Ashley v. State of Texas, 20457.

• Decision Date: 30 July 1963
• Docket Number: No. 20457.,20457.
• Citation: 319 F.2d 80
• Parties: Leslie Douglas ASHLEY and Carolyn Lima, Appellants, v. The STATE OF TEXAS et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

319 F.2d 80 (1963)

Leslie Douglas ASHLEY and Carolyn Lima, Appellants, v. The STATE OF TEXAS et al., Appellees.

No. 20457.

United States Court of Appeals Fifth Circuit.

June 25, 1963.

Rehearing Denied July 30, 1963.

Clyde W. Woody, Houston, Tex., Lloyd M. Lunsford, South Houston, Tex., for appellants.

Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Asst. Dist. Atty., Houston, Tex., for appellees.

James J. Hippard, Houston, amicus curiae on behalf of Greater Houston Chapter of American Civil Liberties Union.

Before TUTTLE, Chief Judge, JONES, Circuit Judge, and DeVANE, District Judge.

TUTTLE, Chief Judge.

This is an appeal from the denial by the district court of the appellants' petition for habeas corpus based on their allegations that in their trial and conviction for murder and sentence to death, they had been denied constitutional rights under the Fourteenth Amendment to the Federal Constitution.

The facts upon which the appellants base their claim for a new trial in the Texas State Court are not seriously in dispute. The appellants were tried for the murder of a real estate man in the city of Houston, whose killing they admitted, after, or during, a three-party sexual orgy in the office of the deceased. Appellant Ashley was a homosexual and transvestite (he frequently dressed in women's clothes for the purpose of attracting men). Appellant Carolyn Lima was a seventeen year old prostitute, who had been living with Ashley. Both of them had been supported by their earnings in prostitution.

At the time of their trial they asserted only the defense of self defense and defense of each other, claiming that the deceased had become violent in his treatment of Carolyn Lima and a struggle ensued which resulted in his being shot and killed by one or the other of the appellants. No defense of insanity was interposed, although the appellants had engaged a clinical psychiatrist, a Dr. Burch, to examine them prior to trial. Dr. Burch expressed his opinion to Jack Knight, counsel for appellants, "It is my opinion that neither Leslie Douglas Ashley nor Carolyn Lima are now or were at the time of the commission of the alleged crime suffering from psychiatric disorder which could be construed as insanity in a legal sense of the word. They are now and were at the time of the commission of the alleged crime aware of the nature and extent of the act."¹

The District Attorney for Harris County followed his usual policy on the occasion of the commission of a serious crime by calling on the regularly employed County psychiatrist, Dr. Sher, to examine the appellants, and, without the knowledge of counsel for appellants, engaged a Dr. Howard Crowe, a practicing psychiatrist, to examine both of the appellants. Dr. Crowe was assisted in his examination by a Dr. Jack Tracktir, a psychologist. On March 13, 1961, Dr. Sher made his written report stating that both of them were "of sound mind." The trial commenced on May 15, 1961. It lasted for nine days, being finally concluded on May 24th. The jury found the appellants guilty, and they were sentenced to be electrocuted. On May 25th, Dr. Crowe wrote a letter to the District Attorney which, because of its significance, is copied in full:

"May 25, 1961 "Mr. Frank Briscoe "District Attorney "Room 501 "Court and Jail Building "301 San Jacinto "Houston, Texas "Re: Leslie Douglas Ashley and Carolyn Ann Lima

"Dear Mr. Briscoe:

"Dr. Jack Tracktir and I evaluated Leslie Douglas Ashley, white male, 23 years of age, and Carolyn Ann Lima, 18 years of age, in the Harris County Jail, Houston, Texas March 22, 1961. We felt they were legally incompetent as we understand the laws of Texas referrable to this kind of problem. Again on April 8, 1961 I evaluated Leslie Douglas Ashley and Carolyn Ann Lima alone, and again I felt they were legally incompetent.

"As you may recall I offered to talk with you, and wanted to talk with you, about this prior to their recent trial, and ultimately I discussed this by telephone on the day of the beginning of their recent trial.

"Find attached bill for my services and a bill for Dr. Jack Tracktir\'s services.

"Respectfully yours "Howard G. Crowe, M.D. "HGC:ds"

Mr. Knight, counsel for the appellants, knew nothing of the examination by Drs. Crowe and Tracktir either during the trial or for a considerable period thereafter. Other counsel subsequently learned of the examination by these two doctors and of their opinions that appellants were legally incompetent, whereupon they moved on December 10, 1962, for a judgment of insanity as to Ashley, for whom alone they had been employed. The inquiry that followed this motion merely touched upon whether Ashley was legally sane at the time of the hearing, approximately eighteen months after the date of the trial and even longer after the time of the alleged crime. On the occasion of this hearing Dr. Crowe testified:

"I felt he exhibited schizophrenia and paranoia and giggling, etc., and I felt it was chronic, and I felt that he was incompetent at that time, and my understanding was that he was legally incompetent in accordance with my definition of the law — as I understand it. I feel that he was insane, and I made a record of it on 3-22-61 and on 4-8-61."

Later on he testified as follows:

"Q. Dr. Crowe, did you report your findings to Mr. Briscoe? the District Attorney

"A. Yes, sir, I talked to him about it and I told him in a letter — I stated that I felt Douglas Ashley was incompetent, he was sick and in talking with Mr. Briscoe, I told him that I felt that this man Douglas Ashley needed treatment in a hospital and he was sick and a schizophrenic, and I did that on 3-22-61 and 4-8-61 * * *

"Q. I believe you said you had a discussion with Mr. Briscoe on at least two occasions?

"A. Mr. Briscoe got my findings and professional opinion that Mr. Ashley was a schizophrenic and incompetent to understand what the trial would be about, and I felt that he was chronically ill and had been for a long time, and we discussed this and I wrote him an opinion about Douglas Ashley being incompetent."

Although this testimony was in terms of Ashley's condition only, it is clear in view of Dr. Crowe's letter quoted above that he reported as to both Ashley and Lima on the same dates before trial.

All of the foregoing facts touching the conclusions by Drs. Crowe and Tracktir that the appellants were legally incompetent and that this opinion was communicated to the District Attorney were submitted to the trial court in the petition for habeas corpus filed on March 29, 1963, together with a petition for a stay of execution.

Upon consideration of the application, but without a hearing, the trial court denied the petition and denied the stay of execution. Thereupon, upon application made to Honorable John R. Brown, a member of this Court, a stay of execution was entered pending the final disposition of this case on this appeal. The case thus comes to us with the unanswered and undisputed allegations in the petition for the writ of habeas corpus which clearly raised the question whether the failure of the District Attorney to disclose to appellants' counsel the fact, known to him, of the existence of opinions arrived at by specialists engaged by the State favorable to the accused if known in time for them to plan the strategy of, and conduct, their trial, is such a denial of due process as to invalidate the trial.

Moreover, here, we need not rely on the legal principle that for the purpose of this appeal we take the allegations in the petition for the writ as true for the purpose of testing the right of the trial court to deny it without a hearing as a basis for assuming the correctness of the underlying facts that posed the constitutional issue. This is so because not only did the State, in its brief in opposition to the grant of certiorari in the Supreme Court of the United States, substantially admit the facts, but counsel for the State, with commendable candor, conceded them in open court during the argument of this case.

In the brief filed on behalf of the State of Texas in the Supreme Court, the following language is found:

"* * * the Harris County District Attorney requested Dr. Benjamin Sher, the Harris County Psychiatrist, Dr. Howard Crow, a Psychiatrist, and Dr. Jack Tracktir, a psychologist, to examine both petitioners and each did make such examination * * * Dr. Sher * * reported both petitioners sane. Dr. Crow reported petitioner Ashley `needed treatment in a hospital, and he was sick and schizophrenic\'. Dr. Tracktir `was able to get the opinion he (Ashley) was psychotic\'.

"The opinion of Drs. Crow and Tracktir were made known to the District Attorney prior to the trial of the case, but the District Attorney did not inform the petitioners nor counsel for petitioners of the opinion of each doctor."

During oral argument before this Court, counsel for the State was asked whether it might be conceded that prior to the beginning of the trial of the two appellants, the District Attorney had been informed by Dr. Crowe that in the opinion of himself and Dr. Tracktir the appellants were both legally incompetent, and that this information had not been conveyed to counsel for the appellants. Counsel acquiesced in this statement of the facts.

In Pyle v. Kansas, 317 U.S. 213, 63 S. Ct. 177, 87 L.Ed. 214, the Supreme Court, after having stated that the petition for habeas corpus filed in that case "do(es) set forth allegations that his imprisonment resulted from perjured testimony, knowingly used by the State authorities to obtain his conviction, and from the deliberate suppression by those same authorities of evidence favorable to him," (Emphasis added) said:

"These allegations sufficiently charge a deprivation of rights guaranteed by the Federal Constitution, and, if proven, would entitle petitioner to release from his present custody." Citing Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791.

The Court...