Geza De Kaplany v. J. J. Enomoto, Director of California Department of Corrections

CHAMBERS, Before KOELSCH, BROWNING, DUNIWAY, ELY, HUF- STEDLER, WRIGHT, TRASK, CHOY, GOODWIN, SNEED, WALLACE and Cir- Judges. cuit SNEED, Judge: Circuit This case comes before us on appeal from the district court’s denial of de Kaplany’s corpus petition habeas seeking relief from his 1963 state conviction. The asserts that his rights constitutional were violated in separate four respects. The respect first such is that the failure of the trial court to conduct on de Ka- plany’s competence to stand trial constitut- ed a denial of due process. The second is mental, that his illness substantially im- paired his ability to make a reasoned choice with respect to plead whether to guilty or not and that consequence as a his plea of guilty during “guilt phase”1 was not knowingly, intelligently, and voluntarily made. The third in which de Ka- plany alleges his rights constitutional were impaired is that ineffective counsel de- prived him of a Finally, fair trial. he con- massive, tends that the pervasive, prej- udicial publicity that prosecu- attended his deprived tion him of a fair trial. court, The district after a thorough and comprehensive hearing, petition denied the respects. all We affirm the district court in all respects.2 tried, 1. In 1963 when de was Califor- role Authority. the California Adult This procedure nia capi- utilized a trifurcated trial does not moot the case. See Sibron v. New where, York, tal cases plea as in de case a 392 U.S. 88 S.Ct. 20 L.Ed.2d 917 guilty by insanity” (1968); joined “not reason of States, Pollard v. United 352 U.S. guilty”: (1) to a guilt phase; of “not (1957); S.Ct. 1 L.Ed.2d 393 United (2) sanity phase (Cal.Penal 1026); Morgan, Code States v. § 346 U.S. 74 S.Ct.- (3) penalty phase (Cal.Penal parolee, L.Ed. 248 Code though The status of 190.1). preferable § doubtless prisoner, to that of still subjects petitioner regulations to a host of Subsequent to the district court’s de- parole, uncertainties for the term of his includ- nying petition, petitioner granted pa- ing present the ever parole may threat that his A. The Trial. I. We turn first the brief description' of Hearing Competency On Absence pertinent the trial and evidence. The To Trial. Stand petition district which this to- is directed effort Much heard forth in opinion set its a chronology prior judgment establishing that

ward of events which we and set adopt forth in was in which he con- proceedings state the margin.3 the This chronology reveals that proceed- conducting such judge the victed prior to the commencement of jury selec- a bona fide ought have entertained ings 7, January psychiatrists tion on three 1963 petition- of the the about appointed by the had trial court examined and, keeping with the trial petitioner them, er the and that two of Drs. Robinson, 388 U.S. 375, Pate v. teaching of Rappaport, Johnsen and had their filed (1966) 836, and 15 L.Ed.2d reports 86 S.Ct. written with the trial court. Dr. Missouri, 162, Drope U.S. S.Ct. report petitioner the Johnsen’s stated that (1975), should have or- 896, 43 was the L.Ed.2d “sane at time of the commission of such hearing to determine alleged the crime that he is presently and dered contention Rappaport of this tency. report The evaluation sane.” Dr. in his stated the peti- of description petitioner brief the “presently suffering both a was requires of the portions certain from no mental and is able cooper- and illness trial tioner’s as well as an ate and therein with counsel to assist counsel in the presented presentation legal principles. preparation and of a applicable rational analysis of the Shoor, port, petitioner §§ 3053- . See Cal. Penal Code be revoked. and to examine and in- 3056, (West Additionally, 1972). 3059-3062 sanity. vestigate appoint- his Pursuant to said felony will for a serious record of a conviction likely pose problems ment, by petitioner was examined Drs. Johnsen petitioner which can 14, 31, Rappaport and on October and October by of inno- be solved vindication 11, 1962, by Dr. Shoor November and on Octo- bring the case These cence. considerations 25, 26, 18, ber October and 1962. On October in United States v. Mor- within the rule stated gan, 1962, 11, Rappa- November Drs. Johnsen and supra : port reports with filed their written the trial served, “Although the re- the term has been report with court. Dr. Shoor filed his the court may persist. Subse- the conviction sults of 8, February on 1962. [sic] may carry penal- quent heavier convictions 13, 14, and Decem- On December December ties, rights affected. As the be civil 15, 1962, petitioner psychiatrically ber ex- was exists, remedy power an invalid sentence by request peti- a Dr. amined Zaslow at think, oppor- respondent we tunity is entitled 20, tioner's defense counsel. On December attempt to that this conviction show counsel, 1962, again request 512-13, at of defense at S.Ct. was invalid.” U.S. petitioner by Dr. examined Beaton. On 253. 27, 30, 1962, again and December December petitioner alleged for which The crime 3. counsel, request petitioner defense imprisoned subsequently oc- and convicted by Dr. examined Lee. 28, evening August 1962. Pe- curred on 7, 1963, January jury began On selection and custody placed in and arrested titioner was 14, 1963, wife, victim, January guilt phase petitioner’s petition- on day. The then same 30, September later, began. days January 1962. until er’s did not die trial Two on 16, 1962, 1963, 29, petition- petitioner by day August after was allowed the trial one On Peschau, arrest, psychiatrist, petitioner colloquy exam- Dr. er’s after between request county jail at the change pleas ined the court to the first of his County. Attorney Clara of Santa District guilty. guilty not 1962, 3, petitioner was indicted On October 28-day sanity petitioner’s phase County Jury of Santa Clara the Grand January 21, 1963, began on until lasted charged murder torture with the crime of 21, 1963, February jury when the returned having allegedly (Petitioner wife murdered his finding petitioner verdict sane the time of body), by pouring her in viola- nitric acid over the offense. commission On Penal 187. Octo- § Code tion California phase began penalty of the trial four pleas 11, 1962, petitioner two entered ber later, 1963, 25, days February on and on March (2) guilty (1) guilty, charge: returned a verdict of life im- insanity. reason of Judgment prisonment. and sentence were im- 11, 1962, appoint- trial court On October posed March on Johnsen, Rappa- psychiatrists- three ed —Drs. report, The third defense.” of Dr. the nature consequences plea. of his Shoor, February was filed 1963 and The attorney said he court, had. The trial that, petitioner displayed stated while the in a manner somewhat less elaborate than thinking of the “some suicidal obsessional is the practice Boykin Alabama, since variety,” he was “sane now and at the time U.S. 89 S.Ct. 23 L.Ed.2d 274 alleged of the commission of offense.” (1969),4 asked de whether he knew that he had been indicted for murdering his 14, 1963, January guilt phase On wife, whether he had discussed the matter began. On the counsel, with his and whether fully un- response day second to the derstood consequences prosecution’s exhibiting change in the courtroom a plea. To which he gruesome morgue photograph responsive- of his slain answered ly, “Yes, wife’s but body, jumped briefly, your Honor”, to his “Yes I “No, no, did”, shouting you feet what did do to and “I do”. He was not asked if he forcibly her?” He was restrained and re understood change plea might sub- day seated. next petitioner changed The ject him to the death penalty. There seems plea guilty. his The in the dis little doubt that he this, understood how- petition trict court on this contains testimo ever, because his first attorney, who was ny by petitioner’s attorney in the state trial not his attorney at had informed him guilty plea that the part was vital of his of the possibility being sentenced to die. strategy preclude long guilt trial on summarize, To immediately prior to the jury repeatedly which the would be commencement of the sanity phase of the gruesome confronted with the nature of the trial the state judge trial court confronted a petitioner’s By moving crime. quickly to situation in (1) reports of three sanity phase attorney believed the psychiatrists filed, had been none of which petitioner positioned would be more favor expressly or impliedly had indicated that ably with jury. to the The habeas the petitioner incompetent was to stand indicates, however, also trial, although none of precisely them had petitioner strategy resisted this for some issue, (2) focused on this attorney an for the although purpose time its was known to petitioner apparently who believed his him. His resistance sprang from his belief client was (3) an that he was not guilty because he had not outburst in the'courtroom already indi intended kill Although his wife. he as cated, (4) a courtroom demeanor otherwise serted his resistance was broken coercion beyond reproach, (5) and a guilty plea ap part attorney, on the of his vigor was parently made ously voluntarily and attorney denied under the dis standing. trict court found that he was not coerced. finding

This is adequately supported by the Commencing with sanity phase of the clearly and is not erroneous. proceedings the mental condition of de Ka- plany

The state trial court petition properly asked became the center of atten- attorney er’s at the time guilty plea of the tion. Three psychiatrists, defense Drs. Zas- whether he explained low, had to the Beaton, Lee and who at the request of requirement It is well settled that the Tahl, of mak- 122, 127, 1117. See In Re 1 Cal.3d ing confirming a record the voluntariness of an 460 P.2d 449 Our review accepted guilty plea by Boykin mandated is not of the record convinces us not applied retroactively. Craven, Moss v. trial court made a creditable effort to assure (9th 1970). F.2d Cir. See also Scran- petitioner knowingly itself willingly Whealon, (6th ton v. 514 F.2d Cir. plea, entered his but also that de was 1975); Swenson, Winford v. 517 F.2d potential consequences in fact aware of the 1975). pleas antedating Those voluntarily accepted them. There Boykin constitutionally against are tested is, therefore, infirmity no constitutional in the they “voluntarily were and under- manner in which the state trial court standingly given light totality accepted petitioner’s guilty plea. Swenson, supra circumstances.” Winford v. cooperate Kaplany, petent examined counsel and to had counsel defense presentation condition. his mental assist counsel regarding a ra- testified tional defense. Dr. pe- Shoor testified that on the basis testified Dr. Zaslow displayed titioner “some suicidal thinking of pe- tests the psychological standard certain variety,” the obsessional but that was dis- “severely disturbed” titioner “sane now and the time of the commis- conceptual “impairment of the played alleged sion offense.” Dr. judgment.” proper thinking and use of petitioner’s describing sanity phase The of de Beaton, state condition,” pe- stated that days trial came to an end after 28 when the “present ill, psychiat- seriously “very jury finding returned verdict him sane at titioner was “knew but that he time commission of the rically, psychologically,” crime. wrong in phase right penalty between The four days the difference commenced know- intellectually transpired any sense of later and without ordinary incidents proceeding. also stated relevant to this Dr. Beaton On March ing.” para- returned verdict life opinion petitioner schizophrenia imprisonment. and that noid and conscious- rationally, logically “not able B. Law. During Dr. Bea- his actions.” govern toly view expressed he also ton’s contention regarding the had an “am- had petitioner suspected trial court’s failure to conduct a state hear- all his mother relationship with bivalent ing to competency determine his to stand a mother was feminine along,” that his and Robinson, upon trial rests Pate v. 383 U.S. rejecting a “somewhat him and ideal for 375, 836, (1966), 86 15 L.Ed.2d 815 S.Ct. inter- petitioner point, At this woman.” Missouri, Drope 162, v. 420 applied U.S. loud, voice, “Don’t high a and said in rupted 896, (1975), 43 103 95 S.Ct. L.Ed.2d Tillery my mother.” this about talk like (9th Eyman, 1974), 492 F.2d 1056 Cir. and States, Moore v. United 464 F.2d 663 Lee, was the most testimony Dr. whose 1972). defense, gave the offered colorful was committed that the offense opinion turning Before to examine these authori- and schizophrenic reaction acute during an competency ties standard multiple a from petitioner suffered that the stand trial is measured should be stated. In appeared It also syndrome. personality States, Dusky v. United 362 U.S. peti- testimony Dr. Lee’s (1960), Supreme 4 L.Ed.2d 824 S.Ct. and resident a citizen in 1946 while tioner Court held that the “test must be whether in a neu- hospitalized Hungary had been present ability he has sufficient to consult weeks. several institution for ropsychiatric degree lawyer with with reasonable understanding rational whether he expressed an of these witnesses None —and as well as has rational factual under- compe- opinion with standing proceedings against him.” plead guilty. Their and to stand trial tence place An Id. orientation as to time and understandably was direct- testimony quite enough. some recollection of events is not responsibility for issue of ed crime. Robinson, supra, In Pate Court where raises a held that the evidence “bona witnesses, John- Drs. prosecution’s fide doubt” as a defendant’s Shoor, along sen, testified Rappaport, judge to stand the trial his own reports. in their earlier set forth the lines empanel motion must conduct a Dr. Johnsen testified competency determine of the commission at the time “sane determining In whether the evidence presently alleged crime and that he proceed- state before the Rappaport Dr. testimony of sane.” The in which Robinson was convicted ings suf- presently indicated have entertained such “bona fide and was com- should no mental illness fering from doubt,” history reviewed the recital of “an history the Court extensive of mental illness, including of Robinson’s life that it deemed hospitalizations the events for psychi repeated issue of Robinson’s atric relevant disorders at suicide tempts.” tence and concluded this evidence did 464 F.2d at 665.6 In the face of hearing. report, to a The failure to psychiatrist’s entitle him in which the con “deprived provide markedly Robinson clusion was at variance with the right fair body report constitutional to a trial.” 383 of his and extensive records Dusky, Prisons, As in from the S.Ct. Federal Bureau of U.S. we reports that courtroom de- emphasized concluded that these “constituted meanor, indicating alertness and under- casting substantial a reasonable upon upon standing, competency alone could not be relied Moore’s to stand justify trial as matter of “ignoring establish law.” Id. at 666. testimony of the uncontradicted Robinson’s describing In the principles of Pate v. history pronounced irrational behavior.” Robinson stated: 385-86, at 842. Id. S.Ct. “Under the rule of Pate v. Robinson Moore, appeal an a district In (1966) 383 U.S. S.Ct. application of an court’s dismissal Sec process L.Ed.2d evidentiary due relief, tion 2255 this court was confronted hearing is constitutionally compelled at , psy who applicant any had received time that there is ‘substantial evi- chiatric examination under dence’ U.S.C. the defendant be mental- though psychiatrist’s ly 4244. Even re incompetent § stand trial. ‘Substan- port concluded that Moore was tial evidence’ is a term art. ‘Evidence’ encompasses it nonetheless consisted of a all information properly be- pointing possible incompe- Center, 5. The evidence the Federal ‘kept Medical he was tency great came from several sources and had developed isolation and visual hallucina- impact. cumulative Court noted describing tions.’ Moore’s mental condi- that “The uncontradicted of four wit- examination, psy- tion at the time of the called nesses the defense revealed that Rob- chiatrist said: ‘Abnormal mental trends were long history inson had a of disturbed behav- by self-destruction, mutilating manifested be- U.S. at ior.” 383 history 86 S.Ct. at 838. This havior which occurs under stressful condi- in a included confinement mental insti- panics engaged tions. ... He and has following a fit which tution violent in he kicked dangerous in behavior to himself such jump a hole in his mother’s bar tried to and running gunfire swallowing before and razor carrying hospital. from a cab him to the attempt get pro- in blades an into a more hospital medical records revealed that he swings tective situation. His mood are wide hallucinations, frightening suffered from and rapid depression deep and from and eu- suggested schizophrenia. his that behavior phoria period in a brief .... His main periods His irrational became even more vio- problem identity in is sexual fear years prison lent. He served four in for an panic. men both and women and this leads to episode in which he shot and his killed 18- He will continue to act out in both custodial attempted month-old son and quently, Subse- suicide. psychiatric hospital placements. and He seriously injured he attacked and his nothing feels that he has to lose and there- brother-in-law, causing mother’s her to swear engages impulsive acting in fore out and con- police Finally, for out warrant his arrest. he through trols the environment his self-de- killing for was arrested woman with living. history, coupled structive acts.’ was whom he This psychiatrist’s diagnosis “The with the of four witnesses that Rob- that subject ‘competency inson was insane and the Robin- peri- contention of Moore's will be attorney insane,” “presently impaired son’s that he was judgment during panic ods of his reactions,’ caused the that a to conclude ‘deep-seated that he has emotional regarding compe- “bona fide” doubt Robinson’s problems duration,’ long progno- ‘the tency to stand trial in should have arisen poor.’ is He sis nevertheless concluded that judge’s trial mind. presently presently is ‘Moore sane and able proceedings report against to understand the taken We described as follows: properly him and to assist in his own de- psychiatrist’s report “The reveals an exten- psychiatrist history illness, including fense.’ The did not undertake to sive of mental hos- any pitalizations explanation offer for his disorders and re- ultimate conclu- peated attempts. During stay suicide his sion.” 464 F.2d at 665. that form we stated we did so for the court, it is in the reasons set whether fore Laudermilk, People admit- forth in formally Cal.2d testimony or exhibits Cal.Rptr. reports P.2d 228 form medical it is or ted that have been In Laudermilk the had murdered reports kinds of other suspecting infidelity. ‘sub- wife after her Evidence is court. with the filed law, psychia- doubt Pursuant to California two a reasonable if it raises stantial’ reported to trists examined Laudermilk and the defendant’s about that evidence inter alia he had been found two or such Once there stand psychiatric hospitals mentally ill source, is a three be there any psychotic super- and not in resort to conflict- “but need of dispelled be cannot treatment,” vision, care and The function ing evidence. he appeared evi- 431 P.2d at to be substantial applying Pate’s court well, very ulti- able to understand his situation determine the test is not to dence competent intelligence average, that his and that the defendant issue: Is mate is to sane sole function he was when committed the crime trial? It [sic] presently sane. any there is Thereafter coun- decide truth, pro- a reason- sel for Laudermilk moved that which, its raises criminal assuming ceedings on the compe- suspended ground be the defendant’s doubt about able that such evidence Laudermilk was not to stand anyAt time tency. sua must trial. The state trial court sponte court denied the mo- the trial appears, ground com- reports on the tion on medical evidentiary order suspicion” eviden- not lead “even to a regarding It is after the did issue. petency rules but hearing, agree the usual Laudermilk’s did applying tiary appoint psychiatrist de- another examine the court appropriate the de- him. competency of the issue of cides Id. trial.” at 666.

fendant psychiatrist reported Before third and, began guilt phase with the as in 492 F.2d 1056 Eyman, Tillery aborted with a quickly new to the Moore’s de nothing 1974), added trial, however, plea. In Laudermilk’s guilty Pate standard and formulation guilty by insanity Till- be reason applied. in which it should manner prosecutor and the erratic was also withdrawn frequent occasions exhibited on ery stipulated that the fix the custody while defendant behavior irrational degree. first degree behavior crime as the court. This presence question psychiatrist one led penalty trial fixing Before the the state thought stand trial while another tency to report psy- received of third the the state trial court competent. The him of a as well as that fourth. The chiatrist to have appeared counsel and defense the report of third found able Laudermilk although a Tillery’s competence doubted right ascertain to assist in wrong to psychiatric exami- additional contemplated possessing per- a paranoid his defense but made to have never been appears nation sonality. placed It recommended that he be Id. at hearing was held. evidentiary no adequate psychiatric facility an under in such failure to hold Obviouslythe 1057-59. jurisdiction penal the system. the of for Tillery’s required petition hearing a report psychiatrist’s agreed fourth Lauder- corpus granted. be habeas paranoid personality a but was milk had Upon to Lauder- to de stand applying these authorities Before regarding of waiver the case milk’s of one additional petition of life im- penalty is Lau- recommendation mentioned. It should be circuit in fa- prisonment appropriate psychiatric an Department of Correc- v. California dermilk counsel, prosecutor and defense 1971). cility In that tions, F.2d by the state trial court sentenced Laudermilk was denied petition habeas case the prison denial life with the observation that affirming that court and in district be to determine best the question would able authorities as to sanity defendant’s he serve his sentence. be Cal.Rptr. where should determined trial.” 61 653, 431 P.2d appealed his conviction on Laudermilk Moreover, Supreme Court of Califor- ground evidentiary hearing on nia indicated that under Penning- Pate and have been conducted. should required ton “more is to raise a doubt than People Penning particularly He relied on mere bizarre actions ton, 508, 58 or Cal.Rptr. 426 P.2d [citations Cal.2d omitted] bizarre statements or (1967), Supreme which the of [citations Court omitted] statements of defense counsel that defend- California said: ant is incapable cooperating of in his de- “Pate propo- v. Robinson stands fense tes- [citations omitted] sition that an accused has a constitutional timony immature, danger- defendant is right hearing if present sanity on ous, psychopathic, or homicidal or such di- comes forward with substantial evidence agnosis with little reference to defendant’s incapable, that he is because of mental defense, ability to assist his own [cita- illness, understanding of the nature of tions Id. finally And it refused omitted].” proceedings against him or assist- of fragment report psychiatrist ing in his defense. Once such substantial focusing only on those indicating features sanity as to appears, evidence incompetence when on psychia- balance the exists, per- matter accused no how trist had concluded Laudermilk suasive other evidence — tent stand trial. prosecution witnesses or the court’s own P.2d at 239. be observations accused — . contrary. appeal . . As did on defend- from the denial [W]hen petition, ant has come forward with Laudermilk’s substantial habeas we once more present approve evidence these views of incompetence, Supreme Court regard he is entitled to a California. Nor section do we Moore and Tillery right as inconsistent a matter of under Pate v. with this approval. Robinson Two Moore, . . sentences already . .” Id. 426 P.2d at 949. set forth at p. above have been advanced premised Laudermilk’s reliance Kaplany’s counsel in this proceeding sup- Pennington contention that required that port the circuit, effect, view that this has indicating incompetence adopted approach of Justice Peters. the accused be marshaled to These two are: determine whether it amounted to substan- “Evidence is ‘substantial’ if it raises a incompetency. tial evidence of As Lauder- reasonable doubt about defendant’s Pennington, read milk if such evidence was stand trial. Once there is required substantial a no mat- such source, evidence from any there is a how compelling ter was evidence to the dispelled doubt that cannot be by resort contrary. Despite the fact the author conflicting evidence.” Peters, Pennington, Justice also inter- fashion,7 preted majority it in this interpret We these two sentences California, after exa- mean nothing more good than that once mining all the pertinent exists, evidence before the exist, faith doubt or should its reso- court, trial that held Laudermilk not requires “did lution a hearing. These sentences produce substantial present evidence of not do mean that exists, doubt necessarily it incompetence mental so that could said be and thus hearing required, a is because a that doubt as to present certain evidence exists which [Laudermilk’s] would create sanity was in raised the mind of the trial a doubt it were not for other evidence judge compelled and the latter was precludes to order which doubt, doubt. Genuine not 644, 655, Laudermilk, 7. See Cal.Rptr. Justice Peters’ in 431 P.2d 239. dissent 67 Cal.2d doubt, to his Kaplany prior subsequent is the of de and or constructive synthetic a important It is to emergence genuine outburst. remember measuring rod.8 The court at no time was confronted judge necessari- the state mind of a trial in the doubt histo- experience long with evidence of a and extensive of his total consequence ly the is and illness ry and of irrational behavior evaluation and his he, Pate, in and Nor was Drope, as Moore. of the trial. events psychiatric- Tillery, in with a confronted Moreover, teach Drope Pate the report which threw doubt on defend- provide failure to review a appellate to The ab- competency ant’s stand trial. is to stand trial hearing competence on good competen- faith to sence of a doubt as by not limited either the comprehensive point in the trial was reasonable. cy this clearly erroneous of discretion abuse sanity phase the be the question to asked standard. The Framing a more issue. poses difficult a reasonable reviewing is whether court petitioner, to it is favorably issue judge trial court situated as was the judge, the state trial court should evidentiary to conduct an failure whose good have entertained a faith doubt as to reviewed, have ex being should hearing is to stand trial in competency to respect doubt with perienced light of the evidence introduced stand petitioner’s sanity all regarding defense other relevant circumstances known to the The Evaluation. C. believe, hold, We so that he court. the failure applying principles these In good not have such a should entertained to conduct evi- state trial court faith doubt. Kaplany’s competen- dentiary hearing on de support holding point To this we out shall focus on the three cy to stand trial we psychiatric testimony favorable to the of his trial. With phases presented sanity during at any- conclude that guilt phase we cannot responsibility phase was directed toward his state trial court phase this time criminal law for the crime and under the good faith should have entertained trial. We competency not to his competency. concerning every prepared assert in are not above described The courtroom outburst sanity in of the defendant is trial which also consider- be considered without cannot good exist contested there must faith psychiatrists, reports of the three ing the requires on counsel that doubt which apparent belief of defense course, testimony re- tency.9 demeanor Of where the competent, and the client was infra, proba- as we discuss is of interpretation dence limited of the “substantial evi- 8. This [Wjhile discounting tive . entirely value. . the Cali- is consistent with dence” test cases, proper People of counsel exposited statements approach v. Lauder- fornia general requiring rule milk, supra, accepted by hesitate articulate in Lau- grant the trial court to a section Department of Correc- v. California dermilk tions, every where defense re- instance counsel demanding supra. that the trial Far from ports that his client . unable incompe- indicating judge accept all evidence the case. discuss Such a rule would be true, tency as California Court fraught with risk that the administration a situation which the attention to called justice re- would be thwarted defendant’s acceptance wary of uncritical be court should fusing cooperate with their counsel or regard basing finding such evidence. feigning incapacity so as to to do so obtain a as to a reasonable doubt hearing.” section that the for the accused counsel contention (Emphasis added). 431 P.2d incompetent defendant said: significant 9. We find it the California Su- preme similarly unwilling of defendant’s counsel statement Court has been “The day equate proof history of mental made to court on of disorders significance, incompetency in our view of of substantial evidence at while some Bievelman, and, People requisite In even if the time of trial. 70 cannot raise the Cal.Rptr. evi- Cal.2d P.2d 913 with other combination considered of suggests incompetency ty having require also garding sanity a on possibili- tency. to the it may the trial must be alert While have been court the case accompanied by (1968), impairment it evi- be volving was determined that “substantial “intellectual in- ability by showing perceive accurately been a of dence” had not adduced or be speaking occurring,” “impair- by out in of what is occurrences of defendant aware or seven reactions, laughter, experienc- audible ment of emotional court and one occasion of either ing psychiatric testimony feelings experiencing no that defendant was a or feel- excessive ings,” recently attempted psychiatrist’s testimony or both. narcotics addict suicide, had The testimony psychiatrist experienced indicated when of a second the defendant that defendant have been from a a disassociation reaction he would encounter difficulty concentrating, slightest mental disorder. and “the sight greatly; or sound would irritate by him at Monroe v. State This case was followed rage California, times and emerges enters a state Cal.Rptr. of uncontrollable Bar of 733, 70 Cal.2d property. becomes destructive of When he 450 P.2d was there decided It spells one from of these he can recol- that even if the Pate v. Robinson standard nothing lect little or attorney hearings, of what has applied showing disciplinary occurred.” a psychiatrist concluded that defendant suf- not of “substantial evidence” was organic from damage fered either peti- brain production similar made tioner ment of evidence that psychomotor epilepsy, or history psychiatric from a functional had a treat- had of disorder, or from both. post-trial and had been described a The defendant also psychiatric report any “incapable assisting offered into as evidence the of following: testimony neurologist operation.” reaching of a defensive this past suggested the defendant’s behavior dismissed out an or- conclusion Court of hand dysfunction prior ganic ing impairment suggestion process of the mental treatment involv- evidence,” memory; of constituted “substantial that the fundamental was and held intellect post-trial report psy- results of chologist damage schizophrenic did not tests administered a address clinical question organic of whether defendant which indicated both brain at the time of trial it and that because defendant was a borderline specify psychotic did either what was meant “de- who could become operation,” pe- stress; periods or fensive riod whether defendant’s of under time and the incapacity chaplain prison of included the time of trial. of a former of a in which de- The Court thus indicated that evidence fendant was told incarcerated had defendant having strong probative impact spells rage relevant to the him that he had of which he defendant’s require hearing at the time of trial will could not later remember. sponte Notwithstanding impressive court the trial to conduct sua accumula- competency on defendant’s tion of evidence the effect that defendant subject periods incapacity, mental People Coogler, Supreme 71 Cal.2d the California Court declined to hold (1969), required 454 P.2d 686 the latest California that the competency hearing order opinion issue, Supreme dealing with this on its own As motion. it strongest contains the statement that evidence said: incompetency record, “Having is not “substantial” di- unless reviewed the we find no sub- tending rected to the defendant’s condition at of trial. that the defendant had time stantial to show that de- psychiatrist In that case a fendant proceedings against testified did not understand the nature experienced frequently him was unable to reactions,” “contemporaneous defense; disassociation assist in his own defense counsel rearrangements caused “basic does not which mind to the contend that the trial court should point impairment that there is have ordered under section 1368. alleged disability consciousness in that several areas of mind Defendant’s at the normally participate that are available and times of the commission the crimes avowedly contemporaneous mental work are rendered unavailable or are stemmed parts reaction; walled off. These that are . . . ren- disassociation show the record does not typically things experienced any unavailable are those dered that standards or attitudes or a set that defendant such particular proceedings against have to with either do set reaction him.” 71 7, Cal.Rptr. restrictions or n. Cal.2d normally set controls that are effective and 454 P.2d at 695. psychiatrist operative.” The further testified It is clear from these cases the California memory impairment a chronically that defendant had mild and consequence Court’s “substantial evidence” test appeared depressed. requires evidentiary showing to be of these to be directed question competency mental disorders of defendant’s defendant, trial; though “superficially history disorders, time that to his emotional control and become plained intact of mental intellect,” showing present could or evidence does not stand disorder “acutely psychotic.” The doctor ex- bear defendant’s psychotic enough. that defendant’s state could presented to of his trial was alternatives him and to at the time consequences illness, understand nature and we cannot a mental plea. Id. at 215. his Consistent therewith diag- this supporting say that held also that trial courts should “assess context, which nosis, placed in its when competency specific a defendant’s with ref- testimony suggesting psychiatric includes to gravity erence of the decisions with illness, sufficient no mental sanity and which the defendant is faced.” Id. his good a faith doubt about generate to trial. competence stand holdings While these have been criticized recognizing for of semi-compe- both a state during sanity are aware that We also permits a tence which trial but denies a may well be phase of a opportunity plea bargain, defendant proceedings to interrupt those reluctant providing ground and for an additional hearing gener- competency conduct fraught uncertainties testimony of the same ally will involve guilty pleas,10 collateral attack on we ad- presently testifying with re- psychiatrists position. Moreover, here to our we recog- This re- sanity of the defendant. spect to no time nize that at did the state trial court as an excuse to must not serve luctance specifically focus its attention on the issue good faith emergence of a suppress the Kaplany, assuming whether de he was com- however, in competence; regarding trial, petent competent also was interrupt so the sani- reviewing a failure to step surrendering take the serious cer- in mind that phase, we must bear ty tain fundamental rights by constitutional hearing as much judge may be interested guilty. pleading Under these circumstances that he does can before concludes as he Sieling Eyman pro- we remanded the good faith doubt. entertain ceedings to the state court to resolve the concerning penalty need be said Little question plead guilty. Certainly petitioner’s phase We do not believe this form of relief is context, sanity, viewed in its the verdict always necessary appropriate. as to suggest good faith doubt does hearing before the district court on stand trial. Nor competence to petitioner’s petition quite thorough this with re- during any that occurred event did spect competence plead guilty. Some- suggest. of the trial so phase period surprisingly, what in view the Thus, we conclude that the district elapsed has time that since de M trial, that the failure of concluded properly psychiatrists several of who testi- hearing petitioner’s trial court to conduct the state fied as well as appeared to stand trial counsel at the petitioner’s testified process right due at the in the court. deny him his district As did not result of the the district court con- fair trial. cluded: “Notwithstanding testimony by doctors II. present corpus hearing at the habeas con- Guilty

Validity of Plea. cerning their observations that his men- contention after his conviction and his ulti- substantially impaired ability tal illness imprisonment, opinions mate and their respect to choice with thereon, a reasoned to make say based we cannot and are this court’s plead guilty rests on whether to unable to find or conclude from the evi- Sieling Eyman, 478 F.2d 211 us, whole, decision dence as a before considered a de- 1978). There we held that requisite in fact lacked guilty if plead capacity fendant mental to stand trial or that he substantially impaired requisite capaci- illness has in fact lacked a mental among ty guilty, to enter his within the reasoned choice ability to make a

10. 1974 Duke L.J. 149 cited, the meaning supra. of authorities tive assistance primarily not, because he did say petitioner’s Nor can we or find that during guilt phase the of the plead involuntary change plea of because capacity “diminished or responsibility” (See by attorney of coercion or otherwise. Gorsham, People 716, v. 51 Cal.2d 336 P.2d that, according It be the noted Wells, (1959); People v. 33 Cal.2d evidence, petitioner sufficiently (1949)) offense, 202 P.2d 53 to the murder aware, pressure assertive and resistant torture, with petitioner which the attorney as to his first dismiss charged. argued It is plea such a engage try other counsel case.” placed upon would have prosecution the the burden proving of no diminished capacity or We have reviewed the record of the responsibility plea while guilty the of agree hearing and with this conclusion. placed upon the the burden of require process Due does not another hear establishing insanity. As previously indi- ing any pur on this issue nor would useful cated, petitioner’s counsel at the state court pose thereby. be served Under circum hearing trial in petition on this contend- of this case we believe a retroactive stances rejected ed that he of diminished of competency plead determination capacity and urged plea of guilty to elimi- guilty possible is but only appropri not also possible nate to the presentation extent ately was made the district court. In guilt phase expressing view we do trial this not intend which jury’s would direct the suggest that where retroactive determina attention to the many days possible tion is remand to the state court endured petitioner’s usually for such a is wife determination not before she Only died. manner, proper form relief. We this petitioner’s hold that counsel at case, under the circumstances this state argued, could he hope to save no deprivation suffers a consti petitioner from a sentence of death. right procedures tutional result of the Petitioner also contends that his counsel we adopted.11 have at the state trial was ineffective because he did not ask for a hearing petitioner’s III. competence to stand trial. Counsel in the

Effectiveness of Counsel. district hearing responded by pointing petitioner strongly contends that his out that he had no reason to doubt at provided counsel the state trial ineffec- competence to stand trial and emphasized sarily In Pate unmanageable. Estelle, See v. Nathaniel difficulty conducting post-conviction a fair (5th 1974); F.2d Cir. v. Bruce hearing competency on the defendant’s at trial. Estelle, (5th 483 F.2d 1973); Cir. inability The Court there reasoned Alabama, Lee v. 386 F.2d to observe the demeanor of ac 1967) (en banc). question The threshold cused, expert testimony the fact would surrounding the circumstances solely have had to have been based on the permit case retrospective a fair determination printed record, six-year lapse and the between competency of the defendant’s at the time of post-convic proposed the time of compromise tion combined to such a We conclude that such a determination was hearing beyond redemption. 383 U.S. at possible Although many years here. passed 86 S.Ct. 836. Similar situations have since hearing, between the key trial and the several recognized been in which considerations like expert witnesses whose was fea- these, inevitably hearings cloud held tured at the trial were able to attend the hear- past determine the existence and nature of ing, as was defendant’s trial counsel. mind, Addi- states of have rendered ineffectual retro tionally, many pages expert testimony, pre- spective hearings thereby necessitated new pared for the trial and Missouri, addressed to Drope the issue of supra trials. See v. 896; States, defendant’s supra, time of S.Ct. 666-67; Moore United hearing. Tillery Eyman, supra light were available at the at 1059. How ever, presence key recognizing evidentiary items, even as we do the these difficulties it is pro hearings inherent nunc tunc held unreasonable to conclude that a fair retro- purpose, they do believe that are neces active could be and was conducted. IV. then psychiatrists reports of the incompe- suggest did not to him available Publicity or Right Effect to Fair Trial. tence. holding Our to the ef his coun- contends Finally, petitioner petitioner’s fectiveness of state trial counsel he to re- failed ineffective sel was our views respect peti foreshadows with of of venue the change quest massive, contention that pervasive, tioner’s publicity of the impact the adverse reduce and prejudicial publicity prevented him counsel case. Once more surrounding the receiving a fair Sheppard from trial. See v. opin- in his out by pointing responded Maxwell, 333, 384 U.S. 86 S.Ct. 16 Coun- Clara from Santa selected ion 600 Petitioner appears L.Ed.2d life the which sentenced ty, recognize insubstantiality the argu the interests served imprisonment, by failing press vigor ment it with any another than one from better the either in the district or believed at avers county. Counsel arguments presented in his to us. Al likely more a verdict was that such the time of de though Kaplany attracted than elsewhere. County Clara Santa press, radio, attention considerable trial, certainly been a has never There television, we hold circumstances petition- as was closely watched not one surrounding his trial do not reveal ex have not er’s, which there with istence of the chaos and subordination of attorneys between oth- arguments been process to judicial of me demands adopted by op- strategy ers about representatives Sheppard dia existed in it in this case. More- So is posing counsel. Maxwell, Kaplany v. received a fair who over, that one is it is understandable convicted, though execution was even avoided, what ponder forever about will AFFIRMED. strategy been have been had

might different. WALLACE, Judge (concurring). Circuit however, task, is to measure the Our briefly. I I no disagreement concur have against counsel conduct my with most of opinion; Brother Sneed’s Whether use standard. applicable contrary, join general analy- on the I in his performance poor so the standard My primary sis as well as the result. ex- the trial a farce or incompetent as to make ception unnecessary ap- is en banc (United Stern, v. mockery justice States proval panel Sieling of our decision in v. Wright (9th 1975); v. 524 Cir. 519 F.2d (9th Eyman, 1973). 478 211 Judge F.2d Cir. Craven, (9th 1969); 412 F.2d 915 Cir. Dal has our Sneed called attention to the criti- Wilson, 183,185 (9th v. F.2d Cir. rymple Sieling cism leveled at the decision “both 1966)), or the circumstances recognizing a state semi-competence fairness a denial fundamental show permits a trial but denies a defend- 525; Stern, supra, v. Men (United States bargain, opportunity ant the and for States, v. 476 F.2d garelli United ground fraught providing an additional Craven, 1973); v. 432 F.2d (9th Johnson Cir. uncertainties for collateral 1970)), of lack of effective (9th Cir. pleas Majori- . . guilty attack .” and trial preparation aid in ty opinion, p. reasons, 985. For those I likely counsel render and case—lack Sieling wrongly believe decided. reasonably assistance rendering effective actually the facts of this case (Leano (9th Since meet States, v. 457 F.2d 1208 United they test Dickson, stringent Sieling, more also 1972); 310 F.2d Brubaker Cir. Thus it meet a less restrictive standard. 1962)), the result is the (9th Cir. and, my unnecessary judgment, improvi- deprived of was not same. Petitioner dent, give Sieling approval counsel. Thus we en banc here. assistance of effective Demma, F.2d between these standards. See United States need not choose 1975) (Wallace, J., generated concurring about competency. The evi- majority and dissenting). Since the has dence was conflicting. doctors called vitality the continuing prosecution chosen to consider testified that de sane; Sieling, express I view that my legally therefore the defense doctors said Sieling should be overruled. that he was legally insane. The defense

doctors’ terminology for their diagnoses HUFSTEDLER, (“paranoid-schizophrenic,” varied “multiple Judge, Circuit dissent- personality” schizophrenic with “acute reac- ing, Judge with whom ELY concurs. Circuit tion”), but they agreement were in that he majority opin- with the My disagreement from a serious mental disease ion stems not from its restatement of the when he committed the acts. In the course (1966) rule of Pate v. Robinson U.S. reports of the testimony, some of the 86 S.Ct. 15 L.Ed.2d but from the doctors referred to de Kaplany’s hospital- of the majority’s application rule ization for mental illness in family his I major- facts of this believe that the case. illness, history mental and his suicide ity agrees determining that whether a jail while attempt he was in awaiting trial. hearing state trial failure to court’s hold a Shoor, prosecution witness, observed, Dr. on a competence criminal defendant’s doctors, as did defense that de Kaplany Pate, stand trial violated the district court obsessively suicidal, was concluded, but he in a proceeding habeas is confined to the as did other doctors called the prose- record state before the trial court made cution, that de was Kaplany not during pro- course state criminal any gross disorder, that he was anteceding ceedings convic- intelligent, alert and well oriented. sentence, tion and unless the trial court available, accurate, Kaplany’s record is not or de com- demeanor the trial plete.1 for purpose taking guilt phase A varied. When the of the trial began 14, 1963, evidence on that on January mute, matters were not before he was inappropriate; state trial court is what immobile and withdrawn. On the second prosecution was not day, before the court is irrelevant exhibited a photograph to the issue of whether what was of his nude lying before wife in the morgue. He Thus, jumped court created a Pate lunged doubt. his feet and photo- at the testimony “No, no, at the evidentiary graph shouting before you what did do to the district from de He Kaplany’s lawyer her?” was forcibly reseated and re- psychiatrists and from about observations strained. The following day he changed his part plea and events that were not guilty. of the record before the state trial court is irrelevant to The trial court asked his'defense counsel the Pate issue before us. whether he had explained the nature and In the state trial the was evidence not consequences change to his specifically on de Kaplany’s compe- focused client, and defense counsel answered af- tence plead guilty.2 to stand trial or to firmatively. The trial court then addressed Nevertheless, over, before the trial was several perfunctory questions to Kapla- de substantial amount information had been ny, inquiring whether he knew that he had Moore, course, deficient, pointed 1. Of if the trial court As we record is out in “evidence” in evidentiary hearing “encompasses the trial record available to cure the all information court, properly example, may before the deficiencies. For the trial whether it record is in the formally reports form of or not exhibits contain and exhibits that were admitted reports properly or it is in the form of medical before the trial court other and that were reports evidence, kinds been have filed not with the introduced into or the record States, supra, court.” Moore v. United reflect the demeanor of the dur- F.2d at 666. ing evidentiary hearing the trial. An is an way, only way, effective and sometimes the 2. None of the doctors asked was to examine de present picture to the district court the full Kaplany competence to ascertain his before the trial court. plead guilty. trial or conclusory wife, trary lawyer’s his statement murdering was his indicted been could not assist in his own that his client the matter discussed he had whether “psychiatric impression” by under- defense and counsel, fully his that Laudermilk change psychiatrists one of the consequences stood personality,” although he “paranoid had a responsive answers are Kaplany’s de plea; “Yes, psychotic” he was “Yes, Honor,” “overtly was not your I very brief: but correct,” agree I with the “It is.” stand trial. did,” do,” “That’s “I evidence was further Laudermilk courts pursue any trial court did respons- fragile too create Pate doubt. fuller in an effort elicit inquiry es. case, expert opinion In de Kapla- that de

There some divided almost even- bearing halluci- occasionally ny was delusional ly. majority opinion assigns weight no Moreover, the and circum- nature natory. opinion Kaplany all expert de suffi- killing his wife were of his overtly psychotic. appears stances It to as- could be an inference ciently bizarre that psychiatrists’ opinions sume one set of ill, mentally at least at drawn that he demolished substantial doubt of time, graduated from psychiatrists’ created another set of in 1951. He Hungary doing, improp- medical school opinions. majority so completed He role, in 1954. erly earned a Ph.D. eschewed undertakes University, taught an- Court, residency Supreme discarding Harvard ex- California Yale, was licensed to esthesiology at “for mere pert opinion evidence including states medicine four practice clearly province.” outside our speculation 28, 1962, August shortly (Laudermilk Department California. On v. California bride of Corrections, heard Cal.Rptr. after de supra, him, he Moreover, unfaithful 239.) had been readi- five weeks P.2d at it discards as knife, her, cut her with a gagged ly bound all evidence that casts doubt other body. acid her nude nitric over poured upon competence. month and died over a survived for She totality raising doubt The of evidence The commission of burns. from the acid competence was at least as Kaplany’s de trained by person highly grisly killing dispel tending substantial as the evidence strongly suggests in medicine circumstances, the doubt. Under these real kind of sustained some had perpetrator lingers and it could not be resolved breakdown. a Pate both determine without view, indicating doubt my the evidence In Kaplany’s competence de to stand trial and competence was at least about plead guilty. stronger, than that in both strong, if not I and re- would reverse Pate error Robinson, supra, Drope and in Pate grant the writ un- mand with directions 896,43 (1975) 420 U.S. S.Ct. Missouri Kaplany a less the State afforded de new which the in both of L.Ed.2d time. trial within reasonable hearing was Court held that compelled. record is constitutionally (Laudermilk v. Laudermilk.

unlike of Corrections Department

California 1278; People 1971) 439 v. Lauder- F.2d (1967) 67

milk Cal.2d Laudermilk, 228.) psy- all four

431 P.2d Laudermilk was concluded that

chiatrists offense, able to

sane at time defense, knew the nature in his

assist against him. proceedings purpose the con- arguably to information

Case Details

Case Name: Geza De Kaplany v. J. J. Enomoto, Director of California Department of Corrections

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 9, 1976

Citation: 540 F.2d 975

Docket Number: 73-2955

Court Abbreviation: 9th Cir.