United States v. Fogarty, CR-2-81-37.
| Decision Date | 16 June 1982 |
| Docket Number | No. CR-2-81-37.,CR-2-81-37. |
| Parties | UNITED STATES of America, Plaintiff, v. John Cline FOGARTY, Jr., Defendant. |
| Court | U.S. District Court — Eastern District of Tennessee |
Guy Blackwell, Asst. U.S. Atty., Greeneville, Tenn., for plaintiff.
Cecil W. Laws, Bristol, Tenn., for defendant.
MEMORANDUM AND ORDERS
Counsel for the defendant, who claims to be unable financially to obtain expert services he claims are necessary to his defense herein, requested in ex parte applications, the provision of the services of a questioned-documents analyst and an expert in the comparison of fingerprints. The Court FINDS, after appropriate inquiries from the record, that the requested services are necessary, and that the defendant is unable financially to obtain them. Accordingly, counsel for the defendant will acquire from the clerk proper (separate) forms under the Criminal Justice Act and, upon their completion and approval by the Court, is authorized to obtain such services. 18 U.S.C. § 3006A(e)(1).
The defendant also moved the Court for an examination into his mental competency both on or about August 24, 1981 and at the present time. Ordinarily, after arrest and prior to the imposition of sentence or prior to the expiration of any period of probation, the primary responsibility for filing a motion to inquire into the mental competency of an accused rests upon the United States attorney of this district, if he has reasonable cause to believe that a person charged with an offense against the United States may be presently insane or otherwise so incompetent mentally as to be unable to understand the proceedings against him or to assist properly in his own defense. 18 U.S.C. § 4244.
However, this may be done on the basis of a similar motion in behalf of the accused, or by the Court upon its own motion. Idem. Although defense counsel neglected to support such allegations of fact with affidavit(s), local Rule 12(a), as an officer of the Court, he represented to the Court that his client had advised him of repeated hospitalizations "* * * relative to his emotional and mental condition which are approximate in time to the charge brought against the defendant * * * which may relate to the defendant's mental capacity and competency at the time of the alleged mail theft * * *" and that such counsel entertains "* * * serious doubts as to whether * * * the defendant can effectively and capably assist counsel in preparation for trial. * * *"
The United States attorney will prepare and submit for the Court's consideration a proposed order for the defendant's commitment for a limited time for purposes of an examination as to his mental condition at both the foregoing times by at least 1 qualified psychiatrist; the latter shall report to the Court only. Idem. Trial of this action on the defendant's plea of not guilty will be assigned with a jury after the ascertainment of his mental competency to stand trial.
The Court understands from representations of the United States attorney of this District that the defendant's requests for discovery are now MOOT.
The Court, having received the report of qualified psychiatrists who examined the defendant Mr. Fogarty as to his mental condition under 18 U.S.C. § 4244 both as to on or about August 24, 1981 and presently, see order herein of February 9, as amended on February 12, and April 5, 1982, hereby FINDS that such defendant is competent mentally to stand trial. Idem. Such finding shall in no way prejudice the defendant in any plea of insanity as a defense to the crime charged herein; shall not be introduced in evidence on the trial herein; and shall not be brought otherwise directly or indirectly to the notice of the jury. Idem.
No statement of the defendant made during the course of any examination into his sanity or mental competency pursuant to 18 U.S.C. § 4244, supra, shall be admitted into evidence against him on the issue of his guilt or innocence herein. Idem. Trial of this action hereby is reassigned for trial Friday, June 4, 1982, commencing at 12:30 o'clock, p.m.
Upon being returned to this jurisdiction, the defendant will stand on his reinstated appearance bond of December 9, 1981 until time of trial. Any additional pretrial motions must be made by midnight, May 29, 1982.
The defendant Mr. Fogarty moved for an examination into his mental condition, and such examination was ordered by the Court on February 9, 1982. At the request of the examiner, the time for reporting thereon was extended1 to May 8, 1982.
Such report, not indicating a state in Mr. Fogarty of either present insanity or mental incompetence to stand trial, the Court adjudged without a hearing on May 25, 1982 that the defendant is competent to stand trial and assigned it to commence June 4, 1982. The defendant moved for a continuance on the ground that his counsel has had insufficient time to prepare for trial.
That motion appears to have merit: the defendant was unavailable to his counsel because of such examination from February 11, until May 25, 1982. It would abuse this Court's discretion in that situation to decline a continuance of about 30 days to allow counsel the reasonable opportunity to investigate and make legal preparation therefor. Cf. United States v. Ploeger, C.A. 6th (1970), 428 F.2d 1204, 1205-12062, after remand 453 F.2d 537.
Accordingly, such motion hereby is GRANTED, and trial herein hereby is REASSIGNED as no. 2 to commence July 7, 1982. The defendant will remain on his present bond until the time of trial. All additional pretrial motions must be made by midnight, June 12, 1982, Rule 12(c), Federal Rules of Criminal Procedure.
It is claimed also by the defendant that, unless his counsel may review the report of the qualified psychiatrists who examined him for the Court under the provisions of 18 U.S.C. § 4244, he would be deprived thereby of effective representation of his counsel. Constitution, Sixth Amendment. He moved, not only to examine such report, but also to be permitted to inspect "* * * all manner of medical records * * *" of the institution to which he was committed for such examination, claiming that both such "* * * would reasonably be relative to the defendant's defense in this matter. * *"
Mr. Fogarty is represented to have related to his counsel that he was hospitalized repeatedly at approximately the time of the alleged mail-theft herein. It was for this reason that this Court, in the exercise of its inherent power so to do, United States v. Baird, C.A.2d (1969), 414 F.2d 700, 710, certiorari denied (1969), 396 U.S. 1005, 90 S.Ct. 559, 24 L.Ed.2d 497, ordered an examination additionally into the defendant's mental condition about the time of the offense alleged herein as well as presently.2
Any conviction of Mr. Fogarty, if he was incompetent mentally, while he was thus incompetent would have violated the Constitution, Fifth Amendment, Due Process Clause, by denying him a fair trial. Cf. Pate v. Robinson (1966), 383 U.S. 375, 385, 86 S.Ct. 836, 842, 15 L.Ed.2d 815, 8222. Furthermore, one who is incompetent mentally cannot be allowed to plead guilty. Spikes v. United States, C.A.9th (1980), 633 F.2d 144, 1466, certiorari denied (1981), 450 U.S. 934, 101 S.Ct. 1399, 67 L.Ed.2d 369.
Had a competency hearing been indicated by the report herein of the psychiatrist, at which such expert would have testified, the Court would have made it available to both adversary counsel as a basis for their examination of the witness. In re Harmon, C.A.1st (1970), 425 F.2d 916, 9186. It is only when such report indicates the mental incompetency of the defendant that such a hearing is required. Cf. United States v. Geier, C.A.6th (1975), 521 F.2d 597, 6004 ().
This Court (per Neese, J.) was cited and quoted for the proposition that psychiatric reports are to be withheld where no hearing is indicated.
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United States v. Winn, C.A.9th (1978), 577 F.2d 86, 91. Disclosure of such reports of such examinations and tests are not required under Rule 16(1), (D), Federal Rules of Criminal Procedure.
Such an expert appointed by the Court, see order herein of February 9, 1982, "* * * is intended to * * * function as an objective, nonpartisan expert when appointed pursuant to 18 U.S.C. § 4244. * * *" United States v. Fratus, C.A.5th (1976), 530 F.2d 644, 6499, certiorari denied (1976), 429 U.S. 846, 97 S.Ct. 130, 50 L.Ed.2d 118. Such "* * * is not a prosecution witness but the Court's * * *." United States v. Theriault, C.A.5th (1971), 440 F.2d 713, 7152, appeal after remand 474 F.2d 359, certiorari denied (1973), 411 U.S. 984, 93 S.Ct. 2278, 36 L.Ed.2d 960.
It was the opinion of such qualified psychiatrist inter alia, regarding the issue of the criminal responsibility of Mr. Fogarty at the time of the alleged offense, that:
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