B-177540, APR 3, 1973, 52 COMP GEN 621

B-177540: Apr 3, 1973

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MAY BE PAID NOTWITHSTANDING THE CONDITIONAL RELEASE PROCEEDINGS ARE CIVIL IN NATURE WHEREAS THE JUDGE'S ORDER APPOINTING THE DOCTOR WAS ISSUED UNDER RULE 28. THE SERVICES ARE NOT FOR PAYMENT UNDER THE CRIMINAL JUSTICE ACT OF 1964. THE DOCTOR'S INVOICE IS PAYABLE BY THE ADMINISTRATIVE OFFICE FROM FUNDS APPROPRIATED UNDER THE JUDICIARY APPROPRIATION ACT OF 1971 "FOR NECESSARY TRAVEL AND MISCELLANEOUS EXPENSES. IN WHICH THE CRIMINAL PROSECUTION WAS HELD AND SERVES UPON THE OFFICE WHICH CONDUCTED THE PROSECUTION. A CERTIFICATE THAT A PERSON COMMITTED PURSUANT TO SUBSECTION (D) IS IN A CONDITION TO BE CONDITIONALLY RELEASED UNDER SUPERVISION. THE SUPERINTENDENT'S CERTIFICATE IS SUFFICIENT TO AUTHORIZE THE COURT TO ORDER CONDITIONAL RELEASE WITHOUT A HEARING.

B-177540, APR 3, 1973, 52 COMP GEN 621

COURTS - ADMINISTRATIVE MATTERS - EXPERTS AND CONSULTANTS HIRE - CIVIL V. CRIMINAL PROCEEDINGS THE FEE AND EXPENSES OF A PSYCHIATRIST FOR SERVICES IN A CRIMINAL CASE THAT AROSE UNDER 24 D.C. CODE 301(E), WHICH PROVIDES FOR THE CONDITIONAL RELEASE FROM A MENTAL HOSPITAL OF PERSONS COMMITTED WHEN ACQUITTED OF CRIMINAL CHARGES ON THE BASIS OF AN INSANITY DEFENSE, MAY BE PAID NOTWITHSTANDING THE CONDITIONAL RELEASE PROCEEDINGS ARE CIVIL IN NATURE WHEREAS THE JUDGE'S ORDER APPOINTING THE DOCTOR WAS ISSUED UNDER RULE 28, FEDERAL RULES OF CRIMINAL PROCEDURE IN VIEW OF THE COURT'S INHERENT AUTHORITY TO PROCURE EXPERT SERVICES AND, THEREFORE, THE SERVICES ARE NOT FOR PAYMENT UNDER THE CRIMINAL JUSTICE ACT OF 1964. THE DOCTOR'S INVOICE IS PAYABLE BY THE ADMINISTRATIVE OFFICE FROM FUNDS APPROPRIATED UNDER THE JUDICIARY APPROPRIATION ACT OF 1971 "FOR NECESSARY TRAVEL AND MISCELLANEOUS EXPENSES, NOT OTHERWISE PROVIDED FOR, INCURRED BY THE JUDICIARY."

TO THE ATTORNEY GENERAL, APRIL 3, 1973:

BY LETTER DATED NOVEMBER 27, 1972, THE ASSISTANT ATTORNEY GENERAL FOR ADMINISTRATION REQUESTED OUR ADVICE CONCERNING THE PROPER SOURCE OF PAYMENT OF AN INVOICE BY DR. ALBERT E. MARLAND, A PSYCHIATRIST, REPRESENTING HIS FEE AND EXPENSES FOR SERVICES RENDERED IN THE CASE OF UNITED STATES V. HARRY HANTMAN, CRIMINAL NO. 1446-68, A CONDITIONAL RELEASE PROCEEDING HELD IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.

THIS PROCEEDING AROSE UNDER TITLE 24, SECTION 24-301(E) OF THE DISTRICT OF COLUMBIA CODE (1967 ED., SUPP. V). SUBSECTION (D) OF SECTION 24-301 PROVIDES FOR COMMITMENT IN A MENTAL HOSPITAL OF PERSONS ACQUITTED OF CRIMINAL CHARGES ON THE BASIS OF A DEFENSE OF INSANITY. SUBSECTION (E) OF SECTION 24-301 PROVIDES, INTER ALIA, FOR THE INITIATION OF RELEASE PROCEEDINGS WHEN THE HOSPITAL SUPERINTENDENT FILES WITH THE COURT, IN WHICH THE CRIMINAL PROSECUTION WAS HELD AND SERVES UPON THE OFFICE WHICH CONDUCTED THE PROSECUTION, A CERTIFICATE THAT A PERSON COMMITTED PURSUANT TO SUBSECTION (D) IS IN A CONDITION TO BE CONDITIONALLY RELEASED UNDER SUPERVISION. AFTER THE EXPIRATION OF 15 DAYS FOLLOWING FILING AND SERVICE, THE SUPERINTENDENT'S CERTIFICATE IS SUFFICIENT TO AUTHORIZE THE COURT TO ORDER CONDITIONAL RELEASE WITHOUT A HEARING. HOWEVER, SUBSECTION (E) ALSO PROVIDES THAT THE COURT MAY ON ITS OWN MOTION - OR MUST UPON OBJECTION TO THE CERTIFICATE BY THE PROSECUTIVE OFFICE - HOLD A HEARING "AT WHICH EVIDENCE AS TO THE MENTAL CONDITION OF THE PERSON SO CONFINED MAY BE SUBMITTED, INCLUDING THE TESTIMONY OF ONE OR MORE PSYCHIATRISTS FROM SAID HOSPITAL." SUBSECTION (E) PROVIDES FURTHER THAT:

*** IF, AFTER A HEARING AND WEIGHING THE EVIDENCE, THE COURT SHALL FIND THAT THE CONDITION OF SUCH PERSON WARRANTS HIS CONDITIONAL RELEASE, THE COURT SHALL ORDER HIS RELEASE UNDER SUCH CONDITIONS AS THE COURT SHALL SEE FIT, OR, IF THE COURT DOES NOT SO FIND, THE COURT SHALL ORDER SUCH PERSON RETURNED TO SUCH HOSPITAL.

IN THE INSTANT PROCEEDING JUDGE EDWARD M. CURRAN, WHO PRESIDED AT THE HEARING, FOUND THE PSYCHIATRIC TESTIMONY PRESENTED (APPARENTLY BY THE HOSPITAL STAFF) CONFLICTING, AND FELT THE NEED OF IMPARTIAL ADVICE IN ORDER TO MAKE A JUST RULING. ACCORDINGLY, JUDGE CURRAN ISSUED AN ORDER UNDER RULE 28, FEDERAL RULES OF CRIMINAL PROCEDURE, APPOINTING DR. MARLAND TO EXAMINE MR. HANTMAN TO DETERMINE HIS MENTAL CONDITION AND WHETHER CONDITIONAL RELEASE WOULD BE ADVISABLE. DR. MARLAND'S INVOICE, IN THE AMOUNT OF $306, INDICATES IN ADDITION TO EXPENSES THE FOLLOWING SERVICES:AN EXAMINATION OF MR. HANTMAN, AN EXAMINATION OF THE HOSPITAL'S CLINICAL FILE CONCERNING MR. HANTMAN, A CONFERENCE WITH MR. HANTMAN'S ATTORNEY, A CONFERENCE WITH THE UNITED STATES ATTORNEY, A REPORT TO THE JUDGE, AND TESTIMONY AT THE HEARING.

DR. MARLAND'S INVOICE WAS PRESENTED INITIALLY TO JUDGE CURRAN, AND WAS REFERRED BY HIM TO THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS (ADMINISTRATIVE OFFICE) FOR PAYMENT UNDER THE CRIMINAL JUSTICE ACT OF 1964, AS AMENDED, 18 U.S.C. 3006A. BY LETTER DATED DECEMBER 6, 1971, THE DEPUTY DIRECTOR OF THE ADMINISTRATIVE OFFICE RETURNED THE INVOICE TO JUDGE CURRAN, ADVISING THAT CONDITIONAL RELEASE PROCEEDINGS ARE ENTIRELY CIVIL IN NATURE, THAT RULE 28 WAS NOT FOR APPLICATION, AND THAT THE SERVICES OF AN INDEPENDENT PSYCHIATRIST WERE NOT RELATED TO PROVISION OF AN ADEQUATE DEFENSE SO AS TO AUTHORIZE PAYMENT THEREFOR UNDER 18 U.S.C. 3006A. JUDGE CURRAN THEN SUBMITTED THE INVOICE TO THE DEPARTMENT OF JUSTICE, WHICH AGAIN SOUGHT TO HAVE PAYMENT MADE BY THE ADMINISTRATIVE OFFICE. SEVERAL LETTERS PASSED BETWEEN THE DEPARTMENT OF JUSTICE AND THE ADMINISTRATIVE OFFICE. IN THIS CORRESPONDENCE, THE DEPARTMENT OF JUSTICE TOOK THE POSITION THAT DR. MARLAND'S FEE IS PAYABLE FROM THE MISCELLANEOUS EXPENSE APPROPRIATION OF THE ADMINISTRATIVE OFFICE, NOTING THAT:

*** THE COMPTROLLER GENERAL HAS RULED IN HIS UNPUBLISHED DECISION B 121306 OF NOVEMBER 4, 1954, THAT INDEPENDENT EXPERTS CALLED BY THE COURT FOR ASSISTANCE "*** IN ORDER TO DETERMINE THE PROPER ACTION TO BE TAKEN" BY THE COURT SHOULD PROPERLY BE PAID FROM THE APPROPRIATIONS OF THE JUDICIARY.

THE ADMINISTRATIVE OFFICE RESPONDED THAT THE COMPTROLLER GENERAL DECISION CITED INVOLVED A STRAIGHT HABEAS CORPUS PROCEEDING, AND THAT: "TRADITIONALLY, THESE EXPENSES ARE BORNE BY THE PARTIES. WE DO NOT HAVE AN APPROPRIATION TO BE USED FOR THIS PURPOSE."

THE ASSISTANT ATTORNEY GENERAL'S LETTER REFERRING THIS MATTER TO US STATES IN PART:

*** THE COMPTROLLER GENERAL DETERMINED IN HIS DECISION 39:133 THAT HABEAS CORPUS PROCEEDINGS, ALTHOUGH CIVIL ACTIONS, ARE INTEGRALLY RELATED TO THE ORIGINAL CRIMINAL PROCEEDING. ALTHOUGH THE CONDITIONAL RELEASE PROCEEDING IS NOT A HABEAS CORPUS PROCEEDING (UNDER THE PROVISIONS OF 24 D.C. CODE 301(E) THE RELEASE IS REQUESTED BY THE HOSPITAL), THEY ARE BOTH CIVIL ACTIONS INCIDENT TO THE ORIGINAL CRIMINAL PROCEEDINGS, AND INVOLVE THE PROTECTION OF BASIC CONSTITUTIONAL RIGHTS OF THE DEFENDANT; THEREFORE, THE SAME SITUATION APPEARS TO PREVAIL.

THIS DEPARTMENT DOES NOT FEEL THAT THIS TYPE OF PSYCHIATRIC EXAMINATION AND TESTIMONY COMES WITHIN THE PROVISIONS OF 18 U.S.C. 4244 TO DETERMINE COMPETENCY TO STAND TRIAL NOR IS IT AN EXPENSE INCIDENT TO THE PROSECUTION OF THE CASE, AND THEREFORE CAN FIND NO APPROPRIATION OF THIS DEPARTMENT TO WHICH IT COULD PROPERLY BE CHARGED.

THE SERVICES OF DR. MARLAND IN THIS MATTER WERE PROVIDED AT THE INSTANCE OF, AND CLEARLY FOR THE PRIMARY BENEFIT OF, THE COURT. THERE IS NO INDICATION IN THE MATERIALS SUBMITTED TO US THAT MR. HANTMAN REQUESTED THE APPOINTMENT OF AN INDEPENDENT PSYCHIATRIC EXPERT; AND WE ASSUME THAT HE CONSIDERED HIS INTERESTS TO BE ADEQUATELY PROTECTED BY THE TESTIMONY OF THE HOSPITAL'S PSYCHIATRIST. IN VIEW OF THE FOREGOING, WE DO NOT BELIEVE THAT DR. MARLAND'S SERVICES MAY BE REGARDED AS "REPRESENTATION FOR" MR. HANTMAN FOR PURPOSES OF THE CRIMINAL JUSTICE ACT.

WHILE THE JUDGE MAY HAVE BEEN INCORRECT IN BASING HIS ORDER FOR DR. MARLAND'S SERVICES UPON RULE 28 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, THERE APPEARS TO BE NO QUESTION CONCERNING THE AUTHORITY OF A COURT TO PROCURE AT ITS OWN MOTION EXPERT SERVICES WHICH ARE DEEMED NECESSARY TO DETERMINE THE MATTER BEFORE IT. THE EXERCISE OF SUCH DISCRETION HAS TRADITIONALLY BEEN REGARDED AS AN INHERENT POWER OF THE COURT. SEE, E.G., 9 WIGMORE ON EVIDENCE (THIRD ED.) SEC. 2484; 98 C.J.S., WITNESSES, SEC. 350. SEVERAL DECISIONS OF THIS OFFICE HAVE ALSO RECOGNIZED THIS POWER; AND HAVE CONCLUDED THAT EXPENSES SO INCURRED ARE PROPERLY PAYABLE FROM APPROPRIATIONS AVAILABLE TO THE JUDICIAL BRANCH "FOR NECESSARY *** MISCELLANEOUS EXPENSES, NOT OTHERWISE PROVIDED FOR ***." OUR DECISION OF NOVEMBER 4, 1954, B 121306, CITED BY THE ASSISTANT ATTORNEY GENERAL, SEEMS PARTICULARLY SIMILAR TO THE INSTANT MATTER. THAT CASE, A FEDERAL DISTRICT JUDGE HAD ON HIS OWN MOTION APPOINTED A PSYCHIATRIST TO EXAMINE A PRISONER WHO EXHIBITED A POSSIBLE MENTAL CONDITION DURING THE COURSE OF A HEARING ON THE PRISONER'S APPLICATION FOR A WRIT OF HABEAS CORPUS SEEKING HIS TRANSFER TO A HOSPITAL FOR AN OPERATION. WE HELD:

IN THE INSTANT CASE, THE COURT APPARENTLY FELT THAT THE VIEWS OF PSYCHIATRISTS WERE NEEDED IN ORDER TO DETERMINE THE PROPER COURSE TO BE TAKEN WITH RESPECT TO THE WRIT, AND IN SUCH SITUATIONS THE COURT APPEARS TO HAVE INHERENT POWER TO CALL WITNESSES ON ITS OWN MOTION WITHOUT SPECIFIC AUTHORITY FOR ACTION IN SOME LAW OR RULE. SEE THE NOTES FOLLOWING RULE 28(FEDERAL RULES OF CRIMINAL PROCEDURE) SET FORTH IN TITLE 18, UNITED STATES CODE. ACCORDINGLY, IT IS CONCLUDED THAT THE APPROPRIATION SPECIFIED IN THE COURT ORDER - WHICH APPROPRIATION IS AVAILABLE FOR MISCELLANEOUS EXPENSES NOT OTHERWISE PROVIDED FOR THE JUDICIARY - IS AVAILABLE FOR PAYMENT OF THE EXPENSES INVOLVED ***.

SEE ALSO 39 COMP. GEN. 133, 137(1959); B-132461, AUGUST 27, 1957; CF., 48 COMP. GEN. 681(1969).

WE BELIEVE THAT THE APPROACH TAKEN IN OUR PRIOR DECISION, DISCUSSED ABOVE, IS APPLICABLE TO THE INSTANT MATTER. ACCORDINGLY, IT IS OUR OPINION THAT THE INVOICE SUBMITTED BY DR. MARLAND IS PAYABLE BY THE ADMINISTRATIVE OFFICE FROM FUNDS APPROPRIATED "FOR NECESSARY TRAVEL AND MISCELLANEOUS EXPENSES, NOT OTHERWISE PROVIDED FOR, INCURRED BY THE JUDICIARY ***" UNDER THE JUDICIARY APPROPRIATION ACT, 1971, APPROVED OCTOBER 21, 1970, PUBLIC LAW 91-472, TITLE IV, 84 STAT. 1055, 1057.

WE ARE SENDING A COPY OF THIS LETTER TO THE DIRECTOR OF THE ADMINISTRATIVE OFFICE.