Schaber v. Maxwell

• Decision Date: 14 July 1965
• Docket Number: No. 15960.,15960.
• Parties: Lawson Edward SCHABER, Petitioner-Appellant, v. E. L. MAXWELL, Warden Ohio Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

348 F.2d 664 (1965)

Lawson Edward SCHABER, Petitioner-Appellant, v. E. L. MAXWELL, Warden Ohio Penitentiary, Respondent-Appellee.

No. 15960.

United States Court of Appeals Sixth Circuit.

July 14, 1965.

William J. Abraham and David K. Purkey, Columbus, Ohio, for appellant.

Joseph J. Jan, Chief Asst. Pros. Atty., Lucas County, Toledo, Ohio, William Saxbe, Atty. Gen., William C. Baird and John Cianflona, Asst. Attys. Gen., Columbus, Ohio, Harry Frieberg, Pros. Atty., Lucas County, Toledo, Ohio, on brief, for appellee.

Before PHILLIPS and EDWARDS, Circuit Judges, and McALLISTER, Senior Circuit Judge.

PHILLIPS, Circuit Judge.

Petitioner was sentenced to death by electrocution, after having been found guilty on two counts charging him with murder in the first degree and murder in the first degree in perpetration of a robbery.¹ He is now confined in the Ohio State Penitentiary at Columbus, awaiting electrocution.

Execution has been stayed by this court pending appeal from the denial of an application for writ of habeas corpus filed by petitioner in the district court.

The single question presented on this appeal is whether petitioner was denied due process of law under the Constitution of the United States because of the act or omission of his court-appointed attorneys in conducting his defense upon the theory of insanity without filing a written plea of "not guilty by reason of insanity." An Ohio statute expressly provides that unless a written plea of "not guilty by reason of insanity" is filed, a defendant is "conclusively presumed to have been sane at the time of the commission of the offense."²

An oral plea of "not guilty" had been entered on behalf of petitioner by the state judge who conducted the arraignment proceedings, at a time when petitioner was not represented by counsel. His two attorneys who subsequently were appointed to represent petitioner at his criminal trial conducted his defense on his oral plea of "not guilty." Petitioner waived trial by jury in the presence of his counsel and elected to be tried by three judges pursuant to Page's Ohio Revised Code §§ 2945.05, 2945.06.

During his two day trial before the three-judge state court, petitioner's attorneys virtually conceded that he was guilty of the murder and robbery of a woman taxicab driver as charged in the indictment and pitched their defense on the claim of insanity or temporary insanity. In his opening statement, one of the attorneys for petitioner said:

"The defense expects to prove, if Your Honors please, that when he was five years old he fell out of an automobile and fell on his face and head. Ever since the time he was five years old, he has had blackouts, severe headaches, and, of course, we will prove that through the headaches he has been retarded in school.

"We expect to prove, Your Honors please, that at the time this murder was committed Mr. Schaber does not remember a thing, he claims, from that blackout. After he was told that this murder was committed and he made his own confessions to Detective Oehlers, the boy broke down and cried and realized what crime he was accused of committing.

"We expect to prove, Your Honors, that nothing we can say about the murder, the murder having been committed but we claim that at the time that the murder was committed Lawson Edward Schaber was temporarily insane."

At no time did the attorneys for petitioner enter a written plea of "not guilty by reason of insanity." No explanation appears in the record as to why the attorneys overlooked or failed to comply with the express requirement of the Ohio statute (see note 2) providing that unless such a plea is filed in writing, the defendant is conclusively presumed to have been sane at the time of the commission of the offense. Instead, counsel proceeded with the trial upon the completely erroneous impression that the above quoted opening statement constituted a sufficient plea of "not guilty by reason of insanity."

The record contains the affidavit of one of the court-appointed attorneys, executed April 17, 1964, which states unequivocally that "he honestly believes that, in making his opening statement to the court, he entered a plea of not guilty by reason of insanity."

The record in the criminal trial does not disclose that any member of the three-judge state court at any time advised the court-appointed attorneys of their mistake or informed petitioner that it would be necessary to change his plea from "not guilty" to a written plea of "not guilty by reason of insanity" in order for the court to pass upon insanity as a defense. On the motion for a new trial two of the members of the three-judge court expressed surprise that counsel for petitioner were relying upon a defense of insanity.

In the argument on the motion for a new trial, the following colloquy took place:

Attorney: "`In any case in which insanity is set up as a defense, —\' and, Your Honors, in this case that was set up, that this man was insane at the time he committed the crime."

Judge: "Just a minute, now. Where is that?"

Attorney: "In our opening statement, Your Honor, we said that

"This reads that in any case in which insanity is set up as a defense —"

Judge: "You said in the opening statement?"

Attorney: "That is right."

Judge: "* * * are you seriously contending in a capital case that the defense is set up in the opening statement?"

Attorney: "That is right, sure."

Judge: "What is the plea for?

What is the arraignment for?"

Attorney: "At the time of the arraignment he pled not guilty. At the time of the trial we pleaded not guilty by reason of insanity."

Later in the same argument, the following took place:

Judge No. 1: "The thing that bothers me, he says he entered a plea of not guilty by reason of insanity."

Judge No. 2: "There is no plea by reason of insanity, no plea in this case."

Attorney: "In the opening statement, please."

Judge: "Is that a plea?"

Attorney: "We said we expect to show that he was insane at the time. There was insanity in the family, although it was not proved."

Thus the record establishes the following infirmities in petitioner's trial in the state court: His only defense was insanity, his attorneys virtually conceding that he was guilty of the robbery and murder with which he was charged; his attorneys tried the case upon the theory of insanity upon the mistaken belief that their opening statement constituted a plea of "not guilty by reason of insanity;" since the case was tried on an oral plea of "not guilty," petitioner was conclusively presumed to have been sane at the time of the commission of the offense charged; and, due to this mistake on the part of his court-appointed counsel, petitioner has been deprived of a trial upon the defense of insanity. Further, the record contains evidence raising doubts as to petitioner's sanity, as hereinafter set forth in some detail.

Under these facts, was petitioner's trial conducted by his court-appointed counsel in such an incompetent manner as to reduce it to a farce and mockery of justice and a denial of due process of law?³

The district court held that the petitioner did not carry his burden of proof to show that his trial was a farce or mockery of justice. The court pointed out that in the opening statement of counsel for petitioner he alleged a history of mental disorders and charged that at the time of the crime petitioner was temporarily insane; that the prosecutor did not challenge the correctness of this statement; that no challenge was made to the evidence of the prosecutor that petitioner had committed the crime and that all the evidence for the defense was to the effect that Schaber was temporarily insane; and that at no time did the court or the prosecutor call attention to a failure to enter a proper plea.

The district court said:

"This Court cannot conceive of a situation in which three eminent and respected judges, with a total experience on the Common Pleas bench in excess of fifty years, trying a capital case without the intervention of a jury, would permit counsel for this defendant to make a farce and a mockery of the only defense available to him by failing to advise counsel that the evidence they were attempting to adduce could not be considered because they had failed to comply with the technicalities attendant to the offering of a plea."

It was the conclusion of the district court that the above quoted colloquy between the judges and counsel at the hearing on the motion for a new trial was "not meaningful." The court further stated:

"It is the considered opinion of this Court that the trial court, the prosecuting attorney and defense counsel all were of the opinion that the defense tendered and accepted by the court in the trial of Lawson Schaber was that of not guilty by reason of insanity.

"It is further the opinion of this Court that the technicalities of the entry of that plea were ignored by both the trial court and the prosecuting attorney. In fact, the chief assistant prosecuting attorney stated as much in his arguments to this Court.

"Therefore, this Court is of the opinion that an oral plea of not guilty by reason of insanity was made and accepted by the court; that both parties (prosecutor and defense) and the court tried the case on that theory and thus the defendant\'s constitutional rights were not infringed."

We hold that the district court was incorrect in this conclusion. The law of Ohio is clear that a plea of insanity must be in writing. Page's Ohio Revised Code § 2943.04 (note 2). The above-quoted colloquy demonstrates to us that the trial court did not treat or accept the opening statement of counsel as a plea, one judge stating that "There is no plea by reason of insanity, no plea in this case;" and that the state court did not hear the case on the defense of insanity, and did not make any adjudication as to whether or not petitioner was sane at the time the crime was committed.

It is equally clear that under the law of Ohio (as quoted...