Fairchild, Pell and Stevens, Circuit Judges. Fairchild, Circuit Judge (concurring).
Appellant Alexander Little, presently in state custody under two concurrent 20 to 40 year sentences for murder and robbery, appeals from the denial of a writ of habeas corpus. The district court in a preliminary order of November 10, 1970, dismissed all but two of Little's numerous claims,*fn1 having determined that he had not exhausted his state court remedies as to such dismissed claims by his appeal to the Illinois Supreme Court. People v. Little, 44 Ill. 2d 267, 255 N.E.2d 447 (1970). The two remaining issues were the denial of a right to speedy trial and incompetence of trial counsel. On January 29, 1971, the district court denied the writ.
From the state court transcript there is little doubt that Little did in fact rob a tavern on the evening of July 10-11, 1962. In leaving the scene, he shot and killed a man. The principal, if not the only, defense presented at trial was that he was legally insane. Little testified at his trial that he could not remember anything from a couple of days before the robbery until two months after the event.
Little had been apprehended shortly after the robbery and shooting. While in jail he twice attempted suicide and was totally uncommunicative. The public defender moved for a psychiatric examination. Dr. Haines, Director of the Behaviour Clinic of the Criminal Court of Cook County, examined Little and recommended that he be committed as "insane," since he was unable to understand the charges against him or cooperate with an attorney. Following a sanity hearing before a jury on August 3, 1962, Little was committed to the Illinois Security Hospital. It would appear that Dr. Haines had a question as to whether Little might have been malingering.
On February 5, 1964, Little filed a petition for a writ of habeas corpus in the Circuit Court of Randolph County requesting a sanity hearing. At the hearing, Little was unrepresented by counsel, and apparently his counsel of record, the public defender, was never advised of these proceedings although the statute requires it. Ill.Rev.Stat. 1963, ch. 38, § 104-3. He testified that he knew the nature of the charge against him and that he would cooperate with his attorney in preparing his defense. A Dr. E. R. May testified that Little was very uncooperative and abusive, that he had refused work, and that May felt that "he is not ready for a discharge at this time." The court denied Little's petition at the end of the hearing.
We are left with the impression from Little's brief on this appeal that the attention given to his claim of competency was cursory and nonmeaningful. While the hearing of April 1964 may not have been marked with a full panoply of due process trappings, our own independent examination of the record convinces us that he was scarcely a forgotten man as far as the State of Illinois was concerned. The testimony of Dr. Haines reflects a continuing course of seeing and examining Little to determine whether he knew "the nature of the charge and was he able to cooperate with his counsel." Dr. Haines's examinations of Little according to his testimony occurred on August 1 and 12 and September 9 in 1962, January 12 and October 19 in 1963, March 15 and April 9 in 1964, and January 24, May 23 and August 18 in 1965. According to the doctor, "when I would examine him he never told me the nature of the charge or cooperated in the examination." This status remained true even as late as May 1965 when Little told the doctor that he had filed the petition in Cook County. By the time that this petition came on for hearing in August of 1965, Little for the first time, at the examination of August 18, 1965, had discussed with the doctor the charges in such a manner that the doctor could give the opinion that Little was competent to stand trial.
During much of the intervening time, Dr. Haines apparently entertained a suspicion that Little was malingering; however, to force the defendant into a trial upon this suspicion while the manifestations of the malingering, if that was the fact, continued to exist would leave the situation open to the charge that he indeed was not competent to stand trial. Certainly if Little was malingering, the pointing finger of responsibility for delay returns to him, and if he was not, there was a reasonable basis for not taking him to trial.
Little's brief on this appeal does not indicate that the Randolph County Circuit Court relied on testimony other than that of Dr. May; however, it appears that Dr. Haines was present at the hearing and either testified or explained to the court what his opinion was. In fact, Little in the state court in a motion to dismiss filed in 1966 referred to the fact that Dr. May testified with Dr. Haines concurring.
We have no reason from this record for thinking other than that the State of Illinois was desirous of getting on with the trial, but as Judge Marovitz stated, "the delay resulted from an attempt to protect petitioner until he was capable of standing trial."
Subsequently, Little filed another petition for a competency hearing in the Circuit Court of Cook County. A hearing was held on August 25, 1965, and a jury found Little competent to stand trial. Little's trial and conviction followed several months thereafter. In the Illinois Supreme Court, Little relied primarily on the violation of the Illinois statute which requires the state to bring a defendant to trial within 120 days. (Ill.Rev.Stat.1961, ch. 38, § 748, now Ill.Rev.Stat.1971, ch. 38, § 103-5.) Federal habeas corpus, however, only reaches violations "of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Thus, we must decide only whether or not Little's federal constitutional right to a speedy trial was violated.
The Sixth Amendment right to a speedy trial is as fundamental as other aspects of that Amendment which have been applied to the states through the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967). In Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the Court mandated a balancing test to determine if the right to a speedy trial had been violated. Four factors are to be considered in each case: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." 407 U.S. at 530, 92 S. Ct. at 2192. Here, the length of delay is such as to be presumptively prejudicial: Little was not brought to trial until 4 years after the crime took place.
But the state contends that the reason for the delay -- Little's incompetency to stand trial -- compels a conclusion that the right to a speedy trial was not denied. Certainly a defendant who is incompetent, in that he does not understand the crime with which he is charged and cannot help his counsel, cannot be tried. Such action would constitute a denial of due process. People v. McLain, 37 Ill.2d 173, 226 N.E.2d 21 (1967). The incarceration for a reasonable period of time because of established incompetency to stand trial would thus appear to be a sufficient answer to any speedy trial claim under the Sixth Amendment as applied to states under the Fourteenth Amendment. A different matter, and one not argued here, would be involved if Little had been held "more than the reasonable period of time necessary to determine whether" there was a substantial probability that he would attain capacity in the foreseeable future. Cf. Jackson v. Indiana, 406 U.S. 715, 738, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972). In our opinion, in either context, "a reasonable period of time" must to some extent be equated with the gravity of the offense involved. Here the charge was murder and robbery as contrasted to a petty theft. Little was in a state mental hospital, presumably receiving the mental-medical attention provided by such institutions, and during the course of his stay he was examined with a degree of regularity to ascertain whether competency to stand trial had been restored. We may fairly infer from the record that at no time was it indicated that the competency would not be achieved in the foreseeable future.
The factual situation at this point presents an implicit dilemma. If Little had been found competent to stand trial in April 1964, and had been tried, it is not entirely unreasonable to believe that notwithstanding he had claimed then he was competent and would cooperate with counsel, we would now be met with a claim that he was improperly forced to trial over the opinion of the examining doctor that he was not ready for a discharge.
Little, however, argues that he should have been declared competent after the initial hearing in the Randolph County Circuit Court. Not only does he contend that the factual determination of the judge was wrong, but he also argues that the denial of his procedural rights was so substantial as to require a presumption that the limitation period of the speedy trial test must be presumed to have commenced running on that date.
Both the Illinois Supreme Court, 44 Ill. 2d at 271, 255 N.E.2d 447, and the district court refer to the fact that Little did not appeal the adverse decision. We find no aspect of waiver in this failure and do not read the previous decisions to this effect. Little's counsel of record was not informed of the hearing. Little, who apparently was not advised of his right to appeal, was incarcerated in a mental institution. We do note, however, if there had been an appeal the only relief which could have been ordered was to remand for another hearing. That was secured by Little the following year, in all probability prior to the time that an ordered hearing following an appeal reversal would have been held.
Even though the 1964 hearing itself lacked some of the adversarial indicia of due process, we do note that the trial judge had an opportunity to observe Little's appearance and demeanor. Especially when the question is one of the competency of an individual to stand trial, the cold transcript may not reflect one of the most important pieces of evidence available to the trier of fact -- the individual's demeanor. Thus, we are unable to say that the court would have come to a different conclusion if there had been a searching cross-examination of the doctors.
Even if the state should have brought Little to trial after the April 9, 1964 hearing, the delay until he was determined to be competent to stand trial amounted to approximately 16 months. Subsequent delay was attributable to Little's demands for different counsel and withdrawal of counsel, as well as one mistrial declared on the defendant's motion due to prejudicial newspaper statements. The 16 months' delay is less than that in Barker v. Wingo, supra, which the Court ultimately found not to be a violation of the right to a speedy trial.
The third Barker factor is demand for trial. Here Little's filing of his pro se petition for a writ of habeas corpus in Randolph County would seem to serve as a demand which was repeated in two subsequent petitions. This is in contrast to Barker, where the Court found that Barker did not want a speedy trial, 407 U.S. at 534, 92 S. Ct. 2182. Little apparently wanted to be tried, at least from the date he filed his habeas corpus petition.
The final factor to be considered on trial delay is whether there was prejudice to the defendant. There is always the possibility of prejudice to a defendant from any delay of a trial, although this is a two-edged factor, as the memory and ability of state witnesses to testify accurately are subject to the same time hazards as defense witnesses'. Other factors of delay-prejudice are outlined in Barker, supra, 407 U.S. at 532-533, 92 S. Ct. 2182. We are particularly concerned here, however, not so much with the inherent possibility of prejudice in the general sense as with whether there was specific prejudice to Little in his defense. United States v. DeTienne, 468 F.2d 151, 157 (7th Cir. 1972).
In this respect, Little relies on two factors, the difficulty of proving his insanity defense where his psychiatrist did not examine him until three and one-half years after the offense and a missing witness. As to the first of these, it appears to us, as will be hereinafter discussed, that the crucial aspect was not so much the delay in the psychiatric examination as its inconclusiveness.
The second matter, the missing witness, as far as we can see, is being presented to any reviewing body for the first time on this appeal. The statement appears in Little's brief that a witness, "Miss Kathrine Warthon, was dating petitioner at the time of the offense and had been for some time. Her testimony would have been extremely helpful in terms of establishing petitioner's pattern of behavior and mental state at or near the time of the offense. However, when petitioner finally came to trial, Miss Warthon had left the jurisdiction of the court. As a result, an important link in establishing the defense of insanity was lost."
No source, in the record or elsewhere, is stated in the brief. There is no indication when the previously unidentified witness may have departed or how long she may have been unavailable. As far as we can tell from the reference in the brief, she might have been unavailable if there had been a much earlier trial date. There is no showing that there were not other intimates who could have testified to his pattern of behavior such as fellow employees, other social acquaintances, members of his family, and neighbors. This was not a case of a sole alibi witness but of a witness who was to testify as to facts which, if true, should have been discernible to others with whom Little had frequent contact. Also, there is nothing to indicate that Miss Warthon's actual whereabouts were unknown. If she had left the jurisdiction she would not have been subject to subpoena presumably, but there is no showing that she would not have come back voluntarily or that her deposition could not have been taken.
Finally, our independent examination of the record causes the air of mystery to deepen. During the course of the trial, Little's counsel indicated he had two more witnesses who were not in court. One of these was Little's brother, of whom more hereinafter. The other witness was Thelma Lewis whose address was given. The brother was to get her. This witness had been, according to the defendant, in his company a week or two prior to July 10th, the date of the offense. She was described as a social acquaintance.
The trial court with a show of consideration to Little had the state go ahead with rebuttal witnesses but held the case open so that the absent witnesses could testify the next day if they appeared. On the next morning, Thelma Lewis was not present but counsel stated "if she does arrive I'm not going to put her on the stand, I think it is in the best interest of my client." We find no reference to Miss Warthon.
Little's brother did, however, appear and testify as to the matter of the defendant's behavior during the period prior to the date of the offense. The court, in our opinion, evinced a desire to see that the defense was not thwarted by overly technical evidentiary rules. Thus, the transcript reflects the following:
Q. Now, in the spring of 1962, did you notice anything unusual about your brother's behavior or any change?
MR. OPLATKA: Object to that date, the date in question is July of 1962.
THE COURT: Well, I'll allow him to answer.
MR. CAWLEY: Q. Do you remember the ...