McGarty v. O'BRIEN

• Decision Date: 29 May 1950
• Docket Number: No. 4458.,4458.
• Citation: 180 F.2d 987
• Parties: McGARTY v. O'BRIEN, Warden.
• Court: U.S. Court of Appeals — First Circuit

180 F.2d 987 (1950)

McGARTY v. O'BRIEN, Warden.

No. 4458.

United States Court of Appeals First Circuit.

March 27, 1950.

Writ of Certiorari Denied May 29, 1950.

James Seligman, Fall River, Mass. (William C. Crossley, Fall River, Mass., and William H. Lewis, Jr., Boston, Mass., with him on the brief), for appellant.

Henry P. Fielding, Assistant Attorney General, Massachusetts (Francis E. Kelly, Attorney General, Massachusetts, Lawrence E. Ryan, Assistant Attorney General, Massachusetts, and Maurice M. Lyons, District Attorney, Southern District of Massachusetts, New Bedford, Mass., with him on brief), for appellee.

Before MAGRUDER, Chief Judge, WOODBURY, Circuit Judge, and SWEENEY, District Judge.

Writ of Certiorari Denied May 29, 1950. See 70 S.Ct. 1002.

MAGRUDER, Chief Judge.

Charles McGarty appeals from an order of the court below dismissing without prejudice his petition for a writ of habeas corpus.

On August 4, 1947, McGarty killed his eight-year-old niece under most revolting circumstances. Thereafter, the grand jury for the county of Bristol, Massachusetts, returned an indictment against him for murder, to which indictment 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

This being a capital case, it was mandatory under 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 psychiatric report from the department must 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. Commenting on this statute in Commonwealth v. Devereaux, 1926, 257 Mass. 391, 396, 153 N.E. 881, 882, Rugg, C.J., stated: "It is a matter of general knowledge that there are in the service of the commonwealth under this department persons eminent for special scientific knowledge as to mental diseases. The examination under the statute, therefore, may fairly be assumed to have been made by competent persons, free from any predisposition or bias and under every inducement to be impartial and to seek for and to ascertain the truth." The law has been commended as having established an enlightened procedure which has protected the rights of mentally incompetent accused persons whose insanity might otherwise have gone unrecognized, and which has reduced to a negligible number the "battles of experts" which have in the past brought discredit upon psychiatric expert testimony. Overholser, The Briggs Law of Massachusetts: A Review and an Appraisal, 25 J. Crim.L. & Criminology 859 (1935).

McGarty was examined on behalf of the department of mental health by Doctors R. M. Chambers and Roderick B. Dexter. No question has been raised as to their professional competence or as to their impartiality in making the examination and report. Their report, which was duly filed in court December 23, 1947, found that McGarty "is neither feebleminded 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."

On January 15, 1948, counsel for McGarty filed a motion 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 guilty of murder in the first degree, and he was sentenced to death. Upon appeal to the Supreme Judicial Court, the judgment of conviction was affirmed. Commonwealth v. McGarty, 1948, 323 Mass. 435, 82 N.E.2d 603. The defendant did not apply to the Supreme Court of the United States for a writ of certiorari.

One of the errors which was assigned on that appeal 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 from defendant's brief filed in the Supreme Judicial Court that the alleged error of the superior court in this regard was predicated upon a provision of local law, namely, § 56 of c. 277, Mass.G.L.(Ter.Ed.) which states that "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." On this point the brief concluded: "While it is not contended by the defendant that this provision contains a mandate to the court to grant a motion that he be allowed to engage medical experts, nevertheless it is most emphatically urged that the gravity of the facts and circumstances surrounding him in connection with the most serious of allegations warranted an authorization for employment of medical experts to the end that all of his constitutional rights should be safeguarded."

Whatever might have been in the back of counsel's mind, we do not think that the foregoing extract from the brief may be taken as presenting to the state court a claim of violation of constitutional rights under the Fourteenth Amendment. The opinion of the Supreme Judicial Court indicates no awareness that a federal constitutional question was presented for decision. After referring to the conclusion of the report by the department of mental health, the court said, 323 Mass. at 437, 82 N.E.2d 603, 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." At that point the court cited Commonwealth v. Belenski, 1931, 276 Mass. 35, 44, 176 N.E. 501, 505, in which the court had said: "Having been examined by impartial experts the defendant was not entitled as of right to a further examination at the public expense."

After the judgment of conviction was affirmed by the state court, McGarty filed in the court below his petition for a writ of habeas corpus. The petition set forth that the superior court had denied a 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...