Carroll v. Beto, Civ. A. No. 1-376.

• Decision Date: 08 January 1971
• Docket Number: Civ. A. No. 1-376.
• Citation: 330 F. Supp. 71
• Parties: Burlee CARROLL v. Dr. George J. BETO, Director, Texas Department of Corrections.
• Court: U.S. District Court — Northern District of Texas

330 F. Supp. 71

Burlee CARROLL v. Dr. George J. BETO, Director, Texas Department of Corrections.

Civ. A. No. 1-376.

United States District Court, N. D. Texas, Abilene Division.

January 8, 1971.

Charles Erwin, Abilene, Tex., for petitioner.

Allo B. Crow, Asst. Atty. Gen., Austin, Tex., and Ed R. Paynter, Abilene, Tex., for respondent.

MEMORANDUM OPINION

BREWSTER, District Judge.

This opinion should be considered jointly with this Court's memorandum order herein, dated July 1, 1970, and the amendment thereto, dated September 10, 1970.

The memorandum of July 1, 1970 dealt with the first question the opinion of the Court of Appeals said this Court should resolve on remand; whether it is now possible to determine if petitioner was mentally competent to stand trial at the time of his 1948 murder conviction. Upon the basis of the opinion of an outstanding psychiatrist, with an extensive background of psychiatric examination and treatment of persons charged with crime, the Court answered that question in the affirmative.

The order directed that the convicting state court then hold a hearing within a reasonable time to determine the second question directed by the opinion of the Court of Appeal: whether the petitioner was mentally competent to stand trial on his murder case in 1948. The summer term of federal court in Abilene expired shortly after the first hearing; and between that time and the opening of the September term, further reflection convinced the Court that the hearing on this question should not be held in the state court, as the remedy there had been exhausted by the extensive hearing on this question in 1968. After the Abilene term of federal court began, the amendment of September 10, 1970, was entered retracting the direction that the petitioner return to the state court, and setting a date for a hearing in this Court.

Arrangements were thereupon made whereby the State agreed to pay the expense of a mental examination by Dr. Palasota, a psychiatrist chosen by petitioner and his attorney. The present full, evidentiary hearing was held after the completion of that examination. The petitioner renewed his contention that the passage of time has made it impossible to determine the question of his mental competency to stand trial at the time of his conviction. The Court agreed to reconsider that question, and both the questions set out above were explored at length on this hearing. Among the evidence before the Court on each of such questions is the testimony of the psychiatrists, Dr. Kreimeyer and Dr. Palasota, who appeared in person as witnesses. The Court, after considering the entire record before it, consisting of oral testimony on this hearing, the written psychiatric report admitted in evidence, and the transcript of the proceedings in the state court, concludes (1) that under the circumstances of this case it is now possible to determine whether petitioner was mentally competent to stand trial at the time of his conviction in July, 1948, and (2) that at such time, he then had sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and a rational as well as a factual understanding of the proceedings against him. The Court is therefore of the opinion that the petitioner was mentally competent to stand trial at the time in question, and that his petition for writ of habeas corpus should be denied.

The factual basis for the Court's conclusion that the passage of time had not made it impossible to determine petitioner's mental competency to stand trial at the time of his conviction was discussed in the memorandum order of July 1, 1970. But since the matter was reopened in this hearing and oral psychiatric testimony, pro and con, was heard on the question, the Court will discuss it further and in more detail.

The petitioner cites in support of his contention on this question the cases of Dusky v. United States, 1960, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824; Pate v. Robinson, 1966, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815, and Clark v. Beto, S.D.Tex.1968, 283 F.Supp. 272. Those cases do not hold, as petitioner seems to construe them, that in every case the mere passage of time makes it impossible as a matter of law to determine a convict's sanity at the time of his trial. Each case holds only that, on the basis of the record before the Court, it appeared impractical to make a retrospective determination of the issue of mental competency to stand trial. Judge Ingraham recognized that when he said in Clark v. Beto, supra, at page 275: "* * * I recognize, of course, that the mere passage of time does not make it impossible to hold an adequate hearing on the question of competency. * * *"

The brief per curiam opinion of the Supreme Court in the Dusky case was written at the time of the granting of the writ of certiorari, not after hearing and arguments, and followed the suggestion of the Solicitor General (1) as to the test for determining mental competency to stand trial and (2) as to the advisability of holding a new hearing to determine the petitioner's "present competency to stand trial". Up to that time, there was no certainty as to the federal court test for determining mental competency, and the opinion of the Court of Appeals had terminated with a statement of hope that the Supreme Court would grant certiorari and establish such a test.¹ The opinion of the Supreme Court shows that the conclusion that a retrospective determination of the petitioner's mental competency was not advisable in that case was because of "the doubts and ambiguities regarding the legal significance of the psychiatric testimony in this case and the resulting difficulties of retrospectively determining the petitioner's competency." (Emphasis added). 362 U.S., at 403, 80 S.Ct., at 789. This Court construes that language to mean: (1) There was in that case a difficulty of retrospective determination of the petitioner's mental competency. (2) That difficulty was caused by or resulted from the fact that all prior proceedings, psychiatric and legal, had been conducted without the help of a proper test for determining legal competency. That is a far cry from holding that the mere passage of time makes it impossible, as a matter of law, to have a retrospective determination of competency in any case.

Pate v. Robinson, supra, was a federal habeas corpus case which raised the question of whether the state convicting court in Illinois should have required sua sponte a hearing on the petitioner's mental competency before putting him to trial on his murder case. The Supreme Court held that the failure to have such a hearing was a violation of his constitutional rights. It further held that there was need for a concurrent, rather than a retrospective, determination of the petitioner's mental competency to stand trial. The opinion mentioned the difficulty of making a retrospective determination under the facts of that case, but nowhere intimated that the difficulty would be insurmountable in all cases. The Court had before it no psychiatric testimony on the question.

It is unnecessary to go into an extended discussion of the Clark case. Judge Ingraham's statement above quoted that, "the mere passage of time does not make it impossible to hold an adequate hearing on the question of competency", makes the very point that this Court is making — that the matter depends upon the facts of each particular case.

The following factors make this case distinguishable from Dusky, Pate and Clark:

1. In this case, the Court has competent psychiatric testimony upon which to determine whether the difficulty of a retrospective determination can be made. There was no such testimony to guide the courts in the three cited cases, and they were left to mere speculation.

2. The test for determining mental competency laid down by the Supreme Court in the Dusky case was the one followed by the psychiatrists in making their examinations and reaching their conclusions on that question. It is also the one used by this Court in making its determination of the question. There is no confusion, as there was in the Dusky case, caused by the "doubts and ambiguities" resulting from lack of a proper legal guide.

3. The psychiatrists had a full and detailed record on the petitioner, much of which was clinical and psychiatric, which covered a span of many years, including the times of the killings and the petitioner's convictions therefor. These consisted of his extensive medical and hospital records while he was in the service before the killings here involved, his medical and hospital records during his 22 years in the penitentiary, and the various reports to the Parole Board when he came up for consideration for parole each year. As the opinion of the Court of Appeals in this case shows, many of the entries in those records were made by psychiatrists, as much of his time in the hospitals over those years was spent in psychiatric wards. The task for the psychiatrists here was to interpret those records, if possible.

4. There is no question about the fact that the petitioner has the same problem now that he had in 1948. Dr. Kreimeyer says that he is clearly competent to stand trial now. If his condition does not make him mentally incompetent now, the same condition did not render him incompetent at the time he was convicted for murder.

The Court of Appeals, after a consideration of the very lengthy record, including those from the hospitals, remanded this case for the purpose of determining, with the help of psychiatric testimony, whether the petitioner's mental competency to stand trial could be determined retrospectively. At the time of such decision, the Court of Appeals had full knowledge of the factors petitioner is now urging in support of his argument against a retrospective determination of his competency. If the passage of time arbitrarily made that determination impossible, why did the Court...