For affirmance -- Chief Justice Weintraub, and Justices Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Haneman, J.
Defendant appeals from a denial by the trial court of his post-sentence application for leave to withdraw a plea of non vult to a murder indictment. R.R. 3:7-10(a).
Defendant was indicted by the Essex County Grand Jury for a self-confessed murder committed on December 26, 1953. On February 8, 1954 Reynier J. Wortendyke, Jr., Esq. (now United States District Court Judge), and Joseph Harrison, Esq., were assigned by the court as his counsel. From the beginning defendant claims he gave counsel continuous oral and written instructions not to interpose a plea of insanity but to enter a non vult plea to the indictment. After some independent investigation and conferences with defendant, counsel became convinced that there was some question of defendant's sanity. Accordingly, due application having been made by them for the appointment of two psychiatrists, the court appointed Doctors Samuel R. Kesselman and David J. Flicker, who examined defendant. Dr. Kesselman had had intimate and detailed contact with defendant during his prior correctional sentences, reference to which is hereafter made. The reports of the examinations were filed by the appointed psychiatrists with defendant's counsel on April 1, 1954 and April 7, 1954 respectively. Earlier, Dr. M. Openchowski, Essex County psychiatrist, filed with the Prosecutor of Essex County a report dated January 6, 1954 based upon an independent psychiatric examination of defendant conducted on January 4, 1954. Counsel pursued their own investigation of the background and biography of defendant.
Dr. Flicker concluded in his report:
"Succinctly, one gets the impression that we are dealing here with a patient who had multiple psychopathic traits, that he has, in
addition, a schizophrenic form of psychosis. However, from the legal aspect, and with the concept of the McNaughten formula, he knows the nature and quality of his act, and he knows what acts are wrong. I therefore feel that despite the existence of medical insanity, the patient is competent to assist in his own defense."
Dr. Openchowski concluded in his report:
"It is my opinion that Joseph James Fischer cannot be considered actively psychotic, feebleminded or epileptic. The diagnosis remains that of a psychopathic personality with schizoid trends and aggressive episodes. He is able to distinguish between the so-called right and wrong within the legal definition of the term, is capable of consulting with his attorney in formulating his defense and give adequate account of his activities to the court and the jury. He is amenable to trial and capable of entering a plea."
Dr. Kesselman concluded in his report:
"1) This man is not mentally defective, that is, he has the native capacity to differentiate between right and wrong.
2) He is definitely psychotic, that is, mentally ill and because of his emotional disturbance and faulty judgment along with an abnormal suspiciousness he is unable to cooperate with his legal defense to the best interest for his own welfare.
3) He does not show an awareness of the seriousness of his crime.
4) This man is definitely what is classically referred to as 'a mad dog killer.' Though many would say that he would be better off dead than alive, this does not fit into our humanitarian concept.
5) The opinion of this examiner is that if this court accepts the opinion of this examiner that this man is mentally ill, Joe should be sent to the Vroom Building for the 'criminally insane' and it should be stipulated that he is never to be released from confinement."
All three reports contained some reference to defendant's insistence that he not be "bugged" (sent back to the Vroom Building).
Defendant was born in 1928. At the age of 16 he was admitted to the New Jersey State Home for Boys at Jamesburg. In 1948, after a suicide attempt, he was committed to the Essex County Overbrook Hospital at Cedar Grove. Some time after his return home in ...