Tyars v. Finner

Decision Date21 June 1983
Docket NumberNo. 81-5621,81-5621
Citation709 F.2d 1274
PartiesLuther TYARS, Petitioner-Appellant, v. Dr. Richard FINNER, Medical Director of Patton State Hospital, Patton, California, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Andrew E. Rubin, Law Offices Barry Tarlow, Los Angeles, Cal., Littleton M. Gunn, Public Defender's Office, San Bernardino Cal., for petitioner-appellant.

Jay M. Bloom, San Diego, Cal., for respondent-appellee.

Appeal from the United States District Court for the Central District of California.

Before WALLACE and NORRIS, Circuit Judges, and BURNS, * District judge.

WALLACE, Circuit Judge:

Tyars appeals the district court's denial of his petition for a writ of habeas corpus. The district court held that Tyars was denied due process of law when compelled over objection to testify at his state involuntary commitment hearing, but concluded that the error was harmless beyond a reasonable doubt. We reverse and remand.

I

Tyars, a twenty-five-year old male, suffers from permanent mental retardation caused by a postnatal injury. His I.Q. has been measured at 48 to 57, well below the average range of 90 to 110, and his mental age has been estimated as equivalent to that of a five or six-year old. He is subject to seizures for which the anticonvulsant drugs Dilantin, phenobarbital and Mysoline, and the antipsychotic tranquilizer Thorazine, have been prescribed. He lacks rudimentary communication skills due to a physical speech impediment known as dysarthria, which affects the muscles controlling speech such that he is unable to enunciate words clearly. He has some difficulty performing such basic personal chores as brushing the teeth, showering and dressing.

Until 1965, Tyars resided with his family. For the next six years he lived in a "residential center" in Ontario, California, from which he was discharged when he turned fourteen, the maximum age. In January of 1971 Tyars was placed in the Patton State Hospital for the Developmentally Disabled in San Bernardino, California because of assaultive behavior against his family. The record does not reveal whether Tyars was committed to the hospital voluntarily or on the petition of his family or the State of California; nor does it demonstrate the nature of his assaultive behavior.

On April 12, 1976, the California district attorney for San Bernardino County commenced involuntary civil commitment proceedings against Tyars, filing a petition alleging that Tyars was a mentally retarded person and that he was a danger to himself and others. No mentally retarded person may be committed involuntarily in California unless he is "a danger to himself or others," Cal.Welf. & Inst.Code Sec. 6500 (West Supp.1982), and all orders of commitment expire automatically after one year, subject to renewal by the same petition process for subsequent one-year periods. Id. The California trial court appointed a public defender to represent Tyars and set the matter for hearing pursuant to id. Sec. 6503 (West 1972). Through his counsel, Tyars denied the State's allegation that he was dangerous to himself and others. The court granted Tyars' motion for a jury trial, directed that any verdict must be unanimous, and ruled that the State was required to prove the facts alleged in the petition beyond a reasonable doubt. At a preliminary hearing preceding the trial, Tyars' counsel moved the court to "respect" Tyars' privilege against self-incrimination under the fifth amendment and the due process clause of the fourteenth amendment, and to advise Tyars that any statements he made could be used against him. The motion was denied.

The case was tried in the state court on February 2 and 3, 1977. The State called a staff psychologist and a staff psychiatrist from Patton State Hospital. The psychologist testified that he had examined Tyars in December 1975 and November 1976, that in his opinion Tyars was mentally retarded and not psychotic, and that in his opinion Tyars was unable to manage his own affairs and required supervision for his own welfare. The psychiatrist, who had interviewed Tyars for one-half hour in May 1976, testified to the same effect. Both experts opined that Tyars was a danger to himself and others. The psychiatrist testified that hospital records showed Tyars had struck other patients, torn clothing and thrown articles in 1975 and 1976 and that he exhibited signs of anxiety, tension and hostility during his examinations. The psychologist testified that Tyars' ability to manage his own affairs had improved during 1976, but that no improvement in his aggressive behavior had been observed. He stated that Tyars' violence had continued up to the time of trial and was of such proportion as to require restraints and medication. 1

The State also called a psychiatric technician from Patton State Hospital who often worked with Tyars. The technician was the State's chief witness on the question of Tyars' dangerousness, as he was the only hospital employee testifying who had personally observed Tyars within eight months of the trial and the only witness with first-hand knowledge of Tyars' violent behavior. The technician testified that Tyars had attacked other patients eight to ten times in the eight months preceding trial, that he had attacked the staff nearly as many times, and that it required from five to eleven staff members to subdue him.

Over the clear and continuing objection of his counsel, Tyars was then called as a witness by the State. He was bound in physical restraints throughout his testimony. He was also drugged with his "usual dosage" of 400 mg. of Thorazine. The customary oath was not administered because the court found that Tyars was incapable of understanding it. The court did, however, find that Tyars understood the importance of telling the truth and elicited a promise from Tyars that he would do so.

Due to his speech impediment, Tyars had considerable difficulty making himself understood. The court therefore had the staff psychiatric technician sworn as an "interpreter" in order to "translate English into English." The court's questions to Tyars were not restated by the interpreter, who on occasion would answer the questions himself without even purporting to give Tyars' answer. Moreover, Tyars' understandable words were not always the same as those repeated by the interpreter, who would "either summarize Tyars' answer or simply answer the court directly." 2 On at least five occasions Tyars insisted, through nods of his head or by saying "no," that the answers provided by the interpreter were incorrect. At one point, a spectator in the courtroom purported to "translate" one of Tyars' answers. 3 In this "interpreted" testimony, Tyars described several of his acts of violence, "illustrated his testimony by swinging his arms in descriptive punching motions," 4 and "utter[ed] emphatic 'pows' in a child-like effort to simulate the sound of his fists making contact." 5 All of this occurred in the presence of the jury with Tyars bound in restraints.

The jury deliberated for approximately forty minutes before returning a verdict finding Tyars a mentally retarded person who was a danger to himself and others. The court thereafter ordered his involuntary commitment to Patton State Hospital for one year. Tyars appealed. His counsel argued that compelling Tyars to take the stand violated his privilege against self-incrimination under the fifth amendment and the due process clause of the fourteenth amendment. The California court of appeal agreed and reversed the jury verdict and judgment of commitment. People v. Tyars, 76 Cal.App.3d 1, 142 Cal.Rptr. 554 (1977), superseded by Cramer v. Tyars, 23 Cal.3d 131, 588 P.2d 793, 151 Cal.Rptr. 653 (1979). The California Supreme Court granted a hearing. By vote of 5 to 2, the Supreme Court affirmed the trial court, holding that the privilege against self-incrimination did not prohibit the state from compelling Tyars to testify. Cramer v. Tyars, supra. 6

On May 31, 1979, Tyars filed the instant habeas petition in federal district court. The district court assigned the petition to a magistrate, who ordered a response to the petition, asked for the production of all state records, and directed briefing on certain additional questions. 7 For different reasons, both parties objected to the magistrate's recommendation. The district court adopted the recommendation in its entirety and denied Tyars' habeas petition on the ground that violation of the privilege was harmless beyond a reasonable doubt. 8 Tyars v. Finner, 518 F.Supp. 502 (C.D.Cal.1981). This appeal followed. Our jurisdiction rests on 28 U.S.C. Sec. 2253.

II

We first examine the question of mootness. The district court concluded that "sound judicial administration" required it to entertain this habeas petition on the merits because the California Supreme Court's holding "could affect a large number" of California residents subject to involuntary commitment proceedings. 518 F.Supp. at 505. The district court also held that the one-year duration of the commitment order involved in this case made the constitutionality of the California Supreme Court's rule capable of repetition, yet evading review. The district court expressly found that because "Tyars has been subjected to repetition of the 1977 commitment proceeding each year, ... [t]here is a definite likelihood that ... Tyars will be subjected to future recommitment." Id. at 505-06. Relying on Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), and Doe v. Gallinot, 486 F.Supp. 983 (C.D.Cal.1979), aff'd, 657 F.2d 1017 (9th Cir.1981), the district court held that the controversy was not moot.

Although we do not accept all of the magistrate's reasoning as adopted by the district court, we agree that this case has not been mooted by the expiration of Tyars' 1977 one-year commitment. However, it is necessary...

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