APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH
POWER, Judge, presiding.
MR. JUSTICE BURT DELIVERED THE OPINION OF THE COURT:
The appellant, Donald Lang, an illiterate deaf-mute, herein referred to as defendant, was indicted on December 9, 1965, in the circuit court of Cook County on a charge of murder of a woman in Chicago on November 12, 1965. On December 15, 1965, the Public Defender was appointed to represent the defendant and an order was entered directing that he be examined by the Behavior Clinic of Cook County. He does not know any recognized sign language.
On January 5, 1966, Attorney Lowell J. Myers moved that he be appointed by the court to represent the defendant. Myers has had 30 years of experience in dealing with deaf-mute people and 10 years of experience in representing deaf-mute people in legal matters. (See, Myers v. County of Cook, 34 Ill.2d 541.) The trial judge appointed Myers to represent the defendant and granted leave to the Public Defender to withdraw as his attorney.
The Behavior Clinic was directed to make a further investigation and the case was continued to January 20, 1966. On that date the defendant's attorney filed a petition requesting a hearing before a jury on the question of the defendant's physical competence to stand trial. At that hearing the defendant's attorney testified as to his own experience in representing deaf-mutes and his inability to communicate with the defendant; stated that the defendant did not know the charges against him, and that he was unable to communicate with the defendant. Dr. William H. Haines, Director of the Behavior Clinic, testified that he was unable to communicate with the defendant and he diagnosed the defendant's case as "mutism." He testified also that in his opinion the defendant did not know the nature of the charge against him, and was unable to co-operate with his counsel. The defendant's attorney then tendered a directed verdict finding that the defendant "was at the time of impaneling this jury and is now physically incompetent to stand trial." The court directed the jury to return that verdict and the case was continued.
On February 21, 1966, the prosecution requested the entry of an order for examination of the defendant to which the defendant's present attorney objected because of his view that he was being denied the right to be present during the examination. Defendant appealed from the order allowing the examination to this court and the contention was denied. People v. Lang (March, 1967), 37 Ill.2d 75.
On March 16 the defendant's attorney presented several motions. His motion that the indictment be dismissed because more than 120 days had elapsed since the defendant's arrest was denied. His motion that judgment be entered upon the verdict of the jury which was returned January 20, 1966, as to physical competency to stand trial was not acted upon, but was "held in abeyance." His motion that the defendant be placed on trial for murder recited that "the defendant offers to waive his constitutional rights, and his legal rights, and the verdict of the jury made on January 20, 1966, that he is physically incapable of standing trial; and in order to obtain his liberty, offers to stand trial on a charge of murder, and here and now demands to be tried for murder in accordance with the indictment in this case." This motion was denied.
On March 31, 1966, the court granted the request of the State's Attorney that a jury be impaneled to inquire into the mental competency of the defendant. At the hearing the jury heard the testimony of Dr. Haines and Dr. Hellman R. Myklebust, Director of the Institute of Language Disorders of Northwestern University, Lowell J. Myers, the defendant's brother, stepmother, and a life-long friend of the defendant. The jury returned a verdict finding defendant mentally incompetent. Judgment was entered on that verdict and also on the earlier verdict finding the defendant physically incompetent.
On September 8, 1969, defendant filed in the circuit court of Cook County a petition for habeas corpus which was denied on motion to dismiss on September 30, 1969, with prejudice, and from this order appeal was taken directly to this court on the ground that constitutional issues and habeas corpus were involved.
Petitioner contends that habeas corpus is an appropriate remedy in this situation, citing paragraph 2 of section 22 of the Habeas Corpus Act: "Where, though the original imprisonment was lawful, yet, by some act, omission or event which has subsequently taken place, the party has become entitled to his discharge." Ill. Rev. Stat. 1969, ch. 65, par. 22.
The petitioner was committed to the Department on May 19, 1967, under court order. Two years later on May 7, 1969, the superintendent of the institution in which the defendant is confined by the Department of Mental Health, at Dixon State School, wrote a letter to Jerome Goldberg, Special Counsel to the Department of Mental Health reporting on the status of Donald Lang as follows:
Based on our experience with Donald Lang, it now appears that he will never acquire the necessary communication skills needed to participate and cooperate in his trial. He has rejected all of our efforts to instruct him and has refused to participate and cooperate with his instructor. The probability for his acquiring the necessary communication skills at any future date is unlikely. However, it is our impression that Donald is functioning at a nearly normal level of performance in areas other than communication. He is capable of fairly complex operations which would tend to support our opinions concerning his over-all abilities.
Since Donald's commitment to the Department of Mental Health is based on physical and mental incompetence and the probability of appropriate functioning in the former area is doubtful, we wonder if you would consider contacting Donald's lawyer in order that appropriate legal action be initiated. Reviewing his lawyer's previous correspondence, it would seem that if his case came to court, sufficient evidence could be produced which would clear him of all charges.
In regard to a home visit, it is our feeling that if one of Donald's brothers assume the responsibility of supervising him in the community, we will consider this after ...