Charles McGarty appeals from an order of the court below dismissing without prejudice his petition for a writ of habeas corpus.
On August 4, 1947, McGarty killed his eight-year-old niece under most revolting circumstances. Thereafter, the grand jury for the county of Bristol, Massachusetts, returned an indictment against him for *988 murder, to which indictment he pleaded not guilty. McGarty filed a motion in the superior court setting forth that he' was charged with a capital crime and was without funds to procure counsel, and requesting the court to assign James Seligman, Esq., as his counsel. The request was granted. 1
This being a capital case, it was mandatory under Mass.G.L.(Ter.Ed.) c. 123 § 100A, as amended by St.1941, c. 194, § 11, for the clerk of the superior court to give notice to the department of mental health, “which- shall cause such person to be examined with a view to determine his mental condition and the existence of any mental disease or defect which would affect his criminal responsibility.” The psychiatric report fropi the department must be filed with the clerk' of the cburt, where it is to be made accessible -to the court, the probation officer, the district attorney, and the attorney for -the accused. Commenting on this statute in Commonwealth v. Devereaux, 1926,
McGarty was examined on behalf of the department of mental health by Doctors R. M. Chambers and Roderick B. Dexter. No question has been raised as to their professional competence or as to their impartiality in making the examination and report. Their report, which was duly filed in court December 23, 1947, found that McGarty “is neither feebleminded nor insane, and that he does know the difference between right and wrong. We do believe, however, that the anti-social tendencies which he has presented since early childhood warrant a diagnosis of Psychopathic Personality and he has been so classified.” Finally, the report concluded with the expression of opinion that “this prisoner is not suffering from any mental disease or defect which would affect his criminal, responsibility.”
On January 15, 1948, counsel for McGarty filed a motion asking that the defendant, being without funds, “be allowed to employ two psychiatrists at the expense of the Commonwealth so that he may properly defend himself against the crime as charged by the Commonwealth.” This motion was denied, to which exception was saved. Mc-Garty went to trial, the jury brought in its verdict of guilty of murder in the first degree, and he was sentenced to death. Upon appeal to the Supreme Judicial Court, the judgment of conviction was affirmed. Commonwealth v. McGarty, 1948,
One of the errors which was assigned on that appeal was the denial by the superior court of the defendant’s motion to be állowed to employ psychiatric experts at the expense of the Commonwealth. It appears from defendant’s brief filed in the Supreme Judicial Court that the -alleged error of the superior court in this regard was predicated upon-a provision of local law, namely, § 56 of c. 277, Mass.G.L.(Ter.Ed.) • which states that “reasonable expenses incurred *989 and paid by counsel assigned by the court for the defence of a person indicted for murder, who is otherwise unable to procure counsel, shall be paid by the county where the indictment is found after approval by a justice sitting at the trial or other proceedings of the case.” On this point the brief concluded: “While it is not contended by the defendant that this provision contains a mandate to the court to grant a motion that he be allowed to engage medical experts, nevertheless it is most emphatically urged that the gravity of the facts and circumstances surrounding him in connection with the most serious of allegations warranted an authorization for employment of medical experts to the end that all of his constitutional rights should be safeguarded.”
Whatever might have been in the back of counsel’s mind, we do not think that the foregoing extract from the brief may be taken as presenting to the state court a claim of violation of constitutional rights under the Fourteenth Amendment. The opinion of the Supreme Judicial Court indicates no awareness that a federal constitutional question was presented for decision. After referring to the conclusion of the report by the department of mental health, the court said, 323 Mass, at 437,
After the judgment of conviction was affirmed by the stale court, McGarty filed in the court below his petition for a writ of habeas corpus. The petition set forth that the superior court had denied a motion that he be allowed, at the expense of the Commonwealth, “to employ medical experts to impartially examine him, and to be used, if necessary, as witnesses in his behalf”; that the denial of such motion had been affirmed on appeal; “that the petitioner was at the time and still is without funds, and that the denial of this opportunity to be examined by impartial medical witnesses was in violation of his constitutional rights under the Fourteenth Amendment of the Constitution, that he believes he is entitled to redress, that all his State remedies have been exhausted”.
It is contended that the constitutional right of an indigent defendant in a capital case to court-appointed counsel is an empty right unless the state is also obliged to furnish such counsel the means to develop and present an appropriate defense. Obviously enough, an indigent defendant with assigned counsel may be at a disadvantage as compared with a wealthy defendant having unlimited means for the hiring of investigators, of expert witnesses, of a battery of lawyers. How far the state, having the obligation to afford to the accused a fair trial, a fair opportunity to make his defense, is required under the due process clause .to minimize this disadvantage is a matter which, in other contexts, may deserve serious examination. We simply note that no such broad constitutional question is presented on the record now before us. This is not a case where the state has refused to provide an impartial psychiatric examination of the accused with a view to determining his sanity and criminal responsibility. In the present case, in compliance with a mandatory provision of law, the state has, at public expense, provided such examination, by two impartial experts; and their report has been made available to the defense. It is true that the report, because of the conclusion which the psychiatrists arrived at, was not useful to the defense in establishing a legal defense of insanity. But what the contention comes to is that the state, having provided this impartial psychiatric examination, is required by the due process clause to go further and supply defense counsel with funds wherewith to hunt around for other experts who may be willing, as witnesses for the defense, to offer the opinion that the accused is criminally insane; in effect, that failure to do so must be regarded as violating “a
*990
'principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” Bute v. Illinois, 1948,
The district court, in dismissing the petition for a writ of habeas corpus, did not adjudicate the merits of this constitutional claim, but took the ground that petitioner had not exhausted his remedies under state law. In affirming the order of the district court we similarly do not reach the merits.
As above indicated, McGarty has not up to this time presented to the state courts the federal constitutional claim now sought to be vindicated in a federal court. If there is still an available state procedure under which this constitutional claim may be pressed, the district court certainly acted rightly in dismissing the petition. This indeed is now expressly provided in 28 U. S.C.A. § 2254, as declaratory of the practice previously established by familiar precedent.
In c. 250 Mass.G.L.(Ter.Ed.), § 1, it is provided that writs of error in civil and criminal cases shall issue as of course from and be returnable to and be heard and determined by the Supreme Judicial Court. Section 9 of the .same chapter provides: “A judgment in a criminal case may be reexamined and reversed or affirmed upon a writ of error for any error in law or in fact.” Section 10 provides that writs of error in such cases “may be brought at any time after judgment”. In Allen v. Commonwealth, 1949,
We recognize the possibility that if petitioner should now sue out a writ of error in the Supreme Judicial Court under c. 250, § 9, as suggested by the court below, petitioner may be told by the state court that review of a judgment of conviction may not be had on writ of error, where the same judgment has already been reviewed and affirmed under the alternative procedure of appeal pursuant to c. 278, §§ 28 and 33B. Or he may be told that on the appeal he assigned as error the order of the superior court denying his motion for leave to employ psychiatric experts; that what he is seeking to do on writ of error is to challenge again the same order of denial, this time on an additional ground, a federal constitutional ground, which he could have and should have advanced on the earlier appeal; that the validity of the order of denial is now res judicata and under state law cannot be re-examined.
Whether the foregoing would be the outcome of a proceeding by way of writ of error we cannot know for sure until petitioner tries it out. But it is clear that petitioner should do that before calling upon a federal court to exercise the delicate jurisdiction of interfering with state processes. See United States ex rel. Kennedy v. Tyler, 1925,
The order of the District Court is affirmed.
Notes
. Under § 55 of c. 277, Mass.G.L.(Ter.Ed.),. the court may allow “reasonable compensation” to such assigned counsel for his services, the compensation to be paid by the ■ county wherein the indictment was found, gee also Rule 95 of the -Superior Court Rules,. under which a maximum compensation of $1000 may be allowed by the court.