United States ex rel. Lee v. Rowe, 77 C 3127.

• Decision Date: 02 March 1978
• Docket Number: No. 77 C 3127.,77 C 3127.
• Citation: 446 F. Supp. 1039
• Parties: UNITED STATES of America ex rel. Robert E. LEE, Jr., # C-08131, Petitioner, v. Charles ROWE, Director, Department of Corrections, State of Illinois and Neal MacDonald, Warden, Sheridan Correctional Center, Respondents.
• Court: U.S. District Court — Northern District of Illinois

446 F. Supp. 1039

UNITED STATES of America ex rel. Robert E. LEE, Jr., # C-08131, Petitioner, v. Charles ROWE, Director, Department of Corrections, State of Illinois and Neal MacDonald, Warden, Sheridan Correctional Center, Respondents.

No. 77 C 3127.

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

March 2, 1978.

Mary Robinson, Deputy State App. Defender, Daniel Cummings, Asst. State App. Defender, Randy K. Johnson, Senior Law Student, Elgin, Ill., for petitioner.

William J. Scott, Atty. Gen., for the State of Illinois, Kenneth A. Grnacek and Mark L. Rotert, Asst. Attys. Gen., Chicago, Ill., for respondents.

MEMORANDUM OPINION

MAROVITZ, District Judge.

Motion and Cross-Motion for Summary Judgment

Petitioner Robert E. Lee, Jr., was convicted of murder before a jury on February 22, 1971 and sentenced to twenty-five to fifty years imprisonment. Upon appeal, his conviction and sentence were affirmed by the Illinois Appellate Court. People v. Lee, 7 Ill.App.3d 320, 287 N.E.2d 191 (2d Dist., 1972) (hereinafter, Lee I). On August 24, 1973, Lee unsuccessfully petitioned the Circuit Court of DuPage County for post-conviction relief in the form of a new trial. The court denied him relief on February 24, 1975 and was affirmed on appeal. People v. Lee, 43 Ill.App.3d 807, 2 Ill.Dec. 485, 357 N.E.2d 652 (2d Dist., 1976) (hereinafter, Lee II). Lee's petition for leave to appeal was denied by the Illinois Supreme Court. 361 N.E.2d No. 3, XXVIII (1977).

Petitioner brings this petition for a Writ of Habeas Corpus, alleging the same errors which he had raised at his post-conviction hearing and appealed to the state courts. The jurisdiction of this Court is invoked under 28 U.S.C. § 2254. There is no dispute that petitioner exhausted all available state remedies.

Petitioner advances three issues for review. He first claims that he was denied his right to effective assistance of counsel, as guaranteed by the Sixth Amendment and the due process clause of the Fourteenth Amendment to the United States Constitution, when his counsel failed to investigate grounds for or raise an insanity defense after facts supporting such a defense were brought to his attention before trial. His second claim is that he was denied effective assistance of counsel when counsel failed to request a hearing to determine Lee's fitness to stand trial after facts which allegedly indicated the propriety of such a hearing were brought to counsel's attention. He finally claims that he was denied a fair trial, as guaranteed by the due process clause of the Fourteenth Amendment, when the trial court failed to hold sua sponte a fitness hearing when evidence allegedly sufficient to raise a reasonable doubt of Lee's competence was brought to the court's attention.

Pending before this Court are respondent's motion for summary judgment and petitioner's cross-motion for summary judgment. Rule 56, F.R.Civ.P. For the reasons set forth below, respondent's motion is denied and petitioner's motion is granted.

The facts concerning petitioner's murder conviction are set out in Lee I. At his criminal trial, petitioner relied upon alleged bruises found on his person at the time of his arrest as evidence that he had fought with the decedent. Consequently, he had advanced a self-defense theory, which was apparently rejected by the jury.

The facts supporting the issues petitioner raises here are set out in part in Lee II. Relevant to the pending motions is the evidence adduced at petitioner's post-conviction hearing, which detailed petitioner's medical and psychological history.¹

Dr. Albert J. Simon, a physician practicing in Elgin, Illinois, testified that he first examined Lee in July, 1961 (R. 7). He examined Lee again on December 26, 1961, when he signed a physician's certificate for commitment of Lee to Elgin State Hospital (R. 9). Simon diagnosed Lee's condition as simple schizophrenia (R. 12-19). A report of a physician's commission in Cook County, Illinois, dated December 29, 1961, indicates that Lee showed no evidence of psychosis (C. 266). Lee's mother attempted to have him committed to the Cook County Hospital Mental Health Clinic on December 26, 1961 (C. 261).

On March 10, 1962, Lee was admitted to Elgin State Hospital with a diagnosis of sociopathic personality disturbance with chronic alcoholism (C. 273-275). On March 15, 1962, Lee was ordered committed by a state court (C. 277). Lee was discharged on March 31, 1962, with a finding that he was absolutely without psychosis (C. 278-279).

Lee was treated on an out-patient basis by a Dr. Engels on August 8, 1965. Engels diagnosed him as having a sociopathic personality without any psychotic manifestations (C. 284). However, Engels recommended the following:

Patient is not amenable for out-patient therapy; commitment to a psychiatric facility was recommended. Patient has definite homicidal trends and is a homicidal risk. There is a probability of eventual life imprisonment or death facing this patient, if his present pattern of behavior continues. (C. 284) (emphasis added).

Engels prescribed the drug Dilantin for Lee, "to assist him in controlling his rage." (C. 284).

Petitioner's wife, Sue Lee, testified about a number of incidents which occurred during their marriage (R. 122-130). Particularly relevant are episodes to which she testified occurring from 1968 to 1970. During that period, Lee suffered from a number of memory lapses (R. 135). Lee exhibited violent behavior on occasions, and could not remember the occurrences shortly afterward (R. 135-137). On at least two occasions, Lee attempted to murder his wife, once with an ax while she was asleep. Lee could not remember either episode shortly after they had occurred. (R. 138-141).

Michael C. Sabo, a clinical psychologist at the Janet Wattles Mental Health Center, testified that he spoke to petitioner on July 29, 1970 (R. 37). The result of tests administered to Lee by Sabo and other members of the staff indicated that petitioner suffered from latent schizophrenia (R. 43). Sabo explained what he had meant by the term:

Latent meaning a strong possibility that Mr. Lee is unstable to the point where he is very unpredictable. There are times when he is not in good contact with reality. If you want me to be really specific, he comes to us at the Mental Health Clinic with a depressive feature. That is, he is turning anger upon himself, is riddled with guilt, very anxious, strong sociopathic component. It is questionable about his loyalties that he is anyone other than himself, erratic, prone to rage one minute, remorse another. Life may consist of patterns to where for a period of time he might function very well, then he might blow up in irresponsible fashion, injure himself or others, then a period of remorse, possible depressive features, etc. Life goes in patterns, in cycles (R. 46).

Sabo also stated that Lee might be a moderate to chronic alcoholic and that the alcoholism could trigger the schizophrenia (R. 47-49). Sabo felt that Lee would fit into the category of a split personality (R. 68) and that a person so suffering may incur memory lapses (R. 70).

Lee's trial counsel testified at the post-conviction hearing that he was aware of a report by a Dr. Stiller, dated August 11, 1970, diagnosing petitioner as suffering from a schizophrenic reaction with symptomatic alcoholism (R. 210).

On August 14, 1970, a state court ordered petitioner to be released from the custody of Elgin State Hospital (C. 306). However, it is apparent that the state court did not have in its possession the report of Dr. Stiller, received by the state court on August 20, 1970, which suggested that Lee was in need of mental treatment and that he should "be hospitalized in a suitable public or private hospital." (C. 308).

The murder for which petitioner was convicted occurred on October 24, 1970, little more than two months after Lee was diagnosed as suffering from mental illness. At the post-conviction hearing, Lee's wife recounted the day of petitioner's arrest, October 25, 1970:

Bob came home. It was still dark but almost daylight when he came home. I had left the back door open, and he came in and he went into the living room and he just sat in the chair. I got up and I went out there and he was just sitting there. I spoke to him, but he didn't answer, so I left him alone because I was mad. I was you know upset. I didn't know. I thought, "Well sure things are going to start up all over again," after they had been so much better. (R. 147). Then I went back to bed, and I don't know how much later, but he came back to bed. It was starting to get light out when he came back to bed. I didn't say anything to him, and I got up with the children and I got them dressed and I sat down and then Bob got up. Then our little boy, who was two then, asked, "Daddy, what happened?" He had scratches on his face and he had marks on his throat and he had asked what had happened and daddy said, "I don't know." I said well you must have been in a fight. Daddy was in a fight with someone. Then they went out to play, and I asked Bob, I said, "Well, what happened?" He said, "I don't know." (R. 148). He said he didn't know, and he said he had no idea where he was, or anything. I said, "Why didn't you come home when you called me from Dale's yesterday?" He said, "I called you from Dale's," I said, "Yes, twice, and you said you were going to be home." He said, "I don't even remember being at Dale's." Then he went back to bed, and then shortly after that, around 1:00, 2:00, something like that, the police came. (R. 149).

Defense counsel, an experienced attorney (R. 187-189), was appointed to represent Lee after his arrest (R. 149). The post-conviction hearing disclosed what information defense counsel was aware of at the time of the trial.

Mrs. Lee testified that she told defense counsel before trial that petitioner had been to Elgin State Hospital, that he had recently been released in...