United States ex rel. Wax v. Pate

• Decision Date: 04 December 1967
• Docket Number: No. 67 C 1612.,67 C 1612.
• Citation: 298 F. Supp. 164
• Parties: UNITED STATES ex rel. William WAX, Petitioner, v. Frank J. PATE, Respondent.
• Court: U.S. District Court — Northern District of Illinois

298 F. Supp. 164

UNITED STATES ex rel. William WAX, Petitioner, v. Frank J. PATE, Respondent.

No. 67 C 1612.

United States District Court N. D. Illinois, E. D.

December 4, 1967.

Jason E. Bellows and Charles A. Bellows, Chicago, Ill., for petitioner.

William G. Clark, Atty. Gen. of Ill., Chicago, Ill., for respondent.

MEMORANDUM OPINION

MAROVITZ, District Judge.

Petition for a Writ of Habeas Corpus

William Wax, who was sentenced to 20-35 years on a murder conviction by the Circuit Court of the Fifth Judicial Circuit of Illinois, Edgar County, on January 27, 1965, seeks his release on a writ of habeas corpus. His conviction was affirmed by the Appellate Court for the Fourth District on September 26, 1966, in People v. Wax, 75 Ill.App.2d 163, 220 N.E.2d 600. The Illinois Supreme Court denied leave to appeal on January 18, 1967, and the Supreme Court of the United States denied certiorari on May 29, 1967, at 387 U.S. 930, 87 S.Ct. 2051, 18 L.Ed.2d 991.

The issue urged here was asserted in all of the proceedings below. In essence, petitioner alleges that he was deprived of his Sixth Amendment right to counsel, in that he was examined by a psychiatrist prior to trial, at the state's request, without notice to his retained counsel and in counsel's absence. The psychiatrist subsequently testified at trial as a prosecution witness to the effect that petitioner was sane at the time of the commission of the offense. Petitioner alleges that the time of the examination constituted a "critical stage" of the prosecution and that the denial of counsel at that point constitutes a violation of his right to effective assistance of counsel.

The right to effective assistance of counsel has been applied at stages of the prosecution where the Supreme Court has considered denial of that right to vitiate the accused's guarantee of a fair trial. In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the right to counsel was applied to the trial itself, and in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), to the appellate level.

These cases, and others,¹ have construed the Sixth Amendment guarantee to apply to the "critical" stages of the prosecution. And most recently, in a provocative trilogy of cases, the Supreme Court required the exclusion of identification evidence which was tainted by the exhibition of the accused to identifying witnesses prior to trial in the absence of counsel. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); and see Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed. 1199 (1967). Those cases held, inter alia, that a post-indictment "lineup" is a critical stage of the prosecution, and condemned the practice of exhibiting suspects singly to identifying witnesses. Wade defined a "critical" stage as follows: (at 226, 87 S.Ct. at 1932)

"It is central to that principle right to counsel that in addition to counsel's presence at trial, 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."

As Mr. Justice Black put it in his concurring and dissenting opinion in Wade: (at 246, 87 S.Ct. at 1942)

"And I agree with the Court that a lineup is a `critical stage' of the criminal proceedings against an accused, because it is a stage at which the Government makes use of his custody to obtain crucial evidence against him."

The narrow issue presented by this petition is whether a psychiatric examination requested by the prosecution and conducted by a doctor of its designation, who testifies adversely to the defendant at trial on the issue of insanity constitutes a "critical stage" of the prosecution requiring notice to and the presence of the defendant's attorney.

The parties are in virtual agreement that the facts as set forth by the Appellate Court when it affirmed defendant's conviction, are essentially accurate. For that reason, we did not deem it necessary to hold an evidentiary hearing, and are prepared to make our ruling on the legal issues discussed in the briefs.

The facts of the occurrence, as related by the Appellate Court at 75 Ill.App.2d at 176-177, 220 N.E.2d at 607, are these:

"It is contended that this case must be reversed and remanded for a new trial by reason of the nature of an examination made of the defendant by Dr. Grove Smith, a psychiatrist acting at the request of the State's Attorney. This examination was made on September 23rd at the jail in Paris. It will be recalled that the first examination of Dr. Greenfield was on September 19th. The only evidence upon this examination was elicited from Dr. Smith upon cross-examination. He stated that he called at the jail and that he saw the defendant and asked his name. Dr. Smith identified himself as a doctor making an examination at the request of the State's Attorney. Following such introduction, it appears that the defendant and the doctor had no conversation, but that for about 20 minutes there was silence and presumably, mutual observation. Dr. Smith then asked the defendant if he had ever been in the Army, Navy or Marine Corps, and said that the defendant shook his head to signify no. There followed another interval of silence and then the defendant asked to have the sheriff get his attorney. Dr. Smith testified that he stated that he would be glad to have the attorney present, and the latter arrived shortly. He testified that he told the attorney that he wished to examine the defendant with his permission, but that no further examination was conducted after such conversation. It appeared that the defendant stood mute."

As in the instant petition, Wax made no claim before the Appellate Court that his Fifth Amendment privilege against self-incrimination has been violated. The Appellate Court nevertheless stated its belief "that the presence or absence of the element of self-incrimination is a key factor in the resolution of this proposition." (75 Ill.App.2d at 177, 220 N.E.2d at 607).

The Court went on to determine the issue within the framework of a Fifth Amendment analysis, rather than squarely addressing itself to the Sixth Amendment ground asserted by the petitioner. In denying relief, the Court relied on Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Schmerber held that the defendant's Fifth Amendment privilege was in no way violated by the prosecution's use at trial of evidence of a blood sample taken involuntarily from defendant. Hence, Schmerber was not entitled to claim the privilege against self-incrimination, which applies only to "evidence of a testimonial or communicative nature", and the Supreme Court held there to be no issue of denial of counsel with respect to any rights which he did possess.

The Appellate Court regarded the instant right to counsel argument as governed by the same principles used in Schmerber. It stated: (at 179-180, 220 N.E.2d at 608)

"It appears, therefore, under the authorities that the occasion when Dr. Smith and the defendant mutually observed one another prior to the arriving of defendant's counsel, there was, in fact, no testimonial compulsion as to inculpating matters. There being no valid question of constitutional dimensions upon the issue of self-incrimination, we believe that the issue raised as to the deprivation of the benefit of counsel is controlled by Schmerber v. California * * *. Here, as in Schmerber, no issue of counsel's ability to assist in respect of any right which he did possess was presented. * * *"

The Wade trilogy was decided on June 12, 1967, subsequent by 14 days to the date the United States Supreme Court denied certiorari in the instant case. In Wade, the court observed that compelling a defendant merely to exhibit his person for observation by a prosecution witness prior to trial involves no issue of testimonial compulsion which could raise an issue of self-incrimination in violation of the Fifth Amendment privilege. However, the Court significantly went on to explore the Sixth Amendment right to counsel argument upon which it rendered its landmark holding. The explanation of the reason that issue was significant in Wade, and not of consequence in Schmerber, is of decisive importance to the scope of our deliberations herein. The Court asserted: (388 U.S. at 223-224, 87 S.Ct. at 1930)

"The fact that the lineup involved no violation of Wade's privilege against self-incriminaton does not, however, dispose of his contention that the courtroom identifications should have been excluded because the lineup was conducted without notice to and in the absence of his counsel. Our rejection of the right to counsel claim in Schmerber rested on our conclusion in that case that `no issue of counsel's ability to assist petitioner in respect of any rights he did possess is presented.' 384 U.S. at 766 86 S. Ct. 1826, at 1833, 16 L.Ed.2d 908. In contrast, in this case it is urged that the assistance of counsel at the lineup was indispensable to protect Wade's most basic right as a criminal defendant—his right to a fair trial at which the witnesses against him might be meaningfully cross-examined."

It immediately becomes apparent that the instant petitioner is not challenging his conviction because it rested upon some form of "testimonial compulsion", as the Appellate Court seemed to believe he was and as Schmerber did, but because the lack of notice to his counsel allegedly deprived counsel of the opportunity to consult with his client and perhaps with his own medical expert as well, and to suggest to the court proper procedures or conditions for conducting the examination.² In Wade, the Supreme Court distinguished a lineup from the merely preparatory steps in the gathering of the prosecution's evidence, such as "systematized or...