Bush v. Texas

PETITIONER:Bush
RESPONDENT:Texas
LOCATION:Circuit Court of Anne Arundel County

DOCKET NO.: 511
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: Texas Court of Criminal Appeals

CITATION: 372 US 586 (1963)
ARGUED: Feb 26, 1963
DECIDED: Mar 25, 1963

Facts of the case

Question

Audio Transcription for Oral Argument – February 26, 1963 in Bush v. Texas

Earl Warren:

Number 511, James E. Bush, Petitioner, versus Bruce Allen — versus Texas rather.

You may proceed, Mr. Wright.

Charles Alan Wright:

Mr. Chief Justice may it please the Court.

This case raises the question first, whether the State of Texas denied the petitioner merely because he is poor, an adequate opportunity to sustain a plea of insanity.

It raises beyond that, if in fact that’s what happened, made the State do this consistent with the Fourteenth Amendment.

The case is here on writ of certiorari to the Court of Criminal Appeals in the State of Texas.

Petitioner was convicted of the crime of felony theft of having stolen a coin collection valued at about $600 from his employer.

As habitual criminal, the sentence was laid.

There is no issue here in regard whether the crime was committed or any matter of that sort.

The entire issue here has to do with the proceedings to determine his plea that he was not guilty by reason of insanity or that he was insane at the time of the trial and therefore not competent to stand in the trial.

The facts with regard to that issue are these: Petitioner was arrested and incarcerated in October of 1960.

He was indicted in February of 1961 and trial set for late April 1961.

Three weeks before trial, because the petitioner was indigent, the Court appointed an attorney to represent him.

That attorney on April 21st, 1961, three days before the case was set for trial, made two motions for the trial court.

In each motion, counsel recited that the petitioner was indigent, that he was without means to acquire expert assistance to sustain his plea of insanity.

In one motion he asked that the petitioner be committed to a state mental hospital for examination and observation of his mental condition.

In the other motion, he asked the Court to appoint a psychiatrist or that it provide funds to retain a psychiatrist to assist the defense in the trial of the case.

Potter Stewart:

Mr. Wright, I know you’re here trying to prevail on what seemed to you important constitutional questions, but I trust that before your argument is finished, you’ll tell us what do you think is the effect of the supplemental brief which had been filed for the respondent yesterday I think, showing that —

Charles Alan Wright:

I’d be very glad, Justice Stewart, to tell you that immediately.

The supplemental brief which was filed I think sometime in the end of last week, I saw it on Sunday, sets out two things.

It sets out a report of a Dr. Hug, a state psychiatrist to examine the petitioner at the state penitentiary, the date is not shown in the supplemental brief, but the date was February 6th, as the original of this report indicates of this year.

Doctor Hug reports that the petitioner suffers from simple schizophrenia and that he has been not responsible or best partial responsible for his actions for many years.

Exhibit B of the supplemental brief, his statement, that under the statutory procedure which we have in Texas, the director of prisons has had the petitioner transferred from the state prison to the state mental hospital.

Now, the Court asked, what effect does this have on this case?

In my view, Your Honor, it has none.

It does not make the case moot and this, I take it, was the only purpose for which a document of this sort might properly be brought before the Court at this late stage.

Petitioner still stands under a criminal conviction.

He still is subject to being returned to prison.

In fact, the same statute under which he was transferred on I believe Thursday of last week to the mental hospital, Article 932-1 of the Code of Criminal Procedure goes on to provide in Section 15, that if at any time the director of the mental hospital finds that he has been cured or, and I think this maybe more important in this case, if he finds that the prisoner will not benefit from continued hospitalization, in that event, the prisoner shall be returned to penitentiary to serve the unexpired portion of the sentence.

Potter Stewart:

I was thinking, Mr. Wright, not so much of mootness as I was of a — the equivalent of a confession of error.

Potter Stewart:

This — a psychiatrist this time employed by the State.

The State — State’s psychiatrist have now told us that the petitioner here was only partly or not at all responsible for his acts for many years and — when did this alleged crime occurred?

Charles Alan Wright:

October 21st, 1960.

Potter Stewart:

So that’s certainly within many years, however many years it is and — isn’t this then a finding by the State’s expert that the — that the — this person was probably not guilty?

Charles Alan Wright:

It is surely that — if we’d that finding at the time of the trial as we asked, I think, we would never have been here.

Potter Stewart:

But we do have it now (Voice Overlap) —

Charles Alan Wright:

We do have it now.

Potter Stewart:

And it — as I understand your briefs, your earlier briefs, the Texas law is clear and I suppose the law of every state is clear that the person cannot be convicted of the criminal offense if indeed he was not responsible for his acts at the time of the alleged offense.

Charles Alan Wright:

Entirely clear.

Byron R. White:

Is this a — was this the [Inaudible] continued on by [Inaudible] or would there have to be a collateral proceeding.

I suppose — I assume there is some proceeding.

In fact, it’s available for (Voice Overlap) —

Charles Alan Wright:

So far as I’m advised, Mr. Justice White, and since I received the brief on Sunday, I’m not fully briefed on the point, but as best I can determine, I can find no collateral procedure available under Texas law by which this can be brought up.

There is a recent case, February — 1959 of the Texas Court of Criminal Appeals in which on a petition for habeas corpus, it was undertaken to show that lately discovered evidence indicated that a person had been insane at the time of the act or at the time of the trial.

The Texas Court of Criminal Appeals held that this is not a matter which may be raised by this form of collateral attack.

That case, Your Honor, is Ex Parte Elkins at 324 S.W.2d 1.

William J. Brennan, Jr.:

Well, Mr. Wright, what are —

Byron R. White:

Well, what if —

William J. Brennan, Jr.:

— suppose we would’ve vacated this judgment of conviction and remand to the Court of Criminal Appeals, that’s where it would go, would it?

Charles Alan Wright:

It would, Your Honor.

William J. Brennan, Jr.:

For reconsideration in light of the dispatch now represented to us by the Attorney General, I take it is that — of Texas?

Charles Alan Wright:

Mr. Justice Brennan, the Attorney General perhaps can speak with more authority as to what course the Texas Court of Criminal Appeals would take.

In that event, there are a few guideposts, I think.

We have a statute in Texas which provides that if after convictions and during the time that an appeal is pending and that I take it this present time, there should be reason to suspect the sanity of the convicted person then the proceedings may be suspended and the person may be committed to a mental hospital until such time to see he is well.

But the statute is very clear, it’s Article 932 (b) of the Code of Criminal Procedure, Section 3, that during the period that the person is so confined, he is to be confined as a person charged with a criminal offense and that upon his release from the mental hospital, the criminal proceeding continues just as it would before.

Further in that connection, the Court of Criminal Appeals has held this is a matter which not — may not be raised before yet, the case there is Gibbs versus Texas at 308 S.W.2d 515, where an application was made to the Court of Criminal Appeals in the case then pending before it that there was no reason to believe the prisoner is insane, and the Court of Criminal Appeals said this is not a matter for us, this is a matter only for the District Court.

Byron R. White:

Yes.

But that — did that case involved the evidence that indicated also that the man was insane at the time of the crime?

Well, that certainly is the import of this affidavit here?

Charles Alan Wright:

Mr. Justice White, I can’t answer that with regards to this case —

Byron R. White:

And one of the [Inaudible] to this appeal is before the Texas Court was whether or not this man was insane at the time of the crime, wouldn’t it, right on the merit?

Charles Alan Wright:

Absolutely.

Byron R. White:

That’s still is one of the issues in the case?

Charles Alan Wright:

It is clearly one of the issues.

I should say that’s the central issue in the case.

Tom C. Clark:

Mr. Wright, what was the procedure utilized in the Bush case in 313 [Inaudible]

Charles Alan Wright:

That was a petition, Mr. Justice Clark, for habeas corpus alleging that he had not had a lawyer.

And the Court of Criminal Appeals by divided vote read this Court’s decision in Massey v. Moore as meaning that there must be a lawyer in the case of a criminal defendant who is presumptively insane and therefore vacated the conviction because of lack of counsel, it was not because of his mental state except in the record.

Byron R. White:

What’s that Gibbs citation?

Charles Alan Wright:

Gibbs v. Texas, it’s 308 S.W.2d 515, it’s a 1958 decision.

William J. Brennan, Jr.:

Well, do I — do I correctly infer from your answers Mr. Wright, that you’re not sure what would happen if you were to send — vacate this [Inaudible]

Charles Alan Wright:

I — that is — in part, I think, a very accurate statement of my present state of knowledge Mr. Justice Brennan.

My guess is that, if you vacate it and send it back, we’ll find it back here again because the — there is no procedure in Texas.

But I cannot say that with assurance.

Hugo L. Black:

They could, could they not, in view of the situation and the reason, vacate that judgment as there’s no acts or no way for them to proceed or send it to the trial court to determine this new issue again?

They had not tried to convict him.

I’m just wondering if Texas would finally — the Texas Court would finally observe unable to meet a situation if it were persuaded that a man had been convicted on the trial, it took place at the time when he was insane.

Charles Alan Wright:

I should like to believe, Mr. Justice Black, Texas procedure is flexible enough so that it can provide some redress under those circumstances.

So far as I had yet found or have been advised, we have not discovered what procedure that could be.

If the Court is concerned as quite properly, I know it must be with this, we’d likely to submit after argument a supplemental brief on the question of what procedures might be available in Texas and if there is any purpose to be served by remand to the Texas Court.

There’s not in one day Washington had the opportunity to brief that question we should like.

William J. Brennan, Jr.:

Mr. Wright, the tenor of this is not alone that he was insane at the time of trial, but indeed that he was insane at the time of the commission of alleged offense, is it?

Charles Alan Wright:

It depends entirely on what Doctor Hug means by many years and also what he means when he says at most partially responsible, whether or not this could be sufficient responsibility to meet the right or wrong test of the Texas statutes.

Tom C. Clark:

Am I right that there was a finding that he was insane in this particular case?

Is that (Voice Overlap) —

Charles Alan Wright:

There were two findings, Mr. Justice Clark, on two successive days, two different juries found him to — insane both at the time of the event and at the time of trial.

Tom C. Clark:

So you might have a complication, might you not, because I suppose that the question here would be whether he had the process and that he’s only given the 20 minutes or whatever it was to have a psychiatrist and the State didn’t provide a psychiatrist as I understood it rather than they often did in the county —

Charles Alan Wright:

It can be helpful [Inaudible]

Tom C. Clark:

— doctors, whatever you call it.

So, you’d — you would have some complications, would you not, in proceeding in a new case.

Tom C. Clark:

Did the Court of Appeals has asked — act on it, Court of Criminal Appeals?

Charles Alan Wright:

I think Mr. Justice Clark, I would have a hard time persuading the Court of Criminal Appeals, but a doctor’s report in 1963 demonstrates that the Court committed error in 1961 in making the finding which it did.

It seems to me that the significance of Doctor Hug’s report is that it demonstrates the danger of having permitted this trial to go ahead without giving the petitioner the psychiatric assistance which he then asked for.

We now know that there is serious reason to believe that the petitioner is insane.

They would have known that if we had had the relief for which we moved at the trial.

Tom C. Clark:

What Court was — that heard the Bush case before in the 333?

Charles Alan Wright:

That was the Court of Criminal Appeals.

Tom C. Clark:

Which court?

Charles Alan Wright:

The Court of Criminal Appeals, sir.

Tom C. Clark:

I mean it found the facts, it was the trial court, wasn’t there in the Texas procedure?

County Court of Criminal Appeals refer the case to the trial judge to —

Charles Alan Wright:

I’m advised, Mr. Justice Clark, that there was a District Court, yes, in, I believe Johnson County.

Tom C. Clark:

Johnson?

Charles Alan Wright:

Yes.

Tom C. Clark:

That’s a different district, isn’t it?

Charles Alan Wright:

Yes it is.

Tom C. Clark:

This is in Ellis, isn’t it?

Charles Alan Wright:

This is in Ellis County.

Tom C. Clark:

Thank you.

Charles Alan Wright:

The States — if the Court wishes to listen to argument on the merits at this time, the State’s position as I understand it, is that they gave petitioner an adequate opportunity to sustain his plea of insanity that the county health officer testified.

In our view, this is even without these late revelations from Doctor Hug, a demonstrably inadequate way to put to a jury the facts as to the mental condition of the person who stands accused of the crime.

And I think that this is demonstrated in a number of ways.

It is demonstrated by testimony in the record, Dr. Dial, the psychologist called by trial counsel testified at page 70 that the adequacy of a mental examination depends upon the training of the person who is made at — Dr. Compton, the county health officer had no specialized training in psychiatry.

He’s a general practitioner who would — had a course in Psychiatry in medical school and he test–

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

It was, Your Honor.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

Yes sir.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

Gasoline.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

Gathered from Dallas, that’s a given.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

That is the fact, Mr. Justice Goldberg.

As Mr. Moore stated reflects — he had just come into the courtroom at that time Mr. Moore asked for the recess, the judge said, “Rush it up.”

Counsel was given a 45 minute recess, during that time the prisoner was also fed ad the examination according to Dr. Dial’s own testimony that was actually 20 minutes which he says is inadequate.

Arthur J. Goldberg:

So, in this case [Inaudible], if that is so, we have the [Inaudible]

Charles Alan Wright:

There is that question in the case, yes.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

The trial judge in qualifying the bill of exceptions after the trial at page 38 of the record refers to Dr. Dial, a supposed expert and says that he had ample time to make whatever examination he needed to make, that’s after Dr. Dial had testified that his examination was entirely inadequate.

This I think is the answer to the suggestion on the State’s brief that if counsel had seriously wanted him to have expert testimony, they should have moved for further continuance with some inference that it would have been granted.

As I read the record, the inferences are entirely the other way.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

Yes, Your Honor, the motion was made.

It was made during the trial in the merits in April 25th.

Mr. Moore moved that proceedings to be continued and in order to permit examination by a psychiatrist or a psychologist.

The Court said, “I appoint the county health officer,” Dr. Compton who had already testified and who was neither, Mr. Moore said, “This is not satisfactory, we want someone trained in diseases of the mind”, and the Court said, “Your request is overruled.”

So the request was duly made that there’d be a continuance for that purpose.

If Dr. Dial’s testimony as to the adequacy of training, being vital in determining the adequacy of the examination were not enough, we have in our brief at pages 10 to 14 listed a great many other authorities from Isaac Ray, a pioneer psychiatrist in 1838 down to the present, authorities both Psychiatric, Legal Judicial expressing the view that a general practitioner is not qualified to give expert testimony on this question.

I hope on that that my view is very clear because it seems to me that the State has perhaps misunderstood what we’re contending.

We are not suggesting at all, that as a matter of constitutional law, the testimony of lay witnesses or testimony of a general practitioner is inadmissible in such a proceeding.

Whatever may be the desirable evidence rule, this is surely a matter which the States must regulate themselves.

It is our contention that this evidence however much may have is not sufficient to provide what the Constitution does require and that is an adequate opportunity to sustain the plea of insanity.

And so we say, what Dr. Compton testify if you want, but make available to the Court and the jury and defense counsel testimony of a person who is trained and who is able to give a truly expert opinion on the subject.

That we think was not present in this case.

If there were any further doubt as to Dr. Compton’s testimony, I think that he perhaps gives the answer himself.

He demonstrates that he is not trained to make the determination of this kind when he had testified at page 135 of the record that he made the same sort of examination a psychiatrist would have made, except with regard to physical examination.

Now the record shows, the medical text show, judicial opinion show that the kind of examination he made would consist of only three things; a history, a history so incomplete that he did not find out that the petitioner had been adjudicated insane in 1924.

An inquiry as to whether the prisoner suffered from hallucinations, and simple test of orientations such as whether he knew who is the President of the United States, the record shows that this is not what psychiatrists do, that a psychiatric examination requires physical examination, intelligence test, electroencephalogram, test such the Rorschach test, as well as verbal test and a good many other varieties described in the record by Dr. Dial and described by other authorities in our briefs.

On the assumption, arguendo that the examination which was made was not an adequate examination, what is the constitutional requirement here?

Charles Alan Wright:

On this point, there is very little law.

The only case from this Court in point is U.S. Ex rel Smith v. Baldie and although both sides managed to find comfort in various parts of the language of the Smith case, in fact, the Smith case does not on any view control this.

Smith was a habeas corpus action attacking a Pennsylvania conviction.

In the Smith case, psychiatrist had testified, the state psychiatrist, Dr. Drayton, who unfortunately was probably insane at the time he testified and two psychiatrists called by the defense.

The contention which was made in the Court of Appeals and here was that further psychiatrist should have been appointed in order to assist the defense.

That contention was rejected.

There was doubt as to whether a proper request had been made even assuming the request had been made.

This Court, speaking through Mr. Justice Reed said first, “We cannot say that the State has this duty by constitutional mandate” and this language is very comforting to the State, but the Court went on to say, the language which comforts petitioner, psychiatrist testified that suffices.

And that I think puts Smith quite aside from our case, where there was no psychiatric testimony, unlike Smith, where there was testimony for both sides by a psychiatrist.

We find constitutional support for our position in three separate lines of argument which we hope converge the same conclusion.

The first is simply the Due Process Clause, that there is no fundamental fairness if a man is asked to stand trial without the kind of testimony which every professional group, every learned writer, a great many courts, legislatures more the half of the States say is necessary in order to determine whether or not he is sane.

This is a proceeding so fundamentally unfair as to constitute a violation of due process.

But we add specificity to that argument by looking to the right of counsel.

Surely here was a case as the Texas Court held in Ex parte Bush in 1958 where there was a constitutional right to counsel no matter what variation of Betts v. Brady one accepts, this was a case where counsel must to be appointed.

What then does the right of counsel mean?

Surely it would not be enough to satisfy the requirements of Powell v. Alabama to name as counsel for an indigent, Mr. Lewis, though he’s quite learned in the law because he’s not a lawyer.

It would not be enough to name a lawyer who does not do a competent job.

Now, we didn’t have either of those in our case.

The state in its brief refers to the able and astute counsel for the defendant, a Mr. Moore who was the trial counsel, I think fully merited those compliments in the best tradition of the profession representing a defendant.

But what is Mr. Moore to do as trial counsel for an indigent if he had been appointed to represent a deaf mute to use, Judge Biggs example, and had not been furnished with an interpreter, there is no way he could exercise this professional talents, no way in which he could provide effective assistance to the petitioner.

Similarly here, he is asked to defend a man where the — virtually the only issue in the case is the issue of the man’s insanity and he has to do it without any professional help.

He has to do it without any testimony which even he can cross examine which is truly competent to qualify.

Now it is true, as Mr. Justice Goldberg pointed out, that the trial counsel was able to obtain Dr. Dial, a professor of Psychology at Southern Methodist University obtained for the trial.

It is true also that because of the action of the court, the examination by Dr. Dial was entirely an inadequate examination, a 20-minute examination from which he said he could draw no conclusions.

And the State in their brief suggest that since it is a principle of medical ethics that the indigent always have a call on doctors that the counsel should — could surely have gone out and found a doctor, a psychiatrist to testify if he wanted to.

I think there is variety of answers, if the Court please, to that argument that this is to me is the most helpful answer to it.

It is also a principle of legal ethics that the indigent have a call on the services of lawyers and yet we do not ask that an indigent defendant go out and find his own lawyer.

The Constitution puts the responsibility on the trial court to obtain a lawyer to help the indigent defendant.

And we argue similarly that it should not be for the Court appointed counsel to go out and beg and hunt for a doctor that if a doctor is a constitutional requirement then it is the Court, the impartial administrator of justice which should carry the duty of making the doctor available, not the counsel.

Finally, if the Court please, we argue from the implications of Griffin v. Illinois where the opinion of Mr. Justice Black for a plurality of the Court said that there could be no equal justice where the kind of trial a man gets depends on the amount of money he has and this, I submit, is precisely the situation.

Charles Alan Wright:

No one doubts that a defendant of means in Texas will have psychiatric examination and psychiatric testimony even if there are as the State shows psychiatrists in only 34 of our 254 counties, the psychiatrist will be there if there is a wealthy defendant.

And if the psychiatrist is there for the defendant the State somehow, I suggest, will have counsel there, a psychiatrist there also.

The only reason there was not a psychiatrist testifying the case of State against Bush was because Bush was too poor to hire a psychiatrist.

And that —

Potter Stewart:

How far do you think those implications go?

I suppose a man who is rich enough and I — there are a good many rich men in Texas, he could get the very best psychiatrist.

He wouldn’t be confined to Texas.

He might — they might — the best one in the United States might by common consent be in New York or San Francisco.

He could get him.

In other words, the — those implications don’t — you can’t read the literal language of that sentence which you quoted from Griffin against Illinois to the — for the extreme implications of the State’s opinion.

Charles Alan Wright:

Mr. Justice Stewart, I can accept that sentence from Griffin at least as an expression of the ideal to which we strive of the practical problems of course are very difficult.

But I think that we already have a set of answers in the decisions which have been worked out as to the right to counsel.

The right to counsel for an indigent does not include the right to go to Wall Street and hire the most expensive lawyer available and yet, there is some bare minimum which it does require.

It does not mean that someone just out of law school with a freshly signed license who does an incompetent job will be enough.

Is it similar beyond there and I know of no rule by which one measures it.

This I should think would be the answer with regards to psychiatric health.

Potter Stewart:

Well, the rules still does — I mean, the facts whatever the rule may be and whatever the ideal may be, the facts of life are that for better or for worst, the kind of a trial a man gets does to an extent depend on how much money he has and how good his judgment is in selecting lawyers and doctors, isn’t that true?

Charles Alan Wright:

I’m sure it’s true.

Potter Stewart:

And all the rules in the world aren’t going to change those facts of life.

Charles Alan Wright:

Well that the rules could do a good deal toward minimizing the disparity.

And I think if you deny the lawyer altogether or if you deny a psychiatrist altogether, the disparity is too great to be constitutionally tolerable.

Potter Stewart:

It’s a matter of degree then because here you did have a physician who had studied psychiatry in medical school.

And who, in his private practice, had treated people with minor emotional problems.

Charles Alan Wright:

That is correct and had referred people with more serious emotional problems to specialties.

We had a doctor, our position necessarily, we stand or fall on the proposition that a doctor of medicine per se is not enough.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

I agree, Mr. Justice Goldberg.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

Correct.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

The trial on the merits had been set April the 24th.

On April 24th, the motion was made for a preliminary sanity hearing that was held that day.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

Yes.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

Yes.

Arthur J. Goldberg:

You filed a [Inaudible]

Charles Alan Wright:

Yes.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

That is correct.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

Yes.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

That’s right.

Potter Stewart:

On the merits, that jury also — your defense was not guilty by reason of insanity.

Charles Alan Wright:

That’s right.

Potter Stewart:

And that jury heard substantially the same evidence except not — but not Doctor Dial and the police chief instead of the jailer or something like that, the sheriff —

Charles Alan Wright:

Because the evidence was virtually the same —

Potter Stewart:

And virtually the same —

Charles Alan Wright:

Without a change —

Potter Stewart:

Plus however, plus the finding of the previous day’s jury.

Charles Alan Wright:

The judgment from April 24th, in which the jury found him to be sane as introduced in evidence in April 25th.

And the Court of Criminal Appeals in fact in its decision on the motion for rehearing says that what we meant to say is that since the issue of sanity was adjudicated on April 24th they need not be tried again on April 25th, but in fact the judge did submit to the jury in April 25th go into this opinion, would not have required to do so the question of the sanity so that the jury on the merits as well as the jury at the lunacy hearing found the petitioner to be sane at both times relevant.

Tom C. Clark:

How was he court appointed?

Charles Alan Wright:

He was appointed — the record reflects about three week before the case was set for trial.

The exact date was not on the record.

The State in its brief suggests that April 2nd was the date — April 24th was the date set for trial.

Tom C. Clark:

Had nothing to show that he — that Bush wasn’t available before April 21st for an examination by anybody that Moore was able to produce.

Charles Alan Wright:

There is nothing to show that Mr. Justice Clark nor is there anything to show that there was any examiner available who would come to make the examination prior to that time.

So far as the record reflects the first opportunity, Dr. Dial had was during the recess on April 24.

Charles Alan Wright:

The record also shows that Dr. Dial had never met Mr. Moore before that day.

And I think the — a fair inference can be drawn from the record as to the difficulty which appointed counsel have when they have no fee to offer in getting a professor or some other expert to come to another place and make this kind of an examination.

Tom C. Clark:

Had there been a continuance before?

Charles Alan Wright:

No, not so far as the record reflects.

There was, of course, the request made for the continuance and that request was denied.

Earl Warren:

Mr. Allen.

Bruce Allen:

Mr. Chief Justice.

Earl Warren:

Do you mind addressing yourself first to the question of that latest brief of yours?

Bruce Allen:

No, Your Honor, I would say this.

Of course I’m Waxahachie, not in Austin.

This was made, I suppose, in Huntsville and the psychiatrist who made the examination, made that I assume pursuant to a request by the people there in the penitentiary after they had knowledge of this assertion that there was insanity.

They had the man examined and they find what’s in the brief here and for – that’s about all I know about it, Mr. Chief Justice.

Earl Warren:

Does that have any legal effect?

Bruce Allen:

I don’t think it does, I’m glad you asked that question, I like to answer that now.

I don’t think it has any legal effect whatever for the reason that this is after the trial.

We are considering here now whether he had due process at the time of the trial.

This was some — 1963 that this examination was made.

When the first examination was made by Dr. Compton, that was on April — that was on November the 3rd, 1960.

The second time he saw the petitioner, it was in April, April 21st, 1961.

Now Doctor Hug or Hug, I don’t know the pronunciation, but he found something obviously wrong with the man, but he doesn’t conclude as to what it’s caused from.

He says it could be some emotional something or it could be some organic trouble namely maybe arteriosclerosis or the hardening of the arteries.

Now, whatever it might be and I can readily see that it could have been arteriosclerosis and of course I might be fast in it because Dr. Compton did see this man notwithstanding the fact that in the brief they tried to minimize this doctrine.

I think he’s a very fine, capable and competent licensed physician, medical practitioner and who has had training in — and study in psychiatrics.

There’s no doubt about him —

Potter Stewart:

he had about — he had about six years experience in general practice, is that it?

Bruce Allen:

Yes sir.

He had — here’s his exact trade, four years pre-med, Bailey University, four years in University of Texas Medical School, one year internship in New York.

Now, how much training Mr. Justice Stewart, I don’t know how much he had insofar as medical study and education in psychiatry, but in the record, he says he did have it.

Potter Stewart:

In medical school and then he had about six years practice.

Bruce Allen:

Six years practice in which he —

Potter Stewart:

Now, doesn’t the record also show that in order to become a psychiatrist and I know your point that in Texas there is no such a thing.

Bruce Allen:

That’s right.

Potter Stewart:

But in order to become a fellow or whatever it is, it takes five or six years of post graduate study after (Voice Overlap) —

Bruce Allen:

I believe he’s had four to six, yes Your Honor.

Potter Stewart:

Four to six years?

Bruce Allen:

That’s right.

Potter Stewart:

Before you’re allowed to practice at all?

Bruce Allen:

That’s true and I might add that Dr. Hug is not a member of the Board of — the American Board of Psychiatry, I might add that, but Doctor Compton was treating minor cases.

I’d like to call for the Court’s attention to this file that a person can diagnose and not have to be nearly as well equipped if he were to treat.

Here’s all the — the Court was concerned with and all the State was concerned with is finding out whether or not that fellow knew right from wrong.

Now Dr. Compton doesn’t tell that he didn’t examine him thoroughly.

I don’t know, the record doesn’t reflect how long he examined that first time in his office, but he had a trial on the merits the next day in which they had the same testimony that you had on the previous trial that is Doctor — except as you Mr. Justice Stewart observed.

He didn’t have Dr. Dial back again and that’s the thing that to me — causes me to wonder why he was not back.

He had from then which was the 24th.

He had the remainder of that day — that night and everyday and night since then regardless of how much time you say he could have at night, he had that time until the 27th which the trial was concluded, on the 27th in the afternoon.

Potter Stewart:

Dr. Dial was donating his services except for his gasoline.

How —

Bruce Allen:

That’s true.

Potter Stewart:

How far do you have to come from where he (Voice Overlap) —

Bruce Allen:

30 miles.

Potter Stewart:

30 miles.

Bruce Allen:

Yes sir.

Potter Stewart:

He was on the faculty of the Southern Methodist.

Bruce Allen:

Southern Methodist I understand he’s moved on to PCU that — that’s of course over in Fortworth and I think a very capable psychologist, but likewise I think that Doctor Compton is well equipped to diagnose and that’s all he was concerned with and I’d like to say now that —

Arthur J. Goldberg:

[Inaudible]

Bruce Allen:

Sure.

Arthur J. Goldberg:

[Inaudible]

Bruce Allen:

Sir?

Arthur J. Goldberg:

[Inaudible]

Bruce Allen:

Yes sir.

Arthur J. Goldberg:

[Inaudible]

344.

Arthur J. Goldberg:

[Inaudible]

Bruce Allen:

Well, I would say this, Mr. Justice Goldberg that this particular examination was made not for the purpose of ascertaining whether he knew right or wrong, but for the sole and only purpose of sending which they do there and this is the only time that they ever examined him is to see whether or not he should be sent to the only place as to them that he could get treatment in the State of Texas would be this mental institution where he could really get proper treatment.

Now, that’s the only purpose for this examination.

He’s to get that and if they deemed that he — the doctor that examined him deemed that he needed to be treated then as was done, he should be sent.

But he couldn’t have had that previous to this time, Your Honor.

Arthur J. Goldberg:

[Inaudible]

Bruce Allen:

Well, and my only — my only answer to that is this.

I know that as it’s been observed here, that’s corroborative of the fact that he was of unsound mind, but you have a divergence of opinion as to two people.

Now, Dr. Compton saw this man.

Dr. Compton —

Byron R. White:

[Inaudible]

Bruce Allen:

I would have to say this —

Byron R. White:

What happened here, [Inaudible] —

Bruce Allen:

I take it before now if it’s in the Court of Criminal Appeals, you’re talking about —

Byron R. White:

I understand that you aren’t — that you don’t agree with how you ought to read this —

Bruce Allen:

Well, I understand, yes sir.

Byron R. White:

— affidavit but (Voice Overlap) —

Bruce Allen:

But I was trying to — trying to answer your question.

Byron R. White:

Yes.

Bruce Allen:

Now, are you assuming that he’s still in the Court of Criminal Appeals?

Byron R. White:

Yes, so we sent it back there now.

Bruce Allen:

Well, now, I was going to say that there would be a difference —

Earl Warren:

Your answer to that after lunch, we’ll —

Bruce Allen:

Fine, thank you.

Earl Warren:

Mr. Allen, you may continue your argument.

Bruce Allen:

In answer to Mr. Justice White’s question just before we went to lunch, I believe that the only procedure under Texas law that could be had if — would be — would necessarily have to be in con — the Court of Criminal Appeals would have to remand to the District Court of Ellis County, Texas to proceed consistent with the opinion or judgment reached by this Court.

I think there is in a criminal case, there is no other procedure.

Now, there is if the person —

Byron R. White:

[Inaudible]

Bruce Allen:

At that particular time, I think that had this come to light previous to that it could — a motion could have been filed in the Court of Criminal Appeals and the case dismissed, I mean the state could have done that had they known it.

Byron R. White:

[Inaudible]

Bruce Allen:

Well, now again, Mr. Justice White I think that —

Byron R. White:

[Inaudible]

Bruce Allen:

That would depend upon the time that it was done.

Byron R. White:

That it was [Inaudible]

Bruce Allen:

Well, there just wouldn’t be any authorization for it if it were made too late.

I mean, if time had already —

Tom C. Clark:

How long has it been?

Bruce Allen:

Sir?

Tom C. Clark:

How long?

Bruce Allen:

I think we have a motion within 15 days to file a motion rehearing.

Tom C. Clark:

[Inaudible]

Bruce Allen:

And if it’s not done, my — I think the time has already passed.

Byron R. White:

[Inaudible]

Bruce Allen:

Well, they — unless you instruct them, I feel the reading was sure that the Court of Criminal Appeals would not say that a Compton — a medical practitioner who is trained in psychiatry, who is trained in psychiatry and who has treated a patients.

Byron R. White:

[Inaudible]

Bruce Allen:

Well, I maybe wrong but I don’t think that will get what you think it would get, Mr. Justice White.

William J. Brennan, Jr.:

[Inaudible] do you know, of any actual [Inaudible]?

Bruce Allen:

If I were giving you my honest opinion, I think it is impossible so far as that court’s concern under procedure, but I think that of course as this Court well knows that if and when you say it, they do identically.

William J. Brennan, Jr.:

We don’t understand this type of [Inaudible]

Bruce Allen:

Well, I say I don’t think this —

William J. Brennan, Jr.:

[Inaudible] whether you know — whether you act to [Inaudible]

Bruce Allen:

Well, I know we only have the rules that — as I just gave to Mr. Justice White and that is that — I really don’t think there is such a rule.

Arthur J. Goldberg:

Mr. Allen —

Bruce Allen:

Yes sir.

Arthur J. Goldberg:

— before you go into the [Inaudible]

Bruce Allen:

We have a Board of Pardon and Parole and this happened down there.

Incidentally they could do nothing except with the Board of Pardon and Parole, recommend to the Governor that he pardon him and the Government so acts — Governor so acts.

Arthur J. Goldberg:

[Inaudible]

Bruce Allen:

None at all, not at all.

Arthur J. Goldberg:

[Inaudible]

Bruce Allen:

True.

That’s right.

Yes sir.

Potter Stewart:

On the other hand, there’s I supposed there’s nothing in our rules that prevent us from doing this or to prevent us from vacating the judgment of the Court of Criminal Appeals and remanding it to the trial court for consideration in the light of this subsequent development.

I don’t see why we’re so bothered with the Texas procedure, the case is here now.

Bruce Allen:

Yes sir.

Well, I just say this, Mr. Justice Stewart.

I don’t think it could be done the way the Court has indicated, but I think clearly, if it could be done the way the Court writing on it or in telling him, we’d have to abide by the — what this Court says.

Potter Stewart:

Let me ask you this, Mr. Allen.

Bruce Allen:

Yes.

Potter Stewart:

You agree with Brother Goldberg, this is — very commendable of you to have brought this to our attention, this later psychiatric report and yet having done so now you tell us it’s meaningless.

It has no effect at all.

What was the purpose of (Voice Overlap) —

Bruce Allen:

Well as I said, I answered Mr. Goldberg just before lunch.

I — actually, this man is over in Rusk State Mental Institution as a result of this, Your Honor and without it he would still be in the penitentiary.

He is now there getting treatment.

Potter Stewart:

But under your law, as soon as — if you, [Inaudible] he is certified as being recovered.

He goes back to the penitentiary.

Bruce Allen:

Come back to — come back — well —

Potter Stewart:

To the penitentiary, is it not?

Bruce Allen:

Come back to the penitentiary under the present setup.

Yes sir.

Potter Stewart:

Yes, but which —

Byron R. White:

[Inaudible]

Bruce Allen:

Come back, yes, sir, he does.

Byron R. White:

[Inaudible]

Bruce Allen:

He don’t come back to the penitentiary.

William J. Brennan, Jr.:

And the fact is Mr. Allen [Inaudible]

Bruce Allen:

Oh no.

It does not.

In fact, this is — he can get out with a little over eight years.

I don’t say that this fellow would.

He’s had a crime record there.

If we — the Court is well aware of under this record and if the particular time that he had this judgment entered insanity over in America in which he joins us.

There were three indictments pending at that particular time for felony offences, and there was no medical testimony that sent him to the state institution at that particular time.

In fact, the only testimony that appears was a TF Bush who I assume was a kinsman either father or brother or someone.

Arthur J. Goldberg:

[Inaudible]

Bruce Allen:

Yes sir.

Arthur J. Goldberg:

[Inaudible]

Bruce Allen:

It’s alright.

Arthur J. Goldberg:

And the same procedure however, I take it that while [Inaudible]

Bruce Allen:

Right.

Arthur J. Goldberg:

[Inaudible]

Bruce Allen:

Indeed, yes sir.

Arthur J. Goldberg:

[Inaudible]

Bruce Allen:

I don’t.

I mean, I really don’t.

I don’t want to take issue with some of the members of this Honorable Body, but this is a postmortem if you please, at the very time that we had the prisoner there, immediately after he was arrested, he was examined and as I say by a very competent man.

I don’t think there’s any question if any member of this Court to talk with him and know that he was a very competent man.

And they — and he examined him.

I don’t know how long.

It doesn’t appear, but it wasn’t one of those quick jobs because I’ll say this to the Court and this is outside the record, I’ve sent two to the penitentiary, I mean to the state hospital, predicated on this same doctor’s opinion.

I sent them there myself as I did this one.

I knew this judgment was pending.

I’ve sent them over there as the law authorized and that this man is required to do examining, not for the purpose of treating him, solely for the purpose of ascertaining this question, did he know right from wrong?

Was he mentally equipped at the time to know right from wrong?

And I think it is — if this Court holds in this case that a psychiatrist is necessary it’s going to really impose a burden upon this Court in the future as I see it.

Bruce Allen:

Because these states that do not have such a requirement either one of which is Texas, medical testimony is sufficient to determine the question of right or wrong theory under the McNabb rule.

So, if this Court holds that a psychiatrist is necessary before a person has had due process on their Constitution, you talk about lots of work and lots of foolish petitions, they’re coming for.

Byron R. White:

Do you say that [Inaudible]

Bruce Allen:

I would.

I would certainly agree with that.

I think the common law rule is to that effect.

It’s a rule in Texas.

We don’t have to have any medical testimony.

But here —

Byron R. White:

[Inaudible]

Bruce Allen:

I take that position here?

Byron R. White:

[Inaudible]

Bruce Allen:

No, but the truth of the matter is he — we did have a medical practitioner who’s trained in psychiatry and who treats mental cases that — they’re minor cases.

He had judgment enough in a difficult mental case.

He would reaffirm to the specialists there in Dallas, but the fact of business is most of these small counties as mine, we don’t have psychiatrists.

You just don’t have them.

It’s wonderful in New York.

They have more in New York than they do all the rest the United — the States, the United States put together, and that’s fine.

It’s wonderful in Massachusetts, Pennsylvania, where they have lots of them. We don’t have 399 and half of those are in mental institutions and I might add half of them are not any better equipped than Dr. Compton as a matter of fact because of education.

Byron R. White:

Would you say [Inaudible]

Bruce Allen:

That’s true.

I think I would agree with that statement, Your Honor.

Tom C. Clark:

Do I understand that first your conviction to you as a matter of criminal charge fall [Inaudible] some other place in the United States besides [Inaudible]

Bruce Allen:

Well, I will say this.

If after the county health officer examined him and this is — this has been done incidentally, after the county health officer examined him and reaches the conclusion that he is in such a mental state that he doesn’t know right or wrong then I can get a psychiatrist and brought and brought down from Dallas and examine him or take him up there.

And —

Tom C. Clark:

Suppose you — the county officer suddenly [Inaudible]. Would you still have [Inaudible]?

Bruce Allen:

I wouldn’t think I have that authority You Honor because I never have done it and I never thought that I had it.

Now, I have sent it to them and they found them insane.

He said they were insane at the time and there wasn’t any doubt in my mind.

Bruce Allen:

I didn’t there’d be any doubt in the think it could be any doubt in the mind of the jury we just had a jury impaneled as we did in this case on the 24th and let them reach that conclusion predicated upon the county health officer’s testimony that the particular people were insane.

Tom C. Clark:

[Inaudible]

Bruce Allen:

Yes sir, I did.

Tom C. Clark:

Well, you — and he had an entire experience as to Bush?

Bruce Allen:

No sir.

I’ve never had any — I didn’t even know, I’ve never talk to him and actually that’s it.

Tom C. Clark:

You don’t even pretend you’ve found anything [Inaudible]?

Bruce Allen:

I sure did.

I had a copy the minute I argue — but you don’t know how it is, Mr. Clark, like in those rural areas.

We know the different people and the officers know and so they brought to my attention that he had been committed to an institution.

That’s the reason then that I had Dr. Compton to see him on November the 3rd, right after the Court.

I don’t — I feel like it’s my duty just as much to see that justice is done for this man as it would be for the State.

After all, I’m not a — I’m not bad, [Inaudible] I don’t get any pleasure out of it in fact.

Byron R. White:

Suppose you want to [Inaudible]

Bruce Allen:

I’m glad you asked that.

We had the burden, the state and I’ll say this to this Honorable Court.

I would’ve — would not have been surprised with the jury in the first preliminary trial of finding him insane.

Byron R. White:

All we have is [Inaudible]

Bruce Allen:

A presumption that its continues as its found in Professor Wright’s brief that —

Byron R. White:

[Inaudible]

Bruce Allen:

Once — sorry, once instructed — was instructed and that they — that we had to prove beyond a reasonable doubt that he was insane on Tuesday.

We had that jury trial on the 24th and after that —

Byron R. White:

[Inaudible] suppose that he was sane.

Bruce Allen:

Was sane, beyond unreasonable doubt, and I find it preponderous like as usual in the cases, civil mattered, but in this kind of a case beyond a reasonable doubt as to his sanity.

And that was — so not only in the preliminary trial, but also in the trial on his merits.

And I think that to me what Professor Wright is urging here is fine and I couldn’t be more in harmony if that is with what ought all to be done.

It’s a fine thing if we could have a Dr. Manager and Dr. Overhaulsor and these fine psychiatrists to study and treat all patients, but this is, as I see it, is not the question here.

The question here is, didn’t he know a right from wrong.

The question here is was due process denied?

We submit that — actually under the facts even — notwithstanding the fact that this man examined him in Huntsville.

Bruce Allen:

We maintain that even so, that the man at the day in question, November the — I mean, April 24th, 1961, April 25th or 27th of 1961 that he received due process of the law that he got everything that the Fourteenth Amendment would accord him.

Potter Stewart:

Was it — was it — didn’t it appear there was — run after — that the doctor, what is the name, Carter?

Bruce Allen:

Dr. Compton

Potter Stewart:

Compton?

Bruce Allen:

Yes sir.

Potter Stewart:

Compton knew about this strange behavior of this man of bringing home a — he was working for and living with a couple there and he would bring home a couple of saddles, and gates, and free trashcans, and would just leave them in the pickup truck and not attempt to hide them [Inaudible]

Bruce Allen:

I’ll say this.

I’m not sure that other than what defense counsel asked and never told him and I’m not sure that he knew that precautions.

Potter Stewart:

Well, bring home some scaffolds and just bring home with the odd hours in the night and they say not attempt to him them or anything.

That on its face even to a layman doesn’t seem like very rational [Inaudible]

Bruce Allen:

Well listen, I’m not — I’d say this now in that connection Mr. Justice Stewart, immediately after his arrest, he carried it — and it’s in the record.

He carried the sheriff to a remote place over in Tarrant County near Arlington where he had hid some of these very things that he — I mean, some of these coins, burned the cabinet which it was in, beat it up, and it was introduced in court.

There is a man that immediately after it had happened carries him there, and that I dare say that the Sheriff couldn’t have found that place without him taking him to it but —

Potter Stewart:

And apparently he never tried to sell or get any benefit about how these stuff that he bring home.

Bruce Allen:

Well, it’s not in the record.

I’ll say this; he did sell lots of it.

Potter Stewart:

Did he?

Bruce Allen:

Oh, indeed, he did.

He got money for it.

That bailiff [Inaudible] that he stole back there in 1924 and he stole new over in another county.

He just — his record is just full of sales where he had stolen personal property.

Potter Stewart:

Did he try to whereas in helping people he said, that was his motive?

Bruce Allen:

Sir?

Potter Stewart:

That his motive was he like to helped people.

Bruce Allen:

Well, I think that’s right, his motive was like that.

Arthur J. Goldberg:

Mr. Allen, would you say just his word about the question of whether the Court afforded Dr. Dial an opportunity to [Inaudible]

Bruce Allen:

Well, I would say this, Mr. Goldberg, I think that Dr. Dial had and I think he’s a very — I think probably a dedicated man, if I were to guess it, I was surprised he’d be paid with gasoline.

Earl Warren:

The trial court didn’t treat him that way, did it?

Bruce Allen:

Well, I’d say this.

I don’t know what time we came back after lunch.

Bruce Allen:

I really don’t.

I remember we went late, but I don’t know what time we came back.

I — but —

Earl Warren:

No, I mean didn’t he referred to him as supposed expert or some other soaring [Inaudible]

Bruce Allen:

Well, I didn’t figure he would refer to him, Mr. Chief Justice.

Earl Warren:

Oh, I understood he was.

I (Voice Overlap) —

Bruce Allen:

No, I didn’t refer he was — I didn’t think he was referring to him at all.

I think that probably he —

Earl Warren:

Well that —

Bruce Allen:

The Court probably reached the same conclusion I did that the man was very dedicated and was a real good psychologist and I think he was, but he is not a licensed practitioner of medicine.

As this Court well knows that he is a Doctor of Philosophy and has had some training in psychology and teaches over in Southern Methodist University.

Byron R. White:

What comprehend [Inaudible]?

Bruce Allen:

Well —

Byron R. White:

[Inaudible]

Bruce Allen:

That’s right.

Now —

Byron R. White:

[Inaudible]

Bruce Allen:

No.

But he was not —

Byron R. White:

[Inaudible]

Bruce Allen:

He was not cut-off as a matter of fact from giving his opinion.

In due and if you think that on the 21st, the motion was filed, that defense counsel was appointed three weeks and defense counsel is a graduate of Southern Methodist University.

And actually, he had ample time even before he filed his motion.

I don’t know what it was.

What he did, I don’t know (Inaudible).

Byron R. White:

This is a little different ground in answering a question than the — he refused to give an opinion, didn’t he?

Bruce Allen:

Yes sir.

Byron R. White:

And he did it because you said he hadn’t had time to examine him?

Bruce Allen:

Yes sir.

Byron R. White:

And as a matter of fact, there’s a lot only their lunch recess.

Bruce Allen:

That’s true, except I don’t know how long the lunch recess was.

Byron R. White:

Well he says it was not very long anyway.

Bruce Allen:

Well I’m — to my best [Inaudible] term but I’d agree it wasn’t too long.

Byron R. White:

Yes.

Is it your — do the State’s position after the time he was allowed at the trial was adequate or that the — he had plenty of time before that?

Bruce Allen:

Now, my position is that he had plenty of time before that, not that particular day at noon because the jury in Texas, I wish it we’re not told their last stop, and no air conditioner in some of the rooms and I expect the judge was thinking lots about the 12 jurors when he was — not wanting to keep them there for some three hours because he can’t release him under Texas law.

Potter Stewart:

Mr. Allen, I have one other mechanical question.

I had seemed to have here a motion for leave to file a brief amicus curiae, but no brief.

Has an amicus brief been filed?

Do you know?

Bruce Allen:

Not that I know of.

I believe that was on the part of — it may request you people or somebody requested it, nobody requested for us, that I know of.

Potter Stewart:

Thank you.

Earl Warren:

Mr. Crow.

Allo B. Crow, Jr.:

Thank you, Your Honor, Mr. Chief Justice.

Mr. Stewart, that brief was a request by the American Civil Liberties Union to file amicus curiae in behalf of the petitioner and the request was granted, but then they did not file.

Potter Stewart:

So no brief has been filed?

Allo B. Crow, Jr.:

Yes.

Tom C. Clark:

[Inaudible]

Allo B. Crow, Jr.:

This was tried in October.

Tom C. Clark:

[Inaudible], no, tried in April.

Allo B. Crow, Jr.:

Tried in April the 21st.

Tom C. Clark:

In April, 1961.

Hugo L. Black:

Do I understand it, you are saying that there is no [Inaudible]?

Bruce Allen:

Well, that’s what I want to say, they keep a lot of staff there and if they don’t have any air condition in the building in — at all and I understand.

I don’t know — I know that the judge is very eager to get the jury, lose and get him going, so they’d go back home.

Sometimes I — I’d would say this, I’d love to have them all the time.

Allo B. Crow, Jr.:

Mr. Justice White, I believe that either I misunderstood a question or perhaps I didn’t.

I —- but I feel — did you ask Mr. Allen if Mr. Bush, the state hospital does not get any better will he be removed to the state penitentiary?

Byron R. White:

[Inaudible]

Allo B. Crow, Jr.:

No, sir.

If he does not regain his sanity, he will remain at the state hospital and until he is — until the day he dies.

Byron R. White:

[Inaudible]

Allo B. Crow, Jr.:

No sir, I did not I believe that isn’t right.

Byron R. White:

[Inaudible]

Earl Warren:

The statute reads that way, doesn’t it?

I thought they read the statute, it said that.

Allo B. Crow, Jr.:

That he will remain at the state hospital so long as his treatment is beneficial, Your Honor.

Earl Warren:

It’s no longer beneficial to him, why, he’d be returned to the —

Allo B. Crow, Jr.:

Well, I’d —

Earl Warren:

— penitentiary to serve the remainder of his term.

Allo B. Crow, Jr.:

Well, if it please the Court, I do not believe that the medical scientist is going to release an insane man as long as there is any hope of treating him and curing him.

Earl Warren:

But the statute does say, if medical science won’t help him and contribute to his cure, then he goes back to the —

Allo B. Crow, Jr.:

Yes sir.

That’s right.

Earl Warren:

— penitentiary, is that right?

Allo B. Crow, Jr.:

Yes Your Honor.

Tom C. Clark:

Mr. Crow, may I inquire over this, in your statement, the Attorney General, [Inaudible] Criminal Appeals and it comes to the attention of the State.

You have it, favorable to the accused pertinent to the question of whether or not the [Inaudible] or guilty of the crime.

What is the [Inaudible] Attorney General if he knew something here?

So, what does he do with reference to that?

Why would he appeal this favor if the court has jurisdiction, an Appellate Court is reviewing it (Voice Overlap) —

Allo B. Crow, Jr.:

Your Honor the —

Tom C. Clark:

— discovered evidence, State has it, and it bears directly on the question of innocence or guilt which would properly had been admissible on the trial before the jury.

Allo B. Crow, Jr.:

Your Honor that is a not in Texas.

The procedure is from the State’s attorney to argue that.

However, I do know that such — should such occasion arise, the State’s attorney would call that to the attention of the Court.

And it is within the Court’s discretion as to what action should be taken and the State’s attorney can move for dismiss it and remand to the trial court.

Arthur J. Goldberg:

May I ask you therefore, would you think it’s permissible to answer from your [Inaudible].

Arthur J. Goldberg:

Why is that not done in this case and what do — as to very specific question?

Here is new evidence by the state —

Allo B. Crow, Jr.:

Yes sir.

Arthur J. Goldberg:

— which bears upon the question of his innocence or guilt — to this man because he was insane, they all agree.

He did not know right from wrong, he wasn’t responsible.

He should not have been convicted of a crime.

And this evidence has come to the attention of the State as the State now files a [Inaudible] and the State’s evidence [Inaudible] people, this evidence would certainly — would’ve been pertinent on the question of his innocence or guilt, namely, his responsibility at the time he’s committed the crime.

Allo B. Crow, Jr.:

Yes, sir.

Arthur J. Goldberg:

Well, isn’t that — isn’t that situation they confront this with?

Allo B. Crow, Jr.:

Yes, sir.

Arthur J. Goldberg:

And would you then state to me in light of that what is the State’s position now.

What should this Court do under those circumstances?

Allo B. Crow, Jr.:

Well, Your Honor, I — the State position as to this Court should affirm the judgment of the Texas Court of Criminal Appeals and the trial court in that there is no showing by the mere fact that this man is now been declared mentally ill by a state psychiatrist since there is no showing that he was denied due process in 1961.

Arthur J. Goldberg:

No, that — would you then deal with this — this is new evidence.

Here is the doctor (Inaudible)

Allo B. Crow, Jr.:

I think that’s (Voice Overlap) —

Arthur J. Goldberg:

— a psychiatrist saying the assumption of the above diagnosis, we would have to assume that James is only partly or not at all responsible for his acts for very many years.

Allo B. Crow, Jr.:

Yes sir.

Arthur J. Goldberg:

So, here is an expert, state witness, who examined this man after the trial, has said, testified.

In fact, the state can file with us except that of the affidavit.

He says that his man was lacking in responsibility.

It is fair that [Inaudible] for very many years at the time they find this in evidence.

Isn’t that the exemplary question of newly discovered evidence, is that a [Inaudible], going to the fashion of his guilt during the pendency of an appeal?

Allo B. Crow, Jr.:

Yes, sir, it does.

It does.

It — its — goes to the weight of the evidence, may it please Court.

Arthur J. Goldberg:

[Inaudible]

Allo B. Crow, Jr.:

It is not — it is not — this — it is the State’s contention that that — this is not binding upon the State — of the petitioner back at the date of trial in this case.

There’s a similarity between this and Baldie.

In the Baldie case the psychiatrist who’s later adjudged to be insane.

Allo B. Crow, Jr.:

The psychiatrist could examine Smith at the trial and then he was later adjudged insane and this Court did not feel that he had been denied due process merely because of the fact that the psychiatrist was later insane.

There was evidence in the Baldie case that the psychiatrist was suffering a mental illness at the time of the diagnosis.

Arthur J. Goldberg:

But this is the defense.

Allo B. Crow, Jr.:

Yes sir it is.

Arthur J. Goldberg:

And this is a State representation throughout that according to a state [Inaudible], this man was not responsible at the time the crime was [Inaudible]

Allo B. Crow, Jr.:

Mr. Justice Goldberg, we — the State felt that this had to be called to the Court’s attention.

Arthur J. Goldberg:

[Inaudible]

Allo B. Crow, Jr.:

But we do not feel that it is entitled anymore weight and was accorded to this petitioner back at the time of the crime.

Earl Warren:

What’s the purpose of filing up your pleas?

Allo B. Crow, Jr.:

The —

Earl Warren:

That has no legal effect — what is the purpose of filing up here, two days before our hearing of the case —

Allo B. Crow, Jr.:

Mr. Chief Justice, it was not called to our attention until a week prior to the trial of this case.

Earl Warren:

Well, that’s alright but —

Allo B. Crow, Jr.:

And the brief had to be printed and distributed and in — and it was — it got here as quick as it could.

Earl Warren:

Well I’m not — I’m not quarreling about the lack of time we’ve had but why did you file it here if it had no legal significance?

Allo B. Crow, Jr.:

Well, it is our contention that it has no legal significance, Your Honor.

Earl Warren:

I beg your pardon?

Allo B. Crow, Jr.:

It is only our contention that it has no legal significance.

I’m sure that the petitioner feels that it does have a significance — has significance.

We — we couldn’t sit on this diagnosis.

We couldn’t suppress evidence.

We felt that this had to be brought to the attention of the Court.

We do not feel that it is indicative of the fact that he was per se insane at the time of trial and that he was per se denied due process, but we do feel that it is evidence of such that should be considered.

Earl Warren:

Very well.

Allo B. Crow, Jr.:

Doctor Hug testified — all of the above evidence if not otherwise stated was given by James during a 45-minute interview.

Well now, the psychiatrist, who has made this statement only examined him 45 minutes.

Petitioner contends that it takes a minimum of, I believe he said, a 3-hour examination.

Dr. Dial examined him 20-minutes, and said he could not base an opinion on that — on that 20-minute interview.

We do not know how long Dr. Compton examined him.

It was on two different occasions; once in his office and once in the jail cell.

Allo B. Crow, Jr.:

There is — we feel that this is definitely not per se a finding of insanity at the time but it is evidence that this Court should have the opportunity to review.

Hugo L. Black:

You mean, by that it should be [Inaudible] remanded to the Court of Appeals — to the Criminal Appeals, vacate and remand it in the light of the [Inaudible]?

Allo B. Crow, Jr.:

This Court certainly — certainly it could, yes sir.

We’ve —

Hugo L. Black:

[Inaudible]

Allo B. Crow, Jr.:

Do — we do not feel that this Court should do so.

Tom C. Clark:

What to be the State’s [Inaudible] before the Court of Criminal Appeals there? I know you have a state attorney but what was — been given [Inaudible]?

Allo B. Crow, Jr.:

If I was given the — to myself, my position would — if this case was sent back to the states attorney — I mean to the Court of Criminal Appeals, my personal position speaking as an Assistant Attorney General of State of Texas, would be that man should be — of course he is already in a hospital but he should be examined in this hospital and that evidence should be presented at the trial.

Tom C. Clark:

Maybe [Inaudible] to get any conviction?

Allo B. Crow, Jr.:

Yes, sir.

Earl Warren:

And grant him a new trial.

Allo B. Crow, Jr.:

Yes, sir.

Earl Warren:

You — you believe that would be the position of your office.

Allo B. Crow, Jr.:

Well, that possibility has been discussed for one week, Your Honor, we thought of everything we could do.

We thought the only judic — there is no judicial remedy.

The only executive remedy would be to pardon the man.

And we did not feel that under the condi — in these circumstances he should be pardoned.

That here is a man that the record shows has been convicted of 24 different — on 24 different occasions.

We did not feel he should be pardoned.

We do not feel that he was denied due process at the time of trial.

William J. Brennan, Jr.:

This maybe an unfair question, if it is [Inaudible]?

Allo B. Crow, Jr.:

They’re about to prove it, Your Honor.

If —

William J. Brennan, Jr.:

Even — that the vacation is [Inaudible]?

Allo B. Crow, Jr.:

That’s right.

Your Honor if Dr. Dial has prevailed upon the Court at the time of trial, this man would have been sent to the very hospital which he is in now.

Perhaps not, that would — he might have been at the Terrell State Hospital.

William J. Brennan, Jr.:

But he’s been acquitted [Inaudible].

Allo B. Crow, Jr.:

That’s right.

And he would’ve remained in that hospital.

Potter Stewart:

If he should be pardoned now I suppose it could be assumed that civil commitment proceedings would be initiated against him?

Allo B. Crow, Jr.:

Yes.

Potter Stewart:

Would he end up in the same hospital or a different hospital?

Allo B. Crow, Jr.:

I don’t know, Your Honor, whether it would be Terrell Hospital or Rusk Hospital but I say it’s immaterial.

Potter Stewart:

I wondered if —

Allo B. Crow, Jr.:

They’re both mental — state mental hospitals.

Potter Stewart:

I want — in some states they have certain hospitals there for the so-called criminally insane and (Voice Overlap) —

Allo B. Crow, Jr.:

The Rusk Hospital is for the criminally insane and they have 16 so-called criminally insane people in the hospital and I don’t know, I would roughly guess 1500 noncriminals.

Potter Stewart:

In the — in the same hospital?

Allo B. Crow, Jr.:

In the same hospital receiving the same treatment.

Potter Stewart:

And treated the same way, the same —

Allo B. Crow, Jr.:

The same —

Potter Stewart:

Custodial treatment depending upon their condition rather it upon their previous criminal record or the (Voice Overlap)?

Allo B. Crow, Jr.:

That’s right.

Arthur J. Goldberg:

[Inaudible]

Allo B. Crow, Jr.:

No sir.

That was my — at first blush, that was my argument to my bosses, but I do not feel that justice prevails — would prevail under that contention.

I feel that we’d — we’ve got to concern ourselves with was or was not this man given a trial, a fair trial, an adequate trial.

Byron R. White:

[Inaudible]

Allo B. Crow, Jr.:

Oh yes sir, we do.

Byron R. White:

[Inaudible]

Allo B. Crow, Jr.:

Well we do but that is the only argument both told as far as —

Byron R. White:

[Inaudible] argument here and this Court vacate it sent back to the Texas Court of Criminal Appeals, I’m not sure [Inaudible] before the court because the court was to put this new evidence, [Inaudible]?

I assume the state [Inaudible] — I assumed that its possible if the state — your office might take a particular provision [Inaudible] Court of Criminal Appeals which it couldn’t make here because here, he got a due process question and you are [Inaudible] by the scope of the question here as to what the [Inaudible] —

Allo B. Crow, Jr.:

And that part is (Voice Overlap) —

William J. Brennan, Jr.:

– like that [Inaudible].

Allo B. Crow, Jr.:

Yes sir it is.

Tom C. Clark:

That case is here on the merits, isn’t it?

Allo B. Crow, Jr.:

Yes, sir it is.

Tom C. Clark:

I’ll — just thinking if the — what the county attorney says at the time depend it — depends on the time that’s elapsed.

Tom C. Clark:

If we were to vacate the judgment and that is where [Inaudible] all the time and — so then you could come in, or Mr. Wright, might come in then with some sort of an appropriate motion, could he not before the Court of Criminal Appeals?

Allo B. Crow, Jr.:

No sir, he couldn’t.

This Court of Civil — Criminal Appeals has issued its mandate.

When its mandate is issued, the case is closed.

The books are closed and sealed.

Byron R. White:

[Inaudible]

Tom C. Clark:

When we vacated the —

Byron R. White:

[Inaudible]

Allo B. Crow, Jr.:

Oh yes sir.

William J. Brennan, Jr.:

And expand this, the mandate [Inaudible]

Tom C. Clark:

I said, if we vacate it, then its —

Allo B. Crow, Jr.:

Oh yes, I beg your pardon.

Tom C. Clark:

That it’s all over.

Then Mr. Wright came in, he say, “Let’s — here’s the base — psychiatrist says, if — this is true.”

And then you came in and said, “Well, looks like this man has to have a hearing on this”, then you’d be at a hearing, wouldn’t you?

Allo B. Crow, Jr.:

I suppose he would if they would [Inaudible] him from the state hospital to — for the purpose of the hearing.

Tom C. Clark:

But apparently he’s not dangerous.

Allo B. Crow, Jr.:

Oh no.

He is — as a matter fact, this is not in the record but James Bush was the guard at the gate of this — the prison at [Inaudible].

He is not a violent man.

Tom C. Clark:

Well, maybe he’s the guard now of the hospital.

Earl Warren:

He didn’t take the gates, did he?

[Laughter]

Allo B. Crow, Jr.:

May it please the Court, he hated to leave his friends in [Inaudible] to go to this hospital.

I could stand here and [Inaudible] the question.

I feel that this man was accorded a fair trial that irrespective of what has happened since and it erred — it merely — it is postmarked that if the day this man was tried for two times he had hearings, he was given a fair trial.

Now the record, I don’t — I think the record is being read in a bad light when it says that he was only accorded 20 minutes for an examination by Dr. Dial.

The attorney, Mr. Moore, said, Your Honor, “In view of this, I would like to make the motion at the Court recess in order to allow a doctor, we have got to examine this man, who hasn’t had the opportunity before, to check him constantly over the lunch hour.

He just came in.”

Now they only asked that he’d be checked during the lunch hour.

Allo B. Crow, Jr.:

They didn’t ask that could we have a couple of hours or three hours.

They said could he be checked over the lunch hour.

The judge says, “Rush it up counselor.

How long would it take you to get your job —

Earl Warren:

He said what?

Allo B. Crow, Jr.:

Rush it up, counselor.

Earl Warren:

Rush it up, yes.

Allo B. Crow, Jr.:

Yes, sir.

I assumed —

Earl Warren:

And how much time did they give?

Allo B. Crow, Jr.:

I believe that the record does not state — 20 minutes stands out in my mind.

There was — the lunch hour was 45 minutes.

He must have decided to eat 25 minutes.

Arthur J. Goldberg:

[Inaudible]

Allo B. Crow, Jr.:

Yes.

That’s right.

Arthur J. Goldberg:

[Inaudible]

Allo B. Crow, Jr.:

That’s all he was — that’s all he had but that is — he was not denied additional time.

Arthur J. Goldberg:

[Inaudible]

Allo B. Crow, Jr.:

Now —

Potter Stewart:

But your point is that there’s no record, there’s no — in the record, there’s no request for any more time.

Allo B. Crow, Jr.:

No, sir.

Now petitioner contends that on page 131 of the record, there is a request for more time and let me read that if I may on page 134 — 131.

Mr. Moore is speaking, he says, “Your honor, we don’t have any witnesses, but we would like to move that the Court suspend the proceedings in this case until we send this man to a mental institution for closer observation, or in the alternative we would move that the Court appoint a psychiatrist or psychologist, somebody competent in mental defects to examine this defendant and evaluate his mental condition in view of the previous conviction of the judgment of insanity and the court said I will appoint the county health officer.”

I think petitioner’s brief said that that was stated in gist and nobody took it serious.

I wasn’t there but the record reflects the seriousness of it to me.

Potter Stewart:

On the event, that’s a different request, isn’t it?

It’s not a request for more time for Dr. —

Allo B. Crow, Jr.:

No.

No sir.

Potter Stewart:

What’s his name — appointed to examine him?

Allo B. Crow, Jr.:

Dr. Dial got all the time to examine this man that was requested by his defense counsel.

Arthur J. Goldberg:

[Inaudible]

Allo B. Crow, Jr.:

Yes sir.

Arthur J. Goldberg:

[Inaudible]

Allo B. Crow, Jr.:

That was his [Inaudible].

Thank you sir.

Earl Warren:

Mr. Wright.

Charles Alan Wright:

Mr. Chief Justice, may it please the Court.

Before I get to the matter which obviously is the primary interest of the Court, there is one small detail; Mr. Justice Brennan, under the Texas statues, if at the trial, Bush had been found to have been insane at the time of the act, he would have been a free man at the end.

It would only have been if you were found to have been sane at the time of the act, but insane at the time of the trial that he would be committed as I understand Article 932 (b) of the Texas Code of Criminal Procedure.

We do not have automatic commitment.

We had a notorious case within the last few weeks of a boy who is now free in college after a murder because the jury found him to be — to have been insane at the time of the killing, but the sane at the time of trial.

Went scot free?

Charles Alan Wright:

Absolutely, Your Honor.

Tom C. Clark:

You could file — observe an insanity proceeding?

Charles Alan Wright:

Yes.

Similar commitment proceedings would then lie but there is no automatic defect, Mr. Justice Clark, as a result of the —

Tom C. Clark:

Yes.

Charles Alan Wright:

— jury’s verdict to provided that’d be —

Tom C. Clark:

He wouldn’t be sent to a hospital by reason of the verdict?

Charles Alan Wright:

Yes, that is correct.

Tom C. Clark:

He would not be.

Charles Alan Wright:

Yes.

William J. Brennan, Jr.:

Oh, I see Mr. Wright, the — you said, insane at the time of the act, but sane at the time of the trial.

Charles Alan Wright:

Yes.

William J. Brennan, Jr.:

Oh, I see.

I’m sorry.

Yes.

Charles Alan Wright:

So, it would — that entirely depended on which finding the jury made out of the possible findings it could have made on the psychiatric testimony.

William J. Brennan, Jr.:

But if insane at the time of the trial, what’s the verdict if also insane at the time of the act?

Charles Alan Wright:

If he was insane at the time of the act, the statutory scheme is he is not guilty of the crime therefore the further finding becomes surplusage.

It is only if he is sane at the time of the act unless guilty, but insane at the time of the trial that there is automatic commitment.

Byron R. White:

[Inaudible] — in the case you were talking about, there was a finding of insanity at the time that he [Inaudible] —

Charles Alan Wright:

The young boy was found — to have been insane at the time he killed the girl but sane at the time of trial, and so he is now free and back in college, playing football, as I understand it.

Tom C. Clark:

Here though he wouldn’t have that, would you, assuming that —

Charles Alan Wright:

[Inaudible]

Tom C. Clark:

— assuming that this certificate is right, which maybe a valid assumption that he would be insane if he both [Inaudible]

Charles Alan Wright:

Well, if he is insane at both times, Mr. Justice Clark, again he goes free.

Tom C. Clark:

I understand.

Charles Alan Wright:

Yes.

So that if Dr. Hug who testified at the trial and if the jury had believed that Bush was insane at all relevant times, Bush would have gone out of the courtroom a free man.

William J. Brennan, Jr.:

Well, is there any way to – committing a man a [Inaudible]?

Charles Alan Wright:

Civil commitment proceeding then might lie but there would have to be brought independently under the Constitution, a competent medical or psychiatric testimony would have been required.

Byron R. White:

And there’s no binding over at all from (Voice Overlap) —

Charles Alan Wright:

Not so long as the jury finds that he was not guilty of the crime by reason of insanity at the time of the trial.

Tom C. Clark:

There’s no statute upon it?

Charles Alan Wright:

Yes, there is very elaborate statutory provisions to the effect to which I think I have just described.

Tom C. Clark:

As I understand it, no statute committing him though.

Charles Alan Wright:

No statute committing him for this crime.

Tom C. Clark:

So you’d have to file several proceedings then have a jury and if the jury found him insane and he’s committed.

Charles Alan Wright:

That’s correct, Your Honor.

Tom C. Clark:

Do you found him insane as if the jury in the case you gave, well then he would be not committed.

Charles Alan Wright:

That is right.

Potter Stewart:

The only time as an automatic commitment as I understand it is upon a finding that he was sane at the time of the crime but insane at the time of the trial.

Charles Alan Wright:

That is correct, Mr. Justice Stewart.

It’s quite apparent from the oral argument the Court is primarily interested in the question of the effect of the document which the State has filed very recently.

This is a very troublesome question for counsel for the petitioner.

Troublesome because I cannot answer the Court’s questions with the assurance I should like to have when I appear before the Court.

They’re not fairly brief on the matter and as I indicated in my initial argument, if the Court is interested in the question, we would be extremely pleased to file a supplementary brief addressing ourselves specifically to the question.

Byron R. White:

I agree that we can’t [Inaudible] and we have to get this — we have to either – [Inaudible] or put it aside and in order to put it aside.

We have to answer these [Inaudible] —

Charles Alan Wright:

I agree entirely, Mr. Justice White that it seems to me this is the — a question of threshold importance.

A question —

Earl Warren:

You may — you may file a — you may file a brief on that if you wish, Mr. Wright but I would want to foreclose you on the merits of your case irrespective of this affidavit, so I hope you won’t neglect that if —

Charles Alan Wright:

Thank you, Your Honor.

I hope not to neglect that and I do want to speak a little bit more about the procedural consequences of the affidavit which the State filed.

Counsel suggested that this document was filed because of — the State thought it had no legal significance. They assumed the petitioner would think it had legal significance.

In fact, petitioner and the State or has one on this, but I recognized that the Court’s duty is not to decide the case if the case is not properly here because of this.

We have had available to us since — or for 15 days we’ve known of this document and in for eight days, we had a copy of it.

We refrained from filing with the Court because on such brief study as we made, it seemed to us not legally relevant.

We did not know about the commitment until Sunday.

It seems not legally relevant to us because so far as we can ascertain both by library research and by consulting those learned in Texas Criminal Procedure, the attorney — the Assistant Attorney General and the county attorney are absolutely correct when they say there is no judicial remedy in Texas under the state of facts, that the only remedy would be an application to the Board of Pardons and Paroles, an executive clemency from the Governor.

It seems to me that this is a very odd state of procedure for a State to have but on my present information, I cannot disagree with the attorneys for the State who have represented to the Court that there is nothing, as a matter of Texas procedure which a Texas Court could do if you were to remand the case to the Court of Criminal Appeals, they vacate the judgment and then say now, “Please take further action in the light of this new information.”

It is my belief, so far as I’m advised, that the Texas Court of Criminal Appeals would say there is nothing we can do, this is final so far as we are concerned in which case, I expect that next term would find us back up here.

Mr. Justice Stewart suggested during argument for the State that even if there is no procedure as a matter of Texas law that that is not really the question here.

The question is what can be done as a matter of the powers and the procedures of this Court.

I’m not entirely sure, Mr. Justice Stewart, that I would agree with that formulation of the position if this were a federal case.

Undoubtedly, this Court in its supervisory power of lower federal courts could do what it wants.

I am — I’m not certain that the Court has the power to vacate a conviction coming here from the State in the absence of or in the absence of any demonstrative state procedure for responding to the new situation.

I do not know that the Court has in its power to invent a new criminal procedure for Texas much as Texas may need one.

Byron R. White:

[Inaudible] cases of fact to state courts could find the significance of a — some [Inaudible] of state law before reaching a constitutional question.

Charles Alan Wright:

Oh, of course and no doubt of that, Mr. Justice White, but Mr. Justice Stewart’s suggested as I understood it, Your Honor, was that even if there is nothing the State can do about it as a matter of state procedure that this Court by its own mandate might require a new trial in the state court and as this as to which I have some question and —

Tom C. Clark:

Why didn’t the State have the power?

I don’t understand, it’s here on the merits.

We vacate the judgment that’s been entered by your Highest Court, it lies there just as it did when it first came from the Ellis County Court, wouldn’t that be true, not in a file of judgment?

Charles Alan Wright:

Yes, Your Honor.

Tom C. Clark:

Well then, we’ll assume this may not be correct, perhaps you feel that your [Inaudible] would mean too different, we’ll assume that you file something with the Court that called their attention what is here, or that that was called to their attention through some source.

Would not that Court have the power to consider that and to decide that there should be some sort of a hearing on that particular phase of this problem?

Charles Alan Wright:

Mr. Justice Clark, if I understand Texas law correctly the answer is no.

Charles Alan Wright:

The answer of the Court of Criminal Appeals to whatever document Mr. Moore and I might present would be that there is no error in what happened at the trial court in April of 1961 and we cannot do anything in the light of this new information except perhaps suspend the proceedings under Article 932 (b) until the petitioner becomes sane.

This would not involve a retrial on the merits.

It would simply be — if we won’t enter a final judgment of conviction until he is finally — be sane.

Tom C. Clark:

Well, I understood the county attorney to say that very often the State’s attorney did call such things to the Court of Criminal Appeals’ attention and that sometimes he would recommend himself that there’d be a remand.

Charles Alan Wright:

I understood the county attorney said that also but I understood the Assistant Attorney General to say there isn’t — no judicial remedy in this state of the case.

Byron R. White:

What do you say Section 932 (b) to —

Charles Alan Wright:

Section 932 (b) of the Code of Criminal Procedure, Mr. Justice White, is the section which deals with insanity after conviction.

And I would think the Texas Court of Criminal Appeals might well say this is a compendious statute, many sections.

And this is the exclusive procedure and the statute nowhere provides for a remand and a new trial in the light of such newly discovered evidence.

Byron R. White:

But it would suspend the affirmance of the conviction.

Charles Alan Wright:

It would suspend the affirmance of conviction under the statute.

He would be in a mental hospital at Rusk, I take it, and he would be considered under the statutory language as a person charged with a crime.

William J. Brennan, Jr.:

And he might very well, as I suggested a little earlier, that may probably — probably he is, isn’t it on this — and I’ll say it to myself again.

I won’t [Inaudible].

It does seem to me on what we now have before us that‘s where he’s going to be the rest of his life?

Charles Alan Wright:

I think it is quite probable, given his age in the long history that there is no successful treatment, but there is surely a difference I suggest, Mr. Justice Brennan, between being in a mental hospital as a result to civil commitment which is where I think petitioner perhaps should be and being in a mental hospital as person charged of a crime — convicted of a crime in the trial court.

William J. Brennan, Jr.:

What —

Byron R. White:

[Inaudible] there is that last part of it, that conviction, well, would he stand convicted?

Charles Alan Wright:

The conviction would stand in abeyance.

It would not have been affirmed by the Court of Criminal Appeals.

It would not have been reversed.

Actually, the statute has a further provision that even if you have a suspension of the proceeding that the defendant’s counsel may then move the Court of Criminal Appeals, go ahead and decide the case, of a man who’s in a mental hospital, so that we could then press for a decision in the Court of Criminal Appeals and come back here still without any decision by a jury as to whether or not he was sane at the time these things were taken from Mr. Hackler.

I wanted to make one further point with regard to Mr. Justice Stewart‘s suggestion, that this Court might — by its own authority, order a new trial.

Even if that could be done and the fact that the problems of federalism which I see are not overwhelming, it seems to me that the result is not really a fortunate one but what would happen would be that because we have an affidavit of an examination made two weeks before the case comes on before this Court then this particular defendant would get a new trial with psychiatric testimony.

And the result then in Texas, I guess, would be that the only defendant who gets psychiatric assistance at the trial is one who has managed to have a petition for certiorari granted.

Potter Stewart:

I say at the very outset that I know that your interest is presenting and trying to get decided in your favor and what’s used in important constitutional question I understand that but after all as you recognize, we’re faced with deciding an individual case.

Charles Alan Wright:

Well, Mr. Justice Stewart, my interest is representing the petitioner, not deciding a constitutional question.

This incidentally is the reason why there is no amicus brief question to which you referred.

The Court granted the American Civil Liberties Union permission to file an amicus brief over the objections of petitioner.

We objected to the filing even though the American Civil Liberties Union would be on our side because we believe their conception of the case would be different than ours that we were interested in representing this particular petitioner and arguing to this Court that this man on the state of facts has been denied due process.

Charles Alan Wright:

The Court granted the motion four days later.

The counsel for the Civil Liberties Union advised the Court that they have then seen petitioner’s brief in light of that and in light of the fact that delay would be caused if they prepared an amicus brief, they were withdrawing the request.

I was interested in Mr. Crow’s reference to Smith v. Baldie as bearing on what should be done with this new last minute development.

It has a bearing, of course.

As he pointed out to you in the Smith case after it had been decided in the Court of Appeals.

Information appeared that Dr. Drayton, the Psychiatrist who had testified that Smith was sane had himself been adjudicated insane and that the insanity was of a sort which was progressive from which you might reasonably have been inferred that Dr. Drayton had been insane at the time he said Smith was sane.

Now on that showing, three members of this Court thought that the case should be remanded to, I take it, the District Court for the Eastern District of Pennsylvania for a new trial of a habeas corpus proceeding.

A majority of this Court, six judges, held the contrary.

Now I think, Mr. Justice Goldberg suggested that there was a distinction between these two and that here it is the sanity of the defendant by which we have no information while in Smith, it was the sanity of the Psychiatrist.

Of course, there is a distinction, if I may suggest sir, it seems to me that the distinction, it cuts exactly the other way that there is more reason for a remand where the newly discovered evidence goes not to the facts which were tried by a jury and decided in the case but they go instead to the integrity of the process.

If for example, we had information that a trial judge had been insane at the time he conducted a trial, I would think this would be the strongest kind of case for saying it must go back.

But here, we are asked to take the case back to decide the facts which the jury has once decided.

We now have more information on which to decide them, but it is simply a question of the quantum of evidence rather than something which goes to the very heart of the process itself and so I regard Baldie isn’t authoritative.

This is the case properly here for decision by this Court.

The Chief Justice very kindly suggested that I not neglect to discuss the merits because of this other very interesting procedural question and I would like to say just a few words on that before I close if no further questions on the procedural question.

There has been some discussion of Dr. Dial why there was not more time given for his examination, why we did not have him stay over in the afternoon, why he hadn’t been brought down days before when the jury presumably was not confined on a hot room.

I think that in part, this is a question of time.

The motion for appointment of the psychiatrist or for commitment to a mental institution was made and denied on Friday, April 21st.

The case came on, on Monday April 24th.

It was not until Friday that counsel knew that he was not going to get them to Court that to which he thought himself entitled and counsel then spent the weekend hunting for someone, anyone who would be upheld.

Dr. Dial was found, did agree to come but the question is not that of time so much as it is that of money.

If we had been paying Dr. Dial of fee, then we could have said to Dr. Dial then, “Please, stay over tonight after the court adjourns.

You can make a complete examination.”

But Dr. Dial was there as a matter of grace and Mr. Moore was entirely subject to what Dr. Dial wanted to do and was in no position to tell Dr. Dial what to do.

If the motions had been granted, if the State had appointed a psychiatrist, the court had pointed the psychiatrist, of course we would not have had that problem.

There has been something said also about the competence of Dr. Compton.

I surely would not want to be understood as suggesting that Dr. Compton is not a competent physician.

I have no reason to doubt it.

The thrust of our argument is not that at all, he is only that good as he maybe for many other ailments.

He is not qualified to diagnose subtle, mental illness.

Potter Stewart:

Suppose there are some States in the union where there are hardly any psychiatrists.

North Dakota, I wonder how many psychiatrists are there.

Charles Alan Wright:

North Dakota, Mr. Justice Stewart by statute they require the appointment of a psychiatrist for the commitment, I’ve forgotten which to —

Potter Stewart:

Where are they appointed?

Charles Alan Wright:

A mental hospital.

I dare say that there are psychiatrists in —

Potter Stewart:

To public institutions?

Charles Alan Wright:

— the States.

The public institution is the usual place.

Under the North Dakota statute set out in the appendix to our brief, the Court either can appoint two (Inaudible) qualified experts or it can commit the defendant to the state hospital for the insane for observation or examination regarding his present mental condition.

Potter Stewart:

Of course, the word expert is ambiguous —

Charles Alan Wright:

It is.

Potter Stewart:

Perhaps in that state, they consider any physician an expert.

Charles Alan Wright:

It is conceivable that they would, but their statutory provision also authorizes them to commit the man to the mental hospital for the insane where I think they may fairly assume there are qualified psychiatrists.

I’ve observed that the State of Mississippi which is not one of the wealthier states in the union in 1960 adopted the statute requiring some relief of this kind.

And I would suggest that what the State of Mississippi can afford and what North Dakota can furnish, Texas can furnish.

This does not seem to me an insuperable burden.

The county attorney made it clear that if Dr. Compton had told him that in his view petitioner was insane or there was a serious doubt about it that he could have done something about it.

He could have taken Bush to Dallas or brought a psychiatrist down from Dallas.

We know where to find them in Texas if the need arises and if the Constitution requires it.

I think I should in closing say something in what has seemed to me the hardest question in the case or at least the hardest under the supplemental brief was filed and when we try rather imagine that the Court would put to me and that is, is there a limit to the doctrine which I am answering — asking the Court to adopt.

If the Court were to say in this case that there is a constitutional duty to provide the psychiatrist, would the Court also have to say that there‘s a constitutional duty on the State to provide ballistic experts, accountants and writing experts, all those kinds of people.

To that, my answer is two-fold.

First, one can hope that or at least reasonably read the Constitution of the United States as saying, that the State is required to make available to those who were tried with the crime and who are poor, whatever kinds of expert assistance the State is able to afford for itself with the uneven struggle is not constitutional but I do not have to take that position in this case.

I don’t believe because it seems to me there is a clear distinction between psychiatric testimony and testimony of the kinds which I have mentioned.

The distinction in several ways; there is a distinction in the importance of this testimony where insanity is pleaded.

This is usually the crucial issue in the case is other matters frequently are not so important.

The other distinction, the one which is to me the more compelling; I believe that counsel can get along not equally, perhaps not desirably, but counsel can see that the jury learned something if the State has called a ballistics’ expert or an accounting or an accountant or a handwriting expert because of these other kinds of matters it isn’t simply a question of late testimony on each side.

The State will have produced an expert and an able and devoted counsel can make himself expert enough perhaps to conduct intelligible cross examination and to see that the jury understands what the facts are.

But here, there is never a person put on even who can be crossed examined who has the qualifications to be able to answer the questions, counsel would like to put.

Charles Alan Wright:

This is an all or nothing proposition and we had nothing.

And for that reason, those that I have mentioned we pray that the judgment below be reversed.

William J. Brennan, Jr.:

[Inaudible] questions that my Brother Stewart suggested namely, as I understand it, certainly he’s a [Inaudible] qualified psychiatrist.

I gather even the total number of it is something under 7000 or 8000 and only a couple of thousands of them that would get involved in forensic psychiatrics at all.

Now, what would you suppose in constitutional terms would be the case if Texas had a panel of state paid psychiatrists and you were allowed to make an application for the examination of your client by one of that group and that was the extent of which that Texas made provision for, a psychiatric assistance for indigents.

Would that satisfy your due process claim?

Charles Alan Wright:

It would fully satisfy the argument we are making here, Mr. Justice Brennan.

It is not —

Byron R. White:

Even if there is only one — you make the application for a psychiatric examination and the only psychiatrist who examines the defendant is a state paid psychiatrist and this is the only medical evidence that is in the case?

Charles Alan Wright:

The fact that the psychiatrist is state paid, I suggest is as immaterial as the fact that Mr. Moore, the Court appointed counsel was paid by State.

Byron R. White:

Well, how Mr. Wright has the State has paid for him?

Charles Alan Wright:

Pardon?

Byron R. White:

It has to be —

Charles Alan Wright:

Yes.

Byron R. White:

— that your (Voice Overlap) —

Charles Alan Wright:

Yes.

It is not who pays the psychiatrist which seems to me important, it is that the psychiatrist be competent and impartial.

If he as though as the fact that he is a full time employee of the State, would I think that it would be immaterial?

His testimony would satisfy all that we ask.

William J. Brennan, Jr.:

Well, I don’t (Voice Overlap) — I don’t understand, you’re accounted for, is that [Inaudible] in order to have a [Inaudible]?

Charles Alan Wright:

I think he does.

But what is the system in Massachusetts and those other states the psychiatrist make the report.

The report is freely available to both sides prior to trial.

Counsel can study and see what a competent psychiatrist had said.

If it’s worthwhile, he can go out to talk with the psychiatrist and he can call him as witness if he wants to.

It’s there.

He isn’t left to grope in the dark and to go beg for a Professor of Psychology.

Byron R. White:

Now, what is your — what is your distinction of the guilt [Inaudible]?

Charles Alan Wright:

The State has said that we don’t know such a thing as the psychiatrist in Texas that it’s not defined.

It is a term, of course, which is used in our statutes a fair number of times.

Charles Alan Wright:

This thing, a term of art fairly well understood.

I would want a person who is competent by the standard which the medical profession sets and licensing a person to hold himself out as a psychiatrist whether or not a psychologist, a clinical psychologist is sufficient, is a question which had divided the Court of Appeals from the District of Columbia in the Jenkins case and I would rather not have to argue that case as well as my own.

William J. Brennan, Jr.:

Well incidentally Mr. Wright, I understand that whatever they are called, the psychiatrists, the general terms, the terms of expert witnesses on this question of insanity, there’s considerable disagreement, I should say, within their own profession whether they‘re actually qualified on the question of guilt of innocent — or innocence as contrasted with their qualifications to treat one who found guilty —

Charles Alan Wright:

Yes.

William J. Brennan, Jr.:

— nevertheless, has to be treated.

Charles Alan Wright:

Mr. Justice Brennan, there is a great deal of versions of view in the medical profession and the psychiatric profession as to whether they should say this, they chafe of course, under M’Naghten’s rules and say that it asked the wrong question.

William J. Brennan, Jr.:

I — they chafe just as much under their rule as I understand (Voice Overlap) —

Charles Alan Wright:

I expect that — I expect that they do but there is a remarkably uniform consensus of psychiatric writers and of professional groups.

The American Psychiatric Association, the group for the management of psychiatric, other similar groups but the appointment of a psychiatrist is indispensable in a case where sanity is seriously an issue as I submit (Voice Overlap) —

William J. Brennan, Jr.:

As to guilt or innocence?

Charles Alan Wright:

Yes.

Potter Stewart:

Of course in this case, the part of your argument has been [Inaudible] as these arguments traditionally are that the defendant should — that there should not be an unequal struggle, that the defendant should have something close to the equivalent resources that the State in all its majesty has.

And if that argument isn’t of much relevance in this case, is it because the State didn’t have any psychiatrist.

They didn’t have any such things.

Charles Alan Wright:

Well the State didn’t need a psychiatrist and we had nothing, but I suggest Mr. Justice Stewart, that if we have had a psychiatrist, Mr. Allen would have found one.

Potter Stewart:

The State had the burden of proof.

Charles Alan Wright:

Yes.

Potter Stewart:

It was this 1924 commitment.

The State had the burden of proof and there was the presumption that this man was insane.

Charles Alan Wright:

That’s correct.

Potter Stewart:

And the jury was so instructed, and the State had the burden of proof that he was not insane and the State couldn’t have just a layman plus this doctor who you say was not qualified as an expert.

Charles Alan Wright:

The (Voice Overlap) —

Potter Stewart:

It’s like your handwriting case where you have a layman saying, “Well, that looks like his handwriting.

Well, in cross examination you can show that this fellow has no — is not qualified to say — to testify because he is — your case is a little different, isn’t it, from the ordinary case that we read about and that they’re so much mooted these days where the State is armed with all these resources and the defendant is denied them.

Here, the State didn’t have any such help and the State has a burden of proof that this man was not insane.

Charles Alan Wright:

Of course, I would have a much easier case if the State had had several psychiatrists, but I suggest that this is, if I may with respect sir, that this does not seem to me a material distinction.

The State had the ability to produce psychiatrists if it felt that they were necessary.

We did not.

Mr. Allen, as an able lawyer decided that it was not necessary since we weren’t going to have a psychiatrist, but in the small town of Waxahachie, the testimony of the County Health officer, well-known there within his judgment be sufficient to carry his burden of proof and he was right, but I am sure that he would have had a psychiatrist if he had felt he had needed it.

The State had the potential.

Charles Alan Wright:

The defendant unless the Court comes to his aid had no potential.

Potter Stewart:

Then you — but there’s no way of knowing had the State had one that you would have been denied one either.

Charles Alan Wright:

No.

We can‘t know that, it didn’t happen.

Tom C. Clark:

The handwriting’s case as you had referred to in your brief at page 40, that case is where the – [Inaudible]?

Charles Alan Wright:

In these cases, one of them is a square holding that the Government is required to pay for the retention by the defendant handwriting expert, the other one is a dictum to this effect that if the defendant had asked for funds for a handwriting expert, the Court would have provided it for him.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

I’m not clear on that Mr. Justice —

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

Yes.

It was such of an issue which has a big importance.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

Yes sir.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

Yes sir.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

But it’s exactly my position.

I feel in Judge Frank’s phrase that the lawyer in this position was like a surgeon without a scalpel.

Suppose the State has [Inaudible]?

Charles Alan Wright:

I believe it would Justice Harlan, yes sir.

[Inaudible]

Charles Alan Wright:

I don‘t think that the State can open the issue of sanity and then by some entirely arbitrary and irrational restriction close it.

A big assumption also [Inaudible] competent, after all [Inaudible] the function of the psychiatrist would simply [Inaudible] the State have that kind of an [Inaudible] they ignore the testimony of expert witnesses in order to confuse [Inaudible]?

Charles Alan Wright:

Because I submit sir that the State could not rationally say that the jury system works best where the jury is uninformed.

Potter Stewart:

Exactly what Mr. Justice Harlan is suggesting is that —

— that the State is saying that they want [Inaudible].

Potter Stewart:

And he’s — what it — the system he is suggesting is the system that prevailed at common law until a few decades ago 30, 40, 50 years ago, this was all a testimony you ever had in a case with — which is the lay testimony generally, a testimony as to the actions and the conduct and the record of the defendant, isn’t that correct?

Charles Alan Wright:

I think it is somewhat longer that in this book in 1838, Isaac Gray says that in cases where insanity is pleaded and it is a serious issue, psychiatrists are always called.

So I —

Potter Stewart:

Where was this?

Charles Alan Wright:

Pardon?

Potter Stewart:

In England?

Charles Alan Wright:

No.

This is in the United States.

Potter Stewart:

In every State?

I —

Charles Alan Wright:

Obviously, [Inaudible] some experience in New England.

Potter Stewart:

Well, obviously not because they‘re still not in every State —

Charles Alan Wright:

Yes, of course.

Potter Stewart:

— [Inaudible].

Charles Alan Wright:

Yes sir, yes.

Earl Warren:

Very well, Mr. Wright.

Thank you.