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United States v. Franzen

August 17, 1982


Appeal from the United States District Court for the Southern District of Illinois, Benton Division. No. CV 80-4178 -- James F. Foreman, Judge.

Cummings, Chief Judge, Pell, Circuit Judge, and Grant, Senior District Judge.*fn*

Author: Cummings

CUMMINGS, Chief Judge.

John Bilyew's petition for habeas corpus alleges that he was denied due process because the Illinois trial court placed on him the burden of proving that he was unfit to stand trial. At the time of Bilyew's conviction Illinois law provided that "the burden of proving the defendant is not fit is on the defendant if he raises the question * * *." Ill. Rev. Stat. ch. 38, § 1005-2-1(i) (1973) (repealed by P.A. 81-1217, § 3, effective Dec. 28, 1979). Bilyew's lawyer raised the question of fitness and thereby assumed the burden of showing that Bilyew was unfit to be tried. The Illinois Supreme Court has since held that due process requires the State to bear the burden of proving fitness once the defendant has raised a bona fide doubt, People v. McCullum, 66 Ill.2d 306, 5 Ill. Dec. 836, 362 N.E.2d 307 (1977), and the Third Circuit also has held that "evidence showing competency must be more persuasive than that showing incompetency." United States v. DiGilio, 538 F.2d 972, 988 (3d Cir. 1976), certiorari denied, 429 U.S. 1038, 97 S. Ct. 733, 50 L. Ed. 2d 749; see also United States v. Makris, 535 F.2d 899, 906 (5th Cir. 1976), certiorari denied, 430 U.S. 954, 51 L. Ed. 2d 803, 97 S. Ct. 1598. Nevertheless, the district court denied Bilyew's petition, holding "that even if petitioner was denied due process for having been convicted pursuant to an unconstitutional statute such error must be deemed harmless beyond a reasonable doubt." Order at 2. We reverse and remand to the district court for further proceedings.


On June 7, 1974, John William Bilyew was indicted for murder, rape, and concealing a homicidal death. Bilyew allegedly was sitting on the front steps of his apartment building in Marion, Illinois, when he saw Frances Buckner, a 13-year-old girl with whom he had spoken once before, walking down the street. Bilyew approached Frances and asked her to come over and sit on his porch. She began to comply, but as they reached his yard he asked her for "some sex." According to the statement Bilyew later gave to the police, "She goes no, I have to get to the store. I [Bilyew] said why not. It won't take very long. She goes no, I have to get home. I [Bilyew] put my hands around her neck and choked her. I thought she was dead." After undressing the body, Bilyew wrapped it in a blanket that he got from his apartment and hid the body beneath a nearby house. Three days later, upon hearing a "voice" commanding him to turn himself in, Bilyew dragged the body into the street, removed the blanket, and threw a rock through a neighbor's window to attract attention. According to his statement, "I [Bilyew] then went to bed but could not sleep."

On the other hand, according to the experts who testified at his pretrial fitness hearing, Bilyew has never been fully "awake." Following a request by Bilyew's appointed counsel, the trial court appointed two psychiatrists, Drs. Norris and Horecker, and two psychologists, Drs. Rubin and Rader, to examine Bilyew, and then held a two-day hearing for the purpose of determining Bilyew's fitness to stand trial. The experts agreed essentially that Bilyew was at least somewhat retarded and socially maladjusted, but split in their ultimate opinions of whether he was fit to be tried. Drs. Norris and Rubin concluded that Bilyew was not fit, while Drs. Rader and Horecker found that Bilyew was fit. We now review the evidence presented at the fitness hearing in detail to determine whether there is a reasonable possibility Bilyew would have been found unfit to stand trial had the trial judge placed the burden of proof on the State instead of Bilyew.


Bilyew's first witness, Dr. Norris, prepared a written report for the trial judge but was unable to testify at the hearing. Pursuant to a stipulation by the State and Bilyew, the trial judge admitted Dr. Norris' deposition as evidence at the hearing. In his report and deposition, Dr. Norris stated that he is Chairman of the Department of Psychiatry of the Southern Illinois University School of Medicine and that he examined Bilyew on June 11, 1974 for approximately one and one-half hours. On the basis of this examination and test scores recorded on other occasions, Dr. Norris concluded that Bilyew was not fit to stand trial.

Specifically, Dr. Norris noted that Bilyew had attended special education classes throughout his school years. While being treated in 1968 at the Bowen Children's Center in Harrisburg, Illinois, Bilyew was classified as mildly mentally retarded with an IQ of 63. Dr. Norris stated that such a score corresponded to a mental age of roughly nine and one-half to ten years. At this level of acumen, Dr. Norris stated that the typical subject probably would be able to read, would be able to recall past events, and should be geographically oriented. Dep. at 17-18. In 1973, Bilyew was tested at Anna [Illinois] State Hospital, and scored an IQ of 41, equivalent to a mental age of six years. With this lower level of intelligence, the subject would "have limited capacity to benefit from education" and would "surely need supervision for the rest of his life unless there was some dramatic change, which is very rare." Dep. at 17. Dr. Norris concluded that the second, more recent test more closely reflected Bilyew's 1974 capacity; "at best his intelligence quotient is that of someone who has a mental age of 6 years." Report at C-105.

In addition to reviewing Bilyew's IQ scores, Dr. Norris performed a "Mental Status Examination" which consisted of asking Bilyew a sequence of questions and noting his responses, and having Bilyew perform various simple tasks. Dr. Norris first found that Bilyew was unable to read "in any practical sense." Report at C-103. He showed Bilyew the four words "John," "dog," "man," and "run," but Bilyew recognized only "John," his name. Asked to copy the words onto another sheet of paper, Bilyew copied only "John" and "man," although Dr. Norris believed he might have gotten Bilyew to copy the other words also had he been persistent. Dep. at 29. "In this area, he [was] even more deficient than [Dr. Norris] would expect from a mental age of 6." Report at C-103. Similarly, given the choices of summer, winter, or spring, Bilyew was nearly correct to say that the season was summer (it was still spring), but answered incorrectly when asked what year it was. Id. Bilyew was not aware of geography. He recognized the name "California" (where he was born and lived for many years) but did not know where it was; indeed, "he had no idea where he was in the United States." Dep. at 31. Bilyew also had very little mathematical aptitude. He could subtract three from ten by counting backward on his fingers, but was unable to do so if Dr. Norris held his hands. Bilyew could repeat only four digits forward and two digits backward. Dr. Norris doubted that Bilyew could tell time. Dep. at 66.

More importantly, Dr. Norris found that Bilyew generally "cannot pick up stimuli from the environment and use them." Dep. at 30. For example, Bilyew could not remember his lawyer's name, and although told Dr. Norris' name several times during the examination was unable to recall it either. Bilyew was capable of remembering only "certain gross kinds of experiences, for example, big things that had happened to him in his lifetime [such as] very emotion[-]laden experiences." Dep. at 31. But Bilyew did not remember killing Frances Buckner. Dep. at 36, 37.

On the other hand, Bilyew had acquired the ability to speak in a manner that "suggest[ed] someone of higher intelligence." Report at C-103. Dr. Norris surmised that Bilyew's intensive special education had allowed him to acquire a greater vocabulary and fluency. Dep. at 24-27. Nevertheless, Dr. Norris concluded that Bilyew's vocal ability would not facilitate any meaningful communication with defense counsel. "[Bilyew] can assist in this defense in only the most primitive manner. His intellectual capacity is so limited that he would respond only to the simplest of questions. His emotional ability and his history of instability would suggest his inability to respond appropriately to the situation. He has a long history of repetitive social behavior which consistently fails, consistently gets him into difficulty, and yet which he consistently repeats." Report at C-104.

Dr. Norris found that Bilyew knew what murder and rape are, and noted that he was able to describe that rape involves force, although the word "force" probably was not in his vocabulary. Dep. at 62. Bilyew also knew that murder and rape are wrong, but according to Dr. Norris he was incapable of understanding the seriousness of such crimes. Report at C-104. Although Dr. Norris did not believe Bilyew to be "cold-hearted," Dep. at 37, Bilyew displayed "an extremely shallow feeling and at no time [did Dr. Norris] have any sense that he is displaying a reaction appropriate to the death of the girl." Report at C-104.

Finally, Dr. Norris found that Bilyew did not understand the consequences of his being found guilty of the alleged crimes. Dr. Norris stated that Bilyew would answer affirmatively to a leading question such as "Do you know you may go to the chair or prison for life or twenty years?" and then afterward ask the doctor, "Yeah, but am I getting out of jail today?" Dep. at 64. Bilyew "would have no idea what twenty years [in prison] meant." Dep. at 63. "He has no true sense of [imprisonment] as being a possible future event. While the patient is able to recall fairly accurately events in the recent and remote past, he has an extremely limited capacity to make a judgment regarding the significance of these events and certainly he has a most limited capacity to reason and discuss with his counsel the consequences of his behavior." Report at C-105.

Dr. Norris also noted the Bilyew was not being deceptive in the interview and that he would have detected any attempt by Bilyew to deceive him. Dr. Norris believed Bilyew's problem to be primarily "organic" rather than "cultural," Dep. at 44-47, and recommended that Bilyew undergo an electro-encephalogram in order to detect a possible temporal lobe epilepsy that may have caused Bilyew to hear the "voice." Dep. at 38-39; Report at C-105. Although Bilyew had heard "voices" on at least two other occasions, Dr. Norris believed Bilyew's disability was "not like schizophrenia where * * * there is a major psychosis where it's present all the time." Dep. at 39.


Dr. Rubin, another defense witness, was the first of the experts to testify at the fitness hearing. Dr. Rubin is a psychologist specializing in sexual maladjustment, an associate professor at the Southern Illinois University medical school, and a former consultant to the Illinois Department of Corrections at Menard and Vienna for the purpose of establishing treatment programs for sexual offenders. Dr. Rubin ...

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