McGarty v. O'BRIEN

• Decision Date: 07 May 1951
• Docket Number: No. 4559.,4559.
• Citation: 188 F.2d 151
• Parties: McGARTY v. O'BRIEN, Warden.
• Court: U.S. Court of Appeals — First Circuit

188 F.2d 151 (1951)

McGARTY v. O'BRIEN, Warden.

No. 4559.

United States Court of Appeals First Circuit.

March 29, 1951.

Writ of Certiorari Denied May 7, 1951.

James Seligman, Fall River, Mass. (William C. Crossley, Fall River, Mass., on brief), for appellant.

Henry P. Fielding, Asst. Atty. Gen., Massachusetts (Francis E. Kelly, Atty. Gen., Massachusetts, and Maurice M. Lyons, Dist. Atty., So. Dist. of Massachusetts, New Bedford, Mass., on brief), for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

Writ of Certiorari Denied May 7, 1951. See 71 S.Ct. 794.

MAGRUDER, Chief Judge.

In the order now under review, the district court dismissed a petition by Charles McGarty for a writ of habeas corpus directed to the Warden of the Massachusetts State Prison. A certificate of probable cause was signed by the district judge under 28 U.S.C.A. § 2253. An earlier attempt by the same petitioner to invoke the aid of the federal courts is reported in our decision in McGarty v. O'Brien, 1 Cir., 1950, 180 F.2d 987, certiorari denied, 1950, 339 U.S. 966, 70 S.Ct. 1002. The claim is that a conviction for murder was obtained in violation of the Fourteenth Amendment in that the trial court denied a motion on behalf of petitioner, an indigent accused with court-appointed counsel, to be allowed to employ alienists at state expense.

On August 4, 1947, McGarty brutally killed his eight-year-old niece. Thereafter the grand jury for the County of Bristol, Massachusetts, returned an indictment against him for murder, to which he pleaded not guilty. McGarty filed a motion in the Superior Court setting forth that he was charged with a capital crime and was without funds to procure counsel, and requesting the court to assign James Seligman, Esq., as his counsel. The request was granted.¹

McGarty had orally admitted the killing, and later had signed a written confession in revolting detail. The circumstances of the confession offered little or no opening for the contention that the confession was other than voluntary. In undertaking the defense, assigned counsel faced a bleak prospect, unless he could develop a jury issue on the sanity of the accused.

This being a capital case, it was mandatory under the so-called Briggs Law, Mass.G.L. (Ter. Ed.) c. 123, § 100A, as amended by St.1941, c. 194, § 11, for the clerk of the Superior Court to give notice to the Department of Mental Health, which "shall cause such person to be examined with a view to determine his mental condition and the existence of any mental disease or defect which would affect his criminal responsibility." The statute directs that the report from the Department of Mental Health be filed with the clerk of the court, where it is to be made accessible to the court, the probation officer, the district attorney, and the attorney for the accused. Pursuant to the Briggs Law, McGarty was examined on behalf of the Department of Mental Health by Doctors R. M. Chambers and Roderick B. Dexter. Their joint report, which was duly filed in court December 23, 1947, found that McGarty "is neither feeble minded nor insane, and that he does know the difference between right and wrong. We do believe, however, that the anti-social tendencies which he has presented since early childhood warrant a diagnosis of Psychopathic Personality and he has been so classified." Finally, the report concluded with the expression of opinion that "this prisoner is not suffering from any mental disease or defect which would affect his criminal responsibility."

The defense could have called Dr. Chambers and Dr. Dexter as witnesses, but in view of the conclusions reached in their report counsel naturally wanted to seek out other experts whose opinion, after psychiatric examination, might be more favorable to the defense of insanity. In this somewhat nebulous field, one could not say with confidence that such a search would have been futile, had the defense had funds wherewith to employ other experts. The very category "Psychopathic personality" into which McGarty was placed by the report of Dr. Chambers and Dr. Dexter is a rather blurred classification which in current acceptation embraces widely varying types of personality disorders with dissimilar characteristics. See the article, "Psychopathic Personality," by Dr. Hervey Cleckley, Professor of Neuropsychiatry, University of Georgia Medical School, in the Encyclopedia of Criminology, edited by Doctors Branham and Kutash (1949). In this article Dr. Cleckley points out that many patients classed as psychopathic personalities "who are entirely free of symptoms indicating psychosis by the theoretical standards show themselves far less fitted for unrestricted life in the social group than schizophrenic patients who are hallucinating and delusional. The fact that, according to our present official standards of classification, patients disordered in this particular way must be diagnosed as psychopathic personality brings about regretable and sometimes farcical confusion, since this diagnosis, by definition, whatever the facts of conduct may be, establishes the patient as free from psychosis and usually forces the courts to pronounce him as legally sane and competent." Further, Dr. Cleckley observes that if such patients "who are readily distinguishable, could be removed from the official medical classification where they are for purposes of diagnosis identified with dissimilar conditions, it is probable that their status could in time be considered in relation to facts rather than theories and that, when incompetent, they could be so pronounced medically and legally. They could then be protected and dealt with by medical procedures as are other patients affected with personality disorders." We quote this reference merely as tending to indicate that, despite the conclusions in the report by Doctors Chambers and Dexter, there might be other psychiatrists, equally reputable, whose opinions would have afforded support to a legal defense of insanity sufficient to make it a jury issue.

Under § 56 of c. 277, Mass.G.L. (Ter. Ed.), "reasonable expenses incurred and paid by counsel assigned by the court for the defence of a person indicted for murder, who is otherwise unable to procure counsel, shall be paid by the county where the indictment is found after approval by a justice sitting at the trial or other proceedings of the case." However, Rule 96 of the Superior Court Rules provided: "The court will not allow compensation for the services of an expert or expert witness for the defense in a capital case unless an order of the court or a justice, naming such expert or expert witness and authorizing his employment, was made before he was employed."

Having in view the foregoing provision of law and rule of court, counsel for McGarty, on January 15, 1948, filed a motion in the Superior Court asking that the defendant, being without funds, "be allowed to employ two psychiatrists at the expense of the Commonwealth so that he may properly defend himself against the crime as charged by the Commonwealth." This motion was denied, to which exception was saved. McGarty went to trial, the jury brought in its verdict of murder in the first degree, and he was sentenced to death.

On appeal to the Supreme Judicial Court from the judgment of conviction, one of the errors assigned was the denial by the Superior Court of the defendant's motion to be allowed to employ psychiatric experts at the expense of the Commonwealth. It appears that the alleged error of the Superior Court in this regard was not presented as raising a question of federal constitutional law, but rather was predicated upon the contention that it was an abuse of discretion under the circumstances to deny defendant's motion made under the local statute, § 56 of c. 277, Mass.G.L. (Ter. Ed.). At any rate, the opinion of the Supreme Judicial Court indicated no awareness that a federal constitutional question was presented for decision. After referring to the conclusion of the report by Doctors Chambers and Dexter, the court said, Com. v. McGarty, 323 Mass. 435, at page 437, 82 N.E.2d 603, at page 605: "We assume that the judge could have granted the motion under G.L. (Ter. Ed.) c. 277, § 56. But the matter was discretionary. Nothing in the medical report and nothing in the record indicated that the defendant was not mentally responsible. We find no error in the denial of the motion." Other alleged errors were found to be without merit. The judgment of conviction was affirmed. Commonwealth v. McGarty, 1948, 323 Mass. 435, 82 N.E.2d 603.

Upon such affirmance of conviction the defendant did not apply to the Supreme Court of the United States for a writ of certiorari. The failure to apply for certiorari at this point is of no consequence; we think the Supreme Court would have had to deny certiorari, since no federal question had been properly presented, or passed upon, in the state courts. Cf. Darr v. Burford, 1950, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761.

Thereafter McGarty filed in the United States District Court for the District of Massachusetts his first petition for a writ of habeas corpus. The petition set forth that the Superior Court had denied petitioner's motion that he be allowed, at the expense of the Commonwealth, "to employ medical experts to impartially examine him, and to be used, if necessary, as witnesses in his behalf"; that the denial of such motion had been affirmed on appeal; "that the petitioner was at the time and still is without funds, and that the denial of this opportunity to be examined by impartial medical witnesses was in violation of his constitutional rights under the Fourteenth Amendment of the Constitution, that he believes he is entitled to redress, that all his State remedies have been exhausted". By order of July 26, 1949, the district judge dismissed the petition without prejudice, on the ground that petitioner had not exhausted his state...