Thornton v. Corcoran

• Decision Date: 03 January 1969
• Docket Number: No. 21974.,21974.
• Parties: Rudolph N. THORNTON, Petitioner, v. Honorable Howard F. CORCORAN, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

132 US App. DC 232, 407 F.2d 695 (1969)

Rudolph N. THORNTON, Petitioner, v. Honorable Howard F. CORCORAN, Respondent.

No. 21974.

United States Court of Appeals District of Columbia Circuit.

Decided January 3, 1969.

Mr. Allan M. Palmer, Washington, D. C., for the petitioner.

Mr. Roger E. Zuckerman, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the opposition to the petition.

Mr. Sidney Edelman, New York City, filed a brief on behalf of Saint Elizabeths, as amicus curiae.

Mr. William H. Allen, Washington, D. C., filed a brief, as amicus curiae. Mr. William A. Dobrovir, Washington, D. C., was also on the brief, as amicus curiae.

Before BAZELON, Chief Judge, and BURGER and ROBINSON, Circuit Judges.

BAZELON, Chief Judge:

After the Court of General Sessions bound the petitioner over to the grand jury for action on a complaint charging him with the rape of an 11-year-old girl, Rudolph N. Thornton requested a preindictment mental examination under 24 D.C.Code § 301(a) (1967). The District Court ordered him committed for 60 days to Saint Elizabeths Hospital for an examination to determine not only his competency to stand trial but also whether Thornton was suffering from a mental illness at the time of the alleged offense. During that period he requested the district judge to order the hospital to permit his counsel and an independent psychiatrist to attend the staff conference that would be held before the hospital filed its report with the District Court. His motion was denied without explanation. Thornton then petitioned this Court for a writ of mandamus directing the district judge to issue such an order. Since it appeared to the Court "that further consideration of petitioner's mandamus petition will be required," we entered an interim order on July 9 directing that

Saint Elizabeths Hospital hold its staff conference concerning petitioner without awaiting the disposition of his petition, and that the Hospital record the conference on audio tape, such recording to be sealed and kept in the sole custody of the Hospital until further order of this Court.

Subsequent auxiliary orders were entered on July 9, September 20 and October 17 that are not here relevant.

I

We begin with the realization that the peremptory common-law writs such as mandamus, prohibition and injunction are, when directed against judges, "extraordinary remedies * * reserved for really extraordinary causes." Ex parte Fahey, 332 U.S. 258, 260, 67 S.Ct. 1558, 1559, 91 L.Ed. 2041 (1947). The traditional function for mandamus has been "to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943). The sharp restrictions thus placed upon mandamus arise partly because such writs "have the unfortunate consequence of making the judge a litigant, obliged to obtain personal counsel or to leave his defense to one of the litigants before him." Ex parte Fahey, 332 U.S. at 260, 67 S.Ct. at 1559. More importantly, mandamus when sought during or before trial runs counter to the requirement of "finality that as a condition of review is an historic characteristic of federal appellate procedure," Cobbledick v. United States, 309 U.S. 323, 324, 60 S.Ct. 540, 541, 84 L.Ed. 783 (1940).

In its most recent encounter with mandamus in the context of a criminal trial, a unanimous Supreme Court vacated a writ issued by the Seventh Circuit Court of Appeals in an opinion richly larded with citations limiting the use of mandamus. Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967). In doing so the Court carefully narrowed the language it had employed to support a writ of mandamus in the civil case of Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964):

The Court there did note that the various questions concerning the construction of Rule 35 of the Federal Rules of Civil Procedure were new and substantial, but it rested the existence of mandamus jurisdiction squarely on the fact that there was real doubt whether the District Court had any power at all to order a defendant to submit to a physical examination.

389 U.S. at 104, 88 S.Ct. at 278 n. 14.

The Will decision may be distinguishable from the present proceeding in that the Government was there the party seeking a writ of mandamus. In that context the "general policy against piecemeal appeals" was strengthened by "an awareness of the constitutional precepts that a man is entitled to a speedy trial and that he may not be placed twice in jeopardy for the same offense." Id. at 98, 88 S.Ct. at 275. Nevertheless, the flavor of the Chief Justice's opinion in Will must chill the enthusiasm of any intermediate court to issue such an extraordinary writ in any criminal case.

Which is not to say that a writ of mandamus may never issue in a criminal case. As the Supreme Court itself pointed out in Will, "It has been invoked successfully where the action of the trial court totally deprived the Government of its right to initiate a prosecution, Ex parte United States, 287 U.S. 241, 53 S.Ct. 129, 77 L.Ed. 283 (1932), and where the court overreached its judicial power to deny the Government the rightful fruits of a valid conviction, Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916)." And this Court has issued such writs to compel trial judges to heed our interpretations of the Federal Rules of Criminal Procedure. See Ross v. Sirica, 127 U.S.App.D.C. 10, 380 F.2d 557 (1967); cf. Blue v. United States, 119 U.S.App.D.C. 315, 321, 342 F.2d 894, 900 (1964), cert. denied 380 U.S. 944, 85 S.Ct. 1029, 13 L.Ed.2d 964 (1965); Jones v. Gasch, 131 U.S.App. D.C. 254, 265, 404 F.2d 1231, 1242 (1968).

The petitioner here does not claim that the District Court has exceeded its power, but rather that it has failed "to exercise its authority when it is its duty to do so." A party seeking mandamus has, in the oft-repeated phrase, "the burden of showing that its right to issuance of the writ is `clear and indisputable.'" Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953). This test, while expressive of the general appellate reluctance to issue such writs, is not a uniformly useful guide. Where the trial court is entrusted with substantial discretion, error may reside along a continuum and the appellate court can meaningfully speak of a "clear showing of abuse." Jones v. Gasch, 131 U.S.App. D.C. 254, 265, 404 F.2d 1231, 1242 (1968) (emphasis added). In other circumstances, however, the duty of the trial judge to exercise his authority cannot be rendered unreviewable "under the guise of judicial discretion." Ex parte United States, 287 U.S. 241, 250, 53 S.Ct. 129, 132 (1932). In such situations the trial court has erred or it has not, and the clearness vel non of its error may be more a catchword than an actual litmus paper. Thus, when the petitioner invokes the power of the appellate court to protect an asserted constitutional right, the right exists and merits protection or it does not. An examination of the merits of his claim is required in order to decide which is the case. But once that exercise has been completed, the appellate court can hardly assess in retrospect whether the right was "clear and indisputable" all the time.

On the other hand, however, even a constitutional claim may depend upon a factual situation the implications of which can not readily be assessed without the benefit of a full trial record. In vacating the writ issued in Will, the Supreme Court relied ultimately upon "the failure of the Court of Appeals to attempt to supply any reasoned justification of its action." 389 U.S. at 104, 88 S.Ct. at 278. To determine the propriety of a writ of mandamus, therefore, we must scrutinize the petitioner's claims in light of the requirement set by the Supreme Court for "findings of fact by the issuing court and some statement of the court's legal reasoning." Id. at 107, 88 S.Ct. at 280. To the extent that the inchoate record in this case precludes the requisite findings of fact, mandamus is an inappropriate remedy.

II

The petitioner argues that the logic of Wade v. United States, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), compels recognition of his right to counsel during his staff conference at Saint Elizabeths. The Supreme Court concluded there, in holding that the accused is entitled to a lawyer at his lineup, that "the plain wording of the Sixth Amendment * * * encompasses counsel's assistance whenever necessary to assure a meaningful `defence,'" id. at 225, 87 S.Ct. at 1931, and went on to elaborate,

The accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel\'s absence might derogate from the accused\'s right to a fair trial * * * In sum, the principle of Powell v. Alabama and succeeding cases requires that we scrutinize any pre-trial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant\'s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.

Id. at 226-227, 87 S.Ct. at 1932 (footnote omitted).

At the same time, the Court pointed out in Wade that its sweeping words did not apply to all "preparatory steps" before trial. It specifically distinguished the taking of fingerprints or a blood sample on the grounds that "knowledge of the techniques and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government's case at trial through the ordinary processes of cross-examination of...