decided as amended may 19 1955.: October 26, 1951.
Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.
This appeal is from a judgment of the United States District Court for the Eastern District of Pennsylvania, sitting en banc, dismissing a petition for habeas corpus filed on behalf of Smith, the relator. Smith's case has had a long history. It was considered by three judges of the Court of Oyer and Terminer of Philadelphia County. It has been twice to the Supreme Court of Pennsylvania, once to the Supreme Court of the United States, twice to the District Court for the Eastern District of Pennsylvania and twice to this Court. The history is fully written in opinions which have come down during the course of the various proceedings concerning Smith.*fn1 We shall, therefore, state, from point to point, only such facts as are necessary to bring out the questions involved.
The case starts with a killing. Smith while a passenger in a taxi cab drew a gun and killed the taxi driver. He was almost immediately apprehended. He has been adjudged guilty of murder in the first degree and sentenced to death. The killing of the taxi driver by Smith is not denied. This is not a case where a man has been forced into a confession. Nor is it a case where a friendless man has been overreached because he did not have legal counsel. The long record shows that Smith's claimed rights have been vigorously and intelligently asserted. The questions turn upon events in the course of Smith's trial which will be stated as the points arising out of them are taken up.
Federal and State Jurisdiction
First be it noted that Smith was not prosecuted by the United States; he was accused, tried and convicted in the Pennsylvania courts. Citations of federal decisions like Frame v. Hudspeth, 10 Cir., 1939, 109 F.2d 356, are of no value to us unless they raise the same constitutional law points present when habeas corpus is sought for a state prisoner. Smith's case went once to the Supreme Court of Pennsylvania on the question of a sentence imposed by the Court of Oyer and Terminer. It was again before the Supreme Court of Pennsylvania in habeas corpus proceedings. The basis for the prayer for the writ was the same as that now before the federal courts. The Supreme Court of Pennsylvania denied the writ and certiorari was denied by the Supreme Court of the United States.
So every question before us has been decided adversely to Smith's contentions and the Supreme Court has refused review through certiorari. What is the significance of such refusal? It is urged upon us by the respondent that it is highly significant. He argues that if Smith's petition for certiorari had shown a deprivation of constitutional rights his case would have been reviewed.That certiorari was refused shows, it is argued, that no such deprivation was even alleged. There was, it is pointed out, no such direction by the Supreme Court as there was in Burke v. State of Georgia, 1950, 338 U.S. 941, 70 S. Ct. 422, 94 L. Ed. 580, allowing petitioner to proceed in the federal district court without prejudice from the denial of his petition for certiorari.
The last word on the subject by the Supreme Court is Darr v. Burford, 1950, 339 U.S. 200, 70 S. Ct. 587, 94 L. Ed. 761.*fn2 The proposition decided in that case does not immediately concern us here. If application for certiorari must in every case be made to review the final state court action before resort may be had to habeas corpus in a federal court, that condition has been fulfilled. Our narrower question is: What effect in the lower federal courts is to be given to the denial of certiorari by the Supreme Court? The Court, through Mr. Justice Reed, says, 339 U.S. at 217, 70 S. Ct. at page 597, 94 L. Ed. 761: "It is this Court's conviction that orderly federal procedure under our dual system of government demands that the state's highest courts should ordinarily be subject to reversal only by this Court and that a state's system for the administration of justice should be condemned as constitutionally inadequate only by this Court."
The doubt-creating word is "ordinarily." When should a district court and a court of appeals again examine merits? Our inclination would naturally be to say "never." It is highly uncomfortable for those of us in courts not of last resort to sit in what is, in effect, review of the highest court of a state. The responsibility is one from which we should be glad to be relieved. But Darr v. Burford does not say that denial of certiorari relieves us. The dissenting opinion in that case points out that no directions are given the lower federal courts on the point. It would be unseemly for us to make argument either way on the questions upon which our superiors differ.*fn3 We think that what we clearly must do, until we are told to the contrary, is to follow the well established rule that a denial of certiorari does not prove anything except that certiorari was denied. When the applicant for habeas corpus has petitioned for certiorari he has fulfilled a procedural requirement. If he gets certiorari his constitutional questions will be adjudicated on the merits by the Supreme Court. If he does not, he may apply to the appropriate lower federal court for a writ. This seems to be the rule compelled, if not decided, by Darr v. Burford and considerations expressed therein.*fn4
But it is to be reiterated that we are not an appellate court for the correction of errors under state law. Each point raised by the relator is to be tested by whether it alleges a violation of rights under the United States Constitution: nothing more. That these allegations have been decided on the merits by the highest state court is a fact to be given great weight by a district court in passing upon petitions for habeas corpus. But that fact does not relieve the federal court of the duty to pass upon the merits of the petition.
The District Court exercised its "discretion" to decline to pass upon the merits. We do not think it had such discretion, and proceed to consider whether, if factually true, the petition sets forth a violation of the federal Constitution.
Does Relator's Petition Allege Violation of Due Process?
Smith's points have to do with (1) whether his mental state was such that he could be tried; (2) whether his mental state at the time of the shooting was such that he could be convicted of murder.
Has a man a constitutional right not to be tried or executed if "insane" or not to meet the penalty for a crime committed while in that condition? Is the imposition of criminal responsibility in such case, in the words of Mr. Justice Black, so "offensive to the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions" that it violates substantive due process?*fn5 We do not know. It may be no violation of the federal Constitution for a state to provide by law that insanity at the time of commission of a crime no longer bars conviction, sentence or execution. The same may be true as to mental incompetence at the time of trial, sentence or execution.*fn6 We are not called upon to decide these questions.
The reason we are not called upon to decide them is that Pennsylvania does not disregard the mental condition of a defendant accused of crime.*fn7 According to its substantive law a man has the right not to stand trial or pay the penalty for an act if his mental condition is not such as to fulfill the legal test of "sanity." And it recognizes the familiar rule that insanity at the time of the offense requires acquittal.*fn8 Smith is entitled to have procedural due process observed in the protection of these substantive rights even though substantive due process would not compel the rights to be given. Insanity being a defense under Pennsylvania law, due process guarantees all defendants fair opportunity to present the defense. So we must examine the contentions on which Smith relies for his charge that Pennsylvania subjected him to treatment which was not due process of law.
The first is that he was "overreached" when he was arraigned. Prior to arraignment Smith had been confined in jail. The day before arraignment his relatives had procured private counsel for him. That counsel had not yet had opportunity to enter his appearance and knew nothing of the time set for Smith's arraignment. So when the prisoner stood up to plead he was alone. and the court suggested that Joseph Alessandroni, Esq., a member of the Philadelphia Bar in good standing who was in the courtroom at the time, stand with him. Mr. Alessandroni did not know Smith and had but a moment's consultation with him. Smith, on Mr. Alessandroni's advice, pleaded not guilty.
Did this arraignment constitute lack of due process? It is a little hard to see how entering a plea of not guilty can deprive a man of any rights. In the cases holding that the Fourteenth Amendment required effective assistance of counsel at arraignment a plea of guilty had been entered.*fn9 The possibility of prejudice in such cases is obvious. But it is argued here that because counsel was not, and had no opportunity to be, informed of Smith's previous mental history he could not at the time of arraignment ask for a special trial to test his sanity then and there, as provided by Pennsylvania law.*fn10 Lack of effective assistance of counsel resulted in the loss of this valuable right, says relator, and such loss is lack of due process of law.
The argument exaggerates the importance of rights under the statute relied on. Whether a hearing on mental condition in limine will be granted rests in the sound discretion of the judge under Pennsylvania law. The discretion is reviewable, but is so broad that the judge may refuse even to hear evidence on the point. Webber v. Commonwealth, 1888, 119 Pa. 223, 13 A. 427. The most Smith lost, therefore, was the chance to have the judge before whom he was arraigned exercise this broad discretion whether to grant a trial in limine on the question of sanity at the time.
We conclude that the loss of such an opportunity was not so prejudicial to defendant as to amount to violation of due process. Due process does not go so far as to require a hearing on mental condition in any particular manner or at any particular stage in the proceedings. Certainly it does not require a hearing in limine on the question as counsel for relator contend. The most that it requires, in our view, is an opportunity to have adequate hearing on the question before guilt is finally determined. Under Pennsylvania law defendant still had the right to submit the question of his mental capacity to stand trial to the jury which would try the indictment.*fn11 Pennsylvania provides also a means for special inquiry into an accused's mental condition both while defendant is in custody awaiting trial*fn12 and upon his appearance in court.*fn13 The question of defendant's mental ability to stand trial remained open and could have been raised in several different ways after arraignment. We conclude, therefore, that even if Pennsylvania did not provide defendant with "effective assistance of counsel" at his arraignment, he suffered no deprivation of federal constitutional right because of it.
Following Smith's arraignment his trial was postponed several times at the request of his lawyer.The latter wanted to get from New York material relative to Smith's hospitalization in a mental institution there. Upon the statement of Smith's privately retained counsel that no money was available to procure such information, the court appointed him and another attorney as state-appointed counsel for Smith. This made it possible to subpoena the records and witnesses from New York, a matter which took some time. In the meantime, after consultation among the assistant district attorney in charge of the case, defendant's lawyers and, in part at least, the trial judge, the plea of not guilty was withdrawn and the plea of guilty entered. A hearing was had September 21, 1948, in which the Commonwealth's evedence was introduced, it being agreed that further hearings would be had at which defendant could produce his evidence.
On October 28, 1948, a second hearing was had at which defendant introduced records from the New York hospital and testimony of several doctors who had examined Smith there, as well as records from the Philadelphia General Hospital. This evidence revealed that in 1945 Smith had been committed to an institution in New York by order of a New York court subsequent to a mental examination and report. At this institution his condition was diagnosed as dementia praecox, and he remained there for four months before being discharged as recovered. It also appeared that at one time Smith had voluntarily committed himself to the Philadelphia General Hospital because he was afraid he was going to kill someone, but was released after ten days.
After the hearing of October 28 the court appointed a psychiatrist, Dr. William Drayton, Jr.*fn14 to examine Smith. Dr. Drayton did so and at a hearing on November 5, 1948, reported his findings and was subjected to questioning by the district attorney, the court and by Smith's lawyers. Dr. Drayton's expressed view was that the prisoner was perfectly sane both at the time of the killing and at the time he examined him, and was "faking" for the purpose of avoiding trial. The trial court concluded that Smith was sane both at the time of trial and at the time he killed the taxi driver and entered a judgment of guilty in the first degree and fixed the penalty at execution by electrocution.
On behalf of Smith it is said that it is lack of due process of law to fail to provide a psychiatrist at public expense to assist defense lawyers in a case which involves a question of an indigent prisoner's sanity. The prosecution may have such psychiatric consultation, it is said, "to prove the relator is sane." Fundamental fairness, the argument runs, requires the same privilege to be given to the defendant at public expense if he cannot pay for it himself. There is nothing in the record to indicate that a request for such help was ever made. Assume however that it was, as relator claims.
There is a fallacy, we believe, in the assumption that the psychiatrist was called upon by the court to prove Smith sane. He was called upon by the court at the suggestion of Smith's lawyers, to give the court the benefit of his professional opinion, and he did. After he made his report in open court he was fully cross-examined. The doctor was not a "prosecution" witness; he was the court's witness. This important consideration was pointed out by the First Circuit recently in a case practically on all fours with this issue of the case at bar. In that case, McGarty v. O'Brien, 1 Cir., 1951, 188 F.2d 151, 155, the court said: "The doctors designated by the Department of Mental Health to make the examination are not partisans of the prosecution, though their fee is paid by the state, any more than is assigned counsel for the defense beholden to the prosecution merely because he is, as here, compensated by the state. Each is given a purely professional job to do - counsel to represent the defendant to the best of his ability, the designated psychiatrists impartially to examine into and report upon the mental condition of accused."
Furthermore, we have great difficulty in accepting as a proposition of constitutional law that one accused of crime is entitled to receive at public expense all the collateral assistance needed to make his defense. Here Smith was, at public expense, given two thoroughly competent lawyers. The same argument that would entitle them to psychiatric consultation would entitle them to consultation with ballistic experts, chemists, engineers, biologists, or nay type of expert whose help in a particular case might be relevant. We do not think the requirements of due process go so far. In any event, Smith had here the benefit of the past medical history and whatever further examination his lawyers cared to make of Dr. Drayton in open court. Whether the Doctor's opinion was accurate scientifically, whether it was reached after sufficient examination, these and other questions going to the weight of the evidence are surely not before us in a habeas corpus proceeding.
Our conclusion on this issue is in accord with that reached recently by the First Circuit in McGarty v. O'Brien, quoted from above. In that case the indigent defendant's mental condition in a capital case had been put in issue. He was examined by two psychiatrists acting in behalf of the Massachusetts Department of Mental Health pursuant to a statute. The psychiatrists reported that defendant had a psycopathic personality but was "not suffering from any mental disease or defect which would affect his criminal responsibility." Defendant's counsel then requested that he be allowed to employ two psychiatrists at the expense of the Commonwealth to aid in the defense. The request was denied. The Court of Appeals affirmed the District Court decision on habeas corpus that this did not constitute denial of due process. It said "* * * examination and report by two competent and impartial experts supplied at state expense is enough, we think, to satisfy the state's constitutional obligation under the due process clause." McGarty v. O'Brien, supra, 188 F.2d at 157.
We agree. The only difference between what Massachusetts did in the McGarty case and what Pennsylvania has done here is that in Massachusetts two psychiatrists examined defendant instead of one and they were appointed by an independent agency rather than by the court. Such a difference does not amount to the granting of due process in one and its denial in the other.
In connection with the adjourned hearings mentioned above, there is one point made by the relator which has caused us serious concern. It is said that a court of three judges convened to hear the testimony after a plea of guilty, made their adjudication of first degree murder before they heard Smith's evidence and that any evidence heard thereafter was considered only in mitigation in determining whether the penalty should be life imprisonment or death. There are some docket entries, endorsements on the indictment, of which we have been furnished a facsimile, and remarks by the Supreme Court of Pennsylvania*fn15 indicating that as a matter of dates somebody, at least, thought this was so. From this comes the argument that the prisoner's guilt of first degree murder was settled by the judges before his evidence was ever presented, and that he never had opportunity to have the question of his sanity, for purposes of guilt or ability to stand trial, considered.
The argument has been carefully considered with the conclusion that it is invalid. If the testimony produced on behalf of the prisoner had been such as to create doubt of his guilt he could have moved to withdraw the plea of guilty and enter a plea of not guilty.*fn16 Action on such a motion would have been reviewable in Pennsylvania.*fn17 We understand also that the judge can order the withdrawal of the guilty plea of his own motion and direct that the plea of not guilty be entered. There is no indication that any such motion or suggestion was ever made on behalf of the prisoner. Nevertheless, the question of his guilt or lack of it was open in the trial court until the judgment of guilty was entered and penalty fixed. The latter, at least, was not until February 4, 1949. Whether the docket entries reflect accurately ...