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December 4, 1967


The opinion of the court was delivered by: Marovitz, District Judge.


Petition for a Writ of Habeas Corpus

William Wax, who was sentenced to 20-35 years on a murder conviction by the Circuit Court of the Fifth Judicial Circuit of Illinois, Edgar County, on January 27, 1965, seeks his release on a writ of habeas corpus. His conviction was affirmed by the Appellate Court for the Fourth District on September 26, 1966, in People v. Wax, 75 Ill. App.2d 163, 220 N.E.2d 600. The Illinois Supreme Court denied leave to appeal on January 18, 1967, and the Supreme Court of the United States denied certiorari on May 29, 1967, at 387 U.S. 930, 87 S.Ct. 2051, 18 L.Ed.2d 991.

The issue urged here was asserted in all of the proceedings below. In essence, petitioner alleges that he was deprived of his Sixth Amendment right to counsel, in that he was examined by a psychiatrist prior to trial, at the state's request, without notice to his retained counsel and in counsel's absence. The psychiatrist subsequently testified at trial as a prosecution witness to the effect that petitioner was sane at the time of the commission of the offense. Petitioner alleges that the time of the examination constituted a "critical stage" of the prosecution and that the denial of counsel at that point constitutes a violation of his right to effective assistance of counsel.

The right to effective assistance of counsel has been applied at stages of the prosecution where the Supreme Court has considered denial of that right to vitiate the accused's guarantee of a fair trial. In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the right to counsel was applied to the trial itself, and in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), to the appellate level.

These cases, and others,*fn1 have construed the Sixth Amendment guarantee to apply to the "critical" stages of the prosecution. And most recently, in a provocative trilogy of cases, the Supreme Court required the exclusion of identification evidence which was tainted by the exhibition of the accused to identifying witnesses prior to trial in the absence of counsel. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); and see Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed. 1199 (1967). Those cases held, inter alia, that a post-indictment "lineup" is a critical stage of the prosecution, and condemned the practice of exhibiting suspects singly to identifying witnesses. Wade defined a "critical" stage as follows: (at 226, 87 S.Ct. at 1932)

  "It is central to that principle [right to
  counsel] that in addition to counsel's presence
  at trial, the accused is guaranteed that he need
  not stand alone against the State at any stage of
  the prosecution, formal or informal, in court or
  out, where counsel's absence might derogate from
  the accused's right to a fair trial."

As Mr. Justice Black put it in his concurring and dissenting opinion in Wade: (at 246, 87 S.Ct. at 1942)

  "And I agree with the Court that a lineup is a
  `critical stage' of the criminal proceedings
  against an accused, because it is a stage at
  which the Government makes use of his custody to
  obtain crucial evidence against him."

The narrow issue presented by this petition is whether a psychiatric examination requested by the prosecution and conducted by a doctor of its designation, who testifies adversely to the defendant at trial on the issue of insanity constitutes a "critical stage" of the prosecution requiring notice to and the presence of the defendant's attorney.

The parties are in virtual agreement that the facts as set forth by the Appellate Court when it affirmed defendant's conviction, are essentially accurate. For that reason, we did not deem it necessary to hold an evidentiary hearing, and are prepared to make our ruling on the legal issues discussed in the briefs.

The facts of the occurrence, as related by the Appellate Court at 75 Ill. App.2d at 176-177, 220 N.E.2d at 607, are these:

  "It is contended that this case must be reversed
  and remanded for a new trial by reason of the
  nature of an examination made of the defendant by
  Dr. Grove Smith, a psychiatrist acting at the
  request of the State's Attorney. This examination
  was made on September 23rd at the jail in Paris.
  It will be recalled that the first examination of
  Dr. Greenfield was on September 19th. The only
  evidence upon this examination was elicited from
  Dr. Smith upon cross-examination. He stated that
  he called at the jail and that he saw the
  defendant and asked his name. Dr. Smith
  identified himself as a doctor making an
  examination at the request of the State's
  Attorney. Following such introduction, it appears
  that the defendant and the doctor had no
  conversation, but that for about 20 minutes there
  was silence and presumably, mutual observation.
  Dr. Smith then asked the defendant if he had ever
  been in the Army, Navy or Marine Corps, and said
  that the defendant shook his head to signify no.
  There followed another interval of silence and
  then the defendant asked to have the sheriff get
  his attorney. Dr.

  Smith testified that he stated that he would be
  glad to have the attorney present, and the latter
  arrived shortly. He testified that he told the
  attorney that he wished to examine the defendant
  with his permission, but that no further
  examination was conducted after such
  conversation. It appeared that the defendant
  stood mute."

As in the instant petition, Wax made no claim before the Appellate Court that his Fifth Amendment privilege against self-incrimination has been violated. The Appellate Court nevertheless stated its belief "that the presence or absence of the element of self-incrimination is a key factor in ...

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