440 F.2d 713 | 5th Cir. | 1971
Lead Opinion
Appellant Theriault was convicted of escaping from custody while held as a federal prisoner in the city jail at Mobile, Alabama. We reverse because the trial judge erred in refusing to authorize employment at government expense of a psychiatrist to examine defendant under the provisions of 18 U.S.C. § SOOGACe).
April 28, 1969, Theriault’s appointed counsel filed a motion pursuant to Rule 28, Fed.R.Crim.P. and 18 U.S.C. § 4244, requesting that defendant be examined by a psychiatrist who could testify as an expert witness for the defense, to determine defendant’s mental capacity at the time of the alleged offense and currently. The court granted the request by ordering that Theriault be taken before a qualified psychiatrist at the United States Penitentiary, Atlanta, Georgia, where he was imprisoned, who should examine him as to competency at the time of the offense and competency to stand trial.
Before Theriault was examined he filed an objection, again referring to Rule 28 and § 4244, alleging that, because of his employment by the government, the prison psychiatrist had an adverse interest. At the same time defendant renewed his request for examination by a psychiatrist who could testify as an expert and otherwise assist defense counsel. Before these matters were ruled on, and still prior to any examination, defendant moved under 18 U.S.C. § 3006A (e) that the court authorize defense counsel to employ a psychiatrist of Mobile, Alabama, (where Theriault’s case would be tried) to examine defendant and be available to appear as an expert witness as to defendant's mental condition. The motion pointed out that defendant’s indigency already had been established, and alleged that appointment of an expert as requested was necessary to an adequate defense. The motion was denied August 11 with a notation “Psychiatrist already appointed by previous order.”
The psychiatrist at the Atlanta prison commenced examination of defendant July 9. On September 4 Theriault moved for reconsideration of the denial of his § 3006A(e) motion. September 9 the Atlanta psychiatrist submitted to the court his report with copies for the prosecutor and for defense counsel. His conclusion was that Theriault was not insane at the time of the offense. At the beginning of trial on September 15 the District Judge held an ex parte hearing on the motion for reconsideration and adhered to his earlier denial, pointing out that one of his reasons was the problem, while Theriault was outside the penitentiary walls, of safeguarding against his escape (Theriault had a long record of previous escapes).
At trial defendant admitted “withdrawing himself” from the jail. His principal defense was insanity. He claimed that previously he had been treated inhumanely while imprisoned at Parchman state prison in Mississippi, and that he was unable to control his impulses to escape from the Mobile jail because of his overpowering fear that he would be sent back to Parchman and again be mistreated. Also he claimed that conditions in the Mobile jail were not tolerable, contributing to his uncontrollable impulses to escape.
Por testimony to support his defense of insanity Theriault relied on members of his family, prison inmates subject to easy impeachment, and the chaplain of
The court erred in denying the § 3006A (e) motion without conducting the ex parte proceeding required by the statute.
The impartial expert appointed under Rule 28 at the request of defense counsel to inquire into defendant’s sanity is not a prosecution witness but the court’s witness and he may testify as to his findings. United States ex rel. Smith v. Baldi, 192 F.2d 540 (3d Cir.), aff’d, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549 (1953). Thus the original request by Theriault’s counsel, resting in part on Rule 28, made the prison psychiatrist’s testimony admissible on the issue of competency at the time of the alleged offense.
The standards to govern what is “necessary to an adequate defense” are not susceptible of arbitrary articulation but can best be developed on a case by case basis. Schultz v. United States, 431 F.2d 907 at 913 (8th Cir. 1970) (concurring opinion). Usually the appellate court will be reviewing a trial court denial of a § 3006A (e) motion in the light of only the information available to the trial court at the time it acted on the motion. But in this instance the application was denied because of the earlier appointment, and without the statutorily mandated hearing. There was no focus on necessity of an expert to prepare and present an adequate defense. On remand it will not even be necessary for the court to conduct a hearing, because at the appellate level we are in the unusual position of having before us a complete trial record, which establishes with as much clarity as one could want the necessity of a
Numerous claims of error in admissibility of evidence either are without merit or concern matters which should not arise at another trial. The claim of a variance between the proof and the bill of particulars also can be eliminated before trial.
Reversed and remanded for further proceedings not inconsistent with this opinion.
. “Services other than counsel. — Counsel for a defendant who is financially unable to obtain investigative, expert, or other services necessary to an adequate defense in his case may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the defendant is financially unable to obtain them, the court shall authorize counsel to obtain the services on behalf of the defendant. * * * ”
. Obviously, the ex parte hearing conducted at the beginning of the trial on the motion to reconsider the earlier denial, came too late.
. Because in this instance the original request was made under both § 4244 and Rule 28, and, before he was examined, the defendant objected to going forward and asked for a § 3006A(e) expert, it is not necessary for us to decide whether a defendant may request appointment of an expert under Rule 28 and, after such an expert has examined the defendant and made his opinion known, request another appointment under § 3006A(e). The functions of the two appointments are different, but the court has a responsibility to prevent abuse of the availability of appointive processes.
. The trial judge instructed that the psychiatrist not go into competency at the time of trial, which is the § 4244 inquiry.
Concurrence Opinion
(concurring specially):
I concur in the judgment of the majority. But I think that we should give more aid to the district courts that must apply this statute in the future by discussing the statutory standard for government payment of defense-chosen expert assistance. The question is the meaning of the statutory criterion “necessary to an adequate defense.”
The Report of the Committee to Implement the Criminal Justice Act of 1964 contains a general statement recommending
that the allowances of petitions for investigative services be strictly limited, to the extent possible, to those charges necessary in the strictest sense of the word.
Report of the Judicial Conference of the United States, 36 F.R.D. 277, 290 (1965). But the minutes of the Committee’s meeting show that this suggestion applies only to investigative services. The committee members distinguished between “Investigative Services” and “Other Services”, which would include psychiatric and other expert services. 36 F.R. D. at 374. And, the minutes show an explicit recognition of the importance to the defendant of independent psychiatric services:
Judge Hastings inquired about a provision in each plan (to be drawn up for district courts) for psychiatric services, pointing out that the statute apparently is intended to give a defendant who is financially unable the same services that any other defendant might secure. The Committee considered the use of a roster of qualified psychiatrists and concluded that the defendant is entitled to the doctor whom he wants. It was suggested, however, that where practical available public facilities should be used.
36 F.R.D. at 374.
The legislative history of the statute does not contain any attempts at defining “necessary to an adequate defense” specifically. But the expressions of purpose are of some help. President Kennedy’s letter transmitting the proposed legislation to the House said that
In the typical criminal case the resources of the government are pitted against those of the individual. To guarantee a fair trial under such circumstances requires that each accused person have ample opportunity to gather evidence and prepare and present his cause. Whenever the lack of money prevents a defendant from securing an experienced lawyer, trained investigator or technical expert, an unjust conviction may follow.
1964 U.S.Code Congressional and Administrative News, at 2993. The focus on an “ample opportunity to * * * prepare and present his cause” and the effort to undo the effect of a defendant’s indigence reflect a purpose to give the impoverished defendant defense aids that he would use if he had adequate means. The Sixth Circuit has concluded that “the Congressional purpose in adopting the statute was to seek to place indigent defendants as nearly as may be on a level of equality with non-indigent defendants.” United States v. Tate, 6 Cir. 1969, 419 F.2d 131.
A liberal reading of the statute is further impelled by constitutional policies. This Court has held that an indigent criminal defendant has a constitutional right to court-appointed experts when his case would be prejudiced by
I would read the statute, therefore, as requiring authorization for defense services when the attorney makes a reasonable request in circumstances in which he would independently engage such services if his client had the financial means to support his defenses.
I do not mean to suggest that the trial court should grant such requests automatically. For instance, the court should not allow a defendant successive authorizations for the same type of services, since this would undermine the expenditure limit contained in the statute. Nor should the trial judge authorize an obviously frivolous expenditure by the defendant. But he should have a healthy respect for the judgment of the defense attorney in making his findings of necessity.
. Two other courts have formulated definitions of the statutory standard. In United States v. Schultz, 8 Cir. July 17, 1970, 431 F.2d 907, the Court said:
While a trial court need not authorize an expenditure under subdivision (e) for a mere “fishing expedition”, it should not withhold its authority when underlying facts reasonably suggest that further exploration may prove beneficial to the accused in the development of a defense to the charge.
And in United States v. Pope, D.C.Neb. 1966, 251 F.Supp. 234, 241, the Court said
It is contemplated by the Act that counsel should be afforded the fullest opportunity to prepare their case. The rule in allowing defense services is that the Judge need only be satisfied that they reasonably appear to be necessary to assist counsel in their preparation, not that the defense would be defective without such testimony.
(emphasis in original.)