BAXSTROM v. HEROLD

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Argument of Leon B. Polsky

Chief Justice Earl Warren: Number 219, Johnnie K. Baxstrom, Petitioner versus R. E. Herold, Director, Dannemora State Hospital.

Mr. Polsky.

Mr. Leon B. Polsky: Mr. Chief Justice, may it please the Court.

Essentially, this case involves the question of the rights to be afforded to the mentally ill and the procedures whereby their mental illness is determined and they are placed in custody.

Mr. Baxstrom was convicted of a crime in the State of New York and he received a sentence of two-and-a-half to three years.

After completing service of that sentence, he was committed to the state hospital where he presently is in custody having served far in excess of the original criminal sentence which was imposed on him.

At the time of his commitment, he appeared before the Surrogate's Court in Clinton County.

He received notice that a commitment proceeding was being instituted against him.

He was afforded a hearing of sorts.

He was not offered counsel.

He was not represented by counsel.

And he took no real part in the proceedings other than to indicate that he did not believe he belonged in the institution to which he was going to be sent.

Thereafter, he sued out several writs of habeas corpus, the last of which has reached this Court.

We claim that the commitment of the petitioner after the expiration of this criminal sentence was the kind of proceeding to which the right to counsel attaches.

We claim this as a right to counsel under the Fourteenth Amendment.

We claim this right to counsel as a specific incident to the due process right to notice and hearing.

We maintain that there is no hearing and can be no hearing in a case of this type if the man is not represented by counsel.

Looking specifically at the record which shows the kind of commitment proceeding we have in this case, Mr. Baxstrom was given notice that he was going to appear in the Surrogate's Court on December 6, 1961.

He appeared there without counsel.

The trial judge had already read the certificates of two physicians who were independent of the hospital and when the state law had examined him.

Neither those physicians testified at this hearing, yet their certificates were instrumental in having Mr. Baxstrom committed and their certificates with the basis upon which the finding of mental illness was made.

In their certificates, two physicians stated that Mr. Baxstrom possibly had a tendency to be dangerous.

I am not certain what this means but I certainly would hope that had there been an attorney there to represent Mr. Baxstrom at this commitment, he might have developed that possibly has a tendency to be dangerous is not a committable state of being in the State of New York.

In a subsequent habeas corpus hearing, a physician testified that he had examined petitioner and found basically that the petitioner was an epileptic and diagnosed, there was no objective sign of this but he diagnosed that there might be brain damage or brain deterioration flowing from the epilepsy and then he described Baxstrom's condition that the patient was irritable, confused, and aggressive after his epileptic seizures like all other epileptics.

Now, I am not trying to re-litigate or litigate because this has never been litigated, the question of whether this man is or is not insane or, was or was not insane.

Justice Abe Fortas: Did it say, “Like all epileptics?”

Mr. Leon B. Polsky: I beg your pardon?

Justice Abe Fortas: Does the doctor's script could say, “Like all epileptics?”

Mr. Leon B. Polsky: Yes, Your Honor.

That was the testimony of Doctor Kerr, which I quote -- it was in the proceeding on the first writ, which is record page 27, I believe sir.

I'm sorry, the doctor said, “It is not an uncommon happening in cases of epilepsy”.

Justice William J. Brennan: Mr. Polsky, may I ask.

I understand there is a -- I don't know, it's a new or revised mental hygiene law which set some procedures now for reexamination of the propriety of retention, is it a voluntary confinement?

Mr. Leon B. Polsky: Right, the --

Justice William J. Brennan: Would this -- would this petitioner -- my question was, could he have the advantage of that new procedure?

Mr. Leon B. Polsky: First, there is some doubt as to whether or not the new procedure applies to the “criminally insane” because this is a hospital, maintained by the Department of Correction as distinguished from the Department of Mental Hygiene.

So, there is that first question of whether or not this new procedure or service is available to him.

I've tried to find out but it is all -- it's in the process of being setup.

If it will apply to patients at Dannemora, they will probably get to him in several years.

Justice William J. Brennan: Not until then?

I --

Mr. Leon B. Polsky: I'm just judging by the usual speed with which administrative agencies in the State of New York operate.

Justice William J. Brennan: Well, this -- but isn't this under the supervision of the presiding justice from the appellate --

Mr. Leon B. Polsky: Yes, Your Honor.

Justice William J. Brennan: Or could he not -- it's a question, just reading the statute on the face of it, might appear that presiding justice of the appellate division could require it in the case of this --

Mr. Leon B. Polsky: Oh!

Definitely --

Justice William J. Brennan: (Inaudible)

Mr. Leon B. Polsky: -- he can require but the point is that this new service really provides nothing more.

The new service merely creates an agency to do what the Court in the past had to do in the courtroom.

This new agency, the Mental Health Information Service, they are not advocates.

They received the files periodically.

They reviewed the files, they make the same kinds of decisions that perhaps a physician in the hospital, an administrator in the hospital would make.

This man should stay in.

This man should get out.

And then if the patient is dissatisfied, he will -- he can sue out his writ of habeas corpus --

Justice Byron R. White: This isn't going to get him a jury trial or --

Mr. Leon B. Polsky: Oh, that's past.

Justice Byron R. White: -- but whether he's insane or this is going to get him a decision on whether he should be in Dannemora --

Mr. Leon B. Polsky: That's --

Justice Byron R. White: -- compared to some other though.

Mr. Leon B. Polsky: No.

Justice William J. Brennan: Nor even the aid of counsel or of his own experts on whether he should be retained?

Mr. Leon B. Polsky: No sir.

Justice William J. Brennan: I see, alright.

Thank you.

Justice Byron R. White: He will get none of that.

Mr. Leon B. Polsky: There is a statement in the State's brief that the service can represent the patient that is just not so -- that is not their function.

Now, as I understand the State's arguments in answer to our contentions, they say on the one hand this is a civil proceeding and the right to counsel doesn't apply to civil proceedings.

And then they say in response to our other arguments dealing with the constitutionality of the several statutes involved that those statutes are not unconstitutional because here we're dealing with the criminally insane.

Now, it seems to me the State is taking rather ambivalent position.

We lose on the right to counsel because this is a civil case.

We lose on the right to a jury trial and to the patient's right to have a broader determination of whether he should be in an institution such as Dannemora because that is a criminal kind of proceeding.

It seems that the State is asking too much.

Now quite frankly, essentially, we are dealing with statutes which have been amended and re-amended and re-amended from time immemorial.

The people who are involved in these cases are people who, quite frankly, no one has ever really cared about one way or the other.

The statutes have grown up as hotchpotch statutes to meet specific situations.

Each time a court decides a case, a statute gets amended but never in relation to the overall picture.

In this case, while I could limit this case to very specific instances of prejudice which are demonstrated at this point, we feel that we are entitled to ask that people subject to this kind of awful imprisonment, well that is what it is, should have some minimum safeguards attached to their custody.

I cannot see how Mr. Baxstrom could be entitled to the full scope of the Constitution when he was charged with assault in the second degree and was sentenced to two-and-a-half to three years imprisonment and now that he -- and not have at least something close to those rights when the State seeks to put him away from what essentially is going to be the rest of his life.

Justice Abe Fortas: Yes, does the -- I suppose this record does not show what happened with respect to the -- his prior offenses on whether they followed epileptic seizures?

Mr. Leon B. Polsky: No, Your Honor.

The -- there is testimony in the record that Baxstrom's epilepsy, this was speculation, was caused by either an infection that he got or a case of malaria that he contracted while serving in the Pacific.

So his --

Justice Abe Fortas: I remember that but I don't know --

Mr. Leon B. Polsky: So, it would be not to be before 1946.

There's no indication as to what his prior -- what caused the prior offenses.

Justice Abe Fortas: Right.

Mr. Leon B. Polsky: The basic -- (Voice Overlap) excuse me sir.

Justice Abe Fortas: Second question I want to ask you is, I notice the way you phrase the first question you presented.

And because of the way you phrase that, I want ask you whether it's your position that the State has a duty to assign counsel in these situations or whether you're limiting your position here to proposition that he should be afforded the opportunity to obtain counsel, which is the way this is phrased.

Mr. Leon B. Polsky: Well, if I may explain sir.

I do have a slight embarrassment in the way that this record was created.

This was a pro se proceeding throughout all of the state courts and in all of the separate habeas proceedings.

There is no proof in this record that Mr. Baxstrom was indigent.

I cannot claim -- I therefore felt that I could not say that basis for our relief should be his indigence and his lack of knowledge of counsel.

I've couched it in terms that the State must afford each person in these situations, the opportunity to be represented by counsel, which means if they can afford it then they can go out and hire a lawyer, which means if they can't afford it that the State must assign him counsel.

Justice Abe Fortas: I thank you.

Mr. Leon B. Polsky: I couched it specifically to meet that situation in the record sir.

Now, the intertwining of the statutes, I think, is very significant to show how these criminally insane are shunted out of rights which other people similarly situated except for their conviction received.

Every person in the State of New York, if they are picked up on the street and brought to a receiving hospital, and then a complaint or a proceeding is instituted against them to have them committed, may as a matter of right at some point demand a jury trial.

They have this first, an initial determination by a court that this person should be committed, then there is a de novo review of this commitment at which the defendant is entitled to a jury trial.Every civilly committed patient in New York receives that jury trial if he knows enough to request it and if he does request it.

Justice Abe Fortas: Does he have a right to counsel at that stage?

Mr. Leon B. Polsky: New York has an absolute right to counsel in all proceedings which means the absolute right to retain counsel.

Justice Abe Fortas: So that it's conceivable, isn't it, that the question that we have before us is a statutory question not constitutional question?

Mr. Leon B. Polsky: In terms of interpreting New York statute sir?

Justice Abe Fortas: Yes.

Mr. Leon B. Polsky: Well, New York has interpreted --

Justice Abe Fortas: As I understand it, I'm trying to shorten the time.

As I understand it, this petitioner's criminal term expired?

Mr. Leon B. Polsky: Yes sir.

Justice Abe Fortas: And then he was committed?

Mr. Leon B. Polsky: Yes sir.

Justice Abe Fortas: And the -- I'm asking if it isn't possible that what we have here or what New York Court may have had before it was a question as to whether the statute did not guarantee this petitioner the rights that any other person would've had, had he been subject to civil commitment proceedings.

In other words, that his rights that any peculiarities going from the fact that he was a criminal, sees that the expiration in the sentence and then question is, did the statute applied to him as of that time?

Mr. Leon B. Polsky: Well, there is only one exposition on this by a higher New York Court in People against Kamisaroff, in 13 New York 2d where the Court does interpret the statute, that is the -- Section 384 of the Correction Law.

Also in that case, they do discussed the right to counsel question and it actually didn't appear to have been raised in that case but it was discussed and it was closed over by the majority opinion as not -- as not applying in that specific case.

Now, I would -- because of the lateness of the hour, I would like to shorten my argument perhaps, save a few moments.

Justice Hugo L. Black: Can I ask you a different question?

Mr. Leon B. Polsky: Yes sir.

Justice Hugo L. Black: Is your point two under the Equal Protection Clause?

Mr. Leon B. Polsky: Yes sir.

Chief Justice Earl Warren: Mr. Lokot.

Argument of Anthony J. Lokot

Mr. Anthony J. Lokot: Mr. Chief Justice, may it please the Court.

There are four facts that I would like to establish if at all possible.

First, the fact that the petitioner is retained in a state mental hospital and not in a prison, and for that reason, the expiration of his prison sentence does not affect his continued retention.

Second, the fact that there is a rational basis for grouping the dangerous criminally insane and that their rights under due process and equal protection are fully protected by the State of New York with meaningful hearings upon due notice.

Third, the fact that their rationale of the Gideon versus Wainright case, assigned counsel whenever the patient or prisoner or defendant does not have the money to get counsel, that rationale does not fit the special circumstances of a sanity hearing of the criminally insane.

And by the same token, the right to a jury trial which is given to the civilly committed for good reasons -- again, it's not applicable.

Justice Byron R. White: How about counsel in the civilly committed was -- is there appointment of counsel where the patient is indigent?

Mr. Anthony J. Lokot: Is there an appointment of counsel, Your Honor?

No.

Justice Byron R. White: Where the patient is indigent?

Mr. Anthony J. Lokot: No, there is not.

Justice Byron R. White: Although there's a jury trial if he wants it.

Mr. Anthony J. Lokot: If he -- he can waive a jury trial but he can have one.

Justice Byron R. White: But if he have --

Mr. Anthony J. Lokot: It's up to the Court --

Justice Byron R. White: If he can't hire a counsel, he doesn't get one?

Mr. Anthony J. Lokot: He can hire one and it's up the Court's discretion in some cases possibly I suppose when the issues are many and complex, the Court may well assign counsel.

Justice Byron R. White: But it isn't required?

Mr. Anthony J. Lokot: It is not required, Your Honor.

The fourth and final fact that I would like to establish is that actually petitioner is a member of this group of criminally insane and is retained in -- properly in a hospital and was given full protection under the equal rights and due process.

Justice Byron R. White: But then that that's -- excuse me, go ahead.

Justice Potter Stewart: I have a little trouble with your defining in this criminally insane.

I thought of that as some who commits what would otherwise be criminal offenses but which are not because he is insane and therefore, he cannot be convicted and sent to prison and yet this man was convicted and sent to prison as somebody who presumably was not criminally insane but was simply criminal.

Mr. Anthony J. Lokot: Your Honor --

Justice Potter Stewart: And he -- then he served his sentence and it was thereafter that he was committed and the question certainly is as you suggest at the outset does not whether or not the -- not whether he can be held at a hospital if he's insane but how he got there, how he got there, how he was put there as compared to other people who were committed in your state.

Mr. Anthony J. Lokot: Well, may I -- that phrase criminally insane is used more among psychiatrists and I checked that very carefully.

Of course, there is a distinction between the insane criminal and that certainly petitioner was.

He was convicted of a -- as a multiple offender, was sent to prison and after being certified as insane, was then transferred to the New York Hospital for the felons who become insane while they're in prison.

But now, --

Justice Potter Stewart: He had just about to serve his sentence.

Mr. Anthony J. Lokot: But he -- then when he served, completed the sentence he was no longer an insane criminal.

So the phrase “criminally insane” is applicable to him after his sentence expires because of the proclivities and tendencies that he has shown by his record.

Justice Byron R. White: Is that it -- is that it for his -- he's categorized as if --

Mr. Anthony J. Lokot: Criminally insane --

Justice Byron R. White: -- criminally insane because of his past behavior rather than his -- his present potentiality?

Mr. Anthony J. Lokot: Well, it's the present, what he has done presently in -- while he's been retained and the potential if they let him out.

In other words, that present examinations indicate such violence if he were to be released or discharged.

Justice Byron R. White: Well, that's different that to give us such -- is it because he is dangerous or are you suggesting that because he's dangerous or potentially dangerous because of his insanity rather than a conclusion which follows from the fact he has committed 10 crimes before?

Mr. Anthony J. Lokot: Well, the two combined as I pointed out in our brief --

Justice Byron R. White: But their -- but the former is essential, is that he has -- that he has to be dangerous currently.

Mr. Anthony J. Lokot: That is correct, Your Honor.

He has to be dangerous currently.

And he did, he have shown that.

Justice Byron R. White: And based on -- based on testimony that he must be dangerous -- testimony of doctors that in their opinion he's dangerous currently.

Mr. Anthony J. Lokot: That is correct, Your Honor, that he is dangerous currently and that he is not suitable for transfer to a civilly insane hospital.

Justice Byron R. White: Do you think the record here substance -- substantiates that finding?

Mr. Anthony J. Lokot: I believe so, Your Honor.

Justice Abe Fortas: Suppose -- suppose somebody would pick up on the street and the civil commitment proceedings in the State of New York and this type is uniformly without exception testified that he is -- the person was insane and mad, they were confident that unless confined, he would commit violence.

Now, would he then be criminally insane so that he would go to Dannemora rather than to an institution under the jurisdiction of Mental Hygiene Department?

Mr. Anthony J. Lokot: He was would not then be sent to Dannemora by no means.

Justice Abe Fortas: Well then, you are making your distinction here because as I understand it, one of the problems in this case it's been raised by the petitioner, is that he was held in Dannemora --

Mr. Anthony J. Lokot: -- which is a hospital --

Justice Abe Fortas: -- which is for the “criminally insane”, that is to say those people have been convicted by a crime or a charge with the crime and put away before the tracks of record.

Mr. Anthony J. Lokot: Your Honor, about half of the patients, almost half of the patients are insane criminals.

In other words, they're serving their sentences technically while they are hospitalized for their mental condition.

The other half are patients whose terms have expired.

So, we just have to make some kind of distinction and as I've indicated before in checking with psychiatrist that is the term used that -- I'm referring to the term “criminally insane” as meaning those who are violent with proclivities or tendencies toward criminality even if they have never had a record.

Justice Abe Fortas: Well, my point is -- my question to you is that, you get two types of persons who are within that same psychiatric category and they are treated differently in one group that's -- here is someone who's criminally insane and just picked up in the streets, this type is criminally insane in the sense that you described and he gets a jury trial, he may have a right to counsel, right?

Mr. Anthony J. Lokot: You mean --

Justice Abe Fortas: You picked up the street and committed a crime but this guy said that he is “criminally insane” in the sense that he is a person who in their opinion will bring violence.

Mr. Anthony J. Lokot: Under the Mental Hygiene, well yes, he would -- he wouldn't be -- demanded a trial (Voice Overlap) by jury --

Justice Abe Fortas: Then he gets a jury trial?

Mr. Anthony J. Lokot: He would get a jury trial --

Justice Abe Fortas: Now, you take another fellow --

Mr. Anthony J. Lokot: -- because of those specific statutes.

Justice Abe Fortas: Take another fellow who had been in prison and then presumably became insane where certainly have his term as -- it's alleged happened in this case, he's transferred Dannemora, his term expires.

He is also “criminally insane” in the sense that you described it --

Mr. Anthony J. Lokot: Well --

Justice Abe Fortas: -- but he asked for a jury trial and he didn't get it, is that right?

Mr. Anthony J. Lokot: No, that -- I'm sorry Your Honor, but perhaps I'm confusing the Court in this respect.

When I talked about criminally insane, I'm not talking about the man in your hypothetical case who has been taken off of the streets and because he's violent or dangerous.

He is committed as a civilly insane person even though he's dangerous.

There is that distinction, it's only when the record shows I think it was Mr. Justice Clark who made that distinction in the -- Overholter case that those who are criminally insane are certainly a greater risk to society than those who are just civilly insane.

So, the man was picked up that way.

He may be sent to Matteawan, but in Dannemora there are only those who have been convicted and a few civilly insane people who become so dangerous and violent that there are no security precautions in civilly insane hospitals that can manage them.

So, they send those to Dannemora.

Chief Justice Earl Warren: Do you have an epilepsy hospital in New York?

Mr. Anthony J. Lokot: I beg your pardon.

Chief Justice Earl Warren: Do you have a hospital for epileptics in New York?

Mr. Anthony J. Lokot: There is -- I believe there is one institution devoted to cases of that kind but they are epileptics that, again, are not criminally insane.

Chief Justice Earl Warren: Well, not criminally insane as a point that you have used, but are not the great many of them dangerous at times after they have passed their seizures as -- it is charged this man was?

Mr. Anthony J. Lokot: The psychiatrist of the State have assured me, no they're not in that great number.

Chief Justice Earl Warren: The epileptics?

Mr. Anthony J. Lokot: Dangerous to themselves, primarily.

Chief Justice Earl Warren: Well, aren't they aggressive and liable to be violent after they come out of these seizures?

Mr. Anthony J. Lokot: I would say yes, many of them would be, yes Your Honor.

Chief Justice Earl Warren: Many of them would be yes, but why wouldn't this man -- this man who is only said to be slightly aggressive after these seizures of him, why wouldn't he be subject for the same kind of treatment as these other epileptics?

Mr. Anthony J. Lokot: Well, the distinction that the doctors makes us that this record, felonious record, his entire life history of violence is such that you cannot say that he is the average epileptic.

His last offense was that of taking of an ice pick to a detective's face without any provocation.

Chief Justice Earl Warren: I suppose all your people whether civilly insane or criminally insane are only placed in restraint because a lot would be dangerous either to themselves or others.

Mr. Anthony J. Lokot: That is correct, Your Honor.

Chief Justice Earl Warren: Well, I don't see how this man differs from those people to the extent that he isn't given the same kind of procedure that they're given before commitment.

Mr. Anthony J. Lokot: Well, the right to a jury trial of course is one that can be taken away or granted by statute in the absence of any constitutional guarantee of common law.

Chief Justice Earl Warren: Can you give it to one man and not give it to another man similarly situated?

Mr. Anthony J. Lokot: Well, that is my position that he is not similarly situated, not this petitioner in his class that the criminally insane are not similarly situated to the civilly insane.

There is a distinction.

Justice Byron R. White: That may be true but why is this similarly situated with regard to the jury trial issue?

I see why it might be different on some other ground but with regard to jury trial, isn't (Voice Overlap) --

Mr. Anthony J. Lokot: Well, the --

Justice Byron R. White: -- he'd never had -- never had jury passed upon his insanity?

Mr. Anthony J. Lokot: Well, Your Honor, from time immemorial, I suppose that no insane person had a right to a jury trial as a matter of right.

Justice Byron R. White: That isn't what we're talking about, we're talking about giving it to one -- to another.

Mr. Anthony J. Lokot: Discriminatory.

Alright, in the case of a civilly insane person who is alleged to be civilly insane, there, a jury trial as I think I try to point out in my brief, so many side issues may be created and raised.

There's a danger of being railed into a hospital or framed and that is often the case.

So there, a jury trial is almost a necessity.

I don't see how -- whether the case of someone where there is a presumption of insanity that it's continued over period of time --

Justice William J. Brennan: Well, Mr. Lokot, suppose this very individual had served out his prison term before any symptoms of the mental illness and then he have been released and a year later, the very symptom that developed here showed up but on the street and he was picked up on the street, would he have a jury trial?

Mr. Anthony J. Lokot: Yes.

My perception under those conditions, he wouldn't have to, because he's not -- it isn't a continuing insanity --

Justice William J. Brennan: So, it's just the accident -- just the accident that this developed while he was serving the prison term, which denies him a jury trial and the right to assistance of counsel?

Mr. Anthony J. Lokot: Well, Your Honor, I -- accident of time possibly that's all.

Chief Justice Earl Warren: So didn't the Court and the doctors and everybody else in this very summary proceeding that they had for this man indicate that he was -- he should be in the civil hospital instead of a criminal hospital?

Mr. Anthony J. Lokot: I don't believe that that is quite correct.

I believe that what happened there, -- there was a discussion about his being sent back home to Maryland and in light of that discussion, Doctor Kerr was asked this question as to whether or not he was -- could be sent to a civil hospital.

Naturally, the State has no motive to keeping these people who were there because of the gradual expense and because they want to reduce those expenses and reduce the population of these places.

So, they were talking about that.

Well, that all petered out because of the fact that his family down in Maryland did not want him, they were indigence and that's when Kerr was talking about him being transferred to a civil hospital, the VA hospital.

Chief Justice Earl Warren: But I thought -- I thought the Court said this, addressing the patient, “You were examined by Doctor Foster on November 27.

He is a representative of the Department of Mental Hygiene.

He will make a report.

If he reports that he thinks you were subject for transfer to a civil hospital then you will be transferred.

It is entirely up to that department.”

And then the Court addressing Doctor Herold who represented the Department, “Have you any objection that this man is transferred to a civil hospital to the Department of Mental Hygiene?”

So did he, “None, whatsoever.”

The Court, “And I sir, agree with you.

I have no objection to this transfer at the Department of Mental Hygiene so finds.”

Then he said -- ends up by saying, “I hope that he will be transferred to a civil hospital.

Good luck.”

Hearing closed.

Mr. Anthony J. Lokot: Does Your Honor interpret that as a straight instruction to have him transferred with --

Chief Justice Earl Warren: I like your interpretation of what this is.

I just read it to you so --

Mr. Anthony J. Lokot: Well, Your Honor, I interpret that in light of this colloquy about Baltimore and then returning to Baltimore, the entire responsibility of releasing him as the Court pointed out was not the Court's, that was the responsibility of the Department of Mental Hygiene depending upon their findings or whether or not this man was still dangerous and should not be let out.

Justice Hugo L. Black: Then why was he found to be dangerous?

You say there's considerable evidence, in what way, violent or --?

Mr. Anthony J. Lokot: Extremely violent.

His entire record, although it's not in this record on appeal, even as recently as last month according to the records, daily records kept on this man, three or four times a month, he would attempt to assault either another patient or one of the attendants and it was not always because of an epileptic seizure.

The fact remains that oftentimes it would be over civil rights question and causing near riots there in the last couple of months as a matter of fact.

Justice Hugo L. Black: It caused what?

Mr. Anthony J. Lokot: Near riots among the patients themselves.

You see, at Dannemora, they do not have individual cells.

Most of the patients are kept in wards and dormitories.

They have a number of rooms where single patients are kept, but for the most part, they're kept in dormitories about 20 or 30 and 40 patients at each one.

Justice Hugo L. Black: You say the nature of his violence is not in our records?

Mr. Anthony J. Lokot: In the record?

It is -- it is to the extent that as Doctor Kerr have suggested before this colloquy that we read about, he said but there's no organic deterioration of his brain and he's liable to have assaultive tendencies during post compulsive periods and that he requires continuing care and treatment in the hospital.

Chief Justice Earl Warren: Did he say that he had been assaulting people?

Mr. Anthony J. Lokot: Yes, Your Honor.

Chief Justice Earl Warren: Is that in the record?

Mr. Anthony J. Lokot: Only in these hearings where Doctor Kerr said, his record indicates that he becomes confused and he's liable to have assaultive tendencies.

Chief Justice Earl Warren: He's liable to --

Mr. Anthony J. Lokot: Yes, Your Honor.

Chief Justice Earl Warren: Does it show any actual assaults or attempt to assault people?

Mr. Anthony J. Lokot: Well, his record does, yes.

Chief Justice Earl Warren: No, I said this record, the record we deal with.

Mr. Anthony J. Lokot: I can't say that there is that actually in plain black and white but --

Justice Hugo L. Black: Evidently, what this record shows is what the doctors thought about him and the diagnoses they had.

Mr. Anthony J. Lokot: They read from the records themselves, that is the daily records (Voice Overlap) --

Justice Hugo L. Black: But after reading the record, but we do not have available to us?

Mr. Anthony J. Lokot: That is correct sir.

Justice Hugo L. Black: The record showing, actual occurrences on which the doctor based that conclusion?

Mr. Anthony J. Lokot: Your Honor, that is not included in the record -- made up by the other --

Justice William J. Brennan: Mr. Lokot, can you tell me why it was -- Judge Sweeney as I understand it in the first habeas hearing ordered petitioner's transfer to a civil institution and that was not done and then on the second Judge Sutton was it, said, “Well, that was an administrative matter and this Court could do nothing about it.”

What -- why wasn't he wasn't transferred in compliance with Judge Sweeney's -- is that an order or not?

Mr. Anthony J. Lokot: Judge Sweeney never issued an order for his transfer.

Justice William J. Brennan: Not an order?

Mr. Anthony J. Lokot: No, no.

Justice William J. Brennan: What was it?

Mr. Anthony J. Lokot: His order actually -- excuse me Your Honor, but his order actually ordered his retention in Dannemora State Hospital.

That's in the record.

Justice Byron R. White: Wasn't his order to commit him to the Mental Health Commissioner?

Mr. Anthony J. Lokot: By statute when the sentence expires, the patient is automatically transferred to the custody of the Mental Hygiene Commissioner.

There's nothing that the Court has to do with that.

Justice William J. Brennan: Oh no, I gather it was only a claim on petitioner's part.

Mr. Anthony J. Lokot: That is correct, Your Honor.

Justice William J. Brennan: That Judge Sweeney had an order (Voice Overlap).

Mr. Anthony J. Lokot: Yes, but that is -- that is --

Justice William J. Brennan: No actual order?

Mr. Anthony J. Lokot: That's not entirely true.

Justice William J. Brennan: I'm sorry.

Justice Hugo L. Black: Are we justified in concluding from this record that under the law which is under psychiatric, what State of New York does is to create one classification for a man or woman who has been in jail and convicted and another classification for those who have not been in jail and convicted so that the one who has been in jail is out is denied the right to a lawyer and denied the right to trial by a jury while the others are?

Mr. Anthony J. Lokot: Your Honor, will you say he's out, you mean out in the streets?

Justice Hugo L. Black: Yes.

Mr. Anthony J. Lokot: That man out on the streets when he's picked up, he certainly may have a jury trial.

Justice Hugo L. Black: A jury?

Mr. Anthony J. Lokot: Yes I have to concede that.

Justice Hugo L. Black: Even though he's been in jail?

Mr. Anthony J. Lokot: That is correct.

Justice Hugo L. Black: Even though he's been convicted?

Mr. Anthony J. Lokot: A former convict, in other words.

Justice Hugo L. Black: A former convict?

Mr. Anthony J. Lokot: Yes.

Justice Hugo L. Black: You do not classify on that word?

Mr. Anthony J. Lokot: You may -- he may have a jury trial.

Justice Hugo L. Black: Well then, it's not correct that New York has a classification, which treats them wholly differently, to treat those wholly differently who have ex-convicts from those who were not.

Mr. Anthony J. Lokot: Well, that New York recently repeal the statute which came up through the federal courts in McNeill case in which that precise point was raised that the statute provided for incarceration of a former convict being picked up as you have described and being placed in Matteawan State Hospital for the insane on the basis of fact that he had a previous criminal record and was dangerous.

But there, he was not allowed to any jury trial.

That case by the way -- I don't know what --

Justice Hugo L. Black: Because he was an ex-convict?

Mr. Anthony J. Lokot: Because he was an ex-convict, yes.

Justice Hugo L. Black: You say that law has been repealed?

Mr. Anthony J. Lokot: It has been repealed, yes.

Justice Byron R. White: But you don't suggest that the fellows currently in prison and whom the administrator of the prison finds to be insane?

That fellow may not have a jury trial before he's transferred to an insane asylum out of the prison.

Mr. Anthony J. Lokot: He must have a judicial hearing but he's not entitled to a jury trial, no.

Justice Byron R. White: That's right.

That's right and so you do distinguish between people who are currently in jail and people who are not in jail?

Mr. Anthony J. Lokot: We do distinguish, yes Your Honor.

Justice Hugo L. Black: As to the kind of hearing they get?

Mr. Anthony J. Lokot: Yes.

We do.

We do.

Chief Justice Earl Warren: What kind of a hearing do they get when they're in jail like this man was?

Mr. Anthony J. Lokot: We give --

Chief Justice Earl Warren: Under some (Voice Overlap) hearing --

Mr. Anthony J. Lokot: We give them a hearing before court of record.

Chief Justice Earl Warren: Yes.

Mr. Anthony J. Lokot: And as a matter of fact, what happens is that usually it's the Supreme Court judge or the county judge or surrogate filling in for especial term and he has a judicial hearing wherein the -- he has to be there personally and the Court assigns two psychiatrists on examining physicians to examine him before the hearing and to file a report with the Court at the hearing --

Chief Justice Earl Warren: Well, this takes place where a fellow is still in prison or this only takes place when he's --

Mr. Anthony J. Lokot: When he's in the hospital.

Chief Justice Earl Warren: -- (Voice Overlap) when his term expires?

Mr. Anthony J. Lokot: No, no.

When he's in -- when he's in prison and he needs to be transferred to Dannemora, the warden petitions for a court order and then this is all sentence --

Chief Justice Earl Warren: Whether those terms expired or not?

Mr. Anthony J. Lokot: That's before his term expires, yes.

He's been just a criminal.

Chief Justice Earl Warren: Immediately after his transfer?

Mr. Anthony J. Lokot: Before he is transferred -- he's not transferred without this judicial hearing.

Justice William J. Brennan: Well, excuse me, Mr. Lokot.

Maybe I misunderstood this, but I thought in the instance of this petition, there was no proceeding on the occasion of his declaration, initial declaration that he was mentally ill, that the proceeding in which you speak was sought to Section 384 which applies only, I'm quoting the statute, “Within 30 days prior to the expiration of the term of a prisoner confined in Dannemora.”

Mr. Anthony J. Lokot: Well, in this specific instance, as I remember, he was transferred from prison to the hospital about four months or five months -- as a matter of fact, almost six months before the expiration of his term and he was certified as insane --

Justice William J. Brennan: Yes, but did he have any kind of proceeding -- preceding that transfer except some administrative of proceeding in the prison?

Mr. Anthony J. Lokot: I believe he had a proceeding judicial hearing under the old Section 383 which was subsequently amended or repealed and substituted by --

Justice William J. Brennan: Well, then did he have another one within 30 days (Voice Overlap)?

Mr. Anthony J. Lokot: It did, within the 30 days prior to the expiration of his sentence, yes.

Justice William J. Brennan: And were -- and were those procedures the same kind?

Mr. Anthony J. Lokot: They were followed just according -- according to 384, he had a judicial hearing with two court appointed qualified examining physicians and with the director testifying.

Chief Justice Earl Warren: Well, as I read -- what I read from the briefs would indicate that he did not have a hearing beforehand and that this was after his term expired, he was taken before the Court and these two doctors testified and then the Court says, “Do you have any question, you would like to ask to Doctor Herold, Mr. Baxstrom?”

The patient, “Doctor Herold, I am at the Dannemora State Hospital since June 1st?”

And Doctor Harold says, “Yes, you came to our hospital June 1st.”

The patient, “I asked, I know that it is a mental hospital, am I right but I don't know how I got there.”

And Doctor Herold says, “You don't know how you got there, you were sent to the Dannemora State Hospital by an order of transfer signed by A. J. May (ph) acting warden of Attica Prison.”

The patient said, “I know that I'm an epileptic but I did not know that this is a form of insanity.

I would like to recommend sir, that the staff of the hospital review my case”.

Wouldn't that -- and the judge then and the hospital attendants took no umbrage of that apparently -- apparently, he had no hearing before this.

Mr. Anthony J. Lokot: Well, we're talking now about 383, the old 383.

Chief Justice Earl Warren: No, we're talking about the proceeding under --

Mr. Anthony J. Lokot: 384?

Chief Justice Earl Warren: -- 484.

Mr. Anthony J. Lokot: 384?

Chief Justice Earl Warren: 384.

Mr. Anthony J. Lokot: Well, that proceeding was at just before -- it was initiated just before his sentence expired.

His sentence expired, I believe, on December 16th, the proceeding -- this particular hearing for example was held on December 6, 1961, 10 days or so before his sentence expired.

Justice Byron R. White: But your allegation -- I mean your suggesting is that he was also given an earlier hearing five or six months before that?

Mr. Anthony J. Lokot: My recollection is although this was not placed an issue, his initial transfer from prison.

Justice Byron R. White: But you say the normal practice is you have a hearing when someone is misheard, like this fellow was, while he was in prison.

Mr. Anthony J. Lokot: It is, Your Honor.

Justice Byron R. White: And not to throw away the hearing until his term expires.

Mr. Anthony J. Lokot: The normal practice (Voice Overlap) -- there are two statutes we're talking about, 383 which provides for judicial hearing when a criminal is reputed to be insane.

Justice Byron R. White: Is this the current 383?

Mr. Anthony J. Lokot: 383, yes.

383.

Justice Byron R. White: And then the 384 when his term expires.

Mr. Anthony J. Lokot: When his term expires.

There are two separate statutes and each provides for judicial hearing.

Justice Hugo L. Black: If he is transferred while he's in prison, term has not expired, they get him in there, his term expires so that they can no longer hold him in prison on the basis of the sentence, is he then subject to be held without a kind of procedural protections that would have to be in New York, it would have to be accorded under New York law people who were just put in there -- sentenced to go in there are judged insane and to go in there.

Mr. Anthony J. Lokot: He's not given exactly the same type of proceeding, no Your Honor.

He's given a judicial hearing.

Justice Hugo L. Black: As I gather, maybe that's the claim they're making exactly, I'm not sure.

As I gather, what happens to him is that since he -- undoubtedly he will -- will say he's already -- he was put in there correctly while he was under sentence, state could do it -- choosing, thinking that would be a better place to keep him in prison.

But when his term expires and they no longer have a right to keep him, the only way he can get out, as I understand it, is of course for doctors who examined him and say that he can now get out.

Mr. Anthony J. Lokot: And that is the way he can get out --

Justice Hugo L. Black: That's the only way isn't it?

The only way, isn't it?

Mr. Anthony J. Lokot: The only way -- if you're referring without a jury trial, yes.

Justice Hugo L. Black: Well, he's not entitled to get a jury trial?

Mr. Anthony J. Lokot: No, he's not entitled to jury trial.

Justice Hugo L. Black: But if he were out and they want to put him in there, he would be entitle to a jury trial.

Mr. Anthony J. Lokot: I believe that's correct, Your Honor.

Justice Hugo L. Black: But he get this trial before the Court, is that right?

Mr. Anthony J. Lokot: That is correct, Your Honor.

Chief Justice Earl Warren: But here's what the Court said, at that particular time, right before the -- right before the end, “The question before me today Baxstrom is only what the doctors who are at the hospital and the doctors I set have to examine you, believe your mental condition to be whether you stay at the Dannemora State Hospital or whether you are transferred to some other civil hospital at or near your home is entirely up to the Department of Mental Hygiene and that has nothing to do with Doctor Herold or myself”.

Now, what does that indicate does that indicate that he has had a full hearing of any kind to determine insanity?

Mr. Anthony J. Lokot: Well, I can only go reading between the lines of that statement there by the Court.

It would seem that the Court was satisfied that this man was still dangerously insane and that it's because it follow that up with an order retaining him judicially.

And led it up to the Commissioner of Mental Hygiene and whose custody was to determine from then on whether they were going to -- the Commissioner has the power to release him if they find that he is harmless or if they find that he can be transferred to a civilly insane hospital without doing violence to anybody.

Justice Tom C. Clark: He asked for transfer, hadn't he?

Mr. Anthony J. Lokot: He asked, yes.

Justice Tom C. Clark: That's why he went in there, I suppose.

Chief Justice Earl Warren: Mr. Polsky.

Rebuttal of Leon B. Polsky

Mr. Leon B. Polsky: Mr. Chief Justice, I would like to clarify this question of the procedure in New York.

The first stage is the man is in prison serving a penal sentence.

In 1961 -- and we do have a problem of time because the statutes did change.

In 1961, when the warden of the prison decided that a man in his custody was insane, he would sign a certificate requiring his transfer to Dannemora State Hospital.

There was no provision for hearing.

There was no hearing.

Justice William J. Brennan: Now, 383 --

Mr. Leon B. Polsky: That's 383 that I'm talking about.

Justice William J. Brennan: You mean at that time?

Mr. Leon B. Polsky: In 1961.

Justice William J. Brennan: Well, the 383 that's in the record, isn't it?

It says, whenever the physician or the psychiatrist of any -- one of the state institutions shall certify that the warden where prisoner is in his opinion mentally ill, the warden shall apply to a judge in the court of records, et cetera.

Mr. Leon B. Polsky: That is not the present 383, and that is not the 383 --

Justice William J. Brennan: -- that was in effect at that time?

Mr. Leon B. Polsky: At that time.

Justice William J. Brennan: I see.

Mr. Leon B. Polsky: There was no court order in (Voice Overlap) --

Justice William J. Brennan: Well that (Voice Overlap)

Mr. Leon B. Polsky: Excuse me.

Justice William J. Brennan: The -- when 384 was invoked, I'm looking at page 2 of the record, the doctor -- director of Dannemora in the petition said that petition -- that the patient was admitted there on June 1, 1961 from Attica Prison.

That's all it says.

Mr. Leon B. Polsky: Right.

Justice William J. Brennan: It says how or why or otherwise.

Mr. Leon B. Polsky: Right.

Justice William J. Brennan: But later on, there's another record which says he was transferred to Dannemora pursuant to procedures required by law, that's all.

Mr. Leon B. Polsky: Which was the -- at that time, was the certificate of the warden.

Now, approximately four months after this transfer, there was a decision in the New York Court of Appeals in People ex rel.

Brown against Johnston which dealt with this problem and as a result of that decision, Section 383 was changed.

Justice William J. Brennan: I see.

Mr. Leon B. Polsky: Then he is in the status of a prisoner patient at Dannemora being held under 383.

Just before this prison sentence is about to expire, the director of the hospital brings a commitment proceeding.

This is the first real commitment proceeding before a court against the patient.

That is the proceeding that we had here pursuant to 384.

At the time it was instituted, Baxstrom was still a prisoner with only several weeks to go.

The Court entered an order dealing with his future confinement after the expiration of his sentence.

Now, going back to question, I believe, Mr. Justice Fortas asked and to carry it a little further about the man who was picked-up on the street, that man is entitled to a jury trial on the question of whether or not he is insane.

If he is found to be insane, he is committed to a civil mental hospital, if while he is at that hospital, they decide that this man in addition to his insanity is particularly dangerous, most insane people are dangerous or possibly most than more.

But he is particularly dangerous, they then must institute a new commitment -- a new proceeding under Section 85 of the Mental Hygiene Law, and at that new proceeding, there are specific things which must be proven, and if they are proven then he may be transferred to a hospital within the jurisdiction.

Justice William J. Brennan: Now, is that a judicial proceeding?

Mr. Leon B. Polsky: Yes, Your Honor, it is.

Justice William J. Brennan: Does he have a right to counsel at that one?

Mr. Leon B. Polsky: I would say --

Justice William J. Brennan: Well, let me ask does the statute say that he does or doesn't.

Mr. Leon B. Polsky: The statute says he may have counsel, the Second Circuit in the Carroll case where they held a portion of a related statute unconstitutional assumed that he would have counsel.

Justice William J. Brennan: How about jury trial?

Mr. Leon B. Polsky: The answer is he doesn't.

Justice William J. Brennan: How about jury trial?

Mr. Leon B. Polsky: On the issue of the whether he is uniquely dangerous, no he's not entitled to a jury trial.

We do not -- we don't claim the right to a jury trial --

Justice William J. Brennan: At that stage?

Mr. Leon B. Polsky: -- on the question of unique danger.

Justice William J. Brennan: Yes.

Mr. Leon B. Polsky: We claim the right to a jury trial on a general question of insanity to which all other persons in the State of New York are entitled.

As to the question of right to representation, it doesn't matter what kind of proceeding we're talking about, New York does not give it, except in connection with a specific criminal charge where you have a plea of not guilty by reason of insanity or where you have a claim made that the defendant cannot stand the trial.

Justice William J. Brennan: Well, Mr. Lokot, I can see that I understood that had this petitioner not developed this ailment until after he'd served his prison terms, and then going to pick up on the street, everything you'd said about civil commitment would have follow then clearly, confinement initially in the civil rather than in institutional like Dannemora, is that right?

Justice Byron R. White: And does the New York right to jury trial apply when you -- once before been committed that you can release as cured and then --

Mr. Leon B. Polsky: Yes it does.

It would -- I would say the exception would be if the release were a conditional release, I would think that if there's unconditional discharge and a new commitment proceedings brought, then the statute requires --

Justice Byron R. White: You don't -- you don't suggest that a jury should second guess the Mental Health Commissioner on type of the institution on which you --

Mr. Leon B. Polsky: No.

Justice Byron R. White: -- unless it should be --

Mr. Leon B. Polsky: No, I do not.

But I do suggest that there should be someone other than the Commissioner who makes that decision.

Justice Byron R. White: Yes.

Mr. Leon B. Polsky: Thank you, sir.

Chief Justice Earl Warren: Mr. Polsky, on behalf of the Court, I would like to express our appreciation to you for responding to our urging that you represent this man who was unrepresented into this -- this dilemma, we feel that that's a great public service and it's greatly appreciated sir.

Mr. Leon B. Polsky: Thank you, Your Honor.

Chief Justice Earl Warren: And Mr. Lokot, we appreciate of course your representation of the interest of people of New York.

Rebuttal of Anthony J. Lokot

Mr. Anthony J. Lokot: Thank you, Your Honor.