Melvin W. Greer v. Dr. George J. Beto, Director, Texas Department of Corrections
379 F.2d 923
5th Cir.
1967
Check Treatment

*1 GREER, Appellant, Melvin W. George BETO, Director, Texas De-

Dr. J. partment Corrections, Appellee.

No. 24409. Appeals

United States Court of

Fifth Circuit.

July 1967. Forbes, Tex., Houston, Arthur L.

appellant. Lonny Zwiener, Atty. F. Asst. Gen. Martin, Atty. Crawford C. Gen., George Cowden, M. First Asst. Atty. Gen., Jr., Carubbi, A. J. Staff Legal Atty. Gen., (Bob) Asst. L.R. Lattimore, Fender, Howard M. Robert Owen, Attys. Gen., Austin, Tex., E. Asst. appellee. BELL, GODBOLD, DYER, Before Judges. Circuit BELL, Judge. GRIFFIN B. Circuit Appellant, long a recidivist with a illness, sought record of mental a writ corpus of habeas in the District Court having after reme- exhausted his state dies. His contention in the District given Court and here is that he was inadequate pretrial sanity hearing by the County, Texas court he wherein charged burglary and with theft,1 and that he was denied effec- tive assistance of burglary trial and in the charge on the merits. Having previously charge, served his sentneee on the theft no issue is as to it. *2 right in the state court constitutional sanity denied relief. We District Court proceedings the trial. on reverse for further appellant the effec- issue of had whether lawyer experienced is criminal who An trial on at his tive assistance counsel past Bar president the Texas a State 15,137, the the in bur- merits No. Cause represent appointed to him. charge. glary lawyer separate on the the trial obtained question appellant’s the under serving Appellant presently a twelve 932b, provisions Ann. Art. Vernon’s year imposed after sentence which was Crim.Proc., applicable the Texas Code of jury guilty on a rendered a verdict of then effect. Texas statute in plea guilty He in that case. of not medical doctors There were several serving imposed on concurrent sentences County practicing but none in pleas guilty burglary pleas to which psychiatry. specialized in the field of County, Texas were entered Kaufman adequate basis for There is an factual Grayson County, peti- Texas. The and finding by the District Court for the these tion is also directed to writ appellant of these one doctors Court, latter sentences. The District lawyer was not satisfied with but however, pretermitted consideration and as result and did not use doctor allegations they determination of the as testimony in the a There witness. guilty pleas related to these and the sen- of- District Court that this doctor had pursuant ground tences thereto on the opinions in court in other cases fered appellant lawfully incarcerated qualifying to as mental illnesses after 15,137 in Cause No. and thus was not expert to in such himself as an presently entitled a of habeas to writ matters. corpus. Beto, Cir., 1967, Brown v. appel- F.2d 950. found The District Court ap- arranged all of then lant’s appointed The District Court by the sent records to be pellant’s medical represent appellant counsel to there and the Veterans Administration Veterans hearing. evidentiary after conducted an Bonham, hospital Administration That County. centered on the state court Most in Fannin which is diagnosis 15,137 appellant’s trial in Cause No. which mental illness by under and preceded had been by treatment trial and trial on merits Administration. army the Veterans and some two That trial a months. involved doctor to a over turned The records were determination of at the time of based to his conclusions as who testified time of offense and at the exami- on and based records on these Appellant times. was found sane at both doctor, al- appellant. This nation contention is that the trial His prac- though psychiatrist, had been not a constitutionally infirm reason of thirty years ticing medicine for appointed fact deprived his court counsel was Adminis- employed the Veterans been psychia of the assistance as hospital since in Bonham tration testimony there no trist and because psy- numerous physician. He had psychiatrist. He re on his behalf and evaluations chiatric examinations many patients N.D.Tex.1964, McCollum, on Bush v. lies many pa- treated F.Supp. 560, affirmed sub nom. Mc suffering mental diseases. from tients Bush, 1965, 344 F.2d 672. Cf. Collum appel- McCollum, supra, Baldi, ex In Bush v. United States rel Smith requested the defend- 391, lant’s hospital ato The facts are the con ant committed L.Ed.2d 549. diagnosis by psychiatrists, trary. in amination and Whether test be made requested process, part due or as a of or also terms of re- by psychiatrists. Each adjunct Amendment Sixth requests counsel, ap quest No such refused. it is our conclusion here; made his own deprived pellant federal were made was not jury Moreover, distin- verdict arrangements. rendered finding appellant vir- sane. guished there addition from Bush where testimony, jury here trial was tually before a different insanity being issue of Ad- the Veterans tried there was experienced this, anew. more, think that We without doctor who was ministration prima makes out of in- facie case We affirm matters. *3 per- inadequate it or judgment as effective of the of District Court sanity counsel. to the tains quite an- merits is The trial on the We hasten add that counsel represented matter. who

other Counsel may handicapped offering have been in appellant relieved at the trial was testimony medical the since Texas au appointed for was and another indigent thorities seem to hold that an stated, which, on the as the trial merits not a entitled to slightly place months more than two took expense at the of the state. See Crain findings, conclusions, and later. The v. Tex.Crim.App.1964, of State only opinion deal of the Court District may policy 394 S.W.2d 165. Such Texas way in the with contention briefest the not, however, avoid the federal constitu appellant the that not then have did right tional to the effective assistance effective assistance of counsel. of Bush, counsel. See McCollum v. su pra ; McCollum,supra. Bush v. also See undisputed It there a com- that was Avery Alabama, 1940, v. State of 308 testimony plete the at absence of medical 444, 446, U.S. S.Ct. L.Ed. trial on the This fact must be merits. 377; Alabama, 1932, Powell of State light the additional considered 45, 71, L.Ed. appellant’s the fact that issue 158; Roberts v. United again was then and there submitted to 1963, 325 F.2d The case of Wil jury. jury separate the find- guilty. The Beto, Cir., 1965, liams ings appellant that sane and 698, contains a full discussion of the We presented surmise such issue can an determining ques standards to used in gave since the state trial court involving tions whether effective counsel jury an to the the instruction issue on was afforded in criminal cases. insanity required and defense of and the finding. transcript separate the The This matter must be reversed evidence at trial was not before hearing question on additional wheth- Court, District able, if indeed such avail- appellant deprived er of the effective thus we do not have the benefit assistance of counsel at trial on the of it. anywise restricting merits. in Without the District Court toas what should be us, Under the facts before it is hearing, considered at the pear ap- it would apparent sharp presented that a issue is testimony of counsel who appellant as to whether effec represented appellant at trial on the counsel, due, tive assistance of was his merits, transcript of the evidence light undisputed at in of the trial, adduced if not also the whatever, fact evidence medical transcript of the trial will be otherwise, offered on judicial needed. Good administration re- sanity. question His trial quires that we mention these matters al- by interrogatory counsel testified though recognize they we are to be he did not know of doctor who had left to the discretion District appellant. explanation, His along procedural ques- Court with other inference, appellant a fair was that tions. only recently been found sane. compound Reversed remanded further failure to offer proceedings not inconsistent herewith. ed the introduction into evidence of judicial inquiry only into whether a Judge (concurring GODBOLD,Circuit constitutionally required, sanity was dissenting part). in part in dispute, all not at not even which is overlapping issues three There are inquiry con- the issue of whether pre-trial adequacy of a case—the stitutionally defective. competence to stand determination hear- at representa- What was right trial, effective Box, ing doctor Dr. pre-trial tion hearing, Administration hos- from Veterans’ to such pital, records. examined Greer’s majority who dealt have the trial itself. effectively adequately my not only. the record does view issue the third support Dr. Box ever conclusion that history long appellant’s In view counsel for Greer’s examined Greer. sanity and nervous disorders while mental in district *4 services, Admin- the armed Veterans’ stating, court an affidavit but submitted hospitals, correctional and in istration institutions, “My issue, only that recollec- this to Pate entitled under he was having to tion is that Dr. Box testified 836, Robinson, 375, 86 383 S.Ct. U.S. his examined the defendant Greer adequate (1966) 815 to an 15 L.Ed.2d upon personal his conclusion was based competence pre-trial inquiry to into his observations of the defendant and exam- my opinion he not stand trial. It is was In this case inations of the defendant.” hearing. adequate an accorded importance of where the facts are utmost findings majority in right of of a constitutional on two vindication The stand require (a) ex- I evidence than that would more district court: Greer physician affidavit, presumably by some one local an made least at amined years satisfactory event, to counsel as to what result not after hearing, sanity and recalls substance of the for the as the counsel Moreover, at the of a even if such an (b) the trial court witness. place in- hearing took we have no had the of examination benefit Box, thorough it physician, Dr. H. who formation on or reliable O. how another at examination was.1 denies he examined on the basis of Greer concluded hospital by rec- all Dr. himself and Box. of Greer competent ords, to stand that he was irrelevant, being addition to to first of these is irrelevant The court, reit- determination district of the hearing. adequacy Under majority, erated Greer hearing re- Robinson the Pate physician local and that appellant’s past quired his- because with the “his was not satisfied required, held, tory. it When adequate support result” does not have adequate inquiry an made into not in the counsel record. What Greer’s may (and may not) have matters which said in his affidavit was “There were counsel were known Greer’s but been doctors funds to hire outside with which to the court known at san- not made ity hearing. finding exam- psychiatrists This was relevant medical or and such Cir.), suggestion Bush, (5th in McCollum v. 346 F.2d 775 1. See the United (5th 1965), denied, 449, 963, that an S.Ct. 15 F.2d 672 Cir. cert. 86 344 psychologist worthy (1965). of note a clinical dur It examination L.Ed.2d 366 is during significant ing minute lunch recess cast recent studies have 40 reliability single-interview adequate. 344 at n. 1. doubt on the was not F.2d prisoners psychiatric U.S.C.A. 4244 evaluations. Stoller & Geets 18 For federal Psychiatrists’ “by ma, requires at least one The Consistance examination Judgment, inquiry by psychiatrist”. qualified Nervous and An 137 J. Clinical Rosenweig, (1963); probation officer will not meet re Mental Diseases 58 Study Day, al., Ex- quirement, Mental et A of the Status United States v. Psychiatry (6th 1964). mination, A two-hour 177 Am.J. qualified psychiatrist (1960). by a reliability. may Birdsell v. be of doubtful Turning as and were of effective here to the issues as [Greer] inations hearing satisfactory from sistance of counsel at too not were available accompanying (and F.Supp. the trial my position”. my testimony), it very mean is could medical well statement Counsel’s capa- not shown opinion doctors the local counsel he did not deem ex- psychiatric medical making have had effective a reliable ble of phy- hearing. local based The and evaluation. amination allegedly above, plus the fact (or physicians) who matters recited sician any psychiatric service not if kind amined Greer attempt County hearing produced available in fact, pub and, it at by appointed has to obtain the district court before state futile. reliably expense have been lic would identified. never been (Tex. State, court prosecutor district testified in Crain v. S.W.2d appel Crim.App.1964). a local fault Nor do I he understood Greer’s competence (who may physician have had lant’s counsel for nothing field) Greer. to show There is examine manner. totally establish himself of insufficient not avail This is that he did reliability and facilities talent the extent or maximum in medical evaluation, in fact examination and available. at all. it establish that was even to require the I district On remand would Again, adjudication questions con- *5 the course directed court to follow made on must be stitutional entitlements Robinson, supra. in- An initial Pate v. And, reiter- I this. better evidence than into quiry should be made whether ate, judicial inquiry can- into hearing can be time an effective adequate by of an evidence not be shown extra-judicial competence held on the issue of Greer’s physi- examination the time of trial. If such cian, made, evaluation if and what not, feasible, held; if it is it must be attorney put examina- on that accused’s requires Robinson retrial. Pate v. pre- Adequacy tion. rests on evidence agree majority on the issue I judi- of, at, conduct sented and the counsel at trial of lack of effective cially-convened inquiry. disposition in their substantive concur scope depth medical testi of that issue. hearings, by mony psychiatrists at such of a I that I not in favor add am psychiatrists, are doctors who indigent that in all cases an blanket rule extent ac and the of examination of constitutionally entitled to may defendant is fairly opinions cused on which their psychiatrist at state services developing based, part of field are here, pense. But on facts of the law. the discussion Greer See counsel needed the Greer’s (S.D.Texas Beto, F.Supp. client, 1966) ; McCollum, F.Supp. Bush v. expert testimony qualified one to tes- (N.D.Texas), aff’d, 344 F.2d 672 tify psychiatric matters, the san- (5th 1965); ex rel United Cir. States 561, ity hearing on the merits. and for trial Baldi, Smith v. fully needed Greer this assistance (1953); Krupnick 97 L.Ed.2d 549 States, (8th much more than

v. United defendant 1959); supra. McCollum, 102 Bush Williams v. United The record U.S.App.D.C. 51, (1957). he 250 F.2d shows did not them. receive