Warren E. Burger: We'll hear arguments next in number 71-5144, McNeil against Patuxent. Mr. Prettyman we are going to let you gentleman finish your case now before we take lunch. You may go right through.
E. Barrett Prettyman, Jr.: Mr. Chief Justice may it please the Court. I am Barrett Prettyman and I represent the petitioner Edward McNeil in this case which is here on certiorari to the Maryland Court of Special Appeal. Mr. McNeil is an inmate at Patuxent institution. He is been there almost six years. His minimum sentence for the crime of which he was convicted expired over four years ago. His maximum sentence for this crime expired almost a year ago and yet he is never had a hearing on his incarceration at Patuxent. He is never been declared a defective delinquent. Mr. McNeil was 19 when he was convicted in Baltimore with an assault on a police officer and of an assault with intent to rape. At his trial there was no plea and no evidence of insanity. The issue was never raised anywhere. He had no prior conviction and the time of his offense he was a graduate of a high school, he was employed, he was living with his parents and contributing to their means. At the conclusion of the trial, after his conviction, the Court said as follows. “While the Court records do not reflect a conviction on any previous charge, I feel from what I know about this young man that a psychiatric report is indicated. The matter will be held sub curia and referred to the medical department, that would be the medical department of the Baltimore bench, for a psychiatric evaluation.
Warren E. Burger: Do we have any way of knowing Mr. Prettyman whether some of that information the judge was acting on came out of the so called probation report, the pre-sentence report?
E. Barrett Prettyman, Jr.: We do not know. I would guess that the probation report was not available at that time, but rather was available at the subsequent sentencing which occurred later, but there is no way of knowing. There was an off the record conference at the bench after the conclusion of the trial and before the judge made that announcement we had no idea what occurred then what information he received. He did say however that he -- that there was no prior conviction.
Warren E. Burger: Would you -- would it be reasonable to assume that had he cooperated with the psychiatric people at Patuxent, that this determination could have been made on the ordinary course?
E. Barrett Prettyman, Jr.: You mean after he reached Patuxent?
Warren E. Burger: Right.
E. Barrett Prettyman, Jr.: And then if he had cooperated, they could have discovered whether he was a defective delinquent. I think that they could have discovered either way that he was or was not. I think they could have discovered that six years ago without talking to him; probably, possibly, we do not know.
Thurgood Marshall: Mr. Prettyman what -- didn't they examine him in Baltimore?
E. Barrett Prettyman, Jr.: Yes, I was about to say. Six days later there was a report submitted, a medical report it is a rather strange self contradictory report. It found no evidence of psychosis, distortion, hallucinations, delusions, but it said that he seemed to have a limited tolerance for stress, that seemed to be based on the fact that the plat name vehemently denied ever having committed any crimes or antisocial -- conducted any antisocial conduct.
Thurgood Marshall: Was that doctor Goodmarker is still there?
E. Barrett Prettyman, Jr.: The -- unfortunately sir, the report itself is a not in the record. It was a Dr. Sheen, but it was from the Baltimore branch office, Dr. Sheen who conducted the actual.
Thurgood Marshall: I see.
E. Barrett Prettyman, Jr.: He said that there was a possibility of a personality pattern disturbance, schizoid type and he recommended evaluation at Patuxent as a result. There was never a hearing, I want emphasize this, this was never a hearing on that report or on the referral itself. Instead at the sentencing 10 days later Mr. McNeil was sentenced to five years imprisonment on one count, one year imprisonment on the other, the two to run concurrently and then he was referred to Patuxent for evaluation and if necessary for treatment.
William H. Rehnquist: By the sentencing judge?
E. Barrett Prettyman, Jr.: Yes sir, by the sentencing judge. It was all done in the same paragraph. There was no mention of this report. There were no witnesses, no examination, no finding. The doctor did not appear in Court, so far as we can tell. The record doesn't even reflect whether the report was shown to McNeil or not or his attorney, we do not know that. The Court simply signed a formal order reciting that there was reasonable cause to believe that Mr. McNeil maybe a defective delinquent and he was sent to Patuxent. Now, at Patuxent as you know from the Murel argument a week or so ago, when you arrive you are placed on a receiving tier and as the Court also knows, this is a very vital and important part of the structure at Patuxent. It is a way -- the tier system is way of advancing out of Patuxent. You go to from one tier to the next, depending upon the extent that which you cooperate, and you progress and you show that you are no longer threat to society and so forth, then after you get beyond the forth tier you move out. Difficulty is that that there is no way of getting out of the receiving tier and tell there is a report on you and in this case they have never issued a report on him. The people on the receiving tier cannot advance, they cannot receive therapy. In effect they are in limbo with little, but limited exercise and television while they are there. Mr. McNeil has been on the receiving tier for almost six years. During this period on at least 15 different occasions, the state says 18, but I think it is irrelevant, he has refused to submit to interrogation by by staff. Patuxent apparently thinks that this is essential to its evaluation. He has refused to submit on Fifth ground and so he has remained there.
Warren E. Burger: Mr. Prettyman, I am surprised that you would press the point that a psychiatric examination, useful dimensions can be made if the subject, the patient refuses to answer any questions.
E. Barrett Prettyman, Jr.: In the McKenzie case, cited in our brief, Your Honor, the same position was taken in regard to Mr. McKenzie. He will not talk and therefore we cannot make a report. The Court said oh, his been there beyond his sentence you make a report. They made a report and said he was a defective delinquent. The report was made without any communication with Mr. McKenzie. Now his hearing is still pending, at least the last I heard. There is --
Potter Stewart: And this is his court hearing, Mr. Prettyman.
E. Barrett Prettyman, Jr.: The hearing which -- yes, the Court hearing which would be proceed --
Potter Stewart: After he goes back to the jury trial.
Warren E. Burger: Your answer goes to the judicial response to this problem, not to the medical one that I was driving at. I have never thought anyone would seriously contend that you can make an adequate psychiatric examination in every case. The patient who will not answer any questions, I am not talking about catatonic patient or some patient who needs, no -- very sophisticated diagnosis.
E. Barrett Prettyman, Jr.: My answer is two-fold Mr. Chief Justice. In the first place this is not a completely normal psychiatric examination in the sense of someone being committed to an insane asylum because the standards are different under this particular statute, but secondly the testimony in the Murel case is clear that while it's extremely difficult to find out whether someone is a defective delinquent without talking to him and while in many cases you may not be able to do it, the testimony is also clear that it can be done in some circumstances, --
Warren E. Burger: In some cases?
E. Barrett Prettyman, Jr.: In some cases, I do not for a moment claim that it can necessarily be done with him, I do not know. It maybe that they cannot make a finding that he is a defective delinquent.
Warren E. Burger: Well, that clears the air, at least for me.
E. Barrett Prettyman, Jr.: Without his cooperation, that is correct. Now, our arguments, although we list at least five different constitutional provisions come down really to two points. First, no matter what his reasons for refusing to cooperate, no matter how quixotic they maybe. No matter if there is no reason at all. The state cannot keep him confined indefinitely without a hearing, and particularly pass the end of his criminal sentence. I do not care what his reasons are. If he doesn't like the color of the hair of a psychiatrist, he is entitled to go back to the Court and have that issue determined as to whether they are entitled to keep him there. He has never had a hearing.
Potter Stewart: I thought your position now was now that the time of the sentence has elapsed that he is entitled to his release.
E. Barrett Prettyman, Jr.: No question about it, but we claim that he --
Potter Stewart: Not that he has -- not to go back to the Court at this date.
E. Barrett Prettyman, Jr.: Well, your quite right. I am asking this Court to release him now that the sentence is over, but I am really addressing myself to the basic question of what happens when somebody gets there even during the first six months and he refuses to cooperate. Can you keep him indefinitely there which is what the state claims to be able to do without any hearing or must they go back to the Court to get some kind of determination of what his and their rights are.
William J. Brennan, Jr.: What would the determination be Mr. Prettyman, that well, if he will not, I should say avail himself off, but he wouldn't submit to the procedures at Patuxent, then if that is the finding, send them to serve out his sentence at the state prison.
E. Barrett Prettyman, Jr.: Yes, if they cannot find that he is a defective delinquent then he goes back to prison under the normal course and he serves out his sentence then he is free.
Warren E. Burger: What is the time? How long must he -- how long would you think they can keep him in Patuxent?
E. Barrett Prettyman, Jr.: I would think the system set up by the statute is a good one which was not followed here, namely they keep him for six months and then they are supposed to report back to the Court. Now at the end of six months they had six months to observe him to gather all of this information that they say they get, all of his past records, they are supposed to talk to his friends and families and so forth. They are supposed to have this mass of evidence in his file, then they go back to the Court at the end of six months and report. It maybe that they can say without talking to him we can find he is or he is not a defective delinquent based upon six months of observation and his record.
William J. Brennan, Jr.: Well, suppose I say we simply cannot determine one way or the other?
E. Barrett Prettyman, Jr.: Then the Court--
William J. Brennan, Jr.: Well, I am just wondering, what are the options open to the Court? The Court cannot do any better certainly, as far as he is concerned?
E. Barrett Prettyman, Jr.: Well, Your Honor, I am not sure about that for this reason, that it is not Patuxent after all that makes the determination. It is the Court that makes the determination on the basis of the record and the recommendation.
William J. Brennan, Jr.: Well, let me add to my -- suppose then the Court says, well, I am helpless to -- the judge said I do not know what we can do about it, then what disposition?
E. Barrett Prettyman, Jr.: Then he goes back to prison.
William J. Brennan, Jr.: Well, is the option open to the judge to say, well, I cannot now, but I won't send him to prison, I will let him serve out his sentence in the Patuxent?
E. Barrett Prettyman, Jr.: Well, Your Honor I certainly do not think that he ought to be serving out his sentence in Patuxent if they cannot make a determination that he is in fact --
William J. Brennan, Jr.: I see.
E. Barrett Prettyman, Jr.: -- a defective delinquent any more than you could --
Byron R. White: From the state standpoint, but from your state, is your client prejudiced at all by serving his term out at Patuxent?
E. Barrett Prettyman, Jr.: Oh! Absolutely.
Byron R. White: Why?
E. Barrett Prettyman, Jr.: If he were at -- were he had been sentenced, he would have receiving therapy for six years. It this one of the irony of these situations that he cannot get therapy in Patuxent where they are supposed to give it and they keep -- he could have gotten it if he had been sent to --
Byron R. White: May be it if he had been stayed quite in there.
E. Barrett Prettyman, Jr.: Pardon me?
Byron R. White: Maybe not if he had remained quite there.
Warren E. Burger: You are assuming that they could him therapy without talking to him.
E. Barrett Prettyman, Jr.: He might well talk if he did not have to answer the kinds of questions that are going to be directed to him by Patuxent. He might well feel that he would participate in a group therapy or even a personal therapy if it is was not the kind of things designed here. Now, let us focus on that for moment.
Warren E. Burger: That is really on the speculation, the way --
E. Barrett Prettyman, Jr.: Well, I do not think so. If Your Honor will look, look at our brief on -- if Your Honor will look at page 36 of our brief and look at footnote 43. Now, this is extracted from the report of the report of the medical office and shows the interrogation that they made preliminarily, merely to find whether he should go to Patuxent. And let us look at some of the questions that they were asking and to see why he was not answering questions. He adamantly and vehemently denies, despite the police reports that he was involved in the offense. Further questioning revealed that he had stolen some shoes, but he insisted that he did not know that they were stolen. In the tenth grade he got caught, he was taking some milk and cookies. Down a little further he adamant in insisting on this version of the offense despite the police report which was in the brief and which I have available and discussed with him and so forth. Now why were these questions asked and why would similar questions be asked at Patuxent. The reason is that in order for him to be declared a defective delinquent, they have to find that he has engaged in persistent criminal and antisocial conduct. Now, in this case we only have one conviction, but apparently that had some things in his record that they wanted to question him about if they can get from his own lips that yes, he stole a milk in school and yes, he stole some shoes and yes he did some other things, they can make a finding based on his own admissions that he engaged in persistent criminal conduct.
Potter Stewart: Well, that shows he is delinquent and then only other question is whether or not he is defective?
E. Barrett Prettyman, Jr.: Well no, as a matter of fact, Your Honor, it goes to the entire definition. In order to be a defective delinquent you have to find that he was engaged in this. If you were --
Potter Stewart: You might be a very effective delinquent?
E. Barrett Prettyman, Jr.: [Attempted Laughter]That is very well put, Your Honor. If Your Honor will look at page 6 in footnote 6, you --
William J. Brennan, Jr.: Your brief again?
E. Barrett Prettyman, Jr.: Yes, footnote 6 on page 6. The defective delinquent is defined as an individual who by the demonstration of persistent, aggravated antisocial or criminal behavior evidences a propensity toward criminal activity.
Potter Stewart: And --
E. Barrett Prettyman, Jr.: Yes, but then the rest of it is not “or” it is “and,” you have to make both find to say.
Potter Stewart: That is right, (a) that he is a delinquent and (b) that he is defective.
E. Barrett Prettyman, Jr.: Well, if it suits Your Honor, you divide it up that is fine, but I --
Potter Stewart: It seems to me that the statute, it's not that you can't find either, but you have to find both.
E. Barrett Prettyman, Jr.: Right and once you find both then he is a defective delinquent and then he gets an indeterminate sentence at Patuxent.
Potter Stewart: And if they show his delinquency through his own answers, after he decided or not, he is intellectually defective, has intellectual deficiency or emotional imbalance.
E. Barrett Prettyman, Jr.: Right, and that's the reason that they are going to answer these questions and Your Honor said he wouldn't engage in therapy, we do not know that all because therapy after all would not be trying to prove that he had been engaged in persistent criminal behavior, every time you get to the essence of the man to try help him so that he could when he got out of prison he will be a better man. And is it one of the ironies as I say of the situation, he'd have had six -- five years of therapy and he'd simply going to jail.
Warren E. Burger: But you are assuming that the therapy would begin on a clean slate without knowing what his -- what diagnosis to make Mr. Prettyman.
E. Barrett Prettyman, Jr.: Therapy at Hagerstown would begin regardless that is what the Attorney General --
Warren E. Burger: Well, but isn't therapy -- doesn't therapy first call for a diagnosis. How do they make a diagnosis without asking him questions about his parents?
E. Barrett Prettyman, Jr.: I do not know the procedure that is engaged in prison, but my understanding is that anybody in prison who either wants therapy or who the prison authorities would be helped by therapy is allowed to have therapy. I do not think they have to make a separate determination that he is in fact either defective delinquent or that he is psychotic or anything else, it is available at prison. Here, however, in order for him to get therapy, he is first got to be found to be a defective delinquent and get all of that receiving tier into the first tier.
Warren E. Burger: That goes to your point that after six months in any event he had to go back to the business.
E. Barrett Prettyman, Jr.: Correct.
Warren E. Burger: Would -- under the Maryland statute, would the Maryland Court judge having that hearing after the six months in Patuxent have the power and authority to say, well I think we will try this again so we are going to send you back for another 90 days or six months outside limit.
E. Barrett Prettyman, Jr.: Your Honor, I think it would depend a lot upon the circumstances of the individual file. I think for example, let us say for example, the institution comes back and it says we haven't been able to talk to him, but on the other hand we been able to gain some valuable information by watching him. On the other because of scarcity of personnel we have been only been able to watch for a limited number of months. If we could have two more months to watch in I think we will able to come in with a recommendation. It might will be that would not be so unreasonable as to be a constitutional violation. I do not think you can lay down on a flat rule --
Warren E. Burger: Does it violate the statute to do that.
E. Barrett Prettyman, Jr.: No because if so long as they report back within six months I think if the Court were to make a finding that they were entitled to look at him again, it could well be extended.
Warren E. Burger: What if the judge just said here to this man that you have not cooperated. We cannot help you until you do. I am going to send you back for another six months. Is that permitted? Let us lay aside the constitution for a minute, the Maryland statute permits that?
E. Barrett Prettyman, Jr.: Well, if the judge were to find that he was refusing to cooperate on purely arbitrary grounds with no grounds at all and he were so to inform the man, so that the man would have a judicial finding that the grounds that he was asserting for refusing to cooperate were invalid and it might will be that in effect they would be giving him a second chance to cooperate and he might or might not. But in this case where the man is refusing to cooperate because of the questions that they were trying to ask him would be violating the peace amendment to do this. Then I very respectfully submit that the Court is not going to order him back to answer because the reason is the same and I do not see how we can conceivably get around the Fifth Amendment in this case.
William H. Rehnquist: Well, the facts of this case do not require you to rest on any expression of a statutory period of time less than the period of it is confinement under the criminal sentence, do they?
E. Barrett Prettyman, Jr.: I would be taking the position here even if his criminal sentence had not expired that he was entitled to a judicial hearing when they refused to do anything with him except to say that he can be kept indefinitely, but I think this. That once his sentence has been served whatever excuse there may have been up until that period for keeping him whether they want to look at him some more or whether they want to give him more chances to talk or whatever, totally disappeared because at that point he has served his debt to society, the period for them to report for holding a hearing is long since gone. Let me show you why they do not have a hearing, Mr. Justice. They do not have a hearing because there is nothing they can get out of it. If they hold a hearing and he said that not to be a defective delinquent, he goes free. If they hold a hearing and he is to determined to be a defective delinquent, what does he get, he gets precisely the sentence his got right now which is an indefinite confinement. They claim they can keep him for life because he refuses to answer these incriminating questions so why hold a hearing. From their standpoint, they have got him forever. The only way he can get out of the receiving tier and get a report is by saying yes, I stolen the cookies in high school and I might say parenthetically it is rather odd, but in Maryland there is no statute of limitations at all on any crime for which you can be sentenced to prison. They can go back when the man is 80-years old and convict him for something he did when he was 25. So it is a very real and serious problem for this man where they are saying, didn't you really steel these shoes and look at what the FBI report says. We know you were not convicted of this, but tell us weren't you really and then they go in, they actually go into the defective delinquency hearing and testify about --
William J. Brennan, Jr.: Well, I am familiar with this whole statute of limitations for crimes like murder. What you mean, in Maryland there is no statute of limitations on any crime?
E. Barrett Prettyman, Jr.: For any crime for which you can be sentenced to prison.
Lewis F. Powell, Jr.: Mr. Prettyman, I think I understood you to say that you thought the system at Patuxent was essentially a good one. Assume for the moment that Mr. McNeil had cooperated and had gone right down the line with the system, including the final judicial hearing and had been adjudged to be a defective delinquent, bringing into operation the indeterminate sentence. Would you be here today, if you had that case?
E. Barrett Prettyman, Jr.: I would be a petitioner in Murel, probably Your Honor.
Lewis F. Powell, Jr.: In case we had here today --
E. Barrett Prettyman, Jr.: I would be adapting probably many of the objections of the system that Mr. Murel and the other petitioners had, but this I want to emphasize is a very, very different case. It was more like Avey, only Mr. Avey died and therefore that issue wasn't before you there, but it is more akin to that case.
Lewis F. Powell, Jr.: Your position if I understand it is that a sure way to avoid the system at Patuxent is not to cooperate with it, if your term is one year or three years or five years, when that expires you out of it automatically.
E. Barrett Prettyman, Jr.: Not necessarily because as in the McKenzie case that may find you to be a defective delinquent anyway, if they have a proper record and can uphold that. I must say in this case they say in their brief that they do not have enough evidence to hold him, to find him to be a defective delinquent, but let me point out to you. What do they say they have got? They do not even show that they have talked to his family and friends and schoolmates as all of the evidence in Murel they gave -- they say when it sound like about this extraordinary investigation that they conduct in order to get his full folder on somebody, they had six years to get that kind of a folder on this man and they do not even show in his file that they done what they have been so proud off elsewhere and they say they cannot find him to be a defective delinquent on this record. And I say alright you had your chance for six years, now he is entitled to release. I did have a more points, but Your Honor I would like to say sometime for rebuttal.
Warren E. Burger: Very well Mr. Prettyman.
Potter Stewart: Just before you sit down, even though you won couldn't it be sort of a period that couldn't he be then civilly committed?
E. Barrett Prettyman, Jr.: Oh! If he could be civilly committed, possible if he is qualified.
Potter Stewart: Let us then say that we decided that he is now entitled to his release then the very next day couldn't he be civilly committed.
E. Barrett Prettyman, Jr.: Well, under the civil commitments you have different standards than you do here. I think the man is --
Potter Stewart: It's not defective delinquency.
E. Barrett Prettyman, Jr.: No, it certainly isn't. He would have to be a psychotic and one of the interesting things is that the referral report here specifically said they did not think he was delinquent.
Potter Stewart: That he was not psychotic.
E. Barrett Prettyman, Jr.: So, I do not think they could.
Warren E. Burger: Mr. Lord?
Henry R. Lord: Thank you, Your Honor. Mr. Chief Justice and may it please the Court. The full text of the statute, Article 31 (b) is set out in the Murel brief of the state and it is not been reprinted in these briefs. Only those excerpts which are directly bearing on the outcome of disposition of the particular arguments made by the petitioner. Now, before I get to the question of whether or not there is a privilege against self incrimination which I think is a pivotable point in this argument of the petitioner, I would like to emphasize that the transfer in July of 1966 or August of 1966 of the petitioner to Patuxent was a valid transfer under any fair reading of the cases of this Court or the cases of the circuit courts and appeal. Now Mr. McNeil was convicted of committing two crimes, either one of which is a threshold crime under Section 6 (a) of the defective delinquency statute. One was assault upon a police officer which under Section 6 (a) is a crime of violence, a threshold crime triggering the operation of the statute. The second crime was attempted rape under Section 6 (a) (4) a sex crime involving physical force or violence. Now, there was a conviction on both charges. The sentence, it is true was five years. The sentence of course was discretionary with the trial judge. The case was heard now-jury and upon a point that I hope to return to later in an argument, the sentence clearly could have been at least 25 years if the maximum had been imposed and if the sentences had been in the two indictments to run consecutively rather than concurrently.
Thurgood Marshall: You agree with Mr. Prettyman there is nothing in the record to show why the judge insisted on the psychiatric examination?
Henry R. Lord: There is nothing in the record to demonstrate that Your Honor. The next thing the judge did was based upon his personal observation of the defendant during the course of this trial. He felt that he had reasonable cause to believe that psychiatric examination was necessary. In fact he ordered an immediate psychiatric examination by the medical officer, Dr. John Sheen of the supreme bench of Baltimore City. Now, Dr. Sheen's report is very interesting because in the three respects it comports exactly with the definition of defective delinquency. I do not think that this was annulling or conscious effort on Dr. Sheen’s heart, but if you will turn to page 23 of the respondent's brief Dr. Sheen’s report is set out in full.
Speaker: Page?
Henry R. Lord: 23 Your Honor. Now, Dr. Sheen found after examination that the petitioner had an unstable character structure compares to Section 5 with the definition of the defective delinquency which talks in terms of emotional imbalance. He also found that there was “rigidity of defenses making it which was a pessimistic sign that further offenses may occur,” compare the statute of the definition which talks in terms of whether the defendant evidences a propensity toward criminal activity. And finally, he said that the petitioner, defendant there was certainly a danger to society, compare again the definition of defective delinquency which requires that the petitioner clearly demonstrate an actual danger to society.
Thurgood Marshall: Mr. Lord, I am sorry, I can't agree with you that the doctor did that without any consideration of the requirements of Patuxent, unless I am wrong. Am I correct that he was told to find out whether or not this main was subject to go to Patuxent?
Henry R. Lord: I do not think that's exactly right, but it is a point that --
Thurgood Marshall: Well, it wasn't for his right to stand trial, he had already been convicted.
Henry R. Lord: Correct.
Thurgood Marshall: So then there is some connection with Patuxent?
Henry R. Lord: He was asked to be treat, psychiatrically examine and the recommendation of the psychiatrist was that if you transfer and that is in report, to Patuxent for evaluation.
Thurgood Marshall: And he knew what the requirements were?
Henry R. Lord: Very well. I would simply think that he would have. But this was in the nature of pre sentence investigation and the court had perfectly adequate grounds for ordering it. Now after personal observation of the defendant, knowledge of his past activities, no criminal record but some record of criminal involved went under unique Maryland practice called probation before verdict for two charges assault and robbery and rape, this was all before the court. The psychiatrist report was before the court and at that point the court found that he had reasonable cause to believe that the petitioner was a defective delinquent. He then ordered him and the terms of the order are in a footnote on page 6 of the petitioner's brief, the white brief, he ordered that the petitioner be transferred to the custody of the director of the Patuxent Institution for observation, examination and evaluation for the purpose of determining whether or not he is a defective delinquent. Now, I should say because this came up in the Murel argument that 98% of the referrals to Patuxent or court initiated immediately after conviction of an offense and so this is not an unusual type of practice at all. The other 2% are initiated by the various others sources. Mr. Justice Marshall mentioned in the last argument that the Department of Correction can initiate or suggest to the court that there be a transfer, but of course it always done under court order. So we have a transfer by court order on reasonable cause. Now at Patuxent, there is of course evaluation. There are no cases that I am suggest that not Lynch versus Overholser or Beckstrom or Spect or Humphrey or even indeed the District of Columbia Circuit case of Matthew’s which suggests that there was anything constitutionally improper about the method used by the judge here to order the transfer for evaluation in virtually all cases a temporary transfer, of the petitioner here and no short comings in the Maryland procedures there.
Potter Stewart: I do not think that is an issue -- that is not an issue.
Henry R. Lord: It is raised here and it becomes important because if the transfer in the first instance was illegal or unconstitutional then other things may float from the --
Potter Stewart: I don't think that was contested here in this litigation.
Henry R. Lord: I think certain aspects of petitioner’s brief raise it, but I did want to just emphasize that --
William J. Brennan, Jr.: You mean raise it procedural due process terms?
Henry R. Lord: Yes whether it --
William J. Brennan, Jr.: (Voice Overlap) hearing or in a confrontation.
Henry R. Lord: That is right. I suggest that full dress adversary judicial hearing is necessary before there is even a transfer for evaluation in the court.
William O. Douglas: Didn't we have that in Murel -- that was?
Henry R. Lord: Yes that is one of the issues in Murel. Now, there is also reference to the federal statute, Section 4241 of Title 18. I suggest in passing that the Maryland statute on this point provides more due process protections than does that federal statute. Bear in mind that if a man has a 25-year sentence under the federal statute, he never has any judicially supervised transfer or indeed a full dress judicial hearing until the 25th year. He is transferred by essentially an administrative Act from a penitentiary to a hospital. There is no hearing and no court action even on the act of signing the court order. Now, of course we are not getting in this case to the whole question of the due process surroundings of the subsequent hearing for defective delinquency because for reasons which I will soon get into there has not been one here. Now, once at Patuxent, we now find that a sort of state of suspended animation has taken place with respect to this particular petitioner. He is been there for five years and eight months. He has never been evaluated. He has never had his defective delinquency hearing. He has never had any treatment because diagnosis has been impossible.
Warren E. Burger: if he had been sent back at the end of the first six months with a report that he had refused to cooperate on five or several occasions or whatever it might have been at that time, do you agree with Mr. Prettyman's analysis that the District judge would have the discretion to send him back for further examination at Patuxent?
Henry R. Lord: Yes, Your Honor. The statute makes the assumption, I think it just cries out from a fair reading of the statute, that there would be cooperation. I do not really the draftsmen ever contemplated the kind of situation we're dealing with here and hence the requirement that a six months period must -- at the end of that there must be a report back to the court contemplates that there can be a diagnosis, a kind of report made. I do not think there is any problem at all about the court extending that time further if there is any reasonable chance that the result is going to be any different at the end of another fixed period and that's what troubles me about Your Honor's suggestion. There is no reason for the state to believe that if at the end of six months the petitioner has accomplished his purposes in not having a diagnosis that he suddenly going to have a change of heart in the second six months or the third six months.
Thurgood Marshall: What about --
Warren E. Burger: There is no reason to believe anything on it one way or the other. It is just little not speculating --
Henry R. Lord: I agree, but --
Warren E. Burger: But certainly gives a traditional audit of the custody every six months.
Henry R. Lord: That is true and I agree that to put this state to the requirement of having an immediate hearing at that point would clearly be unsatisfactory result from the state standpoint.
Thurgood Marshall: Would it be expected to assume what might happen, if they did not ask him how many crimes he committed.
Henry R. Lord: I am not sure.
Thurgood Marshall: They asked the other, I mean, the psychiatrist has asked him other questions rather than what crimes he committed.
Henry R. Lord: Well bear in mind --
Thurgood Marshall: He might agree.
Henry R. Lord: Mr. Prettyman pointed at the whole definition of defective delinquency is geared towards propensity towards criminal activity. There maybe other ways of identifying not other than asking --
Thurgood Marshall: We are not interested in getting him in Patuxent, we are interested in getting him out.
Henry R. Lord: Right.
Thurgood Marshall: What you are talking about is you need to get him in, but suppose the psychiatrist says, look, I want to help you and I am not interested at all in another crimes you committed, we want to look to the future, he might have cooperated?
Henry R. Lord: Of course.
Thurgood Marshall: But he has never had that opportunity.
Henry R. Lord: As far as the record indicates, no. I do not think there is anything in the record one way or another of what types of questions he refused to answer. It simply says --
Thurgood Marshall: So as of now, as long as he refuses to answer incriminating questions, he is there through end of his life.
Henry R. Lord: That is right. Now, I think --
Thurgood Marshall: Is that right?
Henry R. Lord: Let me come right to that point --
Thurgood Marshall: That is right.
Henry R. Lord: That is right. He, so his whole basis has to --
Thurgood Marshall: You mentioned earlier that the judge could have given him 20 years for what now been given as life.
Henry R. Lord: Not necessarily. He tomorrow may change his attitude on these whole question.
Thurgood Marshall: (Inaudible) state's terms --
Henry R. Lord: That is true.
Thurgood Marshall: As to what he says.
Henry R. Lord: Absolutely right because the statute requires --
Thurgood Marshall: No, Fifth Amendment right at all.
Henry R. Lord: The state contends that he has no Fifth Amendment right.
Thurgood Marshall: The law says when he got convicted or did he lose it when he went to Patuxent, when did he lose it?
Henry R. Lord: I wouldn't say that he lost it at all.
Thurgood Marshall: Well, I thought you said he did not have it.
Henry R. Lord: He had a Fifth Amendment right in the criminal proceeding. He does not have its amendment right in his proceedings at Patuxent.
William H. Rehnquist: Mr. Lord, even if you are right that he does not have a Fifth Amendment right in his proceedings in the diagnostic stage of Patuxent, it seems to me you have got a much more difficult case to argue here than you argued in Murel because the petitioners in Murel who were still on the diagnostic phase had not served out their sentence. And there was something to be said at least I felt for the argument that they were certainly no worse off in the diagnostic therapy at Patuxent that they are in some other prison, but here your man has served out his term and it seems to me of quite a burden on you to justify detaining him beyond there.
Henry R. Lord: But Mr. Justice we have to ask ourselves the question of why has this happened and it is happened because there has been an inability because of petitioner's actions and I think all parties agree here is because of the petitioner's actions, there has been an inability to carry out the statutory requirements. Now, if you were suggesting to the state that by this lack of cooperation, conscious plan, continuing life of cooperation, the whole structure at Patuxent not just for petitioner here, but for every person who is referred for evaluation, that this is an available remedy, the first way to Patuxent proceeding I suggest that the state strongly objects to that.
William H. Rehnquist: Well, but your statutory scheme eventually contemplates a judicial hearing on the fact of defective delinquency and certainly I think it can be argued that a delay in that hearing, an adjudication there and so long as the man still under a sentence, maybe justified on a number of grounds, but when you continue to detain him after the expiration of his sentence without any new judicial determination as to why should be determined, I think you have got a real problem.
Henry R. Lord: Well, I suggest that there are a number of solutions. I think most of which both stated, this Court would find to be unsatisfactory which would require -- would break the circle here I think. Now, the most obvious one is that at that point in time when a man's sentence is about to expire or at that point in time at the end of six months when a report because of non-cooperation has been impossible, the petitioner is brought back before the court and bear in mind that the order transferring him runs to the institution, he is put under a specific order directly in court to cooperate with the diagnostic procedures at Patuxent institution and his failure subsequently to so cooperate would bring about convictions of contempt to court, probably direct criminal contempt to court. Now, there is nothing in the Maryland statute that would provide it, but the states suggests to this Court that there is nothing in the constitution of the United States which will prevent it either.
William J. Brennan, Jr.: You do not think that might create Peirce problem at all?
Henry R. Lord: Well, the problem of course is, I must say of course it is a new subject and I do not think that I can point to any particular case --
William J. Brennan, Jr.: Now I just wondered, do you not think Mr. Lord that might present a Perice problem?
Henry R. Lord: Well, I do not think so because of the situation here that the statute is written for the protection of the petitioner and for reasons known only to him he has elected not to allow that statute to operate.
William J. Brennan, Jr.: May I ask incidentally that I was trying to have Mr. Prettyman tell us that the offenses other than capital offenses of which you have no statute of limitation at all?
Henry R. Lord: Well, I think I will clarify that. There is a statute of limitations for all misdemeanors in Maryland of one year. For all non-misdemeanors there is no statute or for a felony there is no statute of limitations. The business about imprisonment more accurately could be stated as follows. For felonies as a general rule the sentence upon conviction is to the Maryland penitentiary. For all other offenses they may go to other facilities in the state and so for those offenses which can lead to incarceration of the Maryland penitentiary, namely felonies, all felonies there is no statute of limitation.
William O. Douglas: I did think of your response in your brief to the Fifth Amendment was quite in order with all respect because you have said that merely that Maryland had never used this evidence to convict the man with another offense. Particularly with the federal standard with the Fifth Amendment has always been (Inaudible) the possibility of the criminal as you note?
Henry R. Lord: I think I can respond to that very quickly. It is covered at number pages of the brief and I think could have been considerably shortened. Miranda versus Arizona plus the point of view of the staff at Patuxent plus the guarantee that I herewith deliver to this Court would bind the State of Maryland that evidence obtained during the course of psychiatric evaluation for diagnosis at Patuxent will not be used by the State of Maryland in any subsequent criminal proceeding and I think that the lower court's opinion. Judge Watkins opinion in the Sas case, the record of which is part of the Murel record and hence part of this record also bears that point out. I just do not think it needs any further attention. It has not happen in 17 years and the state feels bound under Miranda, the extension of Miranda that it could not happen in the future.
Thurgood Marshall: Mr. Lord, how can you bind a county prosecutor in Maryland? You work with Attorney General's staff?
Henry R. Lord: That is correct.
Thurgood Marshall: You can't stop at the county attorney from using that evidence?
Henry R. Lord: Well, it would be the state's attorneys and we have all the appeals for convictions for --
Thurgood Marshall: But you could not stop them from using it, could you?
Henry R. Lord: We could refuse to release the records of Patuxent institution to the prosecutors and we will do that in fact have done it. As a matter of fact --
Thurgood Marshall: I bet you could do it, I am just worried about you binding them --
Henry R. Lord: If they can't get to the records they cannot use the records.
Harry A. Blackmun: Mr. Lord why does not the possibility of civil commitment at the end of this sentence time adequately protect the state in every way?
Henry R. Lord: Because, you mean under Article 59 of the Maryland Code which provides for an involuntary commitment to private mental and to public mental institutions?
Harry A. Blackmun: Yes.
Henry R. Lord: The point -- the state's right here and the right is really the right asserted in Murel. The right to treats people who demonstrate criminal, antisocial behavior to be treated in a particular facility that has demonstrated an ability to solve this problem. I do not think it is any answer to the state to suggest because of the whimsy of the trail judge you may have sentence the man for two years, another trial judge would have sentenced him to 10 or 20. That something magic happens at the end of that sentence and he suddenly becomes a free man because his managed to fend off the operation of a valid state interest for the term presents. I do not think there is any answer to say well then we can meet them at the gate of the Patuxent institution and whisk him off to state mental institution.
William H. Rehnquist: But does the state have the right to treat him indefinitely without any judicial determination that he ought to be treated?
Henry R. Lord: Well, of course Mr. Justice Rehnquist I am troubled by that very point and we are groping for an answer to that very question. The statute does not provide it. I do not think that any of us would say that there is any case that provides a clear answer. The state is perfectly prepared to have a proper hearing if also attendant to it is the right which the state feels it has to inquire into the mental state of this individual. When the state has no interest in keeping a man indefinitely and not treating him that is not the purpose of the institution at all.
William H. Rehnquist: No, but counsel says that within the time of his sentence if you have made a determination you have a got a fish or cut bait in effect, that does not seem unreasonable to me?
Henry R. Lord: Well, if this Court holds that in this case the petitioner is entitled to the right to be returned to court and the state by a court proceeding is given the right to examine this petitioner and this must be done at the very latest at the expiration of his sentence that would be entirely a satisfactory result which would not be satisfactory. It is simply to say you must have a hearing and not give the state the tools to come up with the data at which at the hearing where it bears the burden of proving by preponderance of the evidence that this man is a defective delinquent.
William J. Brennan, Jr.: As a practical consideration what you are saying then is that he has just got to talk, it is really what you are saying?
Henry R. Lord: Absolutely correct.
William J. Brennan, Jr.: Unless the state is -- unless the court can say somewhere that you can compel him to talk then you feel what you are entitled to keep him there just this --
Thurgood Marshall: You mean, you --
William J. Brennan, Jr.: Hearing a lot.
Henry R. Lord: Yes now the point is that the statute requires evaluation by a medical doctor, psychiatrist and a psychologist and I think that the record is clear when you go to the affidavits and question are not, the record, combined record on this case is absolutely clear that a personal interview and cooperation is not necessarily trust but cooperation, interaction so that you can answer.
William J. Brennan, Jr.: Answer questions is what we are talking about here?
Henry R. Lord: Right, exactly right. Now, the state believes that it's stated repeatedly and the psychiatrist and psychologists of the institution believe that this kind of diagnosis simply cannot be made unless there is this cooperation.
Byron R. White: Has there been any parallel experience of civil commitments with people who complaint against refusing to submit to examination?
Henry R. Lord: No.
Byron R. White: (Inaudible)
Henry R. Lord: Not to my knowledge and nor in under the federal statute to my knowledge there has been no complaint. Now the petitioner argues that the federal statute provides a hearing for mandates, a hearing at the end of the man's sentence to require him to be kept beyond his sentence and there it must be proven that there is some doubt that as to whether you feel --
Byron R. White: You say --
Henry R. Lord: -- a threat to the state or to the federal government.
Byron R. White: You say that the Fifth Amendment, whatever Fifth Amendment rights McNeil has will be added and will be satisfied and as long as they are -- he can be made to talk?
Henry R. Lord: That is right.
Byron R. White: Now, if he will not talk, he steadfastly to refuses to talk, it is civil contempt?
Henry R. Lord: That is right.
Thurgood Marshall: You want us to tell this man -- this Court to tell this man to give up your Fifth Amendment right?
Henry R. Lord: I do not.
Thurgood Marshall: Well, he never suggests that?
Henry R. Lord: No.
Thurgood Marshall: I said that he has to answer these questions.
Henry R. Lord: That is true and I have said earlier in argument that there is no Fifth Amendment privilege for him not to answer those questions.
Thurgood Marshall: And you want us to tell him that?
Henry R. Lord: That is correct.
Warren E. Burger: Could Maryland solve this problem with the statute like the district of Columbia code, I do not think it is some on federal statute to the effect of nothing disclosed in the psychiatric examination maybe used anywhere, wouldn't that solve the problem?
Henry R. Lord: It would but Your Honor I do not think we have to wait for the Maryland legislature to decide whether not --
Warren E. Burger: Well, now you cannot control the legislature but that will solve the problem.
Henry R. Lord: That would have solved it, but I do not think we have to go that far in order to solve it because --
Potter Stewart: So you have got that rule --
Henry R. Lord: We say we have it.
Potter Stewart: -- and you made that commitment to this Court?
Henry R. Lord: That is right.
Byron R. White: And the Fifth Amendment would prevent the use of it anyway?
Henry R. Lord: That is correct.
William H. Rehnquist: But there still it isn't any guarantee your cooperation from everyone who is referred for diagnosis?
Henry R. Lord: That certainly is not. Now we are stripping away the reasons for non-cooperation. Now the other reasons for non-cooperation I think the only fair reason, fairly debatable, arguable reason is that there maybe a possibility of further commitment. This may give grounds to the psychiatrist for forming a conclusion that the man is a defective delinquent and may also extend the time that he spends at Patuxent if at the hearing he is found to be a defective delinquent, but these are not criminal ramifications. They involve some laws of liberty. Surely, in that he may be kept beyond his sentence, but the state has a right to know the conditions of this man's mind before he is released to society. The good example is right into the petitioner's brief. There is an example given by doctor Goodmarker of a man who upon cooperation with the psychiatrist he had been in for two convictions of perverted practices. He admitted to a psychiatrist that he had engaged in this act with young boys on 200 or more occasions. Now, the state has not going to turn around and prosecute him for those 200 violations, but the state has a right to know that fact and the state has a right to take that into consideration when deciding whether in fact he should be diagnosed as a defective delinquent and in fact he should be kept until some treatment has relieved him of this obsession which leads him to do these kinds of things. He is a danger to society at that point in time. Now, aside from the suggestion of the Chief Justice that there be periodic review by the court and my suggestion that for contempt there are other alternatives, but I want to suggest to this Court that they are simply not satisfactory. We can be put to the test of coming up with the diagnosis it is purely speculative. A blind, so called blind diagnosis, that helps no one, probably violates the vagueness rules of this Court with respect to standards or applications of standards. You can encourage trial courts if something magic happens at the expiration of the five-year sentence. Talk would simply to avoid the operation of this one post maximum sentence or longer sentences.
Warren E. Burger: Do you not see at least a (Inaudible) value in requiring a judicial inquiry every six months under the statute which the statute seems to contemplate?
Henry R. Lord: Your Honor, I would go further than that. I would say that at the end of six months, the state should have a right to have the petitioner return to the court and advised that he has not cooperative during the six month period and he must cooperate --
Warren E. Burger: Under the statute that could have been done every six months, for about six years, couldn't it?
Henry R. Lord: I think it could have, but you know the staff is operating once again in a gray area here and I think they probably were very reluctant to go ahead and take definitive action with respect to a particular person until they had a properly framed case, we now have it and I think another ramification could be that we just repeal Article 31 (b) and pass what this Court has upheld many times an habitual criminal statute, automatic knee-jerk reaction, third conviction he gets the maximum.
Potter Stewart: Of course this person --
Henry R. Lord: Fourth conviction and he gets life.
Potter Stewart: This person would have been subject to any recidivist statute there for his first offense.
Henry R. Lord: That is true. He was a young man.
Warren E. Burger: You find that you just -- that would require to sit back and wait for him to commit three or four crimes.
Henry R. Lord: That is right, that is right and would not guarantee any treatment to the man. He would be subjected upon multiple offenses to life imprisonment without benefit of parole. That is no answer.
Thurgood Marshall: Have any of those horrors come to fit this case which only asked that this man be given a one single court hearing?
Henry R. Lord: Your Honor, I think it really does not. In this case the state will be glad to give him the hearing.
Thurgood Marshall: Court hearing and all the chance to be give the maximum sentence (Inaudible)?
Henry R. Lord: No, if we have a court hearing, if we have a court hearing --
Thurgood Marshall: (Inaudible)
Henry R. Lord: Alright, I have said that the state would be delighted tomorrow to provide a hearing to this petitioner if it could be given the tools to make the evaluation necessary under the statute.
Thurgood Marshall: All he is asking for is a hearing, any kind of hearing?
Henry R. Lord: That is correct.
Thurgood Marshall: And you say you will not give him any kind of hearing except he says that he committed crime?
Warren E. Burger: Well, I thought Mr. Prettyman was asking that he would be release tomorrow.
Henry R. Lord: That is true.
Thurgood Marshall: (Inaudible)(Voice Overlap).
Henry R. Lord: He is it.
Warren E. Burger: With or without a hearing. Mr. Prettyman’s point is that they now having serve to full five years must be released forth with, hearing or no hearing.
Henry R. Lord: That is correct Your Honor.
Warren E. Burger: And without regard to his safety to society or anything else, that had to be Mr. Prettyman’s position.
Henry R. Lord: That's his position and the state simply cannot accept it. I did not get a chance to mention that there is excellent language in Lipscomb case from California and a judge Sobeloff's separate opinion in the Tipitt case on the very subject of the state's right to inquire into this man's mind or -- and finally I am struck by a quote from Mr. Justice Brandice in the New State Ice versus Liebmann case in which he said it is one of the happy incidents of the federal system that a single of courageous state can engage in innovative and humanitarian experimentation in the social and economic field. The state of Maryland is out front here and I think I submit that many of the reasons that were been before this Court twice in the last month is simply that and I think we are in an area where new ground is passed to be broken for the benefit of everyone. Thank you.
Warren E. Burger: Thank you Mr. Lord.
Potter Stewart: Just before you to sit down is Lipscomb case in you brief, I found the Tippit case.
Henry R. Lord: Yes it is Your Honor. It is called People versus Lipscomb.
Potter Stewart: People against Lipscomb. Alright, thank you, thank you very much.
Warren E. Burger: Mr. Prettyman?
E. Barrett Prettyman, Jr.: Please the Court, in view of the concessions made by the state let me just make one last point in regard to the remedy. The reason I indicated that I think the man ought to be ordered immediately released as opposed to just having a hearing at this point is this. In view of the fact that the state has said in their brief that they cannot find him to be a defective delinquent based on this record, in view with the fact that I as his attorney I am not about to telling him that he should incriminate himself based on the state's assurance to this Court that they do not plan to convict him on the basis of what he is going to say, a hearing would be a wasted gesture. He has now serve his full criminal term. I can read you from cases where things that these fellows have said in the course these interviews have then been used in court to keep them in Patuxent indefinitely and moreover we have no idea how in view with fact that what he says goes right into his file which is open to the prosecutor, the information that he gives could not be used as a link to chain to prosecute him later. They are all kinds of holes in this --
Byron R. White: I take it you say that this information since it would be used in connects with deciding whether he is a defective delinquent which might result in extending his terms, is it so incriminating?
E. Barrett Prettyman, Jr.: I say three things one. While his original sentence was still open they could use it to re-convict him that is no longer true here, but that is in other cases. Number two, they could convict him now and at any time for anything that he confessed to in the course of this interrogation in which they would get evidence out of this file and number three, without any question they would use it to keep him in Patuxent indefinitely because just to read you in the Daniel’s case a very brief. This is man convicted of house breaking and Larceny and when they tried to keep him in they give evidence of sexual behavior of the inmate used and the court said that was alright, they could used that as evidence to keep him indefinitely with Patuxent without any relationship to his original crime. Of course they are going to use it in that is file would never tell this man to talk and why therefore I think a hearing of this stage is a wasted gesture, why his entitled to immediate release. Thank you.
Warren E. Burger: Mr. Prettyman you acted at the Court's request and by the Court's appointment of is difficult problem. We thank you for your assistance to your client and your assistance to the Court. We thank you Mr. Lord. The case is submitted.