Evening star., 1963-01-31

The case involves the kidn
victim picked at random from
phone book.
1t is of particular interest
sci tried and failed to get the
Federal courts Of the Eighth
Circuit to follow the Districts
So-called Durham rule dealing
With the insanity defense.
The prisoner, Victor Harry
'eguer, 81, is scheduled to be
hanged in Iowa on February IS
unless the President grants the
appeal and commutes the sem
Xnce to life Imprisonment.
President Kennedy had one
EARLIER opportunity to intervene
In a capital case. That was a
military conviction where Pres
dent Eisenhower had refused
o grant clemency.
When the administration
changed, President Kennedy
;eclined to 60 into the case.
First Since 1857
The Feguer case is the first
5eath sentence under Federal
.ivilian authority since 1857
when clemency was refused by
be President in the case of the
Xroll brothers, executed for a
'ape-kidnaping in Georgia,
Since the final responsibility
Is the Presidents, he can con-
cult whatever authorities he
wants - from psychiatrists to
prison officials - in making
his decision after the facts are
gathered by the pardon attor-
1ey and sent to the White
House through the Attorney
General.
While the Justice Depart
ment has refused comment, 1t
vas understood that clemency
was not recommended in this
case.
Although the court-appoint-
ed defense counsel raised in
sanity issues along with the ad-
missibility of confessions and
various constitutional ques-
tions Of search and seizure, the
Supreme Court refused to re-
view the Feguer case last Oc-
tober. In effect, the high court
Thus rejected an opportunity to
take another look at the yard
sticks Of criminal responsible
ity. The clemency appeal fol-
lowed.
Review of Case
The Eighth Circuit Court of
Appeals. in a 40-page opinion,
reviewed Feguer's account of
the kidnap-murder.
Feguer was quoted as telling
Federal agents that he got the
name Of the victim, DR.. Edward
Roy Bartels. 35, from a tele-
phone book.
Feguer told the agents of lur-
ing DR., Bartels from home by
saying his wife needed help,
out he claimed 1t was his COM
panion who actually killed DR..
Bartels. Without saying that
the companion was mythical,
the court of appeals noted that
two witnesses saw the doctor
with only one other man and
that footprints to and from the
death scene showed no evi-
dence of a companion.
On appeal, the defense con-
tended that the lower court
Judge erred in finding Feguer
mentally competent to stand |
trial. The Court of Appeals
.loted that on this point some
Of the psychiatric testimony
was favorable to the defense, /
but not all of it. 1
The court also called atten-
tion to the fact that Feguer
had helped his attorneys on
several important motions to
suppress evidence and had plot
ted escape attempts - includ-
ing getting hacksaw blades to
saw through his cell bars. The
court concluded that he was
mentally competent to consult
with counsel and to understand
the proceedings against him.
Durham Rule Rejected
The Durham question came
up when defense counsel asked
the trial court to instruct the
jury that a defendant cannot
be held criminally responsible
for his act If 1t was the product
OF a mental disease or mental
defect - the Durham rule.
The trial court refused to use
the Durham rule. Instead, the
Judge instructed the jury un-
der the rule used in Federal and
most State courts - that a
man is criminally responsible If
he knows the nature OF his acts,
knows they are wrong and is
not in the grip Of an irresist-
able impulse.
The Court Of Appeals COM
mented that the Supreme Court
so far has approved these jury
instructions and that every
court which has considered
Durham has rejected 1t. The
appellate court went on to
point out that one-third of the
membership Of the Districts
Court Of Appeals had broken
away from the Durham rule.
The appellate court specifi-
cally said it would not reverse
a lower courts charge to the
jury on the question Of criminal