United States v. Anderson

• Decision Date: 24 January 1968
• Docket Number: Habeas Corpus No. 67.
• Parties: UNITED STATES of America ex rel. Norman Benjamin PARSON v. Raymond W. ANDERSON, Warden.
• Court: U.S. District Court — District of Delaware

280 F. Supp. 565

UNITED STATES of America ex rel. Norman Benjamin PARSON v. Raymond W. ANDERSON, Warden.

Habeas Corpus No. 67.

United States District Court D. Delaware.

October 30, 1967.

Supplemental Opinion January 24, 1968.

Irving Morris, of Cohen, Morris & Rosenthal, Wilmington, Del., Jackson W. Raysor, Georgetown, Del., for petitioner.

William Swain Lee, Richard G. Elliott, Jr., Deputy Attys., Gen., for the State of Delaware, Wilmington, Del., for respondent.

OPINION

LAYTON, District Judge.

Norman Benjamin Parson (hereafter defendant) was indicted for the first degree murder of Kathleen Rae Maull on the night of January 31, 1964. He was tried and convicted on three counts: (1) murder while attempting to perpetrate a rape; (2) homicide with express malice aforethought by stabbing; (3) homicide with express malice aforethought by beating. Upon appeal, the verdict below was affirmed as to Count 1 but set aside as to Counts 2 and 3 for failure of any proof as to premeditation.^a Defendant's petition for certiorari was denied by the United States Supreme Court on February 20, 1967.^b

Thereafter, on April 18, 1967, defendant filed a petition for habeas corpus in this Court alleging:

(1) His written confession was introduced into evidence without proper instructions to the jury;

(2) The written confession was involuntary under the circumstances under which it was taken;

(3) He was not advised of his right to an attorney at the time his confession was given;

(4) The trial judge erred in refusing to order a change of venue;

(5) The verdict of the jury was ambiguous and fatally defective in that the jury returned a general verdict of guilty but the Supreme Court of Delaware, having set aside the two counts as to premeditated first degree murder, it is now impossible to determine whether the verdict of guilty was not based solely upon these two counts or one of them.¹

As the result of a number of conferences between counsel and the Court, it was stipulated that the entire transcript of the Superior Court trial be incorporated into the record. It was further stipulated that all orders of the trial judge pertaining to psychiatric examinations of the petitioner prior to trial be made a part of the record. Finally, it was stipulated that the reports of all psychologists and psychiatrists made pursuant to the trial judge's orders be made a part of this record.

The explanation of the psychiatric reports is that, prior to trial, defendant's counsel petitioned the trial court and obtained leave to have defendant examined from the point of view of ascertaining whether he knew the difference between right and wrong (the M'Naghten test) at the time of the commission of the offense. The conclusions of the psychiatrists were that defendant did know the difference between right and wrong with the result that counsel abandoned any attempt to interpose a plea of insanity as a defense. As appears hereafter, however, a reading of these reports demonstrates that defendant was definitely mentally disturbed to some degree at the time of trial.

At one of the early conferences, one of defendant's counsel requested that defendant be subjected to psychiatric examination, basing his request upon defendant's alleged abnormal conduct while discussing the details of this proceeding with him at the New Castle Correctional Institution. At that time, the basis for the request was not related to any ground in support of the petition for habeas corpus itself, but, rather, to the questions (1) whether, if defendant were presently incompetent, he was capable of conducting this proceeding without the intervention of a guardian or next friend on his behalf and (2) the difficulty of conducting this proceeding without the full cooperation of the client. The State did not object to a psychiatric examination for this limited purpose.

However, thereafter, defendant's counsel moved to add insanity at the time of trial as an additional ground for the issuance of the writ. This was allowed over the State's objection.² The basis for this last point lay both in fact and law. Counsel pointed to the reports of examinations of defendant by two psychiatrists and a psychologist appointed by the trial judge prior to trial, as well as the testimony of one of them at trial, as demonstrating some definite degree of existing mental illness. They further cite a number of federal and State authorities bearing on the point which hold that an insane person cannot validly be tried or convicted of a crime.

The principle that an insane person cannot be tried or convicted of a crime has been imbedded in the law of English speaking peoples for over two centuries. As long ago as 1765, it was laid down in 4 Blackstone's Commentaries 24 that:

"Also, if a man in his sound memory commits a capital offense, and before arraignment for it, he becomes mad, he ought not to be arraigned for it; because he is not able to plead to it with the advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried: for how can he make his own defense."

An exhaustive review of this point is found in Freeman v. People, 4 Denio 9. 47 Am.Dec. 216 (N.Y.1847), where it was said:

"The true reason why an insane person should not be tried, is, that he is disabled by an act of God to make a just defense if he have one. As said in 4 Harg.Stat.Tr. 205, `there may be circumstances lying in his private knowledge, which would prove his innocency, of which he can have no advantage because not known to the persons who shall take upon them his defense.' The most distinguished writers on criminal jurisprudence concur in these humane views, and all argue that no person in a state of insanity, should ever be put upon his trial. * * *" (p. 219)

And the Supreme Court of Pennsylvania in Commonwealth v. Ragone, 317 Pa. 113, 176 A. 454 (1935), stated in this connection:

"The proposition that a person admittedly insane cannot legally be tried is so sanctioned by common sense that it needs the citation of no formal authorities for its support." (p. 459)

This rule is laid down in innumerable State authorities. See 44 C.J.S. Insane Persons § 127, and cases cited in footnote 62. It has been incorporated into the statute law of many states. For instance, a Virginia statute makes the test of defendant's ability to withstand trial to be whether "the person to be tried is in such a mental condition that his confinement in a hospital for the insane, or colony for the feebleminded, for proper care and observation is necessary to attain the ends of justice." Code of Virginia, 1960, Sec. 19.1-228 as quoted in Thomas v. Cunningham, 313 F.2d 934, 938 (C.A.4th 1963).³

The federal Courts have always adhered to this principle. In Pate v. Robinson, 383 U.S. 375 at page 378, 86 S.Ct. 836, at page 838, 15 L.Ed.2d 815 (1966), the Supreme Court of the United States said:

"The State concedes that the conviction of an accused person while he is legally incompetent violates due proccess, Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956), and that State procedures must be adequate to protect this right." (Emphasis supplied.)

And again at page 386 of 383 U.S., at page 842 of 86 S.Ct.:

"Having determined that Robinson's constitutional rights were abridged by his failure to receive an adequate hearing on his mental competence to stand trial, we direct that the writ of habeas corpus must issue * * *."

Squarely on this point are Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Thomas v. Cunningham, 313 F.2d 934 (938) (C.A.4th 1963); and Noble v. Sigler, 351 F.2d 673 (676) (C.A.8 1965); certiorari denied, 385 U.S. 853, 87 S.Ct. 98, 17 L.Ed.2d 81 (1966).

And it logically follows that where reasons exist for believing that defendant may be mentally ill prior to trial, a preliminary hearing on the issue of his sanity must be held before trial. As stated generally in 23 C.J.S. Criminal Law § 940(2)a:

"Accordingly, it is the general rule, both at common law and under some statutes, that, while one indicted or informed against is presumed sane until his present sanity is called in question in some manner raising a doubt in the court's mind as to his sanity, if the court either before or during the progress of the trial, from observation or from the pleading or suggestion of counsel, has facts brought to its attention which raise a doubt as to the present condition of accused's mind in this respect, or if the court is of the opinion that there are reasonable grounds for believing that accused is insane at the time of the trial or unable to conduct his defense, the question should be determined by a separate proceeding before another step is taken." (Emphasis supplied.)

Freeman v. People, supra, 4 Denio 9, 47 Am.Dec. at 219; Vol. 24 Md.Law Review 442. Thomas v. Cunningham, supra. The great majority of the states now have enacted statutes, for example, see: Purdon's Penna. Statutes, 50.1222; Ann. Code of Maryland 59:7 (amended 1967); N.Y.Code of Criminal Procedure Sec. 658; N.J.Stats.Ann. 2A:163-2. In fact, England incorporated the common law rule into statute as long ago as the year 1800. See 39 and 40 George III C. 94, Sec. 2.

As previously remarked, the reports of the psychologist and psychiatrists made before trial pursuant to examinations ordered by the trial court, clearly indicated that, while defendant knew the difference between right and wrong at the time of the offense charged, nevertheless, at the time of trial he was mentally ill to some degree. Dr. Harry S. Howard, Director of the Department of Mental Health, stated in his report:

"If as the writer believes, the defendant has actually repressed all of this material, then it would be most difficult for him to assist his attorney in the preparation and presentation of his defense. With this in mind it is our opinion that he be transferred to the Delaware State Hospital for further

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