*1 MEHAFFY, Bеfore HEANEY and Judges. BRIGHT, Circuit Judge. BRIGHT, Circuit indigent person Ben Thie robbing jury convicted sured loan association locat- Louis, Missouri, ed in and sentenced twenty years to a term of penitentiary, appeals his conviction.1 contends, principally, 2113(a). § 1. The conviction arises under U.S.C. *2 denying robbery erred him ben- and to shoot and kill him obtaining good”. an and as he
efit of
examination
was “no
independent psychia-
testimony from an
granted
govern-
The trial court
purpose
supporting
of
trist
for the
ment's motion and directed that Schultz
requisite mental com-
defense of lack of
be taken to the United States Medical
knowingly
petency to have
committed
Springfield, Missouri,
Center at
for a
constituting
crime.
acts
period
ninety days
not to exceed
for the
in this
We hold the facts
record estab-
purpose
assessing
of
lish
entitlement
such
Schultz’
Physicians
stand trial.
affiliated with
statute,
pertinent
under
18 U.S.C.
§ the Federal Medical Center staff
found
3006A(e),
part
of the Criminal Justice
time, place
Schultz “to be oriented as to
Accordingly,
Act of
reverse
1964.
we
person”
exhibiting
thinking
and
and
no
and order that Schultz be retried.
arraignment
May 2,
disorder. At an
on
Savings
judge, having
report
the trial
of the Jefferson
The
possession,
compe-
in his
found
and
occurred on Janu-
Schultz
Loan Association
ary
agents
tent
to stand trial.
counsel
1969. Federal
arrested
Defendant’s
suspect
objection
finding.
voiced no
crime
to this
Schultz as the lone
following day. Upon
fil-
Schultz
Shortly thereafter,
counsel re-
ing
indigen-
appropriate
affidavit of
quested
appoint competent
the court
Act,
appointed
under the
experts
for the
of exam-
represent
Thereafter,
on Febru-
him.
ining
provide
Schultz in order to
a basis
ary
moved,
prosecutor
pur-
possible testimony
in defense of the
provisions of
suant
18 U.S.C. §
prosecution.
The trial court denied this
judicial
determination
for a
request.
recit-
to stand
appeal,
On this
we examine this denial
ing
“may
in the motion that
within the framework of
Criminal
presently
or
men-
insane
otherwise so
pertinent,
Act, which,
Justice
reads:
as
tally incompetent
un-
to be unable to
than counsel.—
Services
against
proceeding
him or
derstand the
finan-
defendant who is
Counsel for a
properly
in his own defense”.
assist
cially
investigative,
to obtain
unable
specified:
The motion
expert,
other services
(1)
had been confined
The accused
in his case
hospi-
Louis mental
and
treated
parte applica-
in an ex
them
April
tal for mental
illnesses
appropriate
Upon finding, after
tion.
September
and
of 1957
proceeding,
inquiry
parte
in an ex
mid-August
1967;
months of June
necessary and
that
are
the services
(2)
Army, in
The
States
financially un-
diagnosed
possessing
anti-
them,
shall
to obtain
able
social, emotionally-unstable
personality;
serv-
to obtain the
authorize
(3)
Army .dis-
the defendant.
The United States
ices on behalf
charged
3006A(e).
in 1948 for demonstrat-
U.S.C.
§
habits
and traits
undesirable
two-prong
provisions enunciate a
These
character;
satisfy
(1)
must
The accused
test:
inability prevents
(4)
The accused had been convicted
finanсial
obtaining
re-
robbing
the services
and loan asso-
the same
him from
;
(2)
show
apprehen-
quests
The accused
ciation in 1957
ade-
had
sion on that occasion
stated
need for such services
expected
police
quate
the location
defense.2
Kennedy,
typical
re-
case the
John F.
in transmit-
In the
President
pitted
type
ting proposals
legislation
arе
for this
sources
Speaker
Congress,
To
the individual.
House
wrote
John
those
great
guarantee
cir-
trial under such
fair
McCormack
need
requires
that each accused
enactment:
cumstances
only
additionally
(a)
report
here
concern
focuses
Our
revealed:
appeal appears
long
requirement.
history
second
accused claimed a
This
of mental
requiring
impression
since
as a case of first
illness
medical and
us
treatment;
(b)
we
no
which
have found
similar case
independently
appeal
Medical
the federal courts of
have consid-
Federal
Center
diagnosed
ered
had
a situation
verified
depressive”
finality
re-
had exhibited
denied with
an accused’s
a “manic
has
*3
quest
(e)
hospitalized
for
for
subdivision
services.
bizarre behavior while
years
than
two
mental
illness
less
considering the
the is-
In
resolution of
earlier;3
describing
(c) Schultz,
us,
information
sue
we
before
review
crime,
activity
day
of
stated
it
to the trial
the time
available
court at
clouded,
memory
that he
that his
appli-
request.
considered Schultz’
drinking
beverages
had been
alcoholic
all
by
cation
day
connection”
and that
had “no
reference
made
subdivision
robbery;
(d)
and
with the
action of
court author-
the earlier
calmly
un-
seemed
amazed and somewhat
examination,
izing
a §
gravity
concerned over
situa-
intended
Schultz
advised
tion in which he found himself.4
an
raise
continued
notified the
arbitrarily
No standard can be
symptoms includ-
to show some bizarre
covering
circumstances
articulated
May
ing
attempt
and re-
on
a suicide
an
demonstrates
under which
report
specially
ferred
under
Act to services
his entitlement
Center, which
of
Medical
the Federal
experts
de
an
indicating that
as
counsel characterized
course,
counsel,
makes
Trial
fense.
disease
mental
defendant suffered “from
pretrial
request
context
and illness”.
vestigation
sur
circumstances
alleged
rounding
discre
crime. The
re-
in its
Medical Center
The Federal
“sociopathic
possessed by
the district
port
impression
tion
noted an
This
concerning
personality”
appear
Schultz.
narrower
to be somewhat
would
gath-
ample
person
opportunity to
to Malcolm
He was admitted
abuse.
evidence,
discharged
and
аnd
er
Bliss on June
and
money
diagnosis
depressive,
the lack
his cause. Whenever
of manic
with the
securing
prevents
type. Only
defendant
from
a
mixed
on this admission
lawyer,
investigator
experienced
major
trained
tran-
was he treated with a
expert,
unjust
quilizer,
convic-
technical
or
He was
which was Thorazine.
U.S.Cong.
may
given
& Admin.
tion
follow.
treatments
electroshock
p.
News
admission.
on this
part
report
psychiatrists
3.
as
This
related to the staff
history,
by
recited:
that he had been
“framed”
officers;
charged
in mental
that he has been
He stated
him
officers
hospitals
many
and
occasions
because
the lack of
major
stays
statement,
suspect.
making
describes his
as
narrative
Schultz, however, acknowledged
illnesses
radical
treat-
with severe
рsychiatrist
were
ment. Most of his admissions
fed-
knew that
staff
that he
Louis,
possessed
photographs
where
Malcolm Bliss
eral
authorities
involving
identifying
shock
described
treatment
him as
within
major
tranquilization.
therapy
place
loan association at
and.
teller, by
robbery.
(A
Bliss
Records obtained
Malcolm
eight
“robber”,
handing currency
admis-
belie this fact and show
over
sions,
longest
stay of
with the
nine
hidden
filmed
activated
cameras which
days,
stays
prints
part
two
and the rest
of one to
de-
of the incident. Positive
days.
veloped
threat
Each
followed
a basis
from these films afforded
by
suicide,
(sic),
witnesses,
jury
alco-
threat of homocide
as
as the
well
holism,
drug
comparison
photographs
re-
He was
or
abuse.
with other
sociopathic
garded
identify
рositively
at all
times
as
drug
personality
participant.)
alcoholism
prove
power under Fed.R.Crim.P.
and “articulate
its
17(b),
reasons
F.2d at 519.
federal dis
therefor”.
rule
which a
financially
may
authorize
trict court
circuit,
Ray
This
produce
pressed
witnesses
through subpoena at
nied,
L.
evaluating
governmental
expense.
Ed.2d 785
considered whether
17(b)
request,
con
court,
appоint
the action of the trial
evi
effect of the
sider
the nature
defendant's
retained counsel
proposed
defendant—
dence
attorney under the
Justice Act
Criminal
not,
cumu
whether
material or
trial, operated
the course of the
trial court
not. The
in nature or
lative
by depriving
the defendant
grant or
possesses
a broad discretion
him of an
hand
obtain
(b)
deny
application.
See Slawek
a 17
writing
fingerprint
experts.
F.2d 957
writing
Lay,
court, emphasized
for the
*4
States,
1969);
United
Terlikowski
v.
great
that counsel
accused bears
denied,
Cir.),
(8th
389
cert.
9H A pert medical certainly attempting haps aged certаinment [*] aof omitted.) panel While we an essential on -X- same views is as an -X- of this court the most advisable and important of the truth. have opinion trustworthy issue, meet Alexander v. United at 720. recognized that ex- factor government side later * * * (Citations reiterated in the as- means of burden. encour- always it is sented an Mason U.S. ty) head 1969) States v. (8th (1969) (bank ; injury). Cir. Iyotte (kidnapping —bizarre v. (homicide drinking, Leeper, While a trial court need not 89 S.Ct. United 1968), testimony. — sociopathic cert. 22 L.Ed.2d States, — F.2d denied, 22 L.Ed.2d E. supported denied, g., behavior); personali F.2d 732 (8th possible United (1969) F.2d U.S. Cir. expenditure authorize an under subdivi the issue mental a criminal “fishing expedit sion for a mere issues, competency, like most other ion”,5 it should not au withhold its adversary jury in an to the thority underlying when reason language, which we context. This ably suggest exploration further Pope quoted illustrates case may prove beneficial system adversary can- the obvious —the development a defense to successfully party work unless each charge. Considering of § may fairly utilize the tool *5 3006A(e) of the to Criminal Justice Act knowledge pre- in to assist the medical provide oppor the accused with a fair jury. sentation of this issue to the See tunity case, present to his Albright, 719 United States v. application the accused’s counsel the for such a services must be evaluated on lawyer representing ac- think We standard reasonableness. We need sub- explore cused confronted with facts not full dimensions of the mitted in motion would inevita- applied Schultz’ standard to the statute. bly explore possibility consider and When, however, an accused’s facts, a defense based on defendant’s case, learns of in such as this responsibility. cir- dicating lack of criminal that his client has acted bi strong, appear to zarrely, cumstances here hospitalized has been as a men stronger, underlying if fac- patient than the tal on several occasions and has diagnosed tual in elements several recent depressive, as a manic pre- in past, attorney cases which defendant’s all within the recent expenditures investigative,
5. Records of other services under apparent privilege the Criminal Justice Act of 1964 demonstrate no abuse of the granted employ 1969, Through 31, defendants to to such services. December payments every attorneys’ aggregated including for services of kind services $12,762,665.00. spent investigative, The amount services $216,339.00. Expenditures increasing amounted to for these services have been substantially years. following comparison over the is a the cost of these years through fiscal 1969: F.Y. 1966 F.Y. 1967 F.Y. 1968 F.Y. 1969 Investigators 8,610 $20,368 $25,906 $35,283 $ Psychiatrists 11,498 15,322 22,844 22,256 Interpreters 3,302 5,296 9,212 5,663 7,547 11,251 11,465 Other $26,287 $46,539 $65,297 $78,216 Grand Totals (Data January 28, 1970, report Dеputy Director of the Administrative Office of the United States Courts Judicial Conference Im- Committee to plement Act.) the Criminal Justice acquires denied, reasonable basis cert. investigate (1961). competency of his cli- 81 S.Ct. See L.Ed.2d charged against Alexander, supra, commit ent to the crime 38. Cf. apply Tarvestad him. The trial denied, standard same of reasonableness Apрlication of this L.Ed.2d to it. U.S. demon- case standard to the facts the re- strates Schultz’ entitlement reading Our of the record in the case quested services. ruling satisfies us that of the trial trial record An opportunity court denied Schultz the needed fortifies our view that Schultz meaningful defense based on independent assistance responsibility. lack of can- We prepare he sustained trial and that say po- improve that Schultz will fully through inability sition on that a new event explore The trial defense. say trial. do least en- We that he competence issue to court submitted try. titled to jury, Schultz. which found ap contends on this counsel offered and peal failed to sus received records guilt proof tain its burden of hospitalizations treatment presenting failing Lоuis, hospital. its case in Missouri, chief mental Johnston, submit evidence that was then called Donald Dr. sane commission physician time of the the staff who had the crime. This contention lacks the accused at the Federal Medical Cen- merit. In order possessed initiate Dr. ter. Johnston limited prove beyond background training burden reasonable the field of responsibili doubt accused’s criminal mental illness. He that Schultz denied ty, evi incompetent must offer some his ex- at the time of indicating the ac dence at amination or on the date of the crime. cused lacked mental possibility He did admit *6 offense, prior psycho- time of the depresssive the accused manic by might pretrial procedure impaired shown sis have reoccurred and adjudicated incompetent had competency. later testi- Such Tarvestad, supra, mony obviously any, pro- some earlier little, if time. carries weight. cir F.2d 1043. Neither bative presenta cumstances existed the fact, had the benefit never tion of the case. any psychiatric or evalu directly ation related to his defense of complains concerning insanity. Truе, the Federal Medical the foundation identification for an ex- physicians Center him to hibit, purporting a document competency termine his stand to note which Schultz the tell- may but a reciting: substantial exist difference gun, er “I have a turn over permits between the mental state which money, any otherwise, attempt, will an accused to be tried that which cost lives.” We have rеview the record. permits him responsible to be held for a The testimonial foundation sufficed to Driscoll, crime. United States v. 399 F. establish reasonable basis (2d 1968). 2d Cir. Examination for this and did admit trial could purpose to stand trial exhibit into evidence. may require less exactness those designed examinations Though convincingly determine san this record es- ity for responsi of criminal tablishes сommitted bility. Driscoll, supra; forming indictment, Winn United v. acts of the basis States, U.S.App.D.C. had an this also discloses that he record test inadequate to defend on be used whether capacity insanity. defendant has sufficient mental to stand has suffi- trial is Reversed. ability cient consult with degree lawyer of ra- a reasonable (concur- MEHAFFY, Circuit understanding proceedings tional ring). v. him. Wheeler United сoncurring reached result 1968); But- emphasize majority, by I want ler each turn this must such as that cases finding competen- A involved, and, as particular on the nec- trial does therefore stand Judge Bright, can “no standard noted essarily the time indicate covering arbitrarily articulated be of the offense. commission under which circumstances had fact that defendant view of the under the demonstrates his entitlement long illness, history includ- of mental services of ex- Act to Justice] [Criminal depression, the fact manic perts defense.” had been asked majority opinion, based is competency at the court to determine case, that a new record in this crime, of the commission necessary fair trial to assure a is the further fact it was ques- indeed a clоse defendant. It is for tention to raise supporting as to whether the facts tion depended the trial —the success which appointment of a defendant’s entirely upon presentation almost additional exami- testimony the con- am led —I jus- sufficiently compelling nation are record the above and clusion from substituting tify judg- this court in its psychiatric eval- additional facts that аn for that of the trial court which ment request and uation a reasonable is in the first instance authorized defend- probably order make determination. The district adequate de- prepare an ant to be able possesses discretion in broad fense. have, as it I am matter should fear- majority ful that the decision of unduly used as limit dis- basis to only trict It court’s broad discretion. strong fеeling
because of the ma-
jority mentioned and com- heretofore of a
bination number of factors which present that de-
are I have concluded that *7 permitted fendant should an- ZIZZO, Petitioner-Appellant, Frank examination. place, In the first commitment America, UNITED STATES Springfield Medical Center at was for Respondent-Appellee. specific purpose No. 18168. “the presently mentally incompe- sane or otherwise so Appeals, Court United States tent as to be unable understand the Seventh Circuit. proceedings against him and to assist in Sept. Consequently, own defense.” when Neuropsychiat- the three members of the
ric Staff examined defendant and unan-
imously found competent, that he was finding pertained to his
to stand trial and not to his
at the crime.