United States ex rel. Von Wolfersdorf v. Johnston

• Citation: 317 F. Supp. 66
• Decision Date: 31 August 1970
• Docket Number: No. 70 Civ. 3285.,70 Civ. 3285.
• Parties: UNITED STATES of America ex rel. Alfred Curt von WOLFERSDORF, Relator, v. W. C. JOHNSTON, M.D., individually and as Director of Matteawan State Hospital, Respondent.
• Court: U.S. District Court — Southern District of New York

317 F. Supp. 66

UNITED STATES of America ex rel. Alfred Curt von WOLFERSDORF, Relator, v. W. C. JOHNSTON, M.D., individually and as Director of Matteawan State Hospital, Respondent.

No. 70 Civ. 3285.

United States District Court, S. D. New York.

August 31, 1970.

Bruce J. Ennis, N. Y. Civil Liberties Union, New York City, for relator.

Louis J. Lefkowitz, Atty. Gen. of New York, New York City, for respondent, Stephen P. Seligman, Asst. Atty. Gen., of counsel.

OPINION

FRANKEL, District Judge.

The 86-year-old relator, determined by the State almost 20 years ago to be "insane" and unable to stand trial on an indictment returned in February of 1951, is confined in Matteawan State Hospital, where the "criminally insane," see Baxstrom v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966), and other "dangerous" persons are held. The State Department of Mental Hygiene has found that he is not dangerous and that he is suitable for commitment in a civil hospital. The Department says it would cheerfully transfer him to such a place but for New York Mental Hygiene Law § 70(1), McKinney's Consol.Laws, c. 27 which allows civil commitment only for people "not in confinement on a criminal charge * * *."

After seeking for many years to have the state courts lower that barrier, relator has applied here for a writ of habeas corpus. He seeks release from Matteawan, not that he may go free, but only that he may sojourn in the less disagreeable surroundings the State's health authorities would find appropriate except for the perdurably "pending" indictment. There is no question that the place where this relator is now held while he awaits death is vastly different from —i. e., more miserable than—state hospitals for those civilly committed. See Neely v. Hogan, 310 N.Y.S.2d 63, 67-68 (Sup.Ct.N.Y.Co.1970). And while the State's representatives acknowledge his suitability in all medical respects for civil commitment, they are stoutly resigned to the prohibition they find in their Mental Hygiene Law. More than that, the State's Attorney General takes the firm position that relator's poignantly modest request, steadily rejected in state executive and judicial determinations, must suffer the same fate here.

The reasons adduced for that position have been studied with care. The study has not dissipated the court's initial surprise that the legal energies expended in this matter could not before now have produced the small mitigation relator seeks for the last days of his life. Cases like this could encourage the canard that Mr. Bumble was too generous by half when he suggested that "the law is a ass."

The few pertinent facts and the law are as follows: Relator and one Paonessa were indicted in 1951 for the kidnapping and murder of a 14-year-old boy. Paonessa over a period of months told a variety of inconsistent stories, but all tended to implicate our relator. The latter steadfastly maintained his innocence, requesting and taking a lie-detector test to establish it. As has been mentioned, however, he was found to be insane, and he has failed in repeated efforts to have himself held competent to stand trial. Paonessa was tried, convicted and (in 1953) executed.

When he brought the present application, relator asserted that Paonessa's death and other events over two decades have made it impossible for the State ever to try him on the still-pending indictment.¹ The Assistant Attorney General responded that the question whether the prosecution has evidence on which to go to trial, though it is so patently relevant, ought to be considered "only * * * when and if the relator is able to stand trial."² Considering the aggravating circumstances of the case and the cogency of relator's position that the State probably lacks evidence on which to go to trial, the court ordered respondent to state with particularity whether a trial is deemed a genuine possibility and, if so, what kinds of specific evidence the State claims to have available. The total response by the Attorney General to that direction is a simple acknowledgment that

"due to the loss of key witnesses such as the co-defendant and the passage of time it would * * * be highly unlikely that the relator could be brought to trial if he was found able to stand trial in the near future."

In all the circumstances, this court considers that "highly unlikely" in the quoted sentence is fairly construed to mean "out of the question." Invited to specify, the Attorney General mentions no speck of evidence on which relator could be tried. The relator, having failed steadily for 20 years to establish his competence to stand trial, is locked away in a place more likely to drive men mad than to cure the "insane." See United States ex rel. Schuster v. Herold, 410 F.2d 1071, 1078, 1079 (2d Cir.), cert. denied, 396 U.S. 847, 90 S.Ct. 81, 24 L.Ed.2d 96 (1969). Nobody has suggested that we ought to weigh seriously the minuscule chance that he will ever become "competent" before he dies. And yet respondent perseveres in the argument that relator must stay where he is because he is "in confinement on a criminal charge * * *."

To block inquiry whether that conclusion comports with Federal Due Process, respondent's counsel tendered at oral argument what he called a "slight" point that relator has not exhausted state remedies. An affidavit submitted for respondent thereafter concedes that relator has brought numerous state proceedings over many years, but insists that there may be more procedures by which to work...