Clatterbuck v. United States

• Decision Date: 26 March 1959
• Docket Number: Misc. No. 1006.
• Citation: 105 US App. DC 295,266 F.2d 893
• Parties: James E. CLATTERBUCK, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

105 US App. DC 295, 266 F.2d 893 (1959)

James E. CLATTERBUCK, Petitioner, v. UNITED STATES of America, Respondent.

Misc. No. 1006.

United States Court of Appeals District of Columbia Circuit.

October 30, 1958.

On Motion for Appointment of Counsel March 26, 1959.

James E. Clatterbuck, pro se.

Messrs. Oliver Gasch, U. S. Atty., Carl W. Belcher and John W. Kern, III, Asst. U. S. Attys., Washington, D. C., for appellee.

Before PRETTYMAN, Chief Judge, and EDGERTON, WILBUR K. MILLER, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN and BURGER, Circuit Judges, in Chambers.

PER CURIAM.

Order

Upon consideration of petitioner's petition for rehearing in banc of his application for leave to proceed on appeal in forma pauperis, it is

ORDERED by the court that the petition for rehearing in banc be, and it is hereby, denied.

* * * * * * Circuit Judge WILBUR K. MILLER would grant the petition for rehearing in banc.

Circuit Judge BAZELON would grant the petition for rehearing in banc and files a statement in relation thereto.

Circuit Judge WASHINGTON voted against a rehearing in banc and files a statement in relation thereto.

Statements of Circuit Judges BAZELON and WASHINGTON in Relation to Petition for Rehearing in Banc.

* * * * *

BAZELON, Circuit Judge.

A division of this court denied petitioner's application for leave to appeal in forma pauperis from the District Court's denial, after hearing, of his motion to vacate sentence under 28 U.S. C. § 2255. He now seeks rehearing in banc.

Petitioner was represented by counsel at the hearing below, but was without counsel when he prepared and filed his motion to vacate, his application to this court for leave to appeal in forma pauperis, and the present petition for rehearing in banc.

The following is a summary of the circumstances which provoke my disagreement with the court's action in this case. These circumstances cast grave doubts upon the validity of the proceedings which thrust petitioner into a penitentiary and kept him there despite gross manifestations of a continuing mental illness:

1. Petitioner, who had a history of mental illness dating back at least to 1942, had escaped from a mental institution one week prior to the date of the offense charged.

2. He was found incompetent to stand trial.

3. Later, at the hearing upon the Government's motion for a determination of restored competency, he was denied leave to proceed without prepaying costs, and denied leave to secure, at Government expense, a transcript of the original competency proceeding and psychiatrists to testify in his behalf.

4. Several post-trial mental examinations confirmed the earlier determinations of psychiatrists that petitioner was psychotic. The Jail classification report stated that, although psychiatric examinations indicated that appellant "is mentally sound," "his behavior is * * * that of a completely deranged person."

5. On September 15, 1955 — about a year after petitioner's conviction — the Government dismissed the petition for a civil lunacy hearing which it had previously filed. But in the same month the Chief of the Division of Legal Psychiatric Services filed a report concluding that petitioner was a schizophrenic who would lie under his bed, smear himself with and eat his feces and urine; and who would imagine himself surrounded by spirits and constantly speak of trying to kill people.

6. Counsel appointed for petitioner at trial filed a notice of appeal in his behalf, but let the appeal be dismissed for stated reasons which are incomprehensible to me. It does not appear that petitioner asked counsel to drop the appeal or that petitioner was advised that he could renew his forma pauperis petition in this court after it had been denied by the District Court. Now pending on appeal is a District Court order suspending that counsel from practice for not answering charges of failure to prosecute a case for another client.

7. Petitioner became eligible for parole in November 1956, at which time he was undergoing an examination at St. Elizabeths Hospital. His parole application, heard on March 13, 1958, was denied. His "good time" automatic release date is April 22, 1959. If his bizarre behavior is viewed as symptomatic of mental illness, the prison authorities could not conscionably regard it as bad conduct and he would therefore be released on that date. But since petitioner has been incarcerated in a penitentiary rather than treated in a hospital, it is clear that the Government does not consider him to be ill and that he will be confined in prison until his full term expires on May 22, 1960.

Up to now the prison authorities have classified petitioner as a disciplinary problem. If they should now reclassify him as a medical problem — after having known all about his condition for the past four years of his incarceration — the question would arise whether such reclassification would merely be a device to extend petitioner's custody under § 4241 of Title 18 U.S.C., discussed infra, or under § 4247 of Title 18 U.S.C. The latter section provides, in substance, that a prisoner may be held even after the expiration of his sentence if he "* * * is insane or mentally incompetent, and that if released he will probably endanger the safety of the officers, the property, or other interests of the United States, and that suitable arrangements for the custody and care of the prisoner are not otherwise available * * *." It may be that even now, on the eve of petitioner's release, the prison authorities may validly extend his commitment by hospitalizing him under § 4247 or under any of the other procedures described in Judge Washington's statement herein. But the disturbing question would always remain: Why did the prison authorities fail to take steps to hospitalize petitioner long before this? The answer to that question is of critical importance, it seems to me, to society's interest in the proper treatment of offenders, particularly as it relates to its own safety.

Suffice it to say that, under the Government's long insistence that petitioner is not mentally ill, we can expect that in May 1960, at the latest, the Government will release into the community a man who has received no treatment during his incarceration and of whom one psychiatrist has said, "Almost certainly he will make sexual attempts and perhaps even kill little girls again."

Because the foregoing matters raise critical questions affecting the administration of criminal justice, I shall undertake to detail the underlying facts.

Petitioner was indicted on August 31, 1953, for taking indecent liberties on August 1, 1953, with a nine-year-old child. Counsel,¹ appointed by the court, sought a judicial determination of petitioner's competency to stand trial. His petition stated, inter alia, that on November 30, 1942, petitioner was found by by the District Court to be of unsound mind and was confined to St. Elizabeths Hospital until May 20, 1948,² and further that counsel was advised that during January 1949 petitioner had been committed to Western State Hospital, Staunton, Virginia, and had escaped from that institution on or about July 27, 1953, exactly one week before the date of the crime involved here. On November 20, 1953, the District Court, after a hearing held pursuant to 18 U.S.C. § 4244, ordered petitioner committed to St. Elizabeths Hospital upon a finding that he was of unsound mind.³

On May 25, 1954, the Superintendent of St. Elizabeths advised the court that petitioner "is at this time mentally competent to stand trial and is able to consult with counsel and properly assist in his own defense." The Government then moved the District Court for a determination of restored competency. Gunther v. United States, 1954, 94 U.S.App.D.C. 243, 215 F.2d 493. On July 21, 1954, petitioner, through his counsel, applied for leave to proceed without prepayment of costs, specifically without payment of "necessary costs of defense such as competent mental examination," and for a transcript of the proceedings had upon the original competency hearing.⁴ On September 1, 1954, this application was denied without argument, and petitioner was thereupon found competent to stand trial.⁵ It was only after this determination was made — on September 22 — that he was allowed to proceed without prepayment of costs.

Upon a jury trial before Judge Letts, petitioner was convicted and sentenced to a term of two to six years, without a recommendation as to place of confinement.⁶ He was subsequently committed by the Prison Bureau to Lorton Reformatory, notwithstanding the statement of the Department of Corrections Assignment Board that it "most strongly recommends * * * a hospital type institution for care and treatment."⁷

On December 3, 1954, nine days after entry of judgment, petitioner filed a notice of appeal with the District Court. On the same day, that court denied leave to appeal in forma pauperis, with the notation "The court is aware of no substantial question of law. The court further finds that the appeal is not taken in good faith." Petitioner did not renew his forma pauperis application here, but instead docketed his appeal. However, the appeal was dismissed on December 21, 1954, when his counsel failed to answer an order to show cause why the appeal should not be dismissed for failure to file the record.

On December 26, 1954, petitioner addressed a letter to this court requesting a transfer from Lorton Reformatory to St. Elizabeths Hospital. Our late Chief Judge Stephens then requested petitioner's counsel, the Assistant United States Attorney who prosecuted the case, and the two judges who had participated with him in the order dismissing the appeal, to attend an informal conference in his chambers to discuss the case. Our Clerk's diary indicates that at this conference the following transpired:

Mr. Bourne petitioner\'s counsel explained that certain doctors from St. Elizabeths had testified at trial that appella

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