United States v. Taylor

On appeal from his conviction for assault with a deadly weapon in violation of 18 U.S.C. § 113(c) Isaac Taylor raises numerous questions relating to the procedures followed in the district court after he was reported to be suffering from a mental disturbance. While we find the record adequate to support the determination that he was competent to stand trial, we agree that the denial by the district court of his pre-trial motion for expert psychiatric assistance deprived him of an adequate opportunity to determine the possible existence of a substantial defense of insanity. We remand the case for further proceedings to permit counsel to have assistance in determining whether such a defense may exist.

According to motions filed by defense counsel and uncontested by the government Taylor has an extensive history of mental disturbance. He has been admitted to St. Elizabeths in Washington, D. C. on four occasions, most recently from September 21 to November 21, 1967. He has a history of violence and impulsive action over a period of more than ten years.

In 1968 Taylor was tried for armed robbery in the District of Columbia. His sole defense was insanity. Testimony was elicited that he was “psychotic,” had “paranoid thinking,” was extremely impulsive and lacked sufficient internal controls. The jury rejected the defense and returned a verdict of guilty, in consequence of which Taylor was sentenced to imprisonment for fifteen years.

At the Lorton Reformatory in Lorton, Virginia, where he was sent to serve his sentence, Taylor was kept under maximum security conditions. The prosecution in this case arises from an occurrence at Lorton during which, the government alleges, Taylor turned on another man and assaulted him with a metal mop wringer.

On January 2, 1969, Taylor’s attorney filed a motion for a mental examination pursuant to 18 U.S.C. § 4244. The motion recited the history noted above, pointed out that the charged “crime is of a violent and impulsive nature and apparently without rational motive,” and added that “the Defendant himself desires and feels the need for mental therapy.” The motion did not allege or suggest that counsel had any cause to believe that Taylor’s understanding of the proceedings was in any way deficient or that he had any difficulties in communicating with counsel or in assisting in his defense. Although the motion referred to § 4244, which is directed principally to examinations to determine competence to stand trial, it is inferable from the facts alleged that counsel was concerned primarily, if not exclusively, with an attempt to obtain expert psychiatric opinion to assist him in preparing a defense to the charge based on insanity.

In response to the motion the district judge ordered that within five days Taylor be examined by a St. Elizabeths’ psychiatrist to determine whether a full commitment would be required. For reasons not explained in the record the examination was delayed until February 27, on which date two psychiatrists interviewed Taylor at the District of Columbia jail. One of them, Dr. Platkin, Taylor recognized from previous experience at St. Elizabeths. The interview began without incident. For a few minutes Taylor conversed normally about his confinement at Lorton and discussed the attack which resulted in his prosecution. When the conversation turned to his motivations for such conduct, he was unable to ascribe reasons for his behavior, indicating that when he became angry at someone he would attack him. He could not explain why his reactions to real or imagined provocation were so violent.

Turning from his own conduct, Taylor began to accuse Dr. Platkin of having done nothing to help him during his earlier stay at St. Elizabeths. He then refused to speak further to either psychiatrist because, he said, no one at the hospital had helped him in the past. By way of emphasis to his refusal he approached Dr. Platkin and threatened to “choke the life out of” him. At this point the interview was terminated, having lasted ten minutes altogether.

On the same day the two psychiatrists filed their report, describing the interview and stating their conclusions as follows:

“Though the interview was quite brief and we do not pretend to offer a complete evaluation it is clear that Mr. Taylor fully understands the nature of his charges. There is obviously no memory deficit and Mr. Taylor appears able to understand the proceedings against him and to assist in his defense. In view of Mr. Taylor’s own statement that he was fully aware of the nature of his attack on October 12, 1968, and that the attack occurred because he was angry at the person on whom he had made the attack, there is no indication from our present examination that he lacked the requisite competency to commit a crime on that date.”

The district judge accepted the report and required no further examination. However, the trial, begun as scheduled on March 3, was not completed. During the testimony of one of the witnesses Taylor suddenly attacked him with a chair. A mistrial was declared and a new trial date set.

On September 9, 1969, before a different judge, defense counsel presented a new motion. In it he alleged substantially the same facts as he had in the January 2 motion, asserted that the February 27 interview was inadequate, and invoked 18 U.S.C. § 3006A(e) in support of his request that the court furnish “authority and funds to employ a private psychiatrist to inquire into the Defendant’s mental condition and competency both to stand trial and at the time of the alleged offense.” The motion was denied at that time and on September 12. The trial proceeded without an insanity defense, and Taylor was found guilty and sentenced to imprisonment for five years, to be served consecutively with his previous sentence.

Although the motions to the trial court, as well as the arguments on appeal, are couched primarily in language suggesting a question of Taylor’s competence to stand trial, we think the suggestion focuses on the wrong aspect of the problem. The real issue here is whether, in light of his history as re-

vealed by the factual allegations of the motions, he was afforded a sufficient opportunity to develop a defense of lack of criminal responsibility for his conduct.

Whether a person charged with crime is mentally competent to stand trial is a discrete question, governed by different medical and legal standards from the question of mental responsibility. To be competent to stand trial a defendant must have, at the time of his trial, “sufficient present ability to consult with his lawyer with a reasonable degree of understanding — and * * * a rational as well as factual understanding of the proceedings against him.” A claim that the defendant was not criminally responsible, on the other hand, is unconcerned with the defendant’s understanding of his situation at the time of trial, but is directed entirely to his capacity to understand and to control his conduct at the time of the commission of the offense. The test as applied in this Circuit is whether “at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” That a defendant may have exhibited such an absence of capacity to control his conduct as to indicate the possibility of a defense of insanity does not, of itself, answer the wholly different question of whether his understanding is presently so limited as to require that he not be tried at all. The one question may have little or no bearing upon the other, for many defendants who may not be held criminally responsible for their unlawful acts are clearly competent to stand trial.

In this case neither the facts alleged in the pretrial motions nor the defendant’s conduct gave any indication that he might be incompetent to stand trial. The motions did not allege that his attorney had ever experienced any difficulty in communication or that Taylor had on any occasion exhibited an impaired understanding of the proceedings or of the charges against him. On the contrary, the allegations point to Taylor’s acute awareness of his situation. They indicate that he realized the nature of his conduct and the fact that it was highly aberrational. His recognition of his need and desire for psychiatric assistance in controlling his behavior is explicit. All of this suggests the existence of mental disorder, to be sure, but hardly a disorder of the sort that renders a defendant incompetent to be tried.

During the brief psychiatric interview following the first motion, he discussed his conduct rationally until the outburst which occasioned the examination’s end, and that outburst carried with it no strong indication of an incapacity to cooperate with a lawyer for whom Taylor had no basis for a prior sense of resentment. If we assume that the initial motion required an examination into the defendant’s competence to stand trial, we find the interview that was conducted to have been sufficient for that purpose, and the court properly ordered the case to trial.

There was no need for a subsequent examination of the defendant’s competence to stand trial. The second motion recited essentially the same facts as its predecessor; only a contention that the first examination was deficient was added. Where an examination has been conducted so recently as to furnish a basis for a determination of present competence, there is ordinarily no reason to order another. Hall v. United States, 4 Cir., 410 F.2d 653. This is particularly true where, as here, the motion for a second examination fails to allege any facts, observed since the first examination, indicating possible incompetence, and the first motion had itself provided little or no factual basis for questioning the defendant’s competence. Nor was the outburst which terminated the first trial of such significance to this question as to require further psychiatric investigation of the question of competence. The whole picture remained one of unimpaired understanding and capacity to cooperate with his lawyer. No such impairment is claimed to have manifested itself in any way during the second trial. Accordingly, we find no error in the determination that Taylor was competent to be brought to trial for the second time.

The question remains whether he was given an adequate opportunity to develop a possible defense of insanity. We must conclude that he was not.

In stark contrast to the question of competence the motions were replete with factual allegations casting serious doubt on Taylor’s responsibility for his conduct. Both motions recited his extensive history of mental disturbance, his record of impulsive behavior, his own desire for treatment, and previous expert medical opinion to the effect that he was “psychotic” and lacked sufficient internal controls over his conduct. Bolstering these allegations were the defendant’s actions at the brief interview and at his first trial. Manifestly, under these circumstances counsel required expert assistance in determining whether there was a basis for a substantial defense of insanity and in preparing and presenting such a defense if, after examination, it appeared justified. Although the first motion requested only an examination pursuant to 18 U.S.C. § 4244, the motion filed before the second trial requested the appointment of an independent expert to assist in the preparation of the defense pursuant to 18 U.S.C. § 3006A(e). The “expert services” made available under that statute clearly comprehend psychiatric assistance. United States v. Albright, 4 Cir., 388 F.2d 719. By making these services available, the statute goes beyond other provisions relating to determinations of mental illness in enabling a defendant and his attorney to have expert medical assistance throughout the preparation and presentation of an insanity defense.

Once counsel has concluded that these services are necessary to enable him properly to evaluate and present possible defenses, the statute entitles him to secure them for his client on a showing of necessity. While the required quantum of this showing has not often been the subject of review, we have no doubt but that it was met here.

We cannot accept the truncated interview of February 27 as having met the need for expert assistance shown by counsel. Unlike a determination of competence to stand trial, which focuses on a limited aspect of a defendant’s present mental condition, an inquiry into possible lack of criminal responsibility at the time of commission of the offense involves a complex evaluation of his total personality at a previous point in time. It requires that the expert have a substantial opportunity to observe the defendant and his mental processes.

The ten-minute interview was insufficient for such a determination. Its insufficiency and inconclusive nature are revealed in the report itself, which merely summarized the events at the interview and then concluded that Taylor understood the charges, had no memory deficit, would be able to understand the proceedings and be able to assist in his own defense. It made no reference to his psychiatric history, nor did it confirm that the examiners were familiar with it. At the same time, the psychiatrists proclaimed that they did “not pretend to offer a complete evaluation.” Would a complete evaluation based on a thorough examination corroborate, modify or refute the claim that Taylor had “the requisite mental capacity to commit a crime” on October 12, 1968 ? The report furnished no basis for a resolution of that question.

We cannot speculate on what possible avenues of defense an adequate examination might or might not have revealed to counsel. It is enough that, having demonstrated a real need for expert assistance, he was not afforded it.

We recognize that Taylor’s own attitude was at least in part responsible for his plight. It was his belligerence which resulted in the termination of what might otherwise have developed into a sufficient examination of his mental condition. But in some cases a “failure to cooperate may itself be a symptom of mental disorder.”

The trial judge was not left without other means of inquiry. There was an indication that Taylor’s outburst was precipitated by his anger at Dr. Platkin. Another psychiatrist unknown to Taylor might have found him more cooperative. Alternatively, he might have been temporarily committed and informed of the consequences of non-cooperation. Even had he remained, uncooperative, the opportunity for extended observation might have provided an expert with a more informed basis for assessing his motivations and controls. It would also have provided a better opportunity for determining whether his belligerence was a symptom of some deep-seated disorder or merely a canny strategy designed to mislead the experts into thinking him irresponsible. In short, the procedures followed below failed to provide either counsel or the court with an adequate basis for determining whether Taylor ultimately should be regarded and treated as incorrigibly criminal or desperately ill.

The error here does not necessarily require that the judgment be set aside. It is entirely possible, despite the indications of mental difficulties, that a thorough examination would not have provided counsel with any meaningful assistance in preparing an insanity defense; it might even have led him to conclude that there was, in fact, no basis for one. In that event, the error would be harmless. Accordingly, we will temporarily suspend the judgment now on appeal and remand the case to the district court with directions to appoint a reputable private psychiatrist to assist defense counsel pursuant to 18 U.S.C. § 3006A(e). The psychiatrist should be instructed to examine Taylor thoroughly and for so long as he deems it necessary in order to reach an informed opinion as to his mental condition. On completion of his examination he will provide a report of his examinations and his conclusions to the court and to counsel. If the report indicates the existence of a substantial question of criminal responsibility, and if defense counsel represents that he intends to rely on it on retrial, the judgment will be vacated and a new trial granted. Otherwise, the judgment of conviction will stand affirmed.

Remanded with directions.

. 18 U.S.C. § 4244 provides:

“Whenever after arrest and - prior to the imposition of sentence or prior to the expiration of any period of probation the United States Attorney has reasonable cause to believe that a person charged with an offense against the United States may be presently insane or otherwise so mentally incompetent as to be unable to understand the proceedings against him or properly to assist in his own defense, he shall file a motion for a judicial determination of such mental competency of the accused, setting forth the ground for such belief with the trial court in which proceedings are pending. Upon such a motion or upon a similar motion in behalf of the accused, or upon its own motion, the court shall cause the accused, whether or not previously admitted to bail, to be examined as to his mental condition by at least one qualified psychiatrist, who shall report to the court. For the purpose of the examination the court may order the accused committed for such reasonable period as the court may determine to a suitable hospital or other facility to be designated by the court. If the report of the psychiatrist indicates a state of present insanity or such mental incompetency in the accused, the court shall hold a hearing, upon due notice, at which evidence as to the mental condition of the accused may be submitted, including that of the reporting psychiatrist, and make a finding with respect thereto. No statement made by the accused in the course of any examination into his sanity or mental competency provided for by this section, whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding. A finding by the judge that the accused is mentally competent to stand trial shall in no way prejudice the accused in a plea of insanity as a defense to the crime charged; such finding shall not be introduced in evidence on that issue nor otherwise be brought to the notice of the jury.”

. The reference to the nature of the offense charged was made evidently in an attempt to show that the assault was part of a habit pattern consistent with Taylor’s previous history of irrational behavior when emotionally aroused.

. The order declaring a mistrial describes the incident as follows:

“Isaac J. Taylor, while being tried in this court on the charge of assault with a dangerous weapon, without provocation or excuse, in the presence of the jury, became unduly boisterous, obstreperous and menacing during the testimony of one of the guards at the Lorton Reformatory. Specifically, the said Isaac J. Taylor picked up one of the large chairs in the courtroom, turned over several of the large tables and proceeded towards the guard who was then in the witness chair with the obvious intention of then and there striking him with the chair. The said Isaac J. Taylor was then and there subdued by three of the Lorton guards and a United States marshal. He was handcuffed and forcibly removed from the courtroom while uttering foul and obscene language. The said Isaac J. Taylor continued to remain extremely boisterous and violent and made numerous threats against the guards and others.”

. 18 U.S.O. § 3006A(e) provides:

“Services other than counsel. — Counsel for a defendant who is financially unable to obtain investigative, expert, or other services necessary to an adequate defense in his case may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the defendant is financially unable to obtain them, the court shall authorize counsel to obtain the services on behalf of the defendant. The court may, in the interests of justice, and upon a finding that timely procurement of necessary services could not await prior authorization, ratify such services after they have been obtained. The court shall determine reasonable compensation for the services and direct payment to the organization or person who rendered them upon the filing of a claim for compensation supported by an affidavit specifying the time expended, services rendered, and expenses incurred on behalf of the defendant, and the compensation received in the same case or for the same services from any other source. The compensation to be paid to a person for such service rendered by him to a defendant under this subsection, or to be paid to an organization for such services rendered by an employee thereof, shall not exceed $300, exclusive of reimbursement for expenses reasonably incurred.”

. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824.

. United States v. Chandler, 4 Cir., 393 F.2d 920, 926.

. Motions made under 18 U.S.C. § 4244 for examination should not be granted so routinely that the statute amounts to no more than a provision for an automatic continuance on the defendant’s request. Ordering an examination is not a perfunctory or ministerial act. It calls for the exercise of judicial discretion to determine whether there is “reasonable cause to believe” that the defendant may not be competent to be tried. The motion is required to state the ground for the belief. While we agree that doubts should be resolved in favor of ordering an examination, we find no doubts in this case where neither the defendant’s appearance nor his history as recited in the motion provided any reason to question whether he possessed a rational and factual understanding of the proceedings or could assist his attorney to the extent any untrained defendant could assist, in preparing a case.

. “Where a defendant is indigent and claims reason to doubt his sanity, the government stands ready to supply him with the services of psychiatric experts necessary to his defense. 18 U.S.C. § 3006A(e).” 388 F.2d at 724.

We do not suggest that counsel’s specific reference to § 3006A(e) was critical to his right to expert assistance. A motion made wrongly under § 4244, which states facts demonstrating that assistance under § 3006A(e) is necessary, should be treated as having been made under the appropriate section. At least initially, the assistance provided by § 3006A(e) could take the same form as the- § 4244 interview; there is no reason why, in every cáse, a privately employed psychiatrist would be required to furnish the needed services.

. The assistance of a psychiatrist is crucial in a number of respects to an effective insanity defense. In the first place, the presence or absence of psychiatric testimony is critical to presentation of the defense at trial. “In practical terms, a successful defense without expert testimony will be made only in eases so extreme, or so compelling in sympathy for the defendant, that the prosecutor is unlikely to bring them at all.” Goldstein, The Insanity Defense, 124-125 (1967).

Moreover the use of an expert for other, non-testimonial, functions can be equally important. Consultation with counsel attunes the lay attorney to unfamiliar but central medical concepts and enables him, as an initial matter, to assess the soundness and advisability of offering the defense. The aid of a psychiatrist informs and guides the presentation of the defense, and perhaps most importantly, it permits a lawyer inexpert in the science of psychiatry to probe intelligently the foundations of adverse testimony.

“If an accused is to raise an effective insanity defense, it is clear that he will need the psychiatrist as a witness. He will need his aid in determining the kinds of testimony to be elicited, the specialists to be consulted, and the areas to be explored on cross-examination of opposing psychiatrists.”

Id. at 126-127. ABA Minimum Standards for Criminal Justice. Providing Defense Services § 1.5 (Approved Draft, 1968) ; See also Attorney General’s Committee, Poverty and the Administration of Criminal Justice (1965) ; Brennan, Law, Psychiatry and the Mentally 111. 49 ABAJ 239 (1963).

. See Rollerson v. United States, 119 U.S.App.D.C. 400, 343 F.2d 269, 274:

“The basic tool of psychiatric study remains the personal interview, which requires rapport between the interviewer and the subject. Gill, Newman & Redlich, The Initial Interview in Psychiatric Practice (1954). See also Finesinger, Psychiatric Interviewing: Principles and Procedure in Therapy, 105 Am.J.Psychiat. 187 (1948). More than three or four hours are necessary to assemble a picture of a man. A person sometimes refuses for the first several interviews to reveal his delusional thinking, or other evidence of mental disease. Monninger, A Manual for Psychiatric Case Study, cli. 1-4 passim. (2d ed. 1962) (hereafter cited as Men-ninger). See Noyes & Kolb, Modern Clinical Psychiatry, cli. 7 (with bibliography) ; Knight, Borderline States, 17 Bull, of Menninger Clinic 1, 8 (1953). Paranoid patients particularly may be able to guard against revealing their disorder with extraordinary skill. Men-ninger 64-65. See Noyes & Kolb, Modern Clinical Psychiatry 112-13. From hours of interviewing, and from the tests and other materials, a skilled psychiatrist can construct an explanation of personality and inferences about how such a personality would react in certain situations.”

. The report’s conclusion to this effect appears to be based on the finding that Taylor was fully aware of what he was doing when he committed the assault. This, of course, is necessary to a finding of criminal responsibility, but it is not the end of the inquiry. In addition to knowledge and awareness, a defendant, to be held responsible for his actions, must have had sufficient internal controls over his actions to conform them to the requirements of the law. United States v. Chandler, 4 Cir., 393 F.2d 920.

. Judicial Conference of the District of Columbia Circuit, Report of the Committee on Problems Connected with Mental Examinations of the Accused in Criminal Cases before Trial 34 (1966).

. It will not be requisite to an order granting a new trial, that the judge be persuaded that the defense would be likely to succeed. It will be sufficient if the report is of such character that, if the psychiatrist testified at the trial, the judge would be required to submit the issue to the jury under the standards enunciated in Hall v. United States, 4 Cir., 295 F.2d 26, 28.

We do not share the fears expressed in the concurring opinion that the scope of inquiry on remand has been too severely limited. Taylor was denied not the opportunity to present a defense, but the opportunity to determine with expert help whether he had a defense worth presenting. The remedy need be no greater than the deprivation. The issues concerning Taylor’s participation in a criminal act have already been fairly determined. If after a comprehensive psychiatric examination the private psychiatrist should be unable to offer anything in aid of a defense to criminal responsibility, the previous lack of opportunity for psychiatric consultation will be shown not to have hampered the presentation of any defense he had.