Newchurch, In re
| Decision Date | 18 December 1986 |
| Docket Number | No. 86-3633,86-3633 |
| Citation | 807 F.2d 404 |
| Parties | , 55 USLW 2398 In re John David NEWCHURCH, Petitioner. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James E. Boren, Anthony M. Bertucci, Baton Rouge, La., for appellant.
Keith B. Nordyke, Baton Rouge, La., for amicus--National Assoc. Crim. Lwyrs.
Rebecca Hudsmith, Shreveport, La., for amicus--La. Assoc. Crim. Lwyrs.
Joyce Hebert, U.S. Marshal's Office, Baton Rouge, La., for other interested party--U.S. Marshal.
Ezra H. Friedman, U.S. Dept. of Justice, Washington, D.C., Ian F. Hipwell, Asst. U.S. Atty., Frank J. Polozola, U.S. Dist. Judge, Baton Rouge, La., for appellee.
Appeal from the United States District Court for the Middle District of Louisiana.
Before RUBIN, RANDALL, and HIGGINBOTHAM, Circuit Judges.
The issue is whether a defendant in a criminal case who, pursuant to Federal Rule of Criminal Procedure 12.2(a), notifies the government that he plans to plead that, although now mentally competent, he was insane at the time of the charged offense, may be committed to a federal penal institution for a mental examination without a finding that such commitment is necessary in order to enable the government properly to prepare for trial.
John David Newchurch was indicted for conspiring to attempt to commit arson of three abortion clinics in Baton Rouge, Louisiana, the River City Women's Clinic, the Delta Women's Clinic, and the Acadian Women's Clinic, in violation of 18 U.S.C. Secs. 371 and 844(i) (1982), and for maliciously damaging and attempting to destroy by fire the Delta Women's Clinic in violation of 18 U.S.C. Secs. 2 and 844(i) (1982). Newchurch was released on a $5,000 unsecured bond. He entered a plea of not guilty and was enlarged under the unsecured bond. He later filed notice of his intention to rely on the defense of insanity at the time of the charged offense and of his intention to introduce expert testimony relating to his mental condition at that time. 1
The government then filed what it labeled an "Ex Parte Motion for Pretrial Psychiatric Examination," attaching a proposed order committing Newchurch "to the custody of the Attorney General of the United States for placement in a suitable facility" for the examination. The district court did not grant the ex parte motion but ordered Newchurch to file a response within ten days. Newchurch then filed an objection to what he styled his proposed incarceration. He also requested the government to "set forth available alternatives locally," to establish a plan protecting his fifth, sixth and fourteenth amendment rights, and to demonstrate that it was acting in good faith. He asked for an evidentiary hearing and urged that the government be required to demonstrate that his examination was necessary.
After hearing oral argument but no testimony, the district judge ordered that Newchurch be committed to the custody of the Attorney General for examination and that "a psychiatric report and a psychological report (as deemed necessary by an authorized representative of the Attorney General) be filed with the Court in accordance with 18 U.S.C. Sec. 4247(c), rendering an opinion as to whether John David Newchurch was insane at the time of the offense charged." The assistant United States attorney advised Newchurch that he would be committed to the United States Medical Center for Federal Prisoners at Springfield, Missouri.
Newchurch then sought modification of the court order and the court scheduled an evidentiary hearing. At the hearing, Newchurch introduced photocopies of pages from the Baton Rouge telephone directory listing a number of psychologists and psychiatrists; his counsel's affidavit setting forth his own experience with the utilization of local Baton Rouge psychiatrists and psychologists and declaring that a "chilling effect" will exist in this case and others if he and other attorneys must advise clients that in order to maintain an insanity defense they must "first go to prison for 30 to 45 days;" and the affidavits of two local psychologists, both of whom expressed the opinion that the incarceration of individuals for psychiatric examination may lead to inaccurate results. The affidavit of one of the doctors, a clinical psychologist who had been appointed by the federal district court as an expert witness in another case, states that he has been an expert witness on the mental condition of defendants in at least ten cases in state and federal courts and that there are at least twenty psychologists in Baton Rouge who are competent and available to serve as experts in examining a defendant to determine his mental condition. The affidavit of the other doctor states that he has served as chief psychologist of the Louisiana Department of Corrections, has conducted thousands of psychological examinations, and that he could perform the type of examination needed for Newchurch on an outpatient basis within fourteen days. Newchurch also filed an affidavit from a state court judge stating that he has presided over many trials in which the defense of insanity was an issue and has received what he deemed accurate and complete reports on the defendants' mental condition from local doctors. Counsel for Newchurch stated to the court that Newchurch had been offered employment but obviously would not be able to work if required to report to Springfield.
During the hearing, the district court stated that it had in the past received reports from Springfield that were extensive and exhaustive, it did not consider that facility to be a prison, and "when somebody has a defense that's as important as this, he ought to go to the facilities that the Congress has set up in order to conduct these very examinations." The court expressed the opinion that people who are sent to Springfield for evaluation are not held incommunicado, have access to their lawyers, telephones and the mails, and are allowed recreation and visitation privileges. The court stated that it believed "the Bureau of Prisons can do me a better job, not because Dr. Silva [one of the local doctors who performs psychiatric evaluations] is incompetent, but the program set-up ... it is cost efficient ... and that is one of the things that I have to resolve and worry about." The court also stated that it did not think that Newchurch was likely to flee or pose a danger to the community or "he wouldn't be out on bond." It therefore reaffirmed its order committing Newchurch to the custody of the Attorney General. Newchurch sought a writ of mandamus to compel the district court to vacate this order, conceding that he must submit to an examination but urging that the government had not demonstrated sufficient reason to require his commitment to a government institution distant from his home.
Before oral argument of the application for a writ, this court directed specific questions to counsel for the government requesting that the replies reflect the official position of the Department of Justice. Counsel for the Department stated in response to those questions that, if Newchurch is committed to the custody of the Attorney General for an examination, he will be sent or ordered to report to the United States Medical Center for Federal Prisoners at Springfield, Missouri. At least 40% of the persons committed to this institution for determination of their mental condition at the time of an alleged offense are detained more than forty-five days. The conditions of confinement of such an unconvicted person are "essentially the same" as those imposed on persons who have been convicted of a crime and then committed to that institution for a mental examination, except that unconvicted persons may consult more freely with counsel, may receive more frequent visits from their family, and are not required to work. The same facility is used for examinations to determine mental competency to stand trial, mental condition of convicted persons, and mental condition of a competent, unconvicted defendant who asserts his insanity at the time of the alleged offense.
The distance by road from Baton Rouge, Louisiana, to Springfield, Missouri is 590 miles. Driving time, according to the Rand McNally Road Atlas, is thirteen hours, forty-five minutes.
The eighth amendment, made applicable to the states by the fourteenth amendment, prohibits excessive bail, while the fourteenth amendment itself protects every person from the deprivation of his liberty without due process of law. "This traditional right to freedom before conviction [safeguarded by the eighth amendment prohibition of excessive bail]" the Supreme Court declared in Stack v. Boyle, "permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction." 2 "Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning." 3 The due process clause essentially guarantees that the government will not imprison or otherwise physically restrain a person except in accordance with fair procedures. 4 The Court held unanimously, in Addington v. Texas, 5 for example, that even a preponderance of the evidence will not support the involuntary commitment of an adult, not charged with crime, to a psychiatric institution; instead, the need for such commitment must be shown by clear and convincing evidence.
Due process also requires the government, when it deprives an individual of liberty, to fetter his freedom in the least restrictive manner. Even when a governmental purpose is legitimate and substantial, " 'that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.' " 6 A person accused of a crime should not therefore be deprived of personal liberty unless his confinement is reasonably necessary to assure his presence at trial 7 or to protect some...
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