Hastings, Swygert and Cummings, Circuit Judges. Swygert, Circuit Judge (dissenting).
This is an appeal from the denial of a habeas corpus petition. The district court's memorandum opinion denying the petition without holding a hearing has not been reported. Earlier phases of this litigation are reported in 4 Ill.2d 131, 122 N.E.2d 231, certiorari denied, 349 U.S. 947, 75 S. Ct. 876, 99 L. Ed. 1273;*fn1 38 Ill.2d 294, 230 N.E.2d 875, certiorari denied, 390 U.S. 1044, 88 S. Ct. 1644, 20 L. Ed. 2d 306; and 7 Cir., 401 F.2d 147. For the sake of brevity, the facts will not be restated herein except in connection with the legal issues presented by this petition. We do not need to re-examine all of the questions adjudicated earlier. Woodington v. Mathews, 401 F.2d 125, 126 (7th Cir. 1968).
On September 4, 1946, petitioner was arraigned and pleaded guilty to three charges of murder and to twenty-six charges of burglary, robbery and assault. He thereupon received consecutive life sentences on each of the murder indictments and concurrent sentences on the other charges, to be consecutive to the murder sentences. The court had previously ordered that a panel of three psychiatrists examine the petitioner.*fn2 One of the three was selected by petitioner's retained counsel, another by the State, and the third by the other two. Their report, which concluded that petitioner was sane and competent to conduct his defense, was discussed by petitioner and his trial counsel before his arraignment and pleas. Before entering judgments on the pleas and before sentencing petitioner, the trial court received the report in evidence, pursuant to stipulation of the parties.
If there was enough evidence before the trial court to create a bona fide doubt as to petitioner's ability to plead guilty or stand trial, it would have been a denial of due process for the court not to convene a sanity jury sua sponte. Pate v. Robinson, 383 U.S. 375, 385, 86 S. Ct. 836, 15 L. Ed. 2d 815. But Robinson is factually different because here the data before the trial judge was not sufficient to raise a bona fide doubt. About a month before petitioner's arraignment, the court directed that three psychiatrists examine the petitioner at the County's expense. The panel was well qualified, one of them being the then president of the American Psychiatric Society. Two of the psychiatrists examined petitioner for five to six hours daily for several weeks, and the third was present during the last week of the examinations. Their unanimous report was in part as follows:
"This patient, in our opinion, is not suffering from any psychosis, nor is he mentally retarded; he has average intelligence, he has a deep sexual perversion and is emotionally insensitive and unstable. He has sufficient intelligence to understand the nature and object of the proceedings against him. He rightly comprehends his own position in regard to these proceedings and has sufficient mind to conduct his defense in a rational and reasonable manner. He has repeatedly stated to us that he has always been aware of the nature and purpose of his acts, which are the basis of the present proceedings against him.
"The quality of intellect was carefully tested and he was found to have an intelligence quotient of 110, an average figure. The Rorschach test was used and failed to reveal any psychosis. At the Illinois Neuropsychiatric Institute several electroencephalographic tracings were taken and found completely normal."*fn3
This report was the only evidence that the trial judge had before him as to defendant's mental competence at the time he pled guilty, whereas in Pate v. Robinson four defense witnesses expressed the opinion that Robinson was insane at trial time. See 383 U.S. at p. 383, 86 S. Ct. 836, 15 L. Ed. 2d 815. Since no evidence raised a bona fide doubt as to petitioner's competence to stand trial or plead guilty, the trial judge was not required to empanel a jury and conduct a competency hearing. Petitioner's reportedly exemplary prison behavior is consistent with the examining panelists' conclusions that he was not psychotic.
In an effort to fall within the shelter of Pate v. Robinson, petitioner states that the State's Attorney withheld from defense counsel and from the trial court the views of the psychiatrist who conducted a June 29, 1946, interview of petitioner after injecting him with a sodium pentothal solution. That specialist, Dr. Roy R. Grinker, advised the State's Attorney that petitioner was then a "disassociated, psychotic schizophrenic," but he later admitted that he did not know petitioner's mental condition on January 6, 1946 (the day before the murder of Suzanne Degnan) or on August 12, 1946, when the panel of psychiatrists commenced their examination of petitioner. Grinker never reported on petitioner's September 1946 competence to stand trial or to plead guilty or whether he knew right from wrong under the then Illinois sanity tests.*fn4 His examination of petitioner lasted only from one to two and a half hours, whereas the later panel examination by three recognized experts lasted for several weeks, without the use of sodium pentothal, and was completed just prior to arraignment. We cannot say that Dr. Grinker's earlier views, if known to the trial court, would have compelled the convening of a sanity jury. Moreover, since petitioner pleaded guilty after having been found competent by the panel of psychiatrists (with whom the trial judge agreed*fn5), he waived an insanity defense. See United States ex rel. Smith v. Baldi, 344 U.S. 561, 566-568, 73 S. Ct. 391, 97 L. Ed. 549; Lynch v. Overholser, 369 U.S. 705, 719-720, 82 S. Ct. 1063, 8 L. Ed. 2d 211; Goldstein, The Insanity Defense, 184-188 (1967). This is especially true here where experienced defense counsel decided not to utilize an insanity defense in view of the panel's report. Furthermore, after many discussions of the possibility of raising such a defense, on July 26, 1946, petitioner directed his counsel to arrange instead for a life sentence in return for his disclosure of his involvement in the crimes.
Petitioner next argues that his guilty pleas were coerced by the conduct of the police, the State's Attorney and the press. His principal reliance is on United States ex rel. Perpiglia v. Rundle, 221 F. Supp. 1003 (E.D.Pa.1963). Perpiglia confessed to the police seven or eight days after prolonged coercion while in their custody and before he had secured counsel. In the present case, counsel was retained by petitioner's parents on Friday, June 28, and first saw petitioner on Monday, July 1, 1946. No confession had been made to the police prior to the retention of counsel. In fact, petitioner's confession to the State's Attorney did not occur until August 6.*fn6 Because of the marked dissimilarity in facts, the Perpiglia case does not warrant the issuance of the writ of habeas corpus here. This is not a case involving an ignorant and impoverished defendant, unequipped to assist in his own defense or unadvised of his legal rights. This petitioner was well educated and came from a family of means who were able to afford and did retain seasoned and respected counsel shortly after his arrest. He evidenced a shrewd awareness of the advantage to be gained by dissembling. All those who examined him, including Dr. Grinker, noticed a marked tendency to malinger. Within a month of his arrest, with the knowledge of the State's case against him and with the advice of his parents and counsel, petitioner decided to plead guilty in order to avoid the electric chair, which was his objective throughout. By obtaining life sentences, he achieved his "desire [not] to take the chance of being electrocuted."
Petitioner claims that the guilty pleas were coerced by the State's Attorney's retreat from his original agreement to recommend only concurrent life sentences. The record discloses that the State's Attorney's final decision to recommend consecutive life sentences (to be followed by concurrent sentences on the lesser charges, consecutive to the murder sentences) was made known to petitioner by his counsel before his August 6th confession, thus refuting the coercion claim. Cf. Rogers v. Wainwright, 394 F.2d 492 (5th Cir. 1968). The testimony shows that the increase in the recommendation was prompted by the State's Attorney's displeasure at petitioner's refusal to confess on July 30, rather than to force the August 6th confession or the guilty pleas. Petitioner received the very sentences for which he had bargained.
Likewise, the clamor in the public press about these crimes cannot be deemed responsible for the guilty pleas. Petitioner was arrested on the evening of June 26, and he admitted his connection with the Degnan murder when he first saw his counsel on July 1. There has been no showing that anything that previously appeared in the press caused him to make that admission. Further admissions of guilt were made to counsel commencing July 7, again without a showing that the press motivated them. His counsel testified at the post-conviction hearing that the newspaper reports had little or nothing to do with his advising guilty pleas. He added: "I did not tell Heirens the newspaper accounts of his arrest and his pending case. Often I acquired information from the press about which I would inquire of him, but not as having seen it in the newspapers."
Although not attacking the competency of petitioner's counsel, petitioner now implies that the guilty pleas would not have been made if his counsel were fully loyal. This contention cannot be sustained. From the day of their first meeting on July 1, his retained counsel knew that petitioner was guilty. These admissions of guilt were confirmed on July 7, and petitioner started confessing to counsel on July 15 or 16, culminating in a written confession to counsel, signed on July 26. Knowing of petitioner's guilt and having been advised by Dr. Harry Hoffman, the psychiatrist consulted by counsel, in several July 1946 conferences that petitioner's abnormalities "were insufficient in law to constitute an insanity defense," counsel concluded that petitioner had no defense to the charges. His only recourse, he thought, was to recommend guilty pleas in return for the State's Attorney's agreement not to recommend the death penalty for these crimes. Since trial counsel's decision to recommend entering guilty pleas was in petitioner's best interest, it is unfair to ascribe this recommendation to a conflict in interest caused by newspaper pressure (see 4 Ill. 2d at p. 142, 122 N.E.2d 231). Cf. Whitus v. Balkcom, 333 F.2d 496 (5th Cir. 1964), certiorari denied, 379 U.S. 931, 85 S. Ct. 329, 13 L. Ed. 2d 343.
In the 1952 post-conviction proceedings, petitioner made similar coercion arguments to the trial judge who denied relief, stating:
"The Court finds in particular that petitioner's counsel did not coerce him into confessing, re-enacting crimes of which he was not guilty or into entering pleas of guilty. Furthermore, the record shows that he was warned by the Court as to the consequences of his pleas and persisted in them. There is no question but that he was represented by counsel who were competent and experienced and did the very best they possibly could for him under the circumstances. He told his counsel he had no defense."
These arguments were renewed in the Supreme Court of Illinois, which unanimously held:
"In the case at bar the finding that the pleas were not the product of any illegal conduct of law-enforcement officials is amply supported by the evidence. The pleas of guilty were not made until more than a month after the occurrence of the acts complained of; and petitioner must be deemed to be aware, through his counsel, that any evidence obtained by unlawful methods could not have been used against him. It is clear that the antecedent conduct of police and State's Attorney, however much it is ...