re purposes for the opinion, of this (1970). The second is 25 L.Ed.2d prefer we to accept Hollis’ contention and had not claimed Specht arguendo Specht assume does not rights controversy here in constitutional have preclusive effect claimed consequently cannot be as the Court At State. the same we reject any time passed adversely on the ex to have sumed claim that approving quotation, the Court’s rights that had not been asserted. istence 609-10, U.S. 1212 of a passage quite opinion Freedman’s may not so clear as The situation containing the phrase The same Court that de- “the full panoply claims. petitioner frequently indulged “guide- protections relevant Specht which due cided beyond the going guarantees well issues opinions line” state criminal proceedings” See, g., e. Townsend v. to it. presented which, decides Hollis’ favor issues on his Sain, submission, U.S. own were not before the Su- States, (1963); v. United Sanders preme Court at all. (1963); 10 L.Ed.2d 148 83 S.Ct. (1) Hollis’ claims that his examina Arizona, particularly Miranda tion rights violated his 444-45, against self-incrimination and to the assist Moreover, Court’s ance of counsel are without merit. The opinion of the Third examination of the self-incrimination privilege protects only ex rel. in United States Gerchman Circuit compulsion incriminating tes 302, must have Maroney, supra, 355 F.2d declarations, timonial Fisher v. United potential aware constitu- acutely made it States, specifi- beyond claims those which tional Beattie, L.Ed.2d 39 United States v. cally sustained. In the lead 267, (2 1975), 269-70 Cir. cert. Gerchman, holding after that the defend- petition granted denied on Beattie’s and on rights by “constitutional were violated ant’s petition, 967, 970, Government’s 425 U.S. 96 opportunity the failure to afford him the to 2163, (1976), 48 791 opin see S.Ct. confront and cross-examine the witnesses remand, Beattie, on United v. ion States 541 him,” against 355 at Judge F.2d Freed- (2 1976). As F.2d 329 Cir. Mr. Justice man went on to consider claim Gerchman’s Fisher, White said in 425 U.S. at 96 “that due by was violated the denial “applied at the Court has never S.Ct. to trial jury.” Id. He prevent to the Fifth Amendment the other this, refrained deciding believing proper acquisition or use of wise the issue should first be considered which, view, did not Court’s involve Pennsylvania courts in the new trial compelled testimonial self-incrimination of required any would be event if Pennsyl- requirement some sort.”6 The is two-fold: vania persist should in invoking its Sex compulsion testimony, must be of Offender Law Gerchman. His two tendency testimony must have colleagues would have decided the trial guilt. psychiatrists’ interrogation issue in the show negative, apparently on what subjects presenting turned out to be a mistaken of Hollis on no threat of view that crimes, Fourteenth Amendment require prosecutable disclosure of in the be jury trial in state criminal proceedings, 335 lief responses substance of Hollis’ F.2d at 315-16. It is arguable thus might that if he them way gave or the in which 6. The incriminating.” Court said also “that the Fifth Amend- tion that is 425 U.S. at 96 * * * applies only (emphasis original). when the accused S.Ct. 1579 compelled to make a testimonial communica- 691 was, Albright, supra, 388 F.2d at 723. man he what manner light on cast Baird, supra, self-in said for this court in Anderson “compelled testimonial no involved consequence compelled 414 F.2d at statements though the even crimination” relevant punishment. psychiatrist defendant’s severe might be more typical “may interrogation is mental condition be considered as fact that mere evalua evidence’ rather than as conducting psychiatric physical ‘real method ‘testimony’ differentiate within the significantly ‘communications’ does tions California,” where Su supra, instances v. meaning from other of Schmerber case a defendant 763-64, held that 384 86 S.Ct. 1826. The preme U.S. respect even with cooperate required to is a fortiori present insanity case blood g., by giving e. guilt, the issue since Hollis was not interro- defense cases California, 384 U.S. samples, subjects Schmerber gated relating guilt; on he L.Ed.2d 908 16 already stood convicted of the crime here at exemplars, Gil handwriting or voice only and the other substantial crime issue 265-67, California, 388 U.S. bert questioned which he was was a Mas- about United 18 L.Ed.2d S.Ct. long sachusetts sex offense on he had 218, 222-23, Wade, U.S. States since sentence. We do not un- served his (1967); United to assert that a defend- derstand Dionisio, States subject psychiatric was the of a ant who donning a blouse (1972), or L.Ed.2d 67 examination under 2189-a could have crime, Holt perpetrator worn tending to disclose evidence States, v. United to show himself of other crimes still Fisher, supra, (1910); see L.Ed. prosecution. appear- Hollis’ open to Since federal 1569. Lower ing psychiatrists answering before the that inter have held courts and state courts questions their thus was neither testimonial determining sanity directed rogation incriminating, we do not need to con- nor privi the self-incrimination violate does not doing objec- whether his this without sider inquiry where the in cases even lege, operated any privilege as a waiver of tion plead insanity an defense before made have might had. 2265 at 399 ed, Evidence Wigmore, see passing upon question of en (McNaughton rev. fn. 12 cited in and cases at a titlement counsel exami cases While the supp.). nation, courts have had to decide whether result after defendant reaching the same governed by the issue is one or the other of on the rely intention to has indicated Supreme two cases decided Court on and to call insanity defense opinions by the same the same Jus States, behalf, Pope v. United see his own tice, Wade, United States 1967) (en banc, 717-21 Cir. F.2d 223-27, 1926, 87 S.Ct. 18 L.Ed.2d 1149 denied, 949, 91 Blackmun, J.), 401 U.S. cert. (1967) (counsel post-ar provided must be (1971); 953, Alexander L.Ed.2d 232 28 S.Ct. raignment post-indictment lineups), or States, (8 1967); F.2d 33 Cir. 380 v. United California, v. 388 87 Gilbert 719, Albright, 388 F.2d v. States United 1951, (1967) (counsel 18 L.Ed.2d 1178 1968); and our own United (4 722-23 Cir. post-arraignment provided need not be 700, (1969), Baird, F.2d v. States taking handwriting post-indictment 559, denied, 90 S.Ct. 396 U.S. cert. Illinois, Moore v. exemplars). generally See part on no (1970), depend - U.S. -, 458, 54 L.Ed.2d 424 98 S.Ct. they rely on estoppel, also of waiver or tions (1977). We addressed that issue Baird prove “to an effort between the distinction government psychiatric connection with a a defendant wrested from by evidence insanity incident to the de examination charged” and evi guilty as whether he control, fense and held that Wade prove whether only “to intended dence Anderson there mentality 414 F.2d at requisite possesses the defendant examination was psychiatric that a v. stated charged,” United States guilty as to be pro n.14, critical in the stage “the kind of 88 S.Ct. 1448. Jury trial rather was at which the assistance of counsel ceedings required because it was “fundamental at which counsel could make was needed or the context processes of the criminal main- pres Instead “the a useful contribution.” tained the American States.” Id. This party, such as counsel or a ence of a third supported conclusion was by extensive ref- at such an examination stenographer, tends erences to history. The Court cited Black- destroy the effectiveness of the inter statement, stone’s 4 Commentaries on the have taken the view.” Other courts same England Law of (Cooley 1899), ed. v. Albright, supra, view. United States “the English have, founders of the law with 726-27; ex F.2d at United States rel. Wax forecast, excellent contrived that Pate, (7 Cir.), denied, cert. 409 F.2d the truth every accusation, whether pre- 830, 24 L.Ed.2d 81 396 U.S. ferred in shape indictment, informa- Whitlaw, 45 N.J. State 210 tion, appeal, should afterwards be con- A.2d We see no basis for a firmed the unanimous sufferage of where the different rule exami equals twelve of his and neighbors, indiffer- to the of punish nation is incident extent ently chosen and superior to all suspicion.” Judge Haynsworth As Chief ment. said in The proceeded engage in a review Maryland, Tippett State F.2d of the history on this side Atlantic, of the dismissed, (4 1971), cert. 1158 Cir. 407 U.S. culminating statement, (1972), 32 L.Ed.2d 791 88 S.Ct. 1450 that: Maryland dealing with the Defective Delin The laws every guarantee Act, quents jury trial in serious criminal imagine anything It is difficult more cases; no dispensed it; State has psychiatrist, stultifying dependent nor are there significant movements un- cooperation pa- as he is of his derway to do so. tient, presence lawyer than the of a ob- For these and other reasons process the due jecting psychiatrist’s questions clause of the Fourteenth Amendment was advising his client not to answer read as making applicable to the states question and that. criminal jury trial command of the Sixth. Gaughan, also Gomes v. 471 F.2d See 1973) (sex statute). Cir. offender Despite the Court’s statement Specht, 386 U.S. at 87 S.Ct. at that invo- reject (2) We likewise Hollis’ claim cation of the Colorado Sex Offenders Act the due clause of the Four making “means the of a new charge leading Amendment, teenth as construed in Duncan punishment” and its approving Louisiana, quotation, requires that he a similar statement by the Third Circuit given jury post-conviction be trial in the concerning Pennsylvania statute at is- procedures v. Bailey, supra, Gerchman, sue in supra, comply directed in order to reading its proceedings under 2319-a directed in Specht.7 Duncan Peo- states to ple Bailey many contain guilt afford a trial on the issue of earmarks “in of sentencing procedures. all criminal they cases which —were defendant has already tried in a federal been found court —would come within of the crime guarantee.” incarceration; which prompted Sixth Amendment’s the sole decision predicated remaining question was not on a view that is the concededly impor- jury the equita was essential to a fair and tant one of the degree of punishment. ble process position Indeed, which us, the evidently seems to as it did to —a disclaimed, expressly Court 391 U.S. at 149- the New York Appeals Court of in Bailey, argued jury 7. Hollis has not that refusal of a Hayden Law 31.35. See United States ex rel. protection Zelker, equal trial was a denial of 1974). because Cir. jury New Humphrey Cady, York affords a trial in civil commit- See also ill, mentally Hygiene ment of the N.Y. Mental 31 L.Ed.2d 394 sepa- wholly the We are that even Specht in on unconvinced if emphasis the Act Sex Offenders the Colorado of Specht rateness the Court had the benefit of the what to effort avoid mainly an decision, later Duncan have re it would Williams overreading of an have been quired jury Colorado to a trial under afford 241, 69 S.Ct. York, supra, U.S. New its Act. Sex Offenders One reason is the the due to mean that L.Ed. history difference in and tradition recount to mere application had no clause process above; importance ed the of this was un dis- basis of less formalistic A sentencing. Pennsylvania, derscored in McKeiver v. where a have been would tinction 29 L.Ed.2d 647 a fact not requires proof of higher sentence (1971), where, particularly to due such a trial, than rather the criminal established history, Supreme difference in the of the de- assessment overall judge’s the there was no jury held trial at subject to certain sentencing is fendant, the juvenile delinquency proceedings despite respect to its guarantees process due regard thus Gault, fact. We critical holding of the in In re both proceeding post-trial the the due effect, sentenc- in their real being, here as applies proceedings. clause to such ing. consists of A second the considerations jury’s respect to the tradition quoted Report. Task Force A different sentencing quite has been role in jury’s is the difference third office. the determi- relating to its role in from that validity There still is in the distinction Commis- The President’s guilt. nation of Williams, drawn Mr. Justice Black in and Administra- Enforcement sion Law on 246-47, S.Ct. at between (1967) reported p. 1350: tion of Justice determining the trial’s role of “whether a permit majority Although States having engaged defendant is punishment recommend or fix jury to certain criminal conduct which he has cases, in capital imprisonment at life accused,” specifically using been “rules of jury one-quarter the States about . . narrowly evidence confine length punish- type determines strictly the trial contest to that is jury’s or all offenses. The some ment for particular charged,” relevant offense in most of these States sentencing power determining and the task of whether a de it has deter- cases in which is to limited danger society is a to will bene defendant, fendant or in a but guilt mined sentencing is available jury fit from institutional treatment. We need few States pleads who defendant option whether, judge not determine as a district jury is re- and in Tennessee the guilty, held, recently in this circuit has United in all cases. fix the sentence quired to Fatico, (E.D. F.Supp. States by jury, is imposed the sentence Where N.Y., 1977) (Weinstein, J.), Williams to usually role is confined judge’s qualified Supreme other Court de sentence legal but excessive modifying precise even point cisions there de conforming illegal sentence toor authority binding upon cided. There is no statutory limits. pro procedure us which holds practice to did not consider the Report ceedings relating solely even punishment, are of its reasons Several be desirable. when an additional fact has to be estab job is a “Sentencing here. pertinent lished, to those in precisely must conform opportu- juries do not have the experts, proceedings relating guilt, and we see no extremely nity develop expertise in Although principle holding. basis in for so sentencing nor- And area.” since complex jury agree with the that a we cannot taking time proceed without mally cannot whether inherently incompetent to decide is regard the defend- data in to assemble society defendant is a “the ant, jury would have to be reassembled “the benefited the confine capable a new prepared after statutory envisaged impaneled.” have to be would by Bailey8 judge issues framed scheme” —the had used 1969, in p. see 689 supra, —a special not have the fitness jury does for as well as with the Bailey simple court’s predictive a making such determination command that there must be “some basis evidence that cover a defendant’s for a finding ,” . . 289 N.Y.S.2d at that it does for deciding entire life 946, 237 N.E.2d at 207 (emphasis added), past the facts of discrete respect to conduct. which position was the by taken the District Attorney for that, Nassau (3) point County is in People Hollis’ final under In re McCraw, 358, 577, Winship, 397 A.D.2d 305 N.Y.S.2d 299 (1970), (1969), aff’d, due 27 N.Y.2d 313 N.Y.S.2d (1970), that he not be sentenced under by § unless the Appellate Division Bailey the issues framed were found both in McCraw (“a and in this case suffi- beyond him a reasonable doubt. cient basis which the court could exer- cise discretion”). its We shall therefore dis- Preliminarily reject we the State’s regard the state judge’s affidavit. point contention that this disposed been by judge the affidavit state who The letter of In re Winship does not hearing. the 1969 conducted While the dis cover Hollis’ case. The spoke Court of “the judge’s get trict desire to to the root of the requirement that guilt of a criminal charge commendable, procedure matter was be by established proof beyond a reasonable doing this was adopted for not. If inquiry doubt,” 397 U.S. at 90 S.Ct. at was to made in 1977 with respect be and followed by quotation this phrasing judge’s processes state mental the requirement “as the persua measure of in open should have been done court with by sion prosecution which the must con having right of cross-examina vince the trier of all the essential elements tion, by an affidavit solicited id., guilt,” McCormick, quoting Evidence judge’s request. at the district More 321, pp. (1954). 681-682 § Later it spoke of over, judge while state said he “unhesi prime standard as “a instrument for tatingly that the standard proof state[d] reducing the risk of resting convictions required by me in the conduct on of this Hear error,” factual ‘Beyond U.S. at ing was on basis of 90 S.Ct. at reasona ” 1072, of it doubt,’ because, ble this was critical “that light of his the moral force of the criminal experience county judge as a law not handling noth diluted ing but criminal matters and as an standard of attorney leaves men in doubt law, who whether specialized “it innocent men are being con demned,” beyond would have my comprehension 397 U.S. at 90 S.Ct. at to have it decided other and of the importance basis.” “in our free society Although we are certain the affidavit every going individual about his ordi given faith, in the best of nary contrasts rath affairs have confidence that his strangely er with some of the language the government adjudge cannot him guilty of a provided jury 8. Several states have point trial of Court for the the defendant issues, Ill.Stat.Ann., such ch. § 105-5 must receive opportu- reasonable notice and an (1972); (1971); nity Ore.Rev.Stat. 426.630 Iowa § State, to be heard. In Quesnell (1969); Code Ann. 225A.9 Missouri Stat.Ann. § (1974), Wash.2d P.2d 568 (1972). not, 202.720 § Others have Florida Feagley, Cal.Rptr. 509, 14 Cal.3d Stat.Ann. 917.18 N.H.Rev.Stat.Ann. (1975), supreme 535 P.2d 373 state courts held (1975). § 173-A:4 right by jury guaranteed to trial proceedings. Many former, sex jury offender disputed In the states afford a trial how- ever, only See, ground federal equal factual issues under recidivist statutes. cited was e. protection, g., 667.5(d) (1977); and in Calif.Pen.Code the latter the N.J.Stat. court relied on guarantee jury Ann. § 2A:85-13 This was the case trial in mental illness cases Virginia with the Tennessee found in and West statutes the state constitution and statutes. Farrell, Fretag, examined F.Supp. Chandler v. Doremus (D.Neb. (1954), 1975), 99 L.Ed. 4 it was held that trial Oyler Boles, pro- did not extend to civil commitment L.Ed.2d 446 ceedings. which were cited

695 prop judges juries.10 a or convincing As Sobeloff without said criminal offense in Tippett Maryland, supra, cer v. of utmost 436 guilt with of er factfinder 1165, Maryland respect Part I F.2d at holding the of Finally, tainty.” Id. Delinquents Defective Act: being as “that the stated the opinion accused protects however, the recognized, Due Process Clause It must be as except proof be the inmate’s dan- against conviction to the ultimate issue of nec every fact the a gerousness, beyond a doubt reasonable yond reasonable may operation with which practical the crime doubt standard in essary constitute all, added). light In the (emphasis be too onerous. After ultimate charged.” Id. discussion, p. issue as in a case this, our earlier is not criminal whether all and of act was alleged the committed or event believe that we do not occurred, subjective but the much more Of to the Colorado Sex Court’s reference mental and issue of the individual’s emo- charge new “making of a Act as the fenders subjective judg- tional character. Such necessarily leading punishment” to criminal attain the ordinarily ment cannot same Winship. in later decision implicates the certitude” “state of demanded criminal readily arguments reject not so We would cases. beyond the a reasonable extending the issues framed doubt standard hand, convinced, the other we are as On concerning other ones Bailey similar or suggested id. Tippett, & Judge Sobeloff the are questions where types of statutes even if beyond n. reasonable for his the prospects and person’s character the kind standard does not fit doubt did conduct, Circuit Seventh future the “some required, determination here ba- Sexually Dan the Illinois respect of Bailey sis” standard is insufficient. The ex Act9 United States gerous Persons its case State was bound make out 931 Coughlin, rel. Stachulak society “a Hollis was [was] 947, 96 (1975), denied, 424 cert. capable of benefited confine- require (1976). 354 To envisaged statutory 47 L.Ed.2d under beyond “clear, a reasonable elements scheme” and con- proof unequivocal, of such INS, application prevent vincing Woodby either evidence.” Cf. 385 doubt would most extreme except 17 362 of such statutes (1966) part (deportation). Nothing on the less would hypocrisy cases invite subjected psychopath grounds, a sexual cated on other 94 9. This statute 414 U.S. any who not been convicted of crime 38 L.Ed.2d 661 Still other courts custody the Director of commitment approved have in civil standards commitment prove no until he could he was Corrections stringent beyond a cases less than reasonable longer sexually dangerous. re Judicial Blackburn, F.Supp. In French v. doubt. 428 proper garding under standard (M.D.N.C.1977), Farrell, 1351 Doremus v. and greatly has been divided. similar statutes (D.Neb. F.Supp. 1975), 509 407 district courts last held that Three courts of resort have state beyond doubt held reasonable standard beyond must a reasonable doubt standard required, “clear, approving cogent not to be proceedings, employed Peo sex offender be convincing” convincing” “clear and Burnick, Cal.Rptr. ple v. 14 Cal.3d Leonhardt, standards. Stamus Andrews, (1975); N.E.2d In re 535 P.2d 352 (S.D.Iowa F.Supp. 1976), a similar stan Pembrock, (Mass.1974); People Ill.2d required, finding preponder dard was the court (1976), although the Illinois 342 N.E.2d 28 ance alone to be insufficient. case, Stachulak, supra, follows distinguished statute since the Illinois proceedings 10. Since the at issue did here proceeding of crim was in lieu sex offender crime, no involve element of a there is need prosecution con inal and therefore no criminal Supreme for us to consider Court’s how first. Other have held viction occurred courts Wilbur, Mullaney holdings in beyond a reasonable doubt to be standard (1975), and cases, 44 L.Ed.2d 508 although required in civil commitment York, these, too, prior adjudica Patterson v. New no involve Ballay, U.S.App.D.C. to be are recon- tion. In re See Czametzky, Quisenberry, F.2d Suzuki v. See Farrell v. 482 F.2d 648 ciled. (D.Hawaii 1976); Cir., 1977). F.Supp. Lessard v. (E.D.Wis.1972), Schmidt, F.Supp. va- man, accord due otherwise sen- beyond questioning him examining tenceable for a maximum five years, who probation report, which was ultimately ex- instead was sentenced to an indeter- cluded from except evidence insofar as it one period day minate to life. The rec- found its way psychiatrists’ into the testi- ord produced shows at mony; they also did not prison examine his hearing Hollis’ did not meet test. record. About all testimony their up adds to is that Hollis had committed two sex judge’s The state decision itself offenses, separated by an interval of ten demonstrates “clear, absence of un years; that he was likely less to commit sex equivocal and convincing evidence” that offenses of a heterosexual character if he benefited”, “capable Hollis was of being were kept away from females than if he confinement. He found only “that in a not; were and that there was a possibility environment, continued controlled there is a that he might benefit from treatment of an possibility that he benefited undescribed sort. Even without consider- treatment which he will be afforded.” ing Hollis’ own testimony that he had be- he contrast did find that “definitely Hollis changed come a man during years at the present would society if re Clinton penitentiary, had written various leased this time.” Our examination of articles magazines, for and had contributed the evidence on that issue it indicates was his earnings to the aid of children, retarded far from clear convincing. psychi The this was not by any “clear, means unequivo- atric examination consisted of a 45-minute cal, and convincing evidence.” interview psychiatrists. two only sex offenses revealed were abuse of a fe We therefore reverse the order of the male child in Massachusetts in 1954 district and the court and direct issuance of the offense in 1964 to which Hollis writ. pleaded had We have considered whether this di- guilty. Hollis deny rection latter but should be conditional or uncondi- attempted somewhat to mitigate its serious tional and have decided in favor of the ness saying that the woman had latter. been his given was an indeterminate paramour and reported him sentence because he la which concededly was a spurned ter her. One thought doctor denial of due under the combined Hollis’ making this claim of what effects surely Bailey. The State not an phenomenon unknown point was a had an opportunity rectify by pro- against him. The only ducing other 1969; discussion re sufficient evidence in it did lating to sex was that Hollis had twice not do so. been Hollis has now served a dozen married; that he years had lived with one for a which, crime for apart from women marriage, before for which he was sex proviso offender of § would brought up on charge of “cohabiting” have entailed a maximum sentence of five —a charge that has a years. rather archaic sound to Since not called our her; later left and that attention at developments since 1969 —and tack on the child had occurred at a time would confirm psychiatrists’ opin- when Hollis was married. ion that Although one of Hollis is a danger to society, we psychiatrists said that might he need con not consider whether these would be sider leaving Hollis’ his wife to be relevant. “sadis tic,” he quickly added that he say “would it So ordered.

is not too sadistic.” The other psychiatrist was even positive. less He contented him ON PETITION FOR REHEARING self with saying that impossible PER CURIAM: predict Hollis’ behavior outside of a struc tured environment. The made petition State’s rehearing filed on study no personality Hollis’ January structure 1978 afforded no basis for re- paroled 11. Hollis was attempted possession in 1972 but was returned convicted forged of a prison with a new sentence after he was expired. instrument. That new sentence has extent here indicated and is on otherwise de- opinion. our consideration Attorney Gen- nied. Assistant February urgent motion to a “most Rutzick filed

eral include appeal” to on the record

supplement dated October by parole officer things, that stated, among other This September paroled Hollis had

after friend a woman assaulted Buffalo, N.Y., staying

with whom he or advances threats made sexual

and had daughter. Hollis and son her minor toward SERVICE, TAXI INC. WESTPORT and allegations. We of these the truth denies Anthony Gilbertie, Michael and the failure of the seriously disturbed are Plaintiffs-Appellants, State, been familiar should have attack by of an result this material ADAMS, Secretary in the Brock parole Transporta on the revocation Hollis tion, Westport Wyoming District, York for of New Transit Supreme Court Paul R. Green, Meyers, Division for County Appellate John and E. Richard to have informed Bradley, Defendants-Appellees. Department, Fourth it, court about this the District Court No. Docket 77-6074. prof- the excuses altogether lame we find Appeals, United States Court of General, Attorney by the Assistant fered Second Circuit. us not wit, expected that the State concerning Hollis. review the Argued 5,Oct. 1977. attempted charges that Decided Jan. immediately in sexual offenses engage in 1975 are parole so his release justice re- the interests disquieting that hearing determine evidentiary

quire truth.

their unconditionally original opinion

Our writ, noting, issuance of

directed alia, “the has not called our State

inter any developments since 1969

attention to opinion psychiatrists’ confirm

that would society . ..” Hollis is called to such attention has now been

Our

information, belatedly, and we there- albeit of our paragraph the final modify

fore direct issuance of the writ so as to sixty within commences

unless days Bailey hearing, including new

(60) charges necessarily to the limited

but The determina- parole report.

made hearing comport at such shall

tion clear, proof by unequivocal

requirement of opin- in our convincing evidence set out

ion. supple- motion to

Accordingly, State’s court is denied. Its the record granted rehearing is

petition

Case Details

Case Name: David Hollis v. Harold J. Smith, Superintendent, Attica Correctional Facility, Respondent

Court Name: Court of Appeals for the Second Circuit

Date Published: Feb 17, 1978

Citation: 571 F.2d 685

Docket Number: 258, Docket 77-2057

Court Abbreviation: 2d Cir.