Smith v. United States

• Decision Date: 09 July 1959
• Docket Number: Cr. No. 19993.
• Citation: 174 F. Supp. 828
• Parties: Joseph Orby SMITH, Jr., Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of California

174 F. Supp. 828

Joseph Orby SMITH, Jr., Petitioner, v. UNITED STATES of America, Respondent.

Cr. No. 19993.

United States District Court S. D. California, Central Division.

July 9, 1959.

Laughlin E. Waters, U. S. Atty., Robert J. Jensen, Asst. U. S. Atty., Chief of Criminal Division, and Ronald S. Rosen, Asst. U. S. Atty., Los Angeles, Cal., for respondent United States.

Joseph Orby Smith, Jr., in pro. per., and by his guardian ad litem Beatrice Smith.

HALL, District Judge.

Upon reversal of this Court's Order denying a petition under 28 U.S.C.A. § 2255, the United States Court of Appeals remanded the above matter to this Court "with directions to provide a hearing upon the allegations of that application."

The propria-persona petition, filed March 15, 1957, made serious charges against the court-appointed counsel who represented petitioner at the six day trial for bank robbery with force and violence and with the use of a .45 calibre automatic revolver. The Court of Appeals for the Ninth Circuit affirmed the conviction. Smith v. United States, 1949, 173 F.2d 181.

The petition also made charges against the Judge, and charged that the prosecutor used perjured testimony, and that the petitioner was insane at the time of his trial.

The petition was unverified, and contained the statement that "Petitioner is now confined as a mental patient in the United States Medical Center for Federal Prisoners, Springfield, Missouri."

While the Appellate Court quite evidently read the record of the original trial with care, it must be that the Judges overlooked and did not see the above-quoted statement.

The lawyer appointed to represent petitioner in the Circuit Court on his Section 2255 appeal, when requested to advise this Court if, at the time he presented and argued the matter to the Court of Appeals, he then knew that Smith was insane, replied that he regarded that fact as "irrelevant." No mention is made in the opinions of the Court of Appeals 259 F.2d 125, or on the Petition for Rehearing—259 F.2d 127 as to the statement by Smith of his insanity or his mental competency, above quoted.

Being under mandate to provide a hearing, on an unverified petition by an insane man, this Court in an endeavor to carry out the mandate, brought Smith here from Springfield, Missouri, under a writ of habeas corpus ad testificandum, and calendared the matter for setting a hearing date and for the appointment of counsel on January 12, 1959.

Smith's mother had wired from Chicago on December 16, 1958, that she had secured counsel for Smith, but no counsel showed up or filed an appearance on behalf of Smith. At that hearing and ever since, Smith has refused to have the court appoint counsel for him.¹ At that time, his statements and general appearance, together with the entire record in the case, suggested the strong possibility that Smith is, and was, when he filed the pending petition, still presently insane and so mentally incompetent as to be unable to understand the proceedings against him, or to assist any counsel who might appear on his behalf, or even to select counsel. Accordingly, the matter was continued to secure the record of his mental history and status from the United States Medical Center at Springfield, Missouri.

At a subsequent hearing on January 19, 1959, the records were put in evidence, and reflected that Smith was first certified as being of unsound mind on October 30, 1956 (which was more than eight years and five months after his sentence for bank robbery on May 14, 1948). The records also showed that the original certificate of mental incompetency was still in force and had not been withdrawn, i. e., that he was still insane.

The Court, on that showing and on observation of the petitioner and his conduct, made a Minute Order appointing two psychiatrists to examine petitioner as to his present sanity, and whether or not he was then presently so mentally incompetent as to be unable to understand the proceedings or assist any counsel appearing on his behalf, under Section 4244 of Title 18 U.S.C.A. But after examination of the authorities, particularly Stanley v. U. S. (9 Cir.Misc. 754, June 25, 1958) that proceedings under Section 2255 are civil in nature, the Court vacated the Minute Order for appointment of psychiatrists made under Section 4244 of Title 18 U.S.C.A.

Thereafter, the United States Attorney noticed and moved for a compulsory mental examination of petitioner under Rule 35, Federal Rules of Civil Procedure, 28 U.S.C.A., in order to determine whether or not a guardian ad litem could or should be appointed to represent the interests of petitioner, under Rule 17(c), Federal Rules of Civil Procedure.²

The Court, after hearing, granted the Government's Motion, and appointed Dr. Edwin E. McNeil as a psychiatrist to examine the petitioner, and at the same time indicated that the Court would appoint another psychiatrist of petitioner's own choosing, if he desired. Petitioner refused to submit to an examination by Dr. McNeil, and indicated a willingness to be examined by Dr. Karl O. Von Hagen, whereupon the Court made the order for petitioner to submit to a mental examination by Dr. Von Hagen, which he did.

After Dr. Von Hagen submitted a report, a hearing was had on February 16, 1959. Dr. Von Hagen was examined and cross-examined (petitioner still refused to accept court-appointed counsel), and the Court directed the United States Attorney to prepare findings of fact and conclusions of law holding petitioner to be insane, suffering from schizophrenia with paranoid delusions, and to be so mentally incompetent as to be unable to understand the proceedings pursuant to his Motion for relief under Section 2255 of Title 28, U.S.C.A., or to properly assist any counsel in the presentation of his case. The Court then appointed petitioner's mother, Mrs. Beatrice Smith, whom petitioner requested, as his guardian ad litem. The Court then discharged the writ of habeas corpus ad testificandum, and directed that all matters pertaining to the petition be put off calendar until noticed by the guardian ad litem, and further directed that Petitioner be returned to the United States Medical Center at Springfield, Missouri.³ See Appendix "A".

The Findings and Order were lodged February 24, 1959. No objections were filed within five days, under Local Rule, and they were signed and filed, on March 6, 1959. In the meanwhile, petitioner's mother had requested that Petitioner be returned to the Medical Center at Springfield, Missouri, but on March 6, 1959, by telegram she demanded that Smith be "Returned"⁴ to Los Angeles for hearing, and that counsel be appointed. Acting upon that request, the Court stayed execution of said Order of March 6, 1959.

Since the remand to this Court, every effort has been made to secure counsel for Smith so that some orderly procedure and proceedings could be had to the end of securing a judicial determination of the matter. Smith has steadfastly refused to accept any counsel appointed by the court. His mother has alternately advised she has counsel and requested the appointment of counsel. What her present desire is, I am unable to determine.

The Indigent Panel of the Los Angeles Bar Association has had counsel present at various hearings, ready to offer their services, but Smith has refused to accept the appointment of such counsel, either for himself or for his guardian ad litem. The Los Angeles Legal Aid Foundation has been contacted, with no results. Smith advised in court that he was trying to secure a Mr. Emil Zola Berman in Manhattan as his counsel or guardian. Mr. Berman has not appeared, and has not been heard from.

On June 2, 1959, one Frank Duncan came into Chambers, and said that he had been engaged by Smith as his counsel, and asked if I would entertain a request by Smith's mother to return Smith to Springfield as his mother had again requested that Smith be returned to Springfield. Duncan was advised that if he were to appear as counsel, it would be necessary for him to file a Notice of Appearance for the guardian ad litem, and that if she desired Smith's return to Springfield, it would be necessary for her to file an appropriate motion, with supporting affidavits, in view of the fact that Smith was brought here for hearing under mandate of the Court of Appeals. Nothing further has been heard of or from Duncan.

On June 29, 1959, petitioner's mother filed in pro. per., the following Motion:

"Mrs. Beatrice Smith "4814 W. Harrison St "Chicago 44, Illinois "Guardian Ad Litem "In the United States District Court For The Southern District Central Division "(Filed: June 29, 1959) "Joseph Orby Smith, Jr. | Cr. No. 19993 | vs. > Motion To Return Petitioner | To The United States Medical United States of America. | Center, Springfield, Missouri. "To The Honorable Judge Peirson M. Hall - "Comes now Mrs. Beatrice Smith, court-appointed guardian ad litem, who deposes and states "1. That as court-appointed guardian ad litem, requests her son Joseph Orby Smith, Jr., be forthwith returned to the United States Medical Center, Springfield, Missouri. "2. That as court-appointed guardian ad litem, and in the interest of her son's welfare and health, that this court arrange the immediate removal and transfer until such time as the alleged insanity of her son has been curtailed to allow the case to be presented properly. "Respectfully submitted "S/ Beatrice Smith "Mrs. Beatrice Smith "4814 W. Harrison St "Chicago 44, Illinois. "Guardian Ad Litem "S/ Loretta Dugan "Notary Public "My commission expires June 29, 1961. "County of Cook, State of Illinois."

Hearing on that Motion was set for and had on June 29, 1959. Smith was present in person, but no appearance was made by or for the guardian ad litem.⁵

There is no doubt that Smith is presently insane, nor can question be raised that he was sane, but insane, when he prepared and filed the petition under ...