Earl Warren: Number 382, Frank J. Pate, Warden, petitioner versus Theodore Robinson. Mr. Michael.
Richard A. Michael: Mr. Chief Justice, may it please the Court. This is a habeas corpus petition. The respondent brought a petition for writ of habeas corpus to United States District Court for the Northern District of Illinois. He contended that his confinement pursuant to his life sentence for murder of Flossie May Ward resulted in non-constitutional confinement. The District Court after a study of the record of his trial in the state court dismissed the petition. The respondent appealed to the Court of Appeals for the Seventh Circuit. That court in a two to one decision reversed the decision of the District Court and remanded the petition for writ of habeas corpus for a hearing in the District Court on two issues. First, whether the respondent was insane at the time of the crime and secondly, whether the trial judge had denied the respondent due process by his failure on its own motion to impanel insanity jury to determine the question of the respondent's sanity at the time of trial. The issues presented to this Court --
Potter Stewart: In Illinois, this is for a matter of information, is it always the jury which makes the determination of whether or not a defendant is insane at the time of trial?
Richard A. Michael: At the time of trial Your Honor?
Potter Stewart: Yes.
Richard A. Michael: Yes. If the question is raised, it is the duty to impanel a jury to make that determination.
Potter Stewart: I suppose the prosecution if the question is raised could -- could say yes, he is, and then there would be no issue.
Richard A. Michael: That would be, I assume so, Your Honor.
Potter Stewart: But if -- but if -- if the matter has put an issue, that's for a jury to determine is it under the Illinois practice?
Richard A. Michael: Yes, Your Honor. The question for this jury -- for this Court to determine then whether the question of the sanity of the -- of a person or the accused at the time of the crime is cognizable in a federal habeas corpus taken from a state conviction. And secondly, whether with respect to the question of sanity at the time of trial, this was waived by the respondent's failure to raise that issue in the trial court or if not whether the record on its face does not affirmatively show that he was not denied due process by the failure of the trial court on its own motion to impanel a sanity jury. Finally, there is the issue submitted by this Court for consideration whether if either or both of the hearing specified in the order of the Court of Appeals should be held -- that should be held in the state or in the federal court. The record before the District Court in the determination of the -- of these issues was the transcript of the respondent's trial in the state court. That transcript shows that the respondent was tried by Daniel -- by Judge Daniel Gazelli of the Criminal Court of Cook County. He waived trial by jury and submitted himself to a bench trial. The state introduced evidence which showed that the victim, Flossie May Ward and the respondent, were living together in a common-law status. The victim worked at Collins Barbeque House in the south side of Chicago. There, the respondent would frequently go for his meals and to pick her up when she was through working for the day. She worked the shift from about 10 in the evening to about five in the morning. On the night of the murder in question, February 28, 1959, the respondent entered the Collins Barbeque House. On duty there besides the victim were another waitress, Natty Bates and a cook by the name of Jim Hatten. The respondent jumped over the -- the victim saw the respondent and said, “Ted, Don't start anything tonight” or words to that effect, obviously showing there had been some battle going on between them. Nevertheless, he jumped over the counter. The cook and the waitress saw a revolver in his hand. It was pointed at the victim. They heard two shots. The victim ran off the door -- jumped over the counter and run off the door. The respondent jumped over the counter and run off the door after her. Subsequently, her -- her body was found in the sidewalk in front of the restaurant dead, and cause of death was proven to be a gunshot wound in the head. The next day, Robert Moore came to the department of Officer Starr. Moore had an apartment in the same complex with Starr. He told him that he has been informed by a telephone call that Robinson was wanted for murder and that he was presently in his apartment and would the officer please came up and arrest him. Officer Starr called for additional help with two additional policemen and they went up to the Moore apartment. They rang the bell, talked for about two minutes with Mrs. Moore. She informed them that Robinson had just left. They then realized that a man whom they had first seen when they got off the elevator standing in the corridor was Robinson. They went over and asked him his name and he admitted that he was and he was arrested and taken into custody. About an hour and a half later, Officer Starr, accompanied with another policeman, went back to the Moore apartment. There they found in the closet a hat and a coat that matched completely with the hat and coat that Robinson was described had been wearing at the time of the murder. In the pocket was found a revolver which was subsequently proven to be the murder weapon. The respondent admitted that the hat and coat were his but denied the ownership of the revolver. After the State proved its case in this manner, the defendant presented his case. The defendant was represented by two appointed counsel, Mr. Warren Carey and Mr. McDermott of the Chicago bar. Mr. Carey was an experienced criminal attorney and had taught criminal law prior to this time at the DePaul University. The def -- the respondent's defense did not in anyway contest or refute the facts proven by the State but rather attempted to raise the defense of insanity at the time of the crime, the evidence introduced in this respect tended to show. There was testimony by his mother that when he was seven or eight years old, a brick that was dropped from a third floor hit him on the head and that thereafter he was cross-eyed, complained of headaches, and acted a little peculiar. Nobody testified however to any unusual incidents that occurred until he went into the army. Once one time when he was home on furlough while he was in the army, both his mother and a friend of the family testified that he was having dinner with a girlfriend, his mother prepared dinner for them. They were sitting in the front room talking after the dinner. The mother -- he asked the mother for some money and the mother denied it to him and he kicked a hole in the bar in the front room. He later went back into the army. He was discharged to -- for all the record shows in normal course of the events. After he was released from the army it appears he worked with his grandfather, Mr. Ed Langham as it is his profession as a painter. Mr. Langham testified that on some occasions during this time, he would seem to be in the daze, walk off the job without saying anything to anybody, come back about two or three hours later in seemingly normal condition. During this period, there was also a testimony that he seemed to have a glare in his eye and deep -- be in deep study. In 1952, he went to the home of his aunt, Mrs. Calhoun and asked her -- told her that people were trying to kill him. She called up his mother, his mother came. He fought against letting his mother in the apartment. Then then he fought against his mother and his aunt looked at them and according to that testimony, he had a starey look in his eye and seemed to be a bit foamy in the mouth.
Potter Stewart: What you're telling us is all the -- is -- is the evidence that was adduced on behalf of the defendant --
Richard A. Michael: On the --
Potter Stewart: -- at the state criminal trial.
Richard A. Michael: Your -- that's correct Your Honor.
Potter Stewart: Before the jury?
Richard A. Michael: Before -- well before the judge. He waived trial by jury --
Potter Stewart: That's right --
Richard A. Michael: -- and collected this --
Potter Stewart: -- before the trial.
Richard A. Michael: That's right Your Honor. The aunt and the mother called the police and he fought to keep them from entering the apartment. When they did, they took him into custody, took him to Hines Hospital. He was later sent to County Hospital and finally committed to Kankakee State Hospital, a state mental institution. Subsequently, he was released from that hospital about six months later as cured by the hospital. There was a hospital report that is in the record that was issued at this time which describes all the typical symptoms of delirium tremens. About – after he was released, he seemed to either difficult -- getting difficulty with his wife. There is a testimony in the record by Mr. Langham that in one occasion, the respondent got into a serious fight with his wife and took her clothes off in the backyard and purported to burn them. In 1953, however, his wife left him. This seemed to disturb him greatly. He shot himself -- he shot his young child and then attempted to commit suicide first by shooting himself and then by jumping into a lagoon. When neither of these attempts failed, he went to a policeman and surrendered. He was tried and convicted and sentenced for the murder of his child. After he was released from custody, no unusual incidents appeared to have occurred except that in one occasion, his mother had a warrant sworn for him because he seemed to be fighting too so much. On the basis of this evidence, the four witnesses who testified in the respondent's behalf, his mother, Miss Peterson, his aunt, Mrs. Calhoun, his grandfather, Mr. Langham, and a friend of the family by the name of Alice Moore who has no relation to the Moore's, near whose apartment he was arrested, testified that they believe on the basis of these facts indicated that he was insane at the time the crime was unable to distinguish between right and wrong with respect to the conduct in question. In rebuttal, the State introduced the stipulated testimony of Dr. Haines, the chief of the behavior -- the psychiatrist who is chief of the behavior institute of the criminal court of Cook County. Dr. Haines' testimony was to the effect that he had examined Robinson two months before the trial and that his -- in his opinion, Robinson was able to understand the nature of the charges against him and aid of his own defense. On the basis of this testimony, the judge as the trier of the fact, found the respondent guilty.
Byron R. White: Was there any [Inaudible]
Richard A. Michael: Only what can be inferred from the testimony of Dr. Haines Your Honor which of course directly relates to his insanity at the time of the trial. It is at least stated in the test of the -- of insanity at the time of the trial.
Byron R. White: [Inaudible]
Richard A. Michael: Yes it is Your Honor.
Abe Fortas: Does Illin -- Illinois law does make a distinction between those two, doesn't it?
Richard A. Michael: Oh yes, Your Honor, insanity at the time of the -- of the trial, the test is whether you are insane at the -- whether you are able to understand the nature of the charges against you and aid your own defense. This is to be determined by the insanity jury if it is -- if it is empaneled for that purpose. The defense of insanity at the time of the crime, we use the McNaughton plus the Irresistible Impulse Test which is determined by the trier of fact whatever that maybe in respect to the -- to the case.
Abe Fortas: So that the standards aren't different under --
Richard A. Michael: Yes they are Your Honor.
Potter Stewart: And of course the results are different --
Richard A. Michael: They -- well maybe --
Potter Stewart: -- insanity as well. If it's insanity at the time of the trial, the result is he can't be tried.
Richard A. Michael: That's correct Your Honor.
Potter Stewart: And then I suppose he is committed.
Richard A. Michael: He -- he is institutionalized until he either regain insanity.
Potter Stewart: But he regained insanity then he can be tried.
Richard A. Michael: Right Your Honor.
Potter Stewart: And if its insanity applying to what Mr. Justice Fortas said (Voice Overlap) the different test of its insanity at the time of the -- of the conduct for which he's being prosecuted, it's not a crime if he was insane so he is --
Richard A. Michael: He's acquitted and that's double jeopardy --
Potter Stewart: -- he's acquitted and I suppose also institutionalized, is that right?
Richard A. Michael: I don't think there is any required institutionalization in that regard. I think, however, that it can trigger institutionalizing procedures.
Potter Stewart: Right, right. But he is acquitted of the events because it's not an offense if the actor is insane.
Richard A. Michael: Right Your Honor. During the course of the trial, there were two colloquies between the defendant and -- and the Court. These colloquies first occurred after the State closed its case related to the calling of certain witnesses. The second related after the case -- occurred after he had been sentenced and objected to quite certain witnesses had not been called in his behalf. Both of these colloquies we submit chose the ability -- show the ability of the defendant to understand the nature of the charges against him and to aid in his own behalf. They are referred in full in our statement of facts and we submit them to the Court's attention. Turning then to the first issue, whether the question of insanity at the time of the crime is cognizable in the federal habeas corpus proceeding after the state conviction. We contend that it is not. We contend like this, like any other affirmative defense to the charge of crime -- of criminal activity as a matter for determination by the trier of fact and that that should be conclusive.
Byron R. White: [Inaudible] of not that you stated but the -- but the question of whether he was denied the procedural due process.
Richard A. Michael: He was denied the procedural -- I'm not quite sure what you mean by the --
Byron R. White: Certainly he wanted to call – let's just assume that he wanted to call some witnesses on an issue that was critical to the case and the state refused to hear his witnesses. They were in the court and the judge says, I just won't hear them at all or let's assume he wanted to cross-examine the state witness and he was barred from examining.
Richard A. Michael: Well of course Your Honor, if there was a violation of -- of one -- of a right guaranteed by the Constitution, of course that is cognizable.
Byron R. White: Well, isn't that what the (Voice Overlap)
Richard A. Michael: Well the (Voice Overlap)
Byron R. White: Well at least the Court of Appeals in a different way as I suppose, but didn't they come pretty close to deciding that there was a denial of procedural due process?
Richard A. Michael: I think not Your Honor. There was --
Byron R. White: Let's assume they did then this matter is cognizable on habeas corpus?
Richard A. Michael: If -- if there is a -- found to be a violation of what this Court has held to be procedural due process, clearly, the -- it is within the scope of federal habeas corpus.
Byron R. White: But the -- the argument you are making was simply that a federal court of habeas corpus will not review or go through the same routine again if the only claim is that this fellow was really insane although the State held he wasn't. That's your argument.
Richard A. Michael: The Court of Appeals for the Seventh Circuit Your Honor remanded the case rehearing of two issues.
Byron R. White: I know but I am just asking what your argument is.
Richard A. Michael: Yes, that is -- that is my contention Your Honor. We contend that this issue is not so reviewable. We believe that every Court of Appeals that has ruled on this issue other than the Seventh Circuit in this case has so held different. There have been five Court of Appeals in all that have so held. Furthermore, we contend that the decision of the Court of Appeals that it is cognizable is contrary to the decision of this Court in Leland versus Oregon and Bishop versus United States.
Abe Fortas: Well was the issue of insanity at the time of the offense presented and ruled on by the trial judge?
Richard A. Michael: The issue of insanity at the time of the crime as a defense constituted the entire defense asserted by the defendant to the charge of criminal activity Your Honor.
Abe Fortas: And are you telling us that the only testimony in the record is the testimony of -- is the statement of the psychiatrist with respect to mental condition at the time of the trial?
Richard A. Michael: That is correct, Your Honor. There was the testimony of the four lay witnesses who testified in the defendant's behalf and it was the stipulated testimony of the psychiatrist in behalf of the state.
Abe Fortas: Was there any request on the part of the respondent's counsel to -- or process or other procedures by which they could produce psychiatric testimony on the defendant's behalf?
Richard A. Michael: If Your Honor, I will refer you to the record first to page 30.
Abe Fortas: Does that relate to Moore?
Richard A. Michael: No, this is not related to Moore Your Honor. About a third way down the page Your Honor, we have his counsel Mr. McDermott. Could we have a call of the witnesses at this time to see if capias would have to be issued or not? There was a subpoena duces tecum issued to Dr. Kelleher, Chicago Psychiatric institute and as yet we have heard no response for him. I think I will call the Court call him. Mr. McDermott. Mr. Warren Carey asked me to prepare a petition for a capias. The court, alright prepare a petition for a capias. Thank you very much. I then call your attention to the record, page 147. Starting about the second half of the page Your Honor, again, his attorney Mr. McDermott says, Your Honor, there is also a doctor from the Psychiatric Institute that we've been trying to get in contact with and we do feel certain we can reach him by the morning. We have hopes of reaching him and having him here this afternoon. I assume that's the same doctor from the Psychiatric Institute they were talking about before, Dr. Kelleher. When did you reach him? Prior to July we wrote, we received a letter from the Institute in July and had conversations at that time. The court: the Institute of Illinois? Mr. McDermott: Yes, it is down at Elevenson State Street. The court: Did you subpoena him? They'll interrupt in consequence of the court. Did you subpoena him? Mr. McDermott: I understand it was done but I'm not really sure. The court: If you subpoenaed him, I wish you an attachment. If you did not subpoena him, we cannot delay the trial. You must prepare your lawsuit before you go to trial and not during the trial. You are now on trial for two days, etcetera. I finally call your attention to -- he said -- finally, he said, we are in trial for two days and the cases are pending. We have to proceed. If you subpoena him, prepare a petition that I will send for him. If you did not subpoena him, it is unfortunate. Finally, I draw your attention Your Honor to page 167 of the record. There we have a statement by the respondent's counsel at the close of the case. The respondent said, “I would like to -- the record to show Your Honor that I personally spent much time including perhaps two or three dozen telephone calls to psychiatrists that I have contacted the Illinois Psychiatric Society and all of its officers, requesting assistance in this matter. I have asked Dr. [Inaudible] in Michigan Boulevard. I have not been able to get an analyst to cooperate and work on this matter. I do not believe in subpoenaing a psychiatrist to testify when I do not know his degree of cooperativeness that he would display in behalf of the court.” That is the total record on his attempts to attempt -- to obtain a psychiatrist.
Abe Fortas: I'm very grateful to you.
Richard A. Michael: We contend that the issue that the -- of insanity at the time of the -- that the holding of the Seventh Circuit, the issue of insanity at the time of crime is cognizable on federal habeas corpus is contrary with the decision of the five Courts of Appeal that ruled in the case and the decision of this case and Leland versus Oregon and Bishop versus United States. In Leland versus Oregon, there was a murder conviction in which the individual tried to assert the defense of insanity at the time of the crime. His -- his defense was disallowed and his conviction was upheld by the Supreme Court of Oregon. In this Court, he contended that he was denied due process by the rule that -- of Oregon that a person who attempts to raise the defense of insanity at the time of the crime is proven beyond reasonable doubt and by the rule of Oregon that applied as a test for the question of insanity at the time of the crime, the McNaughton test with no additional tests or factors. This Court held that this was not a violation of due process of law that a state could apply any test -- properly -- proper test desired for the question of insanity at the time of the crime with respect to the burden of proof thereon. If this Court of Appeals was correct and the issue was cognizable and had a review of the state conviction, of course there would have to be a federal test that would be applied to determine whether the state properly ruled on the question. There would have to be some federal test that could be applied. The decision in Leland versus Oregon that there is no such federal test, I submit, is therefore inconsistent with the ruling of the Court of Appeals for the Seventh Circuit that the issue is cognizable.
Speaker: [Inaudible]
Richard A. Michael: I don't think I would go that far Your Honor. I would say if they could -- if -- if -- I think that I would say that it would be the position that it might be a violation of due process to disallow them -- a defendant to raise the defense at all. I suggest that that raises a far different question than when you raised the -- the question properly and then whether it is entitled to a review of that question.
Speaker: But I think the situation here [Inaudible]
Richard A. Michael: No, I would not go that far in answer to -- to your question Your Honor. Furthermore, we contend that it's contrary to the decision of this Court in Bishop versus United States. The Bishop case was a 2255 proceeding by a federal prisoner to which he alleged that he was insane at the time of the crime and he was insane at the time of the trial. The Court of Appeals for the District of Columbia held one that insanity at the time of the crime was not reviewable in a 2255 proceeding and secondly, that there had been an adequate hearing in the trial court on his issue of his insanity at the time of the trial. This Court in a per curiam decision remanded the case for a hearing on the question of his insanity at the time of the trial. We contend Your Honors that by not reversing its decision on the question of insanity at the time of the crime that this was a sub silencio affirmance of the decision of the Seventh -- of the Court of Appeals for the District of Columbia that this issue was not cognizable under 2255. Of course if it was not cognizable under 2255, it is not cognizable under 2254. We believe that this is the proper result also. Under the common law tradition, insanity at the time of the crime is a defense because -- to the charge of criminal responsibility because it negates the mens rea required for criminal responsibility. Just like any other affirmative defense to the charge of crime, it is a defense because it negates one of the essential elements for a crime, in this case, the mens rea. While it may seem on its face that it is a violation of our concept to liberties to say that a person can be convicted for a crime that he committed while he was insane, it is equally contrary to our concept of board of liberties to say a person can be convicted for a crime of which he was innocent. Yet this Court -- the federal court does not review the ultimate question of guilt or innocence in a federal habeas corpus, this is a question for the jury to determine whether that all the elements of a crime had been made out whether any defense to one of these elements has been adequately proven by the defense. We contend that insanity at the -- at the time of the crime which is merely a defense to one of the elements of criminal responsibility should be treated no differently. It is generally -- it is just merely one defense to a charge of crime to determine the nature of which by the trier of fact is conclusive. The Court of Appeals for the Seventh Circuit indicated that the decision had already been determined to the contrary by the decision of this Court in Smith versus Boldie. We contend that Smith versus Bodie is not so applicable.
Speaker: But when you said the [Inaudible]
Richard A. Michael: That -- that is it Your Honor. In this case, the Court of Appeals --
Speaker: [Inaudible]
Richard A. Michael: If they can -- if there is some other constitutional infirmity, of course, that is cog -- that is cognizable Your Honor. I -- but the Court of Appeals for the Seventh Circuit in this case remanded the case for a determination of two issues. One of which was a determination of whether the individual was insane at the time of the crime. That is -- that order we contend is erroneous because we don't think that that issue is cognizable.
Speaker: [Inaudible]
Richard A. Michael: They remanded the case Your Honor -- the hearing on two questions.
Speaker: Yes. The first aspect [Inaudible] retry?
Richard A. Michael: To have -- the District Court have a full plenary hearing on the issue of whether he was insane at the time of the crime. If he was insane then they would -- they would have to set aside the conviction. I assume if he was not, if he was found to be insane at the time of the crime, the conviction could stand. That is the way I read the Seventh Circuit order. In Smith versus Bodie, one of the subsidiary issues was -- raised by the petitioner, was his contention that he was insane at the time of the crime. This Court said with respect to that barely, we do not have to consider the issue because it was adequately handled in the trial court under Brown versus Allen. Of course that could be interpreted to mean that the issue was cognizable in this -- but this Court didn't have to rule on it because Brown versus Al -- Allen at the -- the authority that was then applicable to the question of whether a trial court would -- habeas corpus will have to have a full plenary hearing just didn't require in this case. However, since the issue was not discussed by this Court, we think it more reasonable to interpret this decision as merely a holding that there was no need to determine whether it was cognizable at all or not since it had been fully -- fully canvassed in the state court in any event. We contend that that is the interpretation that is most likely especially in light of the decision of two Courts of Appeals which after Brown versus Allen have held the issue was not cognizable on habeas corpus and because of the decision of this Court in Bishop versus United States which came subsequent to the decision of Brown versus Allen.
Abe Fortas: Can I ask you sir, what is the rule in Illinois with respect to burden of proof where there is an issue as to insanity at the time of the crime?
Richard A. Michael: The -- we start of Your Honor with the proposition that there is a presumption of sanity. However, if there is sufficient evidence introduced at the trial to adequately rebut that presumption then the question becomes one which the prosecution like all of the questions the prosecution must present must prove beyond reasonable doubt under the Illinois rule.
Abe Fortas: So that here, assuming that the judge concluded that all the testimony in the record indicated rebuttedly the presumption of sanity and then the judge could have had to find that there had been proof beyond reasonable doubt that the defendant was insane.
Richard A. Michael: Yes Your Honor.
Abe Fortas: And do I understand from you said previously that apart from the presumption of sanity, the only evidence in this record as to sanity is the statement of the psychiatrist as to mental condition at the time of the trial.
Richard A. Michael: That is correct Your Honor. Now with respect to the four lay witnesses, of course they -- they testified that their -- in their opinion, the respondent was insane but because they were lay witnesses, they could not give their conclusion alone. They were required to state all the facts in which they predicated that opinion. Now we believe that once they testified to all these facts, the trial judge then was in a good position as these lay witnesses to look at these facts to determine whether there was insanity at the time of the crime and if there was evidence on this fact, all the testimony of these witnesses in which they could -- the trial judge could properly draw the conclusion of whether he was sane or insane.
Speaker: [Inaudible]
Richard A. Michael: I know of no such issue -- with no such --
Speaker: [Inaudible] burden of proof?
Richard A. Michael: I think not Your Honor. (Voice Overlap)
William J. Brennan, Jr.: [Inaudible]
Richard A. Michael: The Illinois Supreme Court Your Honor held that it was not that the evidence was -- that none of this was directly relevant and that it was not sufficient to rebut the presumption of -- of -- of sanity.
William J. Brennan, Jr.: That can be [Inaudible]
Richard A. Michael: That was -- that was the decision of the Illinois Supreme Court Your Honor. I do not rest on -- on that petition alone. As I answered to Mr. Justice Fortas, I believe that looking at the record as a whole there, the -- there was evidence to support the contention that he was sane. All the evidence that the -- the testimony as to his life and behavior from which the judge could as well as the lay witnesses draw his own conclusion.
Abe Fortas: I beg your pardon sir, but I like to ask you one further question. Is there anything to which you could direct us which we might take all these statutory things and anything else with respect to the organization in Cook County of the services available to an indigent defendant and his counsel in the nature of psychiatric services?
Richard A. Michael: There is the behavior clinic of the -- of the Criminal Court of Cook County of which Dr. Haines is a member that will upon request examine any person and have his testimony. Of course in this case, his testimony was contrary to that of the interests of the respondent. So therefore -- that is why he was called by the state rather and by the respondent. As far as any other agency, I know of none Your Honor.
Hugo L. Black: [Inaudible]
Richard A. Michael: We therefore contend that on the basis of both precedent and principle Your Honor, the question of insanity at the time of the crime is not cognizable in federal habeas corpus and that the Seventh Circuit erred in remanding the issue for determination of the question -- that question for determination by the District Court. Turning then to the question of insanity at the time of the trial, the Court of Appeals remanded that issue for a determination of whether the District -- the trial court had failed -- had denied the petitioner due process by its failure on its own motion, the Court's own motion to impanel insanity jury to consider the question of his competence to stand trial. We contend first that that issue was waived by the failure of the -- of the respondent to raise the issue at his trial and secondly that even if it was not, the record on its face shows that there was no such a denial of due process. On the issue of waiver, this respondent never raised the question or his counsel never raised the question of insanity at the time of the crime -- at the trial, I beg your pardon. Never raised the issue of insanity at the time of the -- of the trial. The issue for -- under Illinois law, it is the requirement of the defendant or his counsel to raise that issue if they have any question with respect to it. The law for federal waiver of a federal right was established by this Court of course in Fay versus Noia. Stating the rule very briefly, you said that you there has to be a deliberate bypassing of the state's procedures. We contend that there was such a deliberate bypassing in this case.
William J. Brennan, Jr.: I don't follow that. You say he did not raise the insanity at that time?
Richard A. Michael: At the time of the trial, he did not Your Honor. He did not request a sanity hearing by the jury.
William J. Brennan, Jr.: He has to his competency to stand trial?
Richard A. Michael: To stand trial, correct Your Honor. It was his duty under Illinois law to raise that question, he did not raise it. We therefore suggest that this is a bypassing of the state procedure. It was a deliberate bypassing. We contend that by the fact that he did raise the question of insanity at the time of the crime as a defense, the question of his insanity at the time of trial must have been present to the mind of the respondent or his counsel and his failure to raise that issue clearly shows that the bypassing was deliberate.
Byron R. White: Has this Court ever decided that it's unconstitutional to -- to try a man who is competent to stand trial, I suppose [Inaudible]
Richard A. Michael: As far as I know Your Honor, this Court has never so held. There have been two attempts to the best of my knowledge and I can't cite the cases right off and to you. I think they are in the -- the -- the respondent's brief in which states have attempted to do away with the defense of insanity at the time of the crime. On both occasions, the highest court of the state in question held that that was unconstitutional.
Byron R. White: I'm talking about his competency to stand trial? If the court held that it was unconstitutionally tried then, at the time he is purported to be tried, is not comparable to stand trial?
Richard A. Michael: To the best of my knowledge, this Court has never directly held on that issue Your Honor.
William J. Brennan, Jr.: What was [Inaudible] or something -- I guess that was executing an insane.
Richard A. Michael: Yes, the Court has held you cannot execute an insane but I -- to the best of my knowledge, there has never been a holding on that point Your Honor.
Byron R. White: So what do you think about that question?
Richard A. Michael: Well Your Honor, as you know -- we did raise that as a possible question for this Court to consider in our petition for certiorari upon further study of the question and more analysis of the question. We were convinced Your Honor that it is a denial of equal protection -- of due process of our concept to afford liberties to require a man to stand on trial when he is insane.
Byron R. White: When he -- when he can't understand the charge (Voice Overlap)
Richard A. Michael: Yes Your Honor.
Byron R. White: So that -- so that -- didn't you think that issue has been constituted in federal habeas corpus?
Richard A. Michael: Yes, that issue Your Honor.
Byron R. White: And if so, how about Fay v. Noia? You only asked that Illinois deliberately bypassed?
Richard A. Michael: Well, both deliberate bypass and that the record on its face answers the question submitted by the Court of Appeals that -- that there was not a denial of due process in the states.
Byron R. White: And if you attempt in your mind to formulate any federal standards for -- for what it means to be competent to stand trial or -- or you just say it that way (Voice Overlap)
Richard A. Michael: Well --
Byron R. White: -- he can understand the charges and gives aid to his counsel.
Richard A. Michael: I think that that is the usual formulation of the test Your Honor and I think that it is an appropriate formulation. A person can --
William J. Brennan, Jr.: That's the federal formulation, isn't it?
Richard A. Michael: Yes, it is the formulation that isn't adopted as far as I know to all the states. There maybe one or two exceptions. It seems to me that it's an appropriate step. If a person understands that he's being charged with a crime, understand the nature of his charges against him and can't aid in his own defense, I think it is appropriate to try him. If one of these factors are lacking then it is not.
Tom C. Clark: Did you initiate any or the state initiates any investigation on that [Inaudible]
Richard A. Michael: The only psychiatric investigation initiated by the state was the investigation by Dr. Haines where he reported that -- at the time of the trial, subsequently at that time there was Your Honor.
Tom C. Clark: Do you have all the information about [Inaudible]
Richard A. Michael: Yes Your Honor. We contend that this was a deliberate bypassing that the failure to raise it was a bypassing that because he raised the question of his insanity at the time of the -- at the time of the trial, he must be -- he must have known that he could raise the question of insanity at the time of the -- at the time of the crime, he must have known that he could have raised this question of insanity at the time of the trial. Therefore the failure to raise it was a deliberate bypass. Further, the weighing --
William J. Brennan, Jr.: Deliberate bypass by whom?
Richard A. Michael: By the respondent Your Honor.
William J. Brennan, Jr.: You mean by him individually? I mean my difficulty is that if indeed he was incompetent, if indeed he was, how could he weigh then?
Richard A. Michael: Alright Your Honor. That is of course a contention raised by the respondent as been so held by one of the courts of appeal. We contend that that overlooks the question that he is -- that argument that he used, represented by counsel at that time Your Honor. On the civil side of the law, the rights of an incompetent can be waived by his guardian, administrator, and conservator, whoever has the care of the incompetent. We see that applying in a criminal case, if a -- if an attorney is representing him that he cannot equally affect his rights. Any other result Your Honor would mean that there was a defendant with the past questionable history of mental -- well, past questionable mental history, he could fail to raise that issue at his trial. If he were acquitted, he would be acquitted and double jeopardy to prevent a further trial. If he -- if he was convicted then he could later go in and attempt to have it set aside by bringing a collateral attack upon that judgment raising that issue for the first time.
Byron R. White: [Inaudible]
Richard A. Michael: Well of course, the -- the -- the reason --
Byron R. White: Why don't they say, we just don't want to raise the question of competency to stand on trial.
Richard A. Michael: The question is strictly conjectural of course. I do not know why in this case he didn't. It might be that because they knew that it wouldn't eliminate the fact that he would have to stand on trial. He would only have to stand trial and just be institutionalized until he could stand trial and then he would stay --
Byron R. White: -- preclude consideration of the insanity defense at the time of the crime.
Richard A. Michael: It wouldn't preclude it Your Honor.
Byron R. White: But it wouldn't be any crime.
Richard A. Michael: Yeah, well, no. Well, what I meant by that answer was that he would ultimately stand trial when he had regained his sanity and at that time, he could raise the question of insanity at the time of the crime.
William J. Brennan, Jr.: Well, there's nothing I gather, except the fact that no request was made. That's the only evidence there on which you rest the conclusion of waiver that no request was made before.
Richard A. Michael: That no request was made before and for this -- for insanity hearing Your Honor and on the basis that he did raise the question of his sanity at the time of the crime and therefore the failure to raise the question of sanity at the time of the trial must have been deliberately.
Speaker: And as the record show [Inaudible]
Richard A. Michael: There are these colloquies, Your Honor, in which the attorneys -- he seems to be wanting to have witnesses called but the attorneys don't want to but there has been no statement at all in the record by the attorneys that he did -- did not have full cooperation from Mr. Robinson at the trial.
Tom C. Clark: [Inaudible]
Richard A. Michael: That was two months before the trial Your Honor.
Tom C. Clark: How long after the offense?
Richard A. Michael: The offense was in February of -- 28th I -- my -- it's my recollection is that the examination was in June or July Your Honor. So it would be about six months after this process.
Tom C. Clark: The State initiated that?
Richard A. Michael: Yes, I believe so Your Honor. I think the police did.
Tom C. Clark: Did the State ever initiate a hearing itself [Inaudible]
Richard A. Michael: The Illinois law on that question, Your Honor, is that the -- it is the duty and responsibility of the defender's counsel to raise it. However, the Court if they have any bona fide doubt about the insanity is to on its own motion, impanel insanity jury. Now often times, the state's attorney will suggest to the Court that this individual is questionable and the Court would then on its motion grant such a sanity hearing.
Tom C. Clark: The fact that [Inaudible]
Richard A. Michael: No Your Honor, there was a past commitment to a mental institution in this person's background. I think that is the reason why a state psychiatrist was called into the matter.
Hugo L. Black: How long that he'd been in the institution?
Richard A. Michael: It was in 1952 and he -- and then he was subsequently out in ‘53, so I don't think the record is exactly clear. I would imagine about six to eight months would be my -- my estimation, Your Honor.
William J. Brennan, Jr.: Remember in Henry, we said that indeed there are some things that counsel may waive on behalf of the accused. You recall in that case that there were some affirmative evidence alleged that one counsel pulled the other down or something before he was making an objection and that we thought became perhaps a basis of waiver that's in fact for a hearing. But here, if I correctly understand you, except that no request was made and that the defense of insanity at the time of the crime were asserted there's nothing?
Richard A. Michael: No Your Honor, there's nothing else. Besides the question of waiver, we contend that the record on its face shows that -- that there was no denial of due process by the court's failure to impanel a sanity jury. The test here as we've already discussed is that whether a person has able to understand the nature of the charges against him in to aiding his own defense -- the aid in his own defense. Here, the evidence presented by the four lay witnesses, clearly to show that this man was a disturbed individual but it had absolutely no relevancy to the question of whether he could understand the nature of the charges against him into aiding his own defense. On the other hand, we have the stipulated testimony of the psychiatrist that he was able to understand that nature of the charges against him and to aid in his own defense and that finally, we have the colloquy between the Court and the -- the Court and the defendant which we contend shows that he was able to understand the nature of the charges against him and his aid in his own defense. Therefore, we contend that on the issue of insanity at the time of the trial that that question was waived by the failure to raise it but it was not waived, the record on its face clearly shows that the trial court correctly ruled in not holding the sanity hearing in this case. Turning then to the question --
Byron R. White: Now who correctly ruled on that?
Richard A. Michael: Pardon?
Byron R. White: Who correctly ruled on -- ?
Richard A. Michael: The District Court Your Honor. Turning then to the question suggested by this Court whether it would be under both of the hearings indicated in the order of the dis -- of the Court of Appeals are to be held -- they should be held in the federal or in the state court. We contend Your Honors that they should be held in the state court if at all. We contend that this is not made evidence by the decision of this Court in Jackson versus Denno. There, there was a question of the voluntary.
William J. Brennan, Jr.: Can I just ask of the fact -- was it after -- he killed his child early.
Richard A. Michael: Yes, he did in 1953 Your Honor.
Potter Stewart: And was that incident the one that resulted in his confinement to the mental institute?
Richard A. Michael: No, that was -- his confinement occurred about eight months after. And the record isn't clear on these months. All that was indicated -- he went -- he was confined in 1952. His wife left him after he was released and he shot his child in 1953.
Potter Stewart: Oh after --
Richard A. Michael: After he was released and then he served a sentence for the murder --
Potter Stewart: Tried --
Richard A. Michael: Tried and convicted for the murder of his child.
Potter Stewart: And how long did the sentence --
Richard A. Michael: Again, the record is not too clear.
Potter Stewart: But that was served in prison.
Richard A. Michael: That was served in prison. There was no question of his insanity raised or -- or determined in respect to that --
Earl Warren: When he was serving his time for the murder, did he serve in the penitentiary or in a state hospital?
Richard A. Michael: To the best of my knowledge Your Honor, in a penitentiary. I don't think that the record is clear. There's just nothing to show that it was anything other than that that Your Honor.
Earl Warren: Yes.
Abe Fortas: The Court of Appeals here, it's shown on page 171 of the record, said that one result of the unusual case that means the trial was conducted or as the denial to this indigent by a clear opportunity to obtain volunteer expert testimony from a public agency. Thus the state dispute that?
Richard A. Michael: That is the second of the three quotes that I drew Your Honor's attention to when you asked me about the question of the right to call a psychiatrist in the case. That is the citation on page 147. I dispute it insofar as I think it is refuted by the final quotation that I would call at your Court's attention, Your Honors attention to when the state -- the statement of counsel close to the case where he says I didn't get a copy -- a witness said I couldn't, a psychiatric witness because I couldn't tell in advance what he would testify to and that I don't like to call any such witness unless I know what his testimony is.
Abe Fortas: In other words, it's your position that this conclusion of the Court of Appeals is not supported by the record.
Richard A. Michael: That is correct, Your Honor.
Abe Fortas: But there was no inquiry into that by the District Court to which the habeas corpus petition was presented?
Richard A. Michael: They just read the record as it stands here Your Honor and determined on the basis of that record that he was not entitled to a -- to a habeas corpus.
Earl Warren: Was it ever determined at the trial -- whether that doctor had been subpoenaed?
Richard A. Michael: There is nothing in the record Your Honor to indicate that he was except that the Court said I will issue a capias if he has been subpoenaed.
Earl Warren: Yes, I read.
Richard A. Michael: And there is no evidence that a capias ever was issued. Therefore, I conclude that he was not but it's merely an inference drawing from – from this reading and this reading at the [Inaudible]. In Jackson versus Denno, this Court held that the requirement of the -- the rule of New York law procedure under which a question of voluntary confession was determined by a jury, was the denial of -- of the due process of law. This Court held that there should be an independent judicial determination of that question. However, instead of reversing the conviction of the individual whose confession was ruled on by the jury, this Court sent the case back to the New York court for the determination of that issue as to separate judicial determination of whether his insanity -- his confession was voluntary or not. The Court indicated that it was -- the conviction could stand, if it was not then the conviction – of course a new trial would be required. We contend that this is an all force with the issue of the question of his insanity at the time of the trial. If what he was denied was a -- a paneling of the -- of the jury and the jury hearing on this question, this can be cured by sending the case back to an Illinois court for such a hearing if they determined that he was insane at the time of the trial, of course, the conviction have to be set aside. If they determine that he was insane then the conviction could stand. We --
Speaker: [Inaudible]
Richard A. Michael: Your Honor, not on the question of insanity at the time of the trial because that was never raised. They have of course passed on the question of insanity at the time of crime, but there if that were so, if there were some defect in that, you would be saying that he didn't have an adequate hearing on that question of the state court. And then we think that also in the question of insanity at the time of the crime that Jackson versus Denno would require a hearing in the state court.
Tom C. Clark: So one could say that instead of later they did the hearing to stay on the trial therefore he would send him back [Inaudible]
Richard A. Michael: Yes sir. That is my --
Tom C. Clark: You're not suggesting that I understand.
Richard A. Michael: So on this basis, Your Honor, we contend that the decision of the District Court was correct and that the Court of Appeals was wrong, we ask you to remand it. I would reserve any further time for rebuttal.
Earl Warren: You asked us to do what?
Richard A. Michael: I ask you to reverse the decision of the Seventh Circuit Your Honor and reinstate the decision of the District Court which had dismissed the petition for the writ of habeas corpus.
Earl Warren: I see. Mr. Tucker.
John C. Tucker: Mr. Chief Justice, may it please the Court. We contend that the respondent, Theodore Robinson was denied his federal constitutional right in his trial in the state court in Illinois on a charge of murder in several particular respects. Specifically, he was denied his right to due process by the failure of the trial court to convene a jury to hold a hearing on the sanity of Mr. Robinson at the time of the trial or to afford him a fair hearing of any sort on that issue despite the fact that the evidence clearly suggests the issue of sanity at the time of trial or insanity at the time of trial. Secondly, we believe that the undisputed evidence shows that Mr. Robinson was in fact insane at the time of the allegedly criminal act and that to convict a man for acts committed while insane violates due process of law. We believe in addition to that that regardless of whether sanity at the time of the crime is necessarily a constitutionally protected defense that in Illinois, the law is clear that the court or that the state must prove sanity at the time of the crime, beyond a reasonable doubt as an essential element of its case wherever that issue is raised and that therefore the failure of the state to adduce any evidence on that issue and the conviction of the defendant in the absence of any evidence to support an essential of the crime violates due process.
William J. Brennan, Jr.: But I -- I thought the Court of Appeals, is that 176, isn't that where the Court of Appeals stated the Illinois rule as being that there is nothing in the way of a requirement of affirmative proofs from the state on an insanity defense unless there's sufficient evidence to counter the presumption, is that correct?
John C. Tucker: Your Honor, the law in Illinois is very clear that the presumption of sanity as it is called is not an evidentiary presumption. In People versus Monroe, the Illinois Supreme Court and they have held this consistently and have always held, that there is no evidentiary value in the presumption of insanity. It is simply a means of avoiding, forcing the state to raise the issue itself if the defendant doesn't raise it.
William J. Brennan, Jr.: Well, I'm looking at 171 of the Court of Appeals' opinion where the rule is stated, the state must prove the sanity of the defendant at the time of the alleged crime. That burden to satisfy Illinois by the presumption of sanity until the introduction of evidence efficient to raise a reasonable doubt of the defendant's sanity at which time and only then as I read this, the necessity of affirmative proof of sanity beyond a reasonable doubt becomes a burden of the state. Is that the Illinois rule?
John C. Tucker: No Your Honor, I don't believe that is. And I -- I may as well state right now that we are asking for more relief than we obtained from the Court of Appeals. We received from the Court of Appeals an opinion in which the Court of Appeals remanded this case to the United States District Court for a full plenary hearing as counsel for the state has -- has told you. We believe that the Court of Appeals should have issued the writ of habeas corpus in this case and I might say at this time that the reason that we believe that we are entitled to raise that to this Court is because of the special question that was certified by this Court in which this Court asked whether or not any further proceedings should be held in the state court rather than in the Federal District Court. Now I'll get to this later but I think it's very clear that the only way that it can ever be any further proceedings in the state court is if this Court decide -- or the Federal Court at some point decides that there were violations of constitutional rights and if the writ of habeas corpus should issue because this Court has no power -- the federal courts have no power on habeas corpus to remand the case.
William J. Brennan, Jr.: Yes, by which you mean, you feel you're entitled to a judgment requiring the state within x days or something to give him a new trial or else discharged, is that it?
John C. Tucker: I believe that we are entitled to such an order and I believe even beyond that that with respect to this issue that we've just been discussing, the failure to -- the failure to afford the defendant -- pardon me, the failure of the state to introduce any evidence to prove an essential element of its case would require an unconditional writ of habeas corpus.
William J. Brennan, Jr.: Well except I thought Mr. Michael said this. I don't think I've read that. If I have, I have forgotten it. The opinion of the Illinois Supreme Court in this case that Mr. Michael I think told us held that the lay testimony here was not sufficient to do whatever -- it does to the presumption and require the state to offer affirmative proofs.
John C. Tucker: Your Honor, the Supreme Court of Illinois held that there was no evidence in this record that was sufficient to overcome the presumption of sanity because the Illinois Supreme Court held that there was no evidence that the mental illness that had resulted in Robinson's commitment to a mental institution was of a continuing or permanent nature. As the Court of Appeals in its opinion points out this completely overlooked about two-thirds of the most important evidence in this case. Now I do want to say one other thing on that issue and that is, it is not a matter of the testimony for the defendant being the testimony of lay witnesses. Illinois clearly recognizes the right of the lay witness to testify --
William J. Brennan, Jr.: But what I'm confused about is if the Illinois Supreme Court has said on the record here, no affirmative evidence was required from the state, where does that leave us?
John C. Tucker: Well, Your Honor, we think number one, it leads you in a position to say first that the record clearly does not clearly -- the record taken as a whole clearly does not fairly support that finding. Number two, that there was clearly an inadequate determination, that the hearing in the state court was clearly inadequate to determine all the material facts. We believe that it's very apparent from this record that there was a fundamental denial of due process in the right to a fair trial by the (Voice Overlap) this trial was conducted.
William J. Brennan, Jr.: I don't see -- I don't see that what you say is so and we should agree with you that that should lead us to say that this fellow should be discharged rather than to get a new trial.
John C. Tucker: Well Your Honor, there are two separate questions here. I think that it is very apparent from the record that the most likely order would be that a writ of habeas corpus would be issued affording the state an opportunity to give the defendant a new trial. It is only because we do make the additional contention that there was a total failure. We think the Illinois Supreme Court simply was not correct in giving any -- in saying there was no evidence of sanity at the time of crime. I believe I was to the point of saying that we also believe there was a denial of due process of the fundamental right to a fair trial by the conduct of this trial as the court below stated in an atmosphere of haste by a failure to afford the defendant, Robinson, an adequate opportunity to obtain the testimony of important witnesses on all of the issues, issues of sanity at the time of crime and sanity at the time of the trial. And finally Your Honors, we believe that there was a clear denial of Robinson's Sixth Amendment right to compulsory process by the refusal of the trial court to issue a subpoena for a witness when Mr. Robinson specifically asked that the witness be subpoenaed by the court. And the court --
William J. Brennan, Jr.: Tell me in -- this was a psychiatrist he wanted (Voice Overlap)
John C. Tucker: No, this is a different witness Your Honor.
William J. Brennan, Jr.: I see. Could you -- can you compel psychiatrist, a medical man to testify (Voice Overlap)
John C. Tucker: I think there is no question about the fact that a subpoena if issued and served, I suppose could be enforced as a practical matter at least it can be enforced within a reason. As a practical matter, the issuance of a subpoena for a professional man seems to me to be a difficult thing for a lawyer to do.
Tom C. Clark: It wouldn't be as much of that as interest?
John C. Tucker: I think that's correct. The point here Your Honor and I would like to address this right at this moment although I will get back to it. With respect to the psychiatrist, the counsel for the defense during the second day of this trial suddenly realized that they were going to get to the end of the case that day. The Court is -- again, will get into. The court had been pushing this trial as a race against time with an incredible number of situations where he chastised defense counsel for wasting a minute here or a minute there. And finally, this is all culminated in a situation where the defense counsel realized that this case was going to end, this capital case and really about a day and out. And he informed the Court that he had contacted this psychiatric witness and that he was unable to reach him that day, but as he said, I am sure we will be able to have him in here tomorrow morning. And the Court said if -- at that point, the court said, if you subpoenaed him, I'll issue a capias but if you didn't, it's too bad, you've got to prepare your case before trial. If you didn't subpoena him, we will not delay the trial for him. We have other cases waiting. We've been on trial here now for two days and we cannot wait for this man. And as a result, the trial ended that afternoon without the live testimony of a single expert witness in this case and that we think is a clear denial of due process.
Earl Warren: We'll recess now.
John C. Tucker: Thank you.
Earl Warren: Mr. Tucker, you may continue your argument.
John C. Tucker: Mr. Chief Justice, may it please the Court. We had discussed the several, separate situations or examples in which we contend due process was violated by Robinson's trial in the state court on the charge of murder. When all of these separate issues are taken together and when the record in this case is examined as a whole, there is one picture I submit which emerges with particular clarity and beyond any question and that is taken as a whole, Mr. Robinson was clearly denied his fundamental right to procedural due process, his fundamental right to a fair trial by the conduct of his trial in the Criminal Court of Cook County, Illinois. And I think that picture is perhaps best expressed in the language of the Court of Appeals when it reversed the District Court's denial of the petition for writ of habeas corpus without hearing and ordered the plenary hearing to be held. The Court of Appeals stated “Robinson's trial was conducted under an undo preoccupation with hurried disposition, in an atmosphere charged with haste hardly consistent with the gravity of a capital case and production of the right -- and protection of the right to due process.” And then it went on, “Robinson was convicted of murder and sentenced to life imprisonment in an unduly hurried trial without a fair opportunity to obtain necessary expert psychiatric testimony in his behalf. Without sufficient development of facts on the issue of insanity at the time of the homicide and at the time of the trial and upon a record which does not show that the state court after a full hearing reliably found the relevant facts” and that I submit is a very clear and correct picture of the record in this case. We believe that the Court of Appeals was clearly correct and finding that when the District Court failed to require the state to even file a return to this petition, failed to appoint counsel and failed to hold plenary hearings that in light of the failure of the record to show that the state court had held a full hearing and reliably found the facts that a plenary hearing was necessary. We believe also, however, that the record on its face clearly shows that there was a denial of due process in this trial and we think that the Court of Appeals findings actually support that and that what should have been done was that a writ of habeas corpus should have issued conditioned upon permitting the state sufficient time to afford Robinson a new trial. Now the state on the other hand of course contends that the District Court's denial of the petition should be reinstated. They contend that there is no evidence that would have required a sanity hearing pursuant to the state law and that in any event the right to a sanity hearing was waived and they further contend that the claim of insanity at the time of crime is -- does not raise federal constitutional issues and is not cognizable in habeas corpus. As we see it, the state has not even turned its attention at all either in the briefs or in the argument here to the failure to afford the defendant fundamental due process by failing to afford him a fair trial by denying an adequate opportunity to obtain witnesses. In many respects then this case is a fact --
Potter Stewart: So far as the facts of this case go, how do you deal with the language in the record Mr. Dermott's statement in the record, page 167 which was referred to by Mr. Michael that he had got in touch with many psychiatrists or at least made two or three dozen telephone calls to psychiatrists and then he decided not to subpoena any of them.
John C. Tucker: Well, I think Your Honor that all that Mr. McDermott is saying at this point is during the trial he had told the court that he had an expert witness that he wanted to call the next day and Your Honor will recall, the court said well if you subpoenaed him, alright, but if you didn't, we're not going to continue this case for two hours, you've got to prepare your case in advance. I think McDermott is simply here explaining the fact that he had not subpoenaed the psychiatrist because he didn't believe in it. He was never given an opportunity. This certainly does not in any way dispute the statement he made during the trial that he had an expert witness that would be available the next day. I'd also like to point out one other thing and this is perhaps in a delicate area Mr. Justice Stewart, but at this stage of the proceeding, the portion of the record that you are reading occurred after the defendant had been found guilty, sentenced to life imprisonment, ordered taken out of the courtroom, the court case -- the next case was called, really an amazing procedure here at the end in which the court just clearly have held no hearing on aggravation or mitigation, it wanted to get this guy out of the courtroom. The defendant, Robinson, at this point had said to the court, Your Honor, I think my counsel must have been incompetent if they didn't subpoena witness and you say that you won't let me have these witnesses unless they're subpoenaed and I think my counsel must have been incompetent. He was then taken out of the court room and these statements by his counsel were made. Now I don't really think that they're entitled in any weight at all under these circumstances but in any event, they certainly do not in any way take away from his counsel statement during the trial that he wanted to call an expert witness and would have him available the next morning.
Potter Stewart: Because he also -- he also explained why he hadn't subpoenaed Mr. and Mrs. Moore at the same time.
John C. Tucker: That -- that's correct. That's correct Your Honor. He says that there is a claim in here by the counsel at this point with respect to the -- with respect to the Moores. This is the Sixth Amendment question. The defendant Mr. Robinson had specifically asked the court to subpoena two witnesses who were -- who -- in whose home he had stayed after the crime and he would have the best opportunity perhaps of anyone to observe his behavior at that time. The court said, what will they testify to? And the defendant said, I don't know. And the court said, well unless you can tell us what he is going -- they're going to testify to, I won't issue a subpoena for them. Now it appeared in the record that there was a dispute between defendant and his counsel with respect to calling the Moores and the defendant's counsel didn't want to call them and the defendant said, I want a subpoena issued for the Moores and at the conclusion of the trial, he made that statement again to the court. And, once again, as Your Honor points out then after he was taken out of the courtroom, his counsel made a self-serving statement about that why he hadn't subpoenaed the Moores.
Earl Warren: Was this court appointed counsel?
John C. Tucker: It was Your Honor.
William J. Brennan, Jr.: Two of them, were they?
John C. Tucker: That's correct, two of them. Now the state as I understand it concedes that due process prohibits the trial of an insane man and if they don't concede that this Court has certainly held it in Bishop versus United States and [Inaudible]. The Supreme Court of Illinois specifically holds that due process prohibits the trial of a man who is insane and that the failure to give him a hearing on his sanity when that issue is raised is a denial of due process. Now in People versus Burson, 11 Illinois 2d 360, that -- that question was specifically treated by the Court and they said, the trial adjudication sentence or execution of a person charged with a criminal offense while insane is a violation of due process of law. And it becomes the duty if that issue is raised of the court to conduct the hearing before a jury upon the issue and the denial thereof as a violation of due process and I think that's clear. And as Mr. Michael has conceded certainly, there is only one way in which a sanity hearing is heard -- is held in Illinois and that is by the convening of a jury. The Court does not conduct the hearing on sanity. The fact of this case is that there was no hearing on this man's sanity at the time of trial and the Illinois Supreme Court admits that and the law is very clear on that. I think there has been some confusion with respect to the law on how this issue is raised. It is not so that the issue must be raised by specific request of the defendant or his counsel. In fact, the Illinois law clearly recognizes that it is impossible for an incompetent person to waive this right and I think that has been recognized throughout jurisprudence and in fact, in --
Abe Fortas: Is that the right to a jury trial on the issue?
John C. Tucker: That is correct Your Honor.
Abe Fortas: The Illinois law is to the effect that that -- that the right to a jury trial on the sanity issue cannot be waived.
John C. Tucker: That is correct. The Illinois law provides that whenever facts come to the attention of the trial court whether by a suggestion of counsel or from the evidence itself which suggest a doubt as to defendant's sanity at the time of trial, he must interrupt the trial, convene a jury and hold a hearing on sanity at the time of trial. Now, we think it is clear on the basis of the evidence then that the failure of the trial court to hold such a hearing was a denial of due process.
Hugo L. Black: Did I understand you to say that Bishop held that?
John C. Tucker: No, Your Honor. I cite Bishop only for the proposition that to -- that it would violate due process to try a man on a criminal charge while he is insane.
Hugo L. Black: But did you say Bishop held that, I have it before me?
John C. Tucker: United States versus Bishop, Your Honor. That case was a per curiam remand. As I understand it in that case, the court below, the Court of Appeals had held that insanity at the time of the trial did not raise constitutional issues and was not cognizable on habeas corpus and this Court in a per curiam remand sent it back to the District Court saying they had the whole hearings --
Hugo L. Black: But it didn't say anything about the constitutional question?
John C. Tucker: Well, I think that by inference Your Honor, if -- if it were not --
Hugo L. Black: It would not have been on supervisory power or something else?
John C. Tucker: I think that the issues framed in the opinion of the court below --
Hugo L. Black: I'm not joining issue with your own fact as to whether that is the rule or should be the rule?
John C. Tucker: I understand that.
Hugo L. Black: But is there any other case besides the Bishop case that you say it held that?
John C. Tucker: Well, I -- I would --
Hugo L. Black: I dissented in one or two. The Court indicated the other direction.
John C. Tucker: No, I -- I would -- I would say that Bishop probably is as close as the opinions of this Court come to my knowledge on that issue. I think that US Ex Rel Smith versus Baldi --
Hugo L. Black: I just read that one.
John C. Tucker: I believe that that case certainly the opinion of both the majority and the dissenting opinion of Justice Frankfurter in that case indicate that sanity at the time of trial, that -- that -- that due process would prohibit if in fact it occurred the trial of a man while he was insane and the Illinois Supreme Court incidentally clearly holds.
Hugo L. Black: Did the Court ever held that a man can be tried in absence, fits into due process?
John C. Tucker: I -- I believe Your Honor and I can't recall the cases, I believe the Court has held that he cannot be tried in the event and of course it would be the same thing. I think that is certainly one of the --
Hugo L. Black: I have a vague recollection. [Inaudible] somebody went to [Inaudible] and something was done there and maybe he was inside and come to him but some kind of penalty was imposed on him by the time he escaped taxes. You don't -- you haven't --
John C. Tucker: I'm sorry Justice Black, I don't know that case.
Hugo L. Black: Blackman I believe was the name. Blackman or Black -- may be I'll get to that.
Speaker: [Inaudible]
Hugo L. Black: [Inaudible]
John C. Tucker: I'm not familiar with that.
Hugo L. Black: That's right, [Inaudible]
John C. Tucker: But I think that the law is clear and to answer your question directly, I think that necessarily the Court by its remand in Bishop was indicating that it would violate due process to try a man while he was insane and as I say, the Supreme Court of Illinois certainly has no doubt about it. They say in so many words, the trial adjudication sentence or execution of a person charged with a criminal offense while insane is a violation of due process of law and I think that clearly is the rule. Now the petitioner then is – the State Illinois is left with the proposition first of all that there was no evidence in this record that would require the canvassing of the question of whether or not Mr. Robinson was insane at the time of the trial. That this question in effect was not raised by the evidence because as I have indicated under Illinois law if it is raised by the evidence, the Court has the duty itself to convene this sanity hearing. In fact, however, and I think it's very clear from the record that there was substantial evidence of insanity at the time of the trial and that the failure to conduct the sanity hearing in the face of this evidence deprived Robinson of due process. The -- and again, before mentioning this evidence, I want to particularly emphasis the fact that here, there was no hearing at all because the judge cannot conduct this hearing. It's strictly, it's something that he has to convene a jury for. Now Mr. Michael has outlined the evidence in -- in brief with respect to this issue. There were four live witnesses, all of who testified that they believe in their opinion that Mr. Robinson was insane at the time of the trial. That in itself in my opinion raises the issue and triggers the responsibility of the state court to determine the issue, but this was not just the opinion of these witnesses. This was backed up by a long set of facts with respect to Mr. Robinson's past history. You've heard about the -- the situation when he was struck in the head with a brick when he was a -- a young boy. You heard about the situation in which he destroyed furniture in his mother's home without any apparent cause. The glaring moods that he was observed to be in, apparent lack of ability to communicate with the people around him. The fact that during his employment after he was released from the army, he often walked off his -- his job in apparent daze for no reason and you have heard to some extent about this incident that caused his commitment to by court order incidentally to the Kankakee State Hospital, an Illinois mental institution. This was a situation in which the defendant Robinson had a complete mental breakdown. He believed people were trying to kill him. He believed people were trying to kill his mother. A policeman that was called entered the room and said he's lost his mind entirely, we'll have to take him to the hospital. He tried to commit suicide by jumping out of the ambulance on the way to the hospital and eventually he was committed to the Kankakee State Hospital. Now it's true as Mr. Michael points out that the record of the Kankakee State Hospital which was introduced in the evidence by the defendant shows that he had been drinking and that there was some alcoholic influence here, but it also shows that the psychiatrist who examined him had a serious question as to whether or not he was paranoid schizophrenic, or I believe schizophrenic was the word. The record shows, I wonder if he isn't schizophrenic. Now after he was released from the hospital and from that point on, the Illinois Supreme Court says -- said, there was no evidence that his illness was of an enduring or continuing nature, but here's what happened after that that was in this record. His mother testified that she -- that he was released from the hospital to the custody of his wife who was in effect starving and went in and begged and -- that he'd be released and that's why they finally decided to release him. His mother thought he was still insane then. He at one point took out his wife's clothes out of their home and tried to burn them in the backyard. In 1953 I believe it was as the state has told you, he murdered his 18-month-old baby boy by shooting him in the head. He had -- his wife had left him, he had no place to go. He went to his aunt's house and asked if he could stay overnight and when his aunt came back the next day from work, Robinson's 18-month-old baby boy had been slain in the living room of this apartment and Robinson then attempted to commit suicide in two different ways and eventually gave himself up to the police. When he was brought into the hospital, he was observed to be in one of these trance like daze moods that had been testified about previously in his history. Mr. Michael refers to the fact that he was convicted of murder for that. That is not so. The record is very unclear, but it is clear that he served four years whether in a penitentiary or in a mental hospital is not clear but the -- the penalty for a murder in Illinois is 14 years and you can't get out for four years. So it's very apparent that this was on some sort of a reduced sentence and I'm completely off the record, but I guess from my knowledge of Illinois procedure is that in view of the obvious insanity defense, some sort of a deal was worked out where he would get a man slaughter charge or something of that sort. After he was released from wherever he was, but it was, I'm not suggesting that he was committed, I think it was a penal institution although perhaps he's criminally insane, after he was released from there, the evidence continues with respect to further showings of insanity. A number of people, four lay witnesses all continued that -- he continued to have these moods in which he appeared to be days, uncommunicated, depressed and these moods were very often accompanied by unexpected flare of violence. A warrant was sought by his mother. Now Mr. Michael says, a warrant was sought because he had been fighting. Well there was some mentioned at the back that he had been fighting but the precise testimony that his mother gave on that subject was this. I went to 48 Street Station and took out a warrant and I told them that I wanted -- what I wanted with him. I told him that my son seemed to have a disturbed mind with things he was doing. He is not normal and I wish you would help me to pick him up so I can have him put away. Now that's what his mother wanted. His mother had -- attempting to have him again committed and this warrant was taken out with the first one about a year before the homicide in this case and she tried again, and the record is a little unclear but within a month or two to have him picked up and he -- unfortunately, the warrant was never served. He was to be picked up for recommitment to a mental institute.
Earl Warren: You mean within a month or two of the homicide.
John C. Tucker: Of the homicide in this case Mr. Chief Justice.
Abe Fortas: Where is Robinson now?
John C. Tucker: He is in the Illinois State Penitentiary.
Abe Fortas: In an ordinary cell or is he hospitalized or --
John C. Tucker: I do not know Your Honor. I do not know. Now, in addition to that, at the time of the homicide here, the evidence adduced by the state showed an amazing similarity to the testimony of the defendant's witnesses with respect to Robinson's conduct and this again is something that is not previously been mentioned. When Mr. Robinson walked into this restaurant where the shooting occurred, the testimony reveals that he walked up to the counter in the front of the restaurant about four feet away from the victim with a gun in his hand. And he stood and he stared for -- the testimony was -- about -- if I'm not mistaken, about two minutes, he stood and he stared without saying a word at this woman. He then turned away and walked 20 feet back to the back of the restaurant, jumped over the counter placing two people between himself and the defendant and then ran around through the front behind this counter and the defendant there, the deceased then jumped over the counter and Robinson -- shots were heard and the deceased was found outside. This conduct during -- throughout incidentally this whole time, Robinson did not say a single word. This same daze thing in which he stood and glared this woman for two woman -- for two minutes and then walked away from her. So we believe Your Honor that the evidence here clearly raised the question of whether or not Robinson was insane at the time of the trial and the lay witnesses specifically stated that they believe that he was contrary to what Mr. Michael says, the defense counsel did indicate that they felt this was an issue. They raised it by questions and they raised it by statements. The evidence raised it and certainly the failure to convene a sanity hearing was a denial of due process.
Byron R. White: You have the record besides on that?
John C. Tucker: Yes, Your Honor. With respect to the -- my statement on questioning, the following question was asked at the record at page 157. Do you have an opinion as to whether or not presently he is sane or insane? Answer: He is sick. He is insane. First of all, do you have an opinion? Yes. What is your opinion as to his present sanity? Answer, he is mentally sick. That's after the questions were asked about insanity at the time of crime. In the closing argument if I'm not mistaken, there was also a reference to the fact that one of the defenses was insanity at the time of the trial and one of them, insanity at the time of the crime. Now in addition to this evidence or I should say, in addition to the fact that we think the record clearly required a sanity hearing, it's also clear if the Court please that the conduct of the trial with respect to this issue and the issue of insanity at the time of the trial.
William J. Brennan, Jr.: May I ask, what is your procedure ordinarily when you want a sanity hearing?
John C. Tucker: Well, under Illinois law --
William J. Brennan, Jr.: I mean what -- what the lawyers do?
John C. Tucker: If the lawyer wants the sanity hearing, he requests the sanity hearing from the court.
William J. Brennan, Jr.: Affirmatively?
John C. Tucker: He affirmatively requests, that's correct Your Honor.
William J. Brennan, Jr.: And is there any explanation why that wasn't done in the face of this testimony to which you referred to?
John C. Tucker: No.
Earl Warren: Mr. Tucker is there -- was there anything peculiar about his arrest in this case that he attempted to escape, flee from the city or anything?
John C. Tucker: Mr. Chief Justice, I'm glad you mentioned that. I left that out. At the time of his arrest, the conduct again matched perfectly with the conduct at the time of the many other incidents of this sort. Mr. Robinson was arrested outside or in the hallway of an apartment building. Two uniformed police officers testified that they had gotten off the elevator in that hallway and that they have seen Robinson's hanging there but they didn't know who he was. They didn't have any description of who they are looking for. They walked past him without any recognition, down the hall to the apartment of the people who had called them. They stood and talked to the people in that apartment for approximately two minutes. When they received the description of Robinson and found out that he wasn't there and had just left, they turned around to go back to the elevator and there was Mr. Robinson standing in the same position that he had been in before. He had not -- he wouldn't have to go back by the officers to get to the elevator and the record is very clear on this and brought out for cross-examination. He had stood there and watched these uniformed officers go to the apartment where he had been -- where he had been staying and stood there without trying to get to the elevator and go down the stairs for two minutes while they talked to the people and submitted himself to arrest. They asked him his name, he told them his name. They told him he was under arrest that he appeared completely confused as to why. Now I don't say that the fact that he didn't know why -- he said he didn't know why he was being arrested was -- is determinative of the fact that he was accused but so far as the record shows, he didn't have any knowledge of why he was being arrested and he stood there for two minutes in full with these officers in his view without trying to escape.
Earl Warren: Did he made any effort to conceal the weapon or the clothes or anything that he used the night before?
John C. Tucker: Apparently not.
Earl Warren: Where were they found?
John C. Tucker: They were found in this apartment -- in this apartment where the police officers went. Now we talked about the way in which this trial was conducted and that's another factor, both on the issue of sanity at the time of trial and sanity at the time of the crime. The Court of Appeals referred with great particularity to the number of occasions in which the trial judge has chastised the defense lawyers to hurry along on their presentation. This capital case lasted from 11 o'clock one morning until about 2:30 in the afternoon the next day and yet, despite its -- the shortness of it, there were these constant attempts to hurry the proceeding, in a real atmosphere of haste and I think it's perhaps best revealed by the proceedings at the very end in which the trial judge, as soon as the defense lawyer finished his summation without even asking if there was any rebuttal, the trial judge said, bring him to the bench. I find you guilty of murder, I sentenced you to life imprisonment, take him away, call the next case. That's literally the way the transcript on that reads. And the defense -- the defendant himself said, Your Honor may I say something and he then addressed the court about -- he didn't think his counsel were competent and so forth and the court interrupted him and said, still and all, I think you're guilty. Take him away and call the next case. That -- that's the atmosphere of this trial. Now it was for that reason and I think very clearly when you read the record, it was for that reason that when Mr. Robinson asked to have the Moores subpoenaed that the court would not issue a subpoena for the Moores. It wasn't that Robin -- the court knew better than -- that Robinson had to tell him what the Moore is going to testify to. He didn't want to interrupt the trial. It also occurred again and had another effect with respect to Dr. Haines and I think this is a very significant thing in this case. The state's attorney himself -- the state attorney had put in the stipulated evidence of Dr. Haines that Robinson was competent. Let's see. Robinson understood the nature of the charges and could cooperate with counsel but recognizing that this was not a complete answer to all of the evidence of insanity at the time of trial and no answer at all on insanity at the time of crime, the state's attorney said, Your Honor, Dr. Haines is not available. I -- not available now. I proceeded on the assumption after having talked to Mr. Carey that Dr. Haines' testimony to both matters would go in by stipulation. Now the defense raised here is such that I think we should have Dr. Haines' testimony, as to his opinion whether this man is sane -- is now sane. It is possible that the man might be insane and know the nature of the charge or be able to cooperate with his counsel. I think it should be in evidence Your Honor. In other words, he wanted to call Dr. Haines as a live witness. But the court said, no, I don't think you need Dr. Haines and that's the -- that's the last bit of colloquy in the record, right after that, the arguments began. So that this case ended without any expert psychiatric testimony despite the fact that both the defense counsel and the state's attorney wanted to have psychiatric testimony in this record.
Earl Warren: Is your -- is your procedure in Illinois require the -- the court to offer the defendant and not to [Inaudible]
John C. Tucker: I'm sorry. I didn't understand Your Honor.
Earl Warren: Is he entitled the allocution before sentence to the judge -- if he required under state law to offer him an opportunity to say something in his own behalf?
John C. Tucker: Yes.
Earl Warren: He is.
John C. Tucker: He is and there was some statement by the defendant on his own behalf to the effect that he -- why didn't they get the Moores and he wanted the Moores subpoenaed and his counsel must have been incompetent not to have gotten subpoenas and the court then interrupted them and said, still and all, I think you're guilty regardless of that and --
Earl Warren: But I understood you to say that before that, the judge said immediately after the completion of his counsel's argument, I find you guilty, take him away.
John C. Tucker: That is correct.
Earl Warren: So there was no allocution offered there, was it?
John C. Tucker: None at all Your Honor, none at all. Nor was there any suggestion of a hearing on aggravation and mitigation and that is provided for an Illinois law too. I don't contend that that was a denial of due process. I think perhaps it has to be asked for, but it's the atmosphere I think that comes true particularly here.
Abe Fortas: I notice that the Illinois statute provides that it's the duty of the clerk to issue subpoenas upon the request of the prosecution or the defense. I seem -- I'm a little confused about Illinois law in light of comments of the Supreme Court of Illinois in this case as the Supreme Court seems to refer to the statute and then to say that and then indicate that since defendant did not make a showing or state some -- state to what these witnesses would testify that had a bearing upon whether he was entitled to the subpoena. What is your own understanding, is the right to subpoena absolute?
John C. Tucker: I think the right to a subpoena is absolute, Your Honor. I don't think -- I not only think that -- is I think that the Sixth Amendment requires that it would be. I think that compulsory process, the Sixth Amendment right to compulsory process means just what it said and it cannot be conditioned upon explaining the relevancy of the testimony of the witness. In this particular case, the relevancy was very obvious as the Court of Appeals pointed out.
Abe Fortas: Was there had been testimony that he was in Moore's apartment, is that right?
John C. Tucker: That is correct. He was in the Moore's apartment immediately after the homicide.
Abe Fortas: Are there any Illinois cases dealing with the absolute or qualified nature of the right to subpoena?
John C. Tucker: None that I know of Your Honor. Now I want very much to get to the procedural issue that Your Honor specifically certified. But before doing so, I must say a few words about sanity at the time of the crime because the evidence that we talked about here was conclusive in my opinion on the question of sanity at the time of crime. At the very least, it certainly raised a very serious question of sanity at the time of crime and yet the state admittedly did not put on one word of evidence on that issue and we believe that the combination of those factors plus the denial of the -- by the -- by the court of the right to put on further expert evidence on insanity at the time of the crime clearly denied the defendant of due process. And we think that sanity at the time of the crime is obviously cognizable in habeas corpus. I think this Court must hold that it would be a violation of due process to convict the man for acts committed while he is insane. I do not contend that this Court has specifically so held but certainly, the statement by Justice Frankfurter in his dissent in the Baldi case is a statement that the majority apparently would have adhered to in that case in a statement which I think this Court would adhere to and Mr. Justice Frankfurter said, ever since our ancestral common law emerged of the darkness of its early barbaric days, it has been a password of western civilization that the taking of life by the hand of an insane person is not murder. I think that is clearly so. I think that as the state has conceded, it would not be possible for the states to deprive or to deny the defense of insanity two state courts -- Supreme Courts have so held. And if insanity at the time of the crime is constitutionally protected defense, if you may not convict the man for X committed while he was insane then that question, the assertion that he was insane at the time of the crime raises federal constitutional issues. It states facts which are true would entitle the petitioner to relieve and clearly under Townsend versus Sain and Fay versus Noia, this Court necessarily must inquire whereof that defense was rejected. And on the record in this case, it is very clear that the defense was rejected without inadequate hearing, that the record does not fairly support the state court's finding, that there in fact was not, after a full and fair hearing, a reliable finding of the facts. This Court has never distinguished between collateral issues and issues which it decided for defendant might be determinative and permitting -- and in canvassing constitutional questions. Surely, this Court if there has been a violation of his federal constitutional right by the manner in which the issue of insanity at the time of crime was -- this Court is not going to ignore that or refuse to hold a plenary hearing simply because if in fact he were found to be insane, he would then have to be released rather than given a new trial. I think that the Court of Appeals was absolutely correct in holding as it did on this record that a plenary hearing on the issue of insanity at the time of the crime was mandatory. I also believe, however, that on the face of the record, there was a denial of procedural due process with respect to the way in which this issue was handled which in it of itself would require the Court to issue a writ without holding the plenary hearing. And therefore, we get to the question of what the further or where the further hearing should be held. Now if there is to be a plenary hearing on either of the issue of sanity at the time of crime or sanity at the time of trial, a plenary hearing on those issues must be held in the District Court. This Court has no power to remand the case to the state court on habeas corpus. Its only power is to determine whether or not the constitutional rights of the defendant have been violated and if it finds that they have been violated, it must issue the writ. In (Voice Overlap)
William J. Brennan, Jr.: What about what we did in Jackson and Denno?
John C. Tucker: I'm sorry.
William J. Brennan, Jr.: What about what we did in Jackson and Denno?
John C. Tucker: In Jackson versus Denno, this Court found a violation of procedural due process, found that the New York procedure for handling the issue of voluntariness of a confession was inadequate, did not meet constitutional standards and therefore issued the writ, but they held that New York rather than giving him a full new trial, would only have to give him a limited hearing on the voluntariness of --
William J. Brennan, Jr.: But that's New York and not the district -- of the New York courts and not the Federal District Court.
John C. Tucker: That is correct.
William J. Brennan, Jr.: Well, what's the difference here?
John C. Tucker: Well, the diff -- if the Court please, I contend that for two reasons, this kind of an order would be inappropriate in the present case. There were two considerations.
William J. Brennan, Jr.: You say it's inappropriate --
John C. Tucker: It is inappropriate.
William J. Brennan, Jr.: -- not that for some -- something about the habeas corpus like for powers to order them.
John C. Tucker: No indeed. I only say that you may not remand without issuing the writ. That you may not do. Once you issue the writ, you may order a limited hearing in the state court under Jackson or a full new trial. Now I have a serious question about Jackson.
William J. Brennan, Jr.: We issued the writ in fact.
John C. Tucker: You issued the writ in Jackson. But Jackson was a very peculiar case for two reasons. Number one, the considerations of federalism which moved this Court in Jackson are simply not here. In Jackson, you will recall that this Court have upset a long standing New York procedure which really had been in past decisions to some extent approved by this Court. And the New York Court, the evidence in that case showed had thought that it was doing exactly what it ought to do but this Court found that its procedure was inadequate and therefore having in mind the delicate relationship between the state and federal courts, this Court felt that it was only fair to allow the New York court to decide this issue using proper procedures the first time. They had never decided whether this confession was voluntary. They had not known that their procedures were inadequate.
William J. Brennan, Jr.: Well what is it -- what is it about the Federal District Court that makes it a better forum than the state courts to determine these question of Robinson's sanity?
John C. Tucker: Well Mr. Justice Brennan, if you are going to have a limited hearing on -- on one of these questions, the thing that makes the District Court better is this that in the state -- the state courts have already, the state court of Illinois has already considered this issue and ruled upon it. The state court, the trial court apparently was unable to find any reason to hold the hearing on sanity at the time of trial. It was apparently unable to find any reason to question his sanity at the time of the crime. The state Supreme Court have those issues raised on direct appeal now. If you send this case back to the state court for a limited hearing, I submit that you cannot possibly give Mr. Robinson the full and fair hearing that he is entitled to.
Byron R. White: Well, we always -- very frequently when the courts have reversed a direct appeal or even in habeas corpus when a new trial was ordered, the trial takes place in the state court.
John C. Tucker: That's correct, a full new trial.
Byron R. White: Well, a full new trial but you're not -- I don't see a full new trial in this matter and the limited trial insofar as the choice between federal and state court hearing is concerned.
John C. Tucker: Well Your Honor, the reason -- there -- there are two answers to that. First of all, as a practical matter if a plenary hearing is all -- in the District Court is all that is required, that, it would be on the basis of a holding that the record does not show on its face of violation of due process but simply that it shows under the six situations outlined in Townsend versus Sain that a mandatory plenary hearing is required to determine if there was a constitutional violation. So at that point in time, the defendant does not have any -- Mr. Robinson does not have any right in effect to quarrel with the fact that it's going to be limited.
Byron R. White: Do I -- do I gather then that you see no objection in remanding to the state court to rehear the question of sanity --
John C. Tucker: I do --
Byron R. White: As long as it's part of the brand new -- of the complete new trial?
John C. Tucker: That is correct.
William J. Brennan, Jr.: That's your first --
John C. Tucker: That is what I think should be done.
William J. Brennan, Jr.: That your first submission is that there's been a finding now by the Court of Appeals for constitutional violation. Your complaint is that they sent it back for plenary hearing instead of ordering the state either to give one within a limited time for the discharge him.
John C. Tucker: That is correct. To give --
William J. Brennan, Jr.: That is your first --
John C. Tucker: -- him a new trial.
William J. Brennan, Jr.: That's your first and now you're arguing on the premise you don't -- we don't agree that we should go that far. You're arguing that the Court of Appeals was right --
John C. Tucker: That's correct.
William J. Brennan, Jr.: -- in having these hearings in the District Court.
John C. Tucker: That is correct. But I am further addressing myself specifically to the state's contention that if [Inaudible] in terms of remand but I'm sure they would agree. It would have to be situation where the writ issued but if the writ issues, the condition of the writ should be a limited hearing rather than a new trial. I submit that you cannot give Mr. Robinson his full rights by giving him a limited hearing in the state court at this stage of the game because the state court has already considered these issues. Now there's -- pardon me.
Byron R. White: Let me -- let me ask you. Let's assume we agree with you that there has been a denial of constitutional rights in that there was not a fair hearing, a fair enough hearing on the insanity at the time of the crime and that there was a denial of constitutional right but there was no hearing at all to speak of competency to stand trial. And if those two matters should be determined on their merits, you say that unless they have a complete new trial that -- that determination on its merits should take place in the District Court.
John C. Tucker: That's correct. Because Mr. Justice White, in Rogers versus Richmond, this Court pointed out that if there has been a what I have called in my brief the denial of procedural due process, if the procedure is used in the trial court were not adequate to afford a fair trial to the defendant then he is entitled to having been denied due process in his trial, he is entitled to a new trial. Now in Jackson versus Denno where the issue was simply whether or not it was to be determined according to this Court's formulation by the trial judge himself and it was the narrow issue of the voluntariness of the confession, the Court found no objection in view of the exigencies of federalism, found no objection to giving him a limited hearing. I have serious questions whether that was alright even in Jackson, but in this case, if you're trying to give Mr. Robinson a limited hearing in the state court on the question of his sanity at the time of the crime, you are then giving him a hearing which is totally unknown to Illinois law, on an issue which is always tried with the case on its merits, an issue in which the ability for example to cross-examine the state's current witnesses maybe very important and yet if it is a limited trial, there won't be any concurrent witnesses there. An issue incidentally in which the state court in a full trial, the jury in a full trial might very well find something less than legal insanity at the time of the crime but something sufficient to reduce the events under Illinois law to voluntary man slaughter. So you cannot separate that out in the state court and say that you're giving Robinson a fair trial that he was previously denied by --
William J. Brennan, Jr.: Incidentally, how -- what goes into a determination I suppose on getting him a sanity hearing now, is the sanity hearing is to what, his competency to stand trial when he was tried?
John C. Tucker: That's another problem Your Honor.
William J. Brennan, Jr.: How can you do that?
John C. Tucker: I don't think that is sufficient clearly if you find a violation of due process in handling the issue of sanity at the time of trial, a full new trial is required because the limited issue on sanity to be held now on sanity at the time of the trial in 1959 would not be the same proceeding. That is an entirely different proceeding to determine a concurrent state of facts that jury observes the defendant, psychiatrist are made available to testify on the basis of concurrent examination --
William J. Brennan, Jr.: Well, I suppose what it looked like at that time, how he acted at that time --
John C. Tucker: Would be very important.
William J. Brennan, Jr.: How are you going to capture that?
John C. Tucker: You can't, that's my point Your Honor. You cannot and therefore he must. If the writ is issued, he must have a full trial and now they've been, they can determine his competency as of today to determine whether or not he should be put to trial. Mr. Robinson was denied due process in his trial seven years ago. Now he's been in jail as a result of that denial for seven years and I submit that he should have a complete and full and fair trial the second time around not a piecemeal limited hearing on an issue in which the trial court judge is necessarily going to be influenced.
William J. Brennan, Jr.: Incidentally, what -- what's the law, what's the standard that the District Court would apply, the state standard in either of these instances or some federal standard or what?
John C. Tucker: Well, so far as insanity at the time of the trial is concerned, very frankly, it is my position that the remand order of the Court of Appeals does not ask the District Court to determine sanity at the time of the trial. It asked the District Court to determine whether due process was violated by the failure to afford a sanity hearing and I presume that the questions that they may have had in mind were questions involving possibility of waiver or what the evidence might be. I'm not sure. I think that this was clearly erroneous. I think they have to hold on the record that a sanity hearing was required and that -- and issue the writ and then of course you wouldn't have any problem because you would be back on the state court and applying states standards. I -- may I continue Your Honor?
Earl Warren: You may for just few moments finish the thought.
John C. Tucker: To finish the question?
Earl Warren: Yes.
John C. Tucker: On the -- on the issue of sanity at the time of the crime, it would seem to me that the Federal District Court would necessarily apply federal standards in determining that. I don't know however but there are federal standards --
William J. Brennan, Jr.: It's just been asked, what are they?
John C. Tucker: Yes, I don't believe -- I don't know whether that has been sufficiently formulated but I think that the standards of the Durham test would be probably for federal standards.
William J. Brennan, Jr.: We have to get into that match now?
John C. Tucker: Well, I would -- I would not force you into that Your Honor. I -- I think that possibly some sort of the consensus of the state standards in a case of this nature would be appropriate also. I really haven't formulated that.
William J. Brennan, Jr.: I gather Illinois has (Voice Overlap) modified.
John C. Tucker: McNaughton plus Irresistible Impulse and some people believe since the new criminal code that it's almost a Durham test but that hasn't right now been entirely decided.
William J. Brennan, Jr.: May I ask you just one question [Inaudible]. You say that he was denied procedural due process and therefore you want us to reverse on that ground. What procedure without going into details, what procedure was he denied?
John C. Tucker: A hearing on his competency to stand trial and a full and fair --
Hugo L. Black: That was the last speech made by the lawyer for the defendant said that was one of the issues before him, doesn't it?
John C. Tucker: That's correct but he was never given a sanity hearing under Illinois law. The procedure --
Hugo L. Black: I'm not talking about the hearing under Illinois law. What was he denied?
John C. Tucker: He was denied a fair hearing on his sanity at the time of trial. He was denied --
Hugo L. Black: Why? What procedure was he denied?
John C. Tucker: He was denied any hearing on sanity at the time of trial because under Illinois law, the only way that issue was canvassed is by a jury. The judge has no -- no right to hear that issue.
Hugo L. Black: But suppose the judge tries without a jury?
John C. Tucker: If the judge tries it without a jury, he is denied -- the defendant is denied procedural due process because he has been denied the Illinois procedure and you can't therefore tell what the judge has done. The Illinois court, this Illinois Supreme Court clearly holds that if -- that to deny a defendant a sanity hearing under Illinois law where the evidence requires it is to deny him procedural due process. But please don't make me --
Hugo L. Black: Does your argument get on to this on that because that haven't been wholly clear that Illinois law provides to the man in the court to be entitled to have a separate trial on the question of insanity at the time of the trial and if he has been denied due process because he was not given that time of hearing.
John C. Tucker: That is correct. That is my position together with the fact that there is no other way that he could have a hearing that there was no hearing in this case and secondly, and thirdly, I should say, I believe that even if you wanted to apply some generalized federal standard that I -- I don't know exists but even under any theory by the way in which this issue was handled by denying him an opportunity to have the testimony of witnesses who were crucial to this issue, he was denied a fair hearing under any standard but my first position is that by denying him the Illinois procedure, he was denied procedural due process because this is a constitutional question, constitutional issue in which the states must provide a procedure for canvassing the question and if they provide it but they don't afford it to a particular defendant then they have denied --
Hugo L. Black: (Voice Overlap) procedure.
John C. Tucker: That's correct. And they have denied him procedural due process.
Hugo L. Black: -- Due Process Clause requires that he'd be given a separate procedure.
John C. Tucker: That's correct. If the Due Process Clause requires it so that it would be adequately canvassed and Illinois provides the method for canvassing and if they deny it to a particular defendant where under their standards its required then they have denied him procedural due process. And it also -- well, I'm not going to get into the web of equal protection if I can avoid it but I think that --
Hugo L. Black: How did this statement come up? Was it the first time it has been mentioned? Page 162, Mr. McDermott, Your Honor I should like to say that I think that our defense is clear that we have presented at the present time. It is as to the sanity of the defendant at the time of the crime and also as to the present time. So what does that mean?
John C. Tucker: That means that one of the issues of sanity at the time of trial and that is not the first time it came up. It was raised throughout the trial by the evidence and by the questions asked by defense counsel of -- of his witnesses and recognized --
Hugo L. Black: But the court -- did the court bar any of the evidence about it?
John C. Tucker: The court effectively barred it by denying an adequate opportunity to present it by denying continuances of less than two hours or less than half a day to obtain psychiatric witness by failing to issue a subpoena for the Moores who would observe him at a relevant time and could have testified as to his conduct and by failing to grant a continuance to have Dr. Haines called as a live witness.
Hugo L. Black: But it comes down in that part of it, you are saying he was denied due process because he was denied the opportunity to get his evidence?
John C. Tucker: That is certainly one aspect of it and one of the very large aspects of it.
Hugo L. Black: Well, what's the other one? I haven't been able to find it.
John C. Tucker: I say that the record on its face with res -- with respect to sanity at the time of the trial shows the evidence that was presented, was sufficient to require the invoking of the Illinois procedure to canvass the issue and that by under those circumstances, the evidence that was presented was sufficient to require invoking that particular and the failure to invoke it, therefore, denied him due process because the federal constitution requires that where -- that -- that the issue of sanity at the time of trial be determined if it is raised and Illinois provides only one procedure for determining it and that's to convene a jury. And when they didn't convene a jury in this case, when they did not apply their own procedures in this case in light of the evidence in the record, they denied him due process.
Hugo L. Black: But do you think that the federal constitution barred the state from letting the judge determine it rather than the jury?
John C. Tucker: I don't believe that it does Your Honor but I do believe that if the -- if the state formulates a method of determining a constitutional issue and makes that its sole method of determining it and itself takes away from the judge the right to determine it then they've got to afford that procedure to everybody. Now I don't say that they couldn't change that law.
Hugo L. Black: That's equal protection, isn't it?
John C. Tucker: Well, it maybe equal protection Your Honor but it's equal protection in the sense that equal protection and due process came from the same source and this being in a judicial proceeding, I prefer to call it due process and as I said, it maybe the equal protection also.
William J. Brennan, Jr.: One thing that I don't understand, how -- is it the Illinois Supreme Court sustained this. If you're right that in effect, what was developed during the trial had precisely -- should have been treated precisely as if counsel at the trial had formally made a motion to convene a sanity hearing. That's what you're telling us.
John C. Tucker: Correct.
William J. Brennan, Jr.: And that when a formal motion is made then there has to be a separate proceeding in the determination before a jury is that right? Now how was -- if that's the procedure, how was that consistent with the Illinois Supreme Court's affirmance.
John C. Tucker: Well I have a very quick answer to that. It isn't -- it isn't at all but I'm sure that's not the answer that you want. The answer is --
William J. Brennan, Jr.: What I'm trying to gather is how -- how can we be sure that's -- what you have told us was Illinois law in the face of the Supreme Court's affirmance.
John C. Tucker: Because -- because in the Supreme Court decision in this case, they set forth the Illinois law in this regard insofar as the legal statement is concerned. They set it forth correctly and I -- I don't have that before me but the Illinois -- the Illinois law is as I stated -- the Supreme Court said, there wasn't any evidence in this record that would raise the issue because there was no evidence in this record to show that the mental condition that caused him to be committed to the Kankakee Hospital was of a continuing or enduring nature and as the Court of Appeals found and specifically said, that finding completely overlooks about three-quarters of the evidence in this record. And the Court of Appeals opinion and if I may say so, the Seventh Circuit Court of Appeals is -- is not let's say known to go off too far in cases of this nature. The Seventh Circuit Court of Appeals was quite sarcastic about the opinion of the Illinois Supreme Court. They couldn't find any evidence in this record that would raise the issue of sanity at the time of trial or sanity at the time of crime. Thank you.
Earl Warren: Mr. Michael.
Richard A. Michael: Mr. Chief Justice and may it please the Court. In response to Mr. Justice White's question as to where Mr. Robinson is now, he is now in the Penal Institution in Joliet, Illinois, not the psychiatric penal institution at Menrad near Chester. He is in the regular institution not the psychiatric institution. The counsel argues that there -- the haste in which this trial was conducted denied him certain rights of primary which where his Sixth Amendment rights to subpoena any witnesses. Now he raised -- that issue was raised in the Court of Appeals for the Seventh Circuit. The Court of Appeals two to one held that there was no denial of any Sixth Amendment rights. Since no cross petition for certiorari was taken and we deem that this question is no longer in that case. However, the facts clearly show that this is not -- that there was no violation here. In response to the question whether a professional man can't be subpoenaed, it is my recollection of the law that he can be subpoenaed to -- there's a conflict to this but the general rule is that he can be subpoenaed to testify as to any fact that he observed or saw but there is this conflict as to whether he can be required to give an expert testimony on question unless there is --
Byron R. White: Not even hypothetical question?
Richard A. Michael: I believe he might be able to answer hypothetical question Your Honor. He is a witness although as an expert. I'm not sure. I won't answer --
William J. Brennan, Jr.: Well there is the conflict I know in my home state, you can't compel an expert to give opinion evidence unless paying for it?
Richard A. Michael: That was my understanding on the law Your Honor.
William J. Brennan, Jr.: Is that in Illinois too?
Richard A. Michael: I don't think Illinois has a direct rule on that question Your Honor.
Abe Fortas: Mr. Michael I -- as I read this record on page 161, the prosecuting attorney suggested to the court that a psychiatrist ought to be called that is to say that Dr. Haines and the court declined to do so, is that correct?
Richard A. Michael: Yes Your Honor.
Abe Fortas: So that there is no doubt or do you as the state taking the position that the court's attention was not at all in need for -- to the possibility of the psychiatric issue in this case.
Richard A. Michael: I think that that -- that the state -- let me put it this way Your Honor. I think that that [Inaudible] of the question not of insanity at the time of the trial but insanity at the time of the crime. The defense had asserted this defense of insanity at the time of the crime and then attempted to prove that defense. The state subsequently said or I believe stipulate -- we have stipulated at the rebuttal, they stipulated the testimony of Dr. Haines and then they said, well maybe we ought to call him and get him directly to testify because there were some disagreement as to what stipulation was (Voice Overlap)
Abe Fortas: It's a little stranger than that on page 161, the attorney said, the defense raised here by which he means insanity as such that I think we should have Dr. Haines testimony as to his opinion whether this man is sane or insane. And the court says, isn't that the fact that if Dr. Haines had found him insane, Dr. Haines would report to me, could not cooperate with his counsel so there is more than a suggestion that was in the expression of the view of the prosecuting attorney, and it occurred after the evidence was in before the argument.
Richard A. Michael: Your Honor, on that position generally of course, it was the state that wanted to call Dr. Haines. He was to be a state's witness to testify as to the sanity of the respondent. It's the state's right. We are not contending that our rights were wrong but the failure to call it -- to call this witness. I don't see how it would have hated the respondent's case to have additional states witness called.
Abe Fortas: No but it's relevant to the issue of -- it's not determinative by any means of course but it's relevant to the issue of whether in this record, there -- the presumption of sanity was brought in to the extent that the countervailing evidence was necessary or whether the burden shifted to the state to prove sanity.
Richard A. Michael: I believe that at least -- I don't know that the evidence goes that far Your Honor, but at least it goes so far as to say that I don't -- no [Inaudible] at least the states attorney wanted to have this additional evidence in the record, the court thought that it was not necessary in this case.
Byron R. White: Well wasn't Haines' testimony though relevant to competency to stand trial?
Richard A. Michael: As far as the stipulated testimony that is the record yet it was only that he was sane (Voice Overlap)
Byron R. White: [Inaudible] said that we think Dr. Haines ought to be here, – he ought to be here and testify in regard to competency to stand trial because that's all he would have testified, and that's what stipulation was?
Richard A. Michael: I don't read the record that way Your Honor. I think that what they -- they already have (Voice Overlap)
Byron R. White: That's all Dr. Haines' testimony in full.
Richard A. Michael: Your Honor, they already had his full testimony in respect to the issue of insanity at the time of the trial. That was that the defendant was sane that he was able to understand the nature of the charges against him and aid in his own defense.
Byron R. White: Yes but that's just my stipulation.
Richard A. Michael: Well, it was stipulated --
Byron R. White: [Inaudible] to testify.
Richard A. Michael: No, he did not.
Byron R. White: They just think that if he were there --
Richard A. Michael: He would so testify.
Byron R. White: Right.
Richard A. Michael: Yes sir.
Byron R. White: And the defense counsel -- the defense counsel said, well in order to save further delay, they would stipulate that the defendant Robinson knows the nature of the charge pending against him and if they cooperate with this counsel [Inaudible]
Richard A. Michael: Correct Your Honor.
Earl Warren: Well, is Haines the doctor, the psychiatrist that we've talking about, the psychiatrist for the defense (Voice Overlap)
Richard A. Michael: No Your Honor, Haines was the --
Earl Warren: Yes.
Richard A. Michael: The head director of the state department there --
Earl Warren: I see.
Richard A. Michael: -- of the psychiatric department.
Earl Warren: Well, may I ask this question. Is there anything in the record to indicate that the failure of the defense psychiatrist to be there was because he refused to come?
Richard A. Michael: I think not Your Honor. All there is in the record are the three excerpts that I've related to doctor -- to Mr. Justice Fortas in that respect. Thank you Your Honor.
Hugo L. Black: Do you think the court tried the issue of his sanity during the trial?
Richard A. Michael: I think Your Honor that they did -- that the court did try the issue of his insanity at the time of the crime during the trial, yes sir. I do not think either they did try the issue of insanity at the time of the trial because that could only be raised by a sanity hearing and one was not requested and one was not --
Hugo L. Black: So what was meant by the statement of the lawyer here that the two issues were as he said insanity at the time of the crime conduct charged, insanity at the time of the trial?
Richard A. Michael: What does that record represent?
Hugo L. Black: Page 162.
Richard A. Michael: I'm not positive of what he meant by that Your Honor. The Illinois law as to the contrary is clear. He should note that this was Mr. McDermott who made this closing argument, the primary attorney in the -- for the defense and the one that was experienced, the professor at the DePaul University. The other one was Mr. Carey. He did not make that argument. This was the younger of the two, the less least experience, I just don't know what he meant by that. Maybe he was attempting to raise at that time, but if he was, he was using the incorrect mode of doing so.
Hugo L. Black: But I would suppose that if the judge is trying a man without a jury, if some question is raised about insanity, he would want to know something about it, wouldn't he?
Richard A. Michael: Well by this time Your Honor, he had all the evidence in the record before him. He had the stipulation of the evidence of the testimony of doctor --
Hugo L. Black: He had before him but that's -- that's why I ask if he tried that -- to determine that issue.
Richard A. Michael: As far as I can tell you Your Honor, he did not. That is my opinion Your Honor.
Hugo L. Black: Although the counsel told him that --
Richard A. Michael: He did say that that is an issue raised.
Hugo L. Black: Was that denied by the state?
Richard A. Michael: No it was not Your Honor. Thank you.
Earl Warren: Mr. Tucker before we pass to the next case, the Court understands that you're appointed by the Court of Appeals to represent this indigent defendant.
John C. Tucker: That is correct, Your Honor.
Earl Warren: And it's very apparent, the time and energy you have devoted to that cause and we consider it a great public service for lawyers to do what you have done in this case and we thank you and congratulate you on your presentation. And Mr. Michael may I thank you also for the diligent and fair manner in which you have taken care of the interest of your state.
Richard A. Michael: Thank you, Your Honor.
John C. Tucker: Thank you Mr. Chief Justice.