B-132461, AUG. 27, 1957

B-132461, AUG. 27, 1957

THE HONORABLE ATTORNEY GENERAL:

BY LETTER OF JULY 3, 1957, FILE A3, THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL REQUESTED OUR VIEWS ON CERTAIN QUESTIONS ARISING IN THE APPLICATION OF PUBLIC LAW 285, 81ST CONGRESS, CODIFIED IN TITLE 18 OF THE U.S.C. BEGINNING WITH SECTION 4244 AND ENDING WITH SECTION 4248.

PUBLIC LAW 285 PROVIDES A UNIFORM PROCEDURE FOR OBTAINING A JUDICIAL DETERMINATION OF MENTAL COMPETENCY OF PERSONS CHARGED WITH OR CONVICTED OF OFFENSES AGAINST THE UNITED STATES WHERE REASON TO BELIEVE SUCH A PERSON IS SUFFERING FROM A MENTAL DISORDER ARISES AT OR BEFORE THE TIME OF TRIAL, DURING THE SERVICE OF SENTENCE, PRIOR TO EXPIRATION OF ANY PERIOD OF PROBATION, OR WHEN HIS PRISON SENTENCE IS COMPLETED AND THE PERSON IS ABOUT TO BE DISCHARGED. THE LAW ALSO PROVIDES FOR THE CARE AND CUSTODY OF SUCH PERSONS WHO ARE THUS DETERMINED TO BE MENTALLY INCAPACITATED. SECTION 3 OF THE ACT STATES THAT THE ATTORNEY GENERAL MAY AUTHORIZE THE USE OF ANY UNEXPENDED BALANCE OF THE APPROPRIATION FOR "SUPPORT OF UNITED STATES PRISONERS" FOR CARRYING OUT THE PURPOSES OF THE ACT UNLESS THE EXPENSE IS OTHERWISE PROVIDED FOR BY OTHER SPECIFIC APPROPRIATIONS. FUNDS FOR COMPENSATION OF WITNESSES (INCLUDING EXPERT WITNESSES) PURSUANT TO SECTIONS 4244-48 OF TITLE 18, U.S.C. ARE NOW PROVIDED FOR IN THE DEPARTMENT OF JUSTICE APPROPRIATION ACTS UNDER THE APPROPRIATION FOR "FEES AND EXPENSES OF WITNESSES.'

THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL'S LETTER INDICATES THAT YOUR DEPARTMENT HAS BEEN FOLLOWING A RULE DEVISED SHORTLY AFTER ENACTMENT OF PUBLIC LAW 285 WHEREUNDER THE EXPENSES OF A PSYCHIATRIC EXAMINATION WERE DEEMED CHARGEABLE TO THE DEPARTMENT OF JUSTICE IF THE EXAMINATION WAS TO DETERMINE COMPETENCY TO STAND TRIAL OR CONDUCT A DEFENSE AND CHARGEABLE TO A JUDICIAL APPROPRIATION IF FOR THE PURPOSE OF ASSISTING THE COURT IN ASSESSING SENTENCE OR FOR OTHER COURT PURPOSES. IT IS STATED THAT WHILE THIS RULE MAY READILY BE APPLIED IN THE MAJORITY OF INSTANCES, CASES ARISE IN WHICH THE PURPOSE OF THE EXAMINATION IS NOT CLEARLY STATED, OR IN WHICH THE EXAMINATION SERVES DUAL PURPOSES OR MAY HAVE LITTLE OR NO RELATIONSHIP TO EITHER MENTAL COMPETENCY OR DETERMINATION OF SENTENCE. CORRESPONDENCE CONCERNING ONE SUCH CASE WAS TRANSMITTED FOR OUR CONSIDERATION. A SIMILAR QUESTION ARISES IN CONNECTION WITH THE PSYCHIATRIC EXAMINATION OF PROBATIONERS AND CORRESPONDENCE CONCERNING A REPRESENTATIVE CASE OF THIS NATURE LIKEWISE WAS TRANSMITTED.

THE FIRST CASE INVOLVES THE PSYCHIATRIC EXAMINATION OF ONE JACK NAVATTA. NAVATTA PLEADED GUILTY TO THE CHARGE AGAINST HIM AND MADE A STATEMENT. HOWEVER, WHEN HE WAS CALLED AS A WITNESS FOR THE GOVERNMENT AT THE SUBSEQUENT TRIAL OF CO-DEFENDANTS, HE ALLEGED HE WAS SUFFERING FROM AMNESIA AND COULD NOT REMEMBER FACTS INCLUDED IN HIS STATEMENT. THE COURT THEREUPON ORDERED A PSYCHIATRIC EXAMINATION OF NAVATTA AND THE CASE AGAINST THE CO-DEFENDANTS WAS CONCLUDED WITHOUT HIM. THE RESULT OF THE EXAMINATION IS NOT SHOWN BUT THE CORRESPONDENCE INDICATES THAT NAVATTA'S PLEA OF GUILTY STILL STANDS. IT APPEARS THAT SOME QUESTION EXISTS BETWEEN YOUR DEPARTMENT AND THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS AS TO WHICH AGENCY SHOULD PAY THE EXPENSES OF THE EXAMINATION, SINCE MENTAL COMPETENCY TO STAND TRIAL OR UNDERSTAND THE PROCEEDINGS AGAINST HIM SEEMS NOT TO HAVE BEEN THE ISSUE AND IT IS STATED THAT THE EXAMINATION WAS NOT FOR THE PURPOSE OF IMPOSING SENTENCE. OUR DECISION IS REQUESTED AS TO WHICH AGENCY IS PROPERLY CHARGEABLE WITH THE EXPENSES OF THE EXAMINATION. ALSO, SINCE THE JUDGE HAS STATED THAT THE EXPENSE IS PROPERLY CHARGEABLE TO THE DEPARTMENT OF JUSTICE, THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL REQUESTS OUR ADVICE AS TO WHETHER THE JUDGE'S DETERMINATION IS SUFFICIENT TO SUPPORT PAYMENT FROM YOUR APPROPRIATION.

THE SECOND CASE INVOLVES ONE EDWIN L. MASTERMAN, WHO WAS PLACED ON PROBATION FOLLOWING CONVICTION. LATER HE WAS ARRESTED ON A CAPIAS ISSUED AT THE REQUEST OF HIS PROBATION OFFICER ON A CHARGE OF HAVING VIOLATED THE CONDITIONS OF HIS PROBATION. FOLLOWING THIS ARREST HIS STEP-SISTER FILED A MOTION IN THE COURT STATING THAT IN HER OPINION MASTERMAN WAS NOT MENTALLY RESPONSIBLE FOR HIS ACTS AND WAS NOT MENTALLY ABLE TO ASSIST IN DEFENDING THE CHARGE, WHEREFORE SHE REQUESTED THAT HE BE GIVEN A PSYCHIATRIC EXAMINATION. THE COURT ORDERED THE EXAMINATION. ALTHOUGH THE COURT IN THIS CASE DEEMED THE EXPENSES OF THIS EXAMINATION TO BE PAYABLE FROM JUDICIAL APPROPRIATIONS, THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS FELT OTHERWISE AND THE DEPARTMENT OF JUSTICE PAID THE CHARGES SUBJECT TO LATER ADJUSTMENT IF REQUIRED BY THE GENERAL ACCOUNTING OFFICE. OUR DECISION IS REQUESTED WHETHER THE PAYMENT IN THIS CASE WAS PROPER. ALSO, OUR DECISION IS REQUESTED WHETHER DEPARTMENT OF JUSTICE FUNDS ARE CHARGEABLE WITH THE EXPENSES OF PSYCHIATRIC EXAMINATION OF PROBATIONERS AT ANY TIME PRIOR TO EXPIRATION OF PROBATION.

SECTION 4244 OF THE ACT, WHICH COVERS PSYCHIATRIC EXAMINATION AFTER ARREST AND BEFORE IMPOSITION OF SENTENCE, OR DURING PROBATION, PROVIDES IN PERTINENT PART AS FOLLOWS:

"WHENEVER AFTER ARREST AND PRIOR TO THE IMPOSITION OF SENTENCE OR PRIOR TO THE EXPIRATION OF ANY PERIOD OF PROBATION THE UNITED STATES ATTORNEY HAS REASONABLE CAUSE TO BELIEVE THAT A PERSON CHARGED WITH AN OFFENSE AGAINST THE UNITED STATES MAY BE PRESENTLY INSANE OR OTHERWISE SO MENTALLY INCOMPETENT AS TO BE UNABLE TO UNDERSTAND THE PROCEEDINGS AGAINST HIM OR PROPERLY TO ASSIST IN HIS OWN DEFENSE, HE SHALL FILE A MOTION FOR A JUDICIAL DETERMINATION OF SUCH MENTAL COMPETENCY OF THE ACCUSED, SETTING FORTH THE GROUND FOR SUCH BELIEF WITH THE TRIAL COURT IN WHICH PROCEEDINGS ARE PENDING. UPON SUCH A MOTION OR UPON A SIMILAR MOTION IN BEHALF OF THE ACCUSED, OR UPON ITS OWN MOTION, THE COURT SHALL CAUSE THE ACCUSED, WHETHER OR NOT PREVIOUSLY ADMITTED TO BAIL, TO BE EXAMINED AS TO HIS MENTAL CONDITION BY AT LEAST ONE QUALIFIED PSYCHIATRIST, WHO SHALL REPORT TO THE COURT. * * *"

THE ONLY CRITERION WHICH MAY BE APPLIED TO DETERMINE THE AVAILABILITY OF DEPARTMENT OF JUSTICE FUNDS IN THE CASES HERE INVOLVED IS THAT SET FORTH IN SECTION 3 OF THE ACT, WHICH PROVIDES THAT THE SPECIFIED DEPARTMENT OF JUSTICE APPROPRIATION, UNLESS A MORE SPECIFIC APPROPRIATION IS PROVIDED, IS AVAILABLE "FOR CARRYING OUT THE PURPOSES OF" PUBLIC LAW 285, AND SUBSEQUENT DEPARTMENT OF JUSTICE APPROPRIATION ACTS, WHICH SPECIFICALLY PROVIDE FUNDS UNDER THE APPROPRIATION "FEES AND EXPENSES OF WITNESSES" TO COVER THE "COMPENSATION AND EXPENSES OF WITNESSES (INCLUDING EXPERT WITNESSES) OR INFORMANTS PURSUANT TO" PUBLIC LAW 285. THE PURPOSE OF SECTION 4244 IS BY ITS OWN TERMS TO PROVIDE FOR JUDICIAL DETERMINATION OF THE MENTAL COMPETENCY OF A PERSON CHARGED WITH AN OFFENSE AGAINST THE UNITED STATES WHERE, AFTER ARREST AND BEFORE IMPOSITION OF SENTENCE, OR DURING PROBATION, THERE ARISES REASONABLE CAUSE TO BELIEVE THAT SUCH PERSON IS "PRESENTLY INSANE OR OTHERWISE SO MENTALLY INCOMPETENT AS TO BE UNABLE TO UNDERSTAND THE PROCEEDINGS AGAINST HIM OR PROPERLY TO ASSIST IN HIS OWN DEFENSE.' ANY CASE WHEREIN THE EXAMINATION UNQUESTIONABLY WAS FOR THE PURPOSE STATED IN SECTION 4244 CLEARLY WOULD BE CHARGEABLE TO DEPARTMENT OF JUSTICE APPROPRIATIONS. CONVERSELY, ANY CASE WHERE THE EXAMINATION WAS NOT FOR THE PURPOSES OF THAT SECTION OR THOSE SET OUT IN SECTIONS 4245-4248 WOULD NOT BE SO CHARGEABLE. HOWEVER, IT SEEMS REASONABLE TO EXPECT THAT THE RESULTS OF AN EXAMINATION INSTITUTED FOR THE PURPOSE OF DETERMINING MENTAL COMPETENCY TO STAND TRIAL, PROPERLY PAYABLE FROM YOUR APPROPRIATION UNDER PUBLIC LAW 285, WOULD BE CONSIDERED BY A JUDGE IN DETERMINING THE SENTENCE AFTER TRIAL AND CONVICTION, AND THE MERE FACT THAT A PSYCHIATRIC EXAMINATION MAY ASSIST IN ASSESSING SENTENCE AS WELL AS DETERMINING MENTAL COMPETENCY TO STAND TRIAL WOULD NOT PRECLUDE PAYMENT OF THE ALIENIST WITNESS FEES FROM THE APPLICABLE APPROPRIATION OF THE DEPARTMENT OF JUSTICE OTHERWISE PAYABLE THEREUNDER. MANIFESTLY, HOWEVER, EACH QUESTIONABLE OR BORDERLINE SITUATION MUST BE EXAMINED AND SETTLED ON ITS OWN MERITS.

THE CORRESPONDENCE IN THE NAVATTA CASE INDICATES THAT THE JUDGE ORDERED THE PSYCHIATRIC EXAMINATION ON HIS OWN MOTION, NEITHER FOR THE PURPOSE OF IMPOSING SENTENCE ON NAVATTA NOR TO DETERMINE HIS MENTAL COMPETENCY TO STAND TRIAL, BUT TO PREVENT OTHER CO-DEFENDANTS FROM TRYING TO AVOID TESTIFYING BY FEIGNING AMNESIA. SINCE A PSYCHIATRIC EXAMINATION, EXCEPT UNDER 18 U.S.C. 4247 WHICH MANIFESTLY WAS NOT INVOLVED HERE, TO BE WITHIN THE PURVIEW OF PUBLIC LAW 285, MUST BE FOR THE PURPOSE OF DETERMINING THE ACCUSED PERSON'S MENTAL COMPETENCY TO STAND TRIAL OR UNDERSTAND THE PROCEEDINGS AGAINST HIM AND MUST BE PREDICATED UPON REASONABLE CAUSE TO BELIEVE INCOMPETENCY EXISTS, THE EXPENSE OF NAVATTA'S EXAMINATION IS NOT CHARGEABLE AGAINST THE DEPARTMENT OF JUSTICE APPROPRIATION UNDER THAT ACT. THE EXAMINATION IN THIS INSTANCE APPEARS TO HAVE BEEN FOR "OTHER COURT PURPOSES" WITHIN THE RULE STATED IN THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL'S LETTER. IN THIS CONNECTION YOU ARE ADVISED THAT THE STATEMENT BY A JUDGE THAT THE COST OF SUCH EXAMINATION IS CHARGEABLE TO THE DEPARTMENT OF JUSTICE IS NOT OF ITSELF DETERMINATIVE OF THE PROPRIETY OF PAYMENT OF THE COST FROM YOUR APPROPRIATION.

THE CASE OF EDWIN L. MASTERMAN APPEARS TO CONTAIN ALL THE ELEMENTS NECESSARY TO BRING IT WITHIN THE PURVIEW OF SECTION 4244. THE CORRESPONDENCE TRANSMITTED INDICATES THAT, AS REQUIRED BY THE QUOTED PORTION OF THAT SECTION, THE PSYCHIATRIC EXAMINATION OF MASTERMAN WAS ORDERED BY THE COURT FOR THE PURPOSE OF DETERMINING HIS MENTAL COMPETENCY, ON THE BASIS OF A "MOTION IN BEHALF OF THE ACCUSED" "FOR A JUDICIAL DETERMINATION OF" HIS MENTAL COMPETENCY, FILED "PRIOR TO THE EXPIRATION OF ANY PERIOD OF PROBATION" AND "SETTING FORTH THE GROUND FOR SUCH BELIEF" THAT THE ACCUSED MAY BE "PRESENTLY INSANE OR OTHERWISE SO MENTALLY INCOMPETENT AS TO BE UNABLE TO UNDERSTAND THE PROCEEDINGS AGAINST HIM OR TO PROPERLY ASSIST IN HIS DEFENSE.' THERE IS NOTHING IN THE ACT OR ITS LEGISLATIVE HISTORY WHICH WOULD INDICATE THAT THE MERE FACT THAT THE ACCUSED, AT THE TIME OF FILING OF THE MOTION, WAS UNDER ARREST FOR VIOLATION OF THE CONDITIONS OF HIS PROBATION WOULD RENDER PUBLIC LAW 285 INAPPLICABLE. ACCORDINGLY, THE EXPENSE OF THE PSYCHIATRIC EXAMINATION IN THIS CASE IS PROPERLY CHARGEABLE TO THE DEPARTMENT OF JUSTICE UNDER PUBLIC LAW 285 AND THE ACTION TAKEN BY YOUR DEPARTMENT IN CHARGING THE AMOUNTS TO THE APPLICABLE APPROPRIATION OF YOUR DEPARTMENT WAS PROPER.

WE CANNOT CATEGORICALLY STATE THAT ALL PSYCHIATRIC EXAMINATIONS OF PROBATIONERS ARE CHARGEABLE TO DEPARTMENT OF JUSTICE APPROPRIATIONS UNDER PUBLIC LAW 285 SINCE IT IS CONCEIVABLE THAT SUCH AN EXAMINATION MIGHT BE ORDERED FOR PURPOSES NOT WITHIN THE PURVIEW OF THAT ACT. HOWEVER, ANY SUCH EXAMINATION WHICH FULFILLS THE REQUIREMENTS AND PURPOSES OF PUBLIC LAW 285 IS SO CHARGEABLE.

WE TRUST THAT WHAT IS SAID ABOVE WILL BE HELPFUL IN DETERMINING THE PROPER APPROPRIATION TO BE CHARGED WITH EXPERT WITNESS FEES IN SUCH CASES. HOWEVER, SHOULD ANY DOUBT AS TO THE APPROPRIATION CHARGEABLE CONTINUE TO EXIST AS TO ANY FACTUAL SITUATION, WE WILL BE PLEASED TO CONSIDER SUCH A CASE HERE WITH A VIEW TO RESOLUTION OF THE DOUBT IN THAT AND SIMILAR CASES.