Proctor v. Harris

• Decision Date: 29 April 1969
• Docket Number: No. 20986.,20986.
• Parties: Aaron PROCTOR, Appellant, v. David W. HARRIS, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

413 F.2d 383 (1969)

Aaron PROCTOR, Appellant, v. David W. HARRIS, Appellee.

No. 20986.

United States Court of Appeals District of Columbia Circuit.

Argued October 29, 1968.

Decided April 29, 1969.

Mr. George H. Cohen, Washington, D. C. (appointed by this court), for appellant. Mr. S. White Rhyne, Jr., Washington, D. C. (appointed by this court), also entered an appearance for appellant.

Mr. James A. Treanor, III, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.

Before BAZELON, Chief Judge, and DANAHER^* and BURGER, Circuit Judges.

BURGER, Circuit Judge:

The Appellant has been and is confined in St. Elizabeths Hospital pursuant to a commitment under 24 D.C.CODE § 301(d) (1967)¹ following a verdict of not guilty by reason of insanity on charges of carrying a dangerous weapon and assault.

Appellant filed a petition for a writ of habeas corpus² alleging he had recovered, was not dangerous, and was eligible for release. He requested an independent psychiatric examination contending that he had been confined for more than nine months and had not received an independent examination. See Watson v. Cameron, 114 U.S.App.D.C. 151, 312 F.2d 878 (1962); De Marcos v. Overholser, 78 U.S.App.D.C. 131, 137 F. 2d 698 (1943). Appellee's response was that St. Elizabeths' staff was of the opinion that Proctor had not recovered from his "abnormal mental condition, schizophrenic reaction, chronic undifferentiated type" and that Appellee could not certify that Proctor would not be dangerous to himself or others within the foreseeable future if released, in short that he was not eligible for release.

Appellant's court-appointed counsel thereafter renewed his motion for an independent psychiatric examination and on February 3, 1967 the District Court ordered the Legal Psychiatric Service to examine Proctor and render a report within 30 days. The Court's Order also provided that a copy of the report was to be sent to counsel for Appellant. Accordingly, Dr. Donald Goldberg, a staff psychiatrist for the Service, examined Appellant and reported that in his opinion Proctor "continues to suffer from a mental disorder i. e. Schizophrenic reaction, chronic undifferentiated type in partial remission. It is also my feeling that the patient could be dangerous to himself and others if released from Saint Elizabeths Hospital at the present time".

Thereafter, in March 1967, a hearing was held on the writ and Appellant, Dr. Goldberg, and Dr. William Schwartz, a staff psychiatrist at Saint Elizabeths, testified. Essentially, Appellant testified that he was not satisfied with the treatment he was receiving at St. Elizabeths, that he was not insane, and that he would not want to hurt anybody if he were released. Dr. Goldberg was then called by the Government and reiterated the opinion expressed in his report to the Court. He also testified that he could not affirmatively predict that Proctor would be dangerous if released, but he was unable to certify that Proctor would not be dangerous if released. Dr. Schwartz agreed with Dr. Goldberg's characterization of Appellant's mental illness as being then substantially in remission, but as to his potential dangerousness, he believed: "He seems to have extreme passivity and assaultiveness and there doesn't seem to be much in between, so I would say it would be more likely that Mr. Proctor would be dangerous than most other people".

The District Court concluded that Proctor had failed to sustain his burden of proving his eligibility for release³ and had not shown that Appellee's failure to certify him eligible for release was arbitrary or capricious. Accordingly, the writ was discharged.

It is against this background we must examine Appellant's argument on appeal⁴ which is in essence that an involuntary indigent patient seeking release from St. Elizabeths by habeas corpus does not receive adequate independent psychiatric assistance in prosecuting his petition unless he has the assistance of a "friendly" expert. He asserts that the present procedure which provides for an independent, non-partisan psychiatric examination fails to supply the Petitioner and his appointed counsel with the asset most critical to their efforts "* * namely, the assistance of a psychiatrist in preparing and presenting appellant's case at the habeas corpus proceeding." The unarticulated assumption is that since an affluent person can "shop around" until he finds a psychiatrist who tells him what he wants to hear, and then guides the lawyer in how to conduct cross-examination of other psychiatrists, the court must provide Appellant with the same kind of service.

This is not the first time that an appellate court has had to consider this sort of claim. In McGarty v. O'Brien, 188 F.2d 151, 154, 1st Cir., cert. denied, 341 U.S. 928, 71 S.Ct. 794, 95 L.Ed. 1359 (1951), the First Circuit was faced with a contention that an indigent accused had been convicted in violation of his Fourteenth Amendment due process rights when the Massachusetts courts had denied his 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.'" The appellant there was claiming that his right to effective assistance of counsel had been rendered illusory by the court's failure "to make available to assigned counsel such financial means as may be necessary to enable him to develop and present an appropriate defense." Id. 188 F.2d at 155. Recognizing that a person of modest means, though not "indigent," is also limited in his ability to marshal an entire entourage of attorneys, experts, and investigators, the First Circuit concluded it was not disposed to provide every person with these auxiliary aids so long as fundamental fairness is achieved.

The McGarty court hypothetically envisioned the state's obligations in a case where the independent and non-partisan psychiatric expert arrived at the same professional conclusion as the expert from the Government institution. A person with unlimited financial resources could perhaps find a favorable psychiatrist, therefore does the court have a duty to provide the indigent defendant with the means to continue to "shop" for a favorable expert? The First Circuit found no constitutional demand for such expenditures where the state had already supplied independent expert examinations. McGarty, 188 F.2d at 157.

This court encountered a similar problem in Naples v. United States, 113 U.S. App.D.C. 281, 307 F.2d 618 (1962). There, the defendant wanted the Government to pay the cost of a psychiatrist selected by him. We found no error in the trial court's ruling that he would not

"permit any defendant, at Government expense, to employ a psychiatrist of his own choosing, which means that a defendant can shop around for a favorable expert witness, and then have the Government pay for it. I don\'t consider that good administration of justice."

Id. at 286, 307 F.2d at 623. We see no reason to deviate from that resolution. Cf. United States ex rel. Smith v. Baldi, 344 U.S. 561, 73 S.Ct 391, 97 L.Ed. 549 (1953); State v. Crose, 88 Ariz. 389, 357 P.2d 136 (1960).

From Appellant's posture, no psychiatrist can really "assist" him adequately unless he agrees with Appellant's position. Stripped of its verbiage Appellant's position is that he is entitled to a psychiatrist sufficiently sympathetic so that he will assist counsel in preparing his case favorably to his claims, and, accordingly, in structuring cross-examination of the hospital doctors so as to neutralize their testimony. Neither sound administration, basic fairness, nor constitutional standards require such a course.

The situation would be entirely different if Appellant had been denied a meaningful hearing where he could "be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own." Specht v. Patterson, 386 U.S. 605, 610, 87 S.Ct. 1209, 1212, 18 L.Ed.2d 326 (1967). Appellant was granted a full and meaningful hearing. We think that the court's observations in McGarty are particularly appropriate here:

The doctor designated * * * to make the examination is not a partisan of the prosecution, though his fee is paid by the state, any more than is assigned counsel for the defense beholden to the prosecution merely because he is, as here, compensated by the state. Each is given a purely professional job to do — counsel to represent the defendant to the best of his ability, the designated psychiatrists impartially to examine into and report upon the mental condition of the accused.

McGarty, 188 F.2d at 155.

Although Appellant's brief disclaims a desire for a "psychiatric advocate," it seems clear to us that he really envisions the relationship between a petitioner and psychiatrist as analogous to that existing between petitioner and court-appointed counsel. Indeed, although Judge Bazelon seems to disclaim a desire to provide a "psychiatric advocate," he argues that the "central tenet of the adversarial process is that each side should attempt to `neutralize' the evidence of the other side." This description of the central purpose of the adversary process has very limited application to the expert medical witness, who is, as we have noted, bound to be a neutral if he is to observe the canons of his own discipline. Under the theory of Appellant — and of the concurring opinion — reports obtained from examinations conducted by the "friendly expert" would be submitted directly to petitioner's counsel and not, as is the present practice, to the court. If counsel found the report helpful to his case he would then be free to call the psychiatrist as an expert on behalf of the petitioner, but if otherwise, not call that witness at all. We have grave doubt that...