Moore, Friendly and Adams,*fn* Circuit Judges. Moore, Circuit Judge (dissenting).
On April 28, 1969, four men robbed the Manufacturers Hanover Trust Company branch located at 748 Columbus Avenue, in Manhattan. Appellant Vaughan was eventually convicted after a non-jury trial before Judge John M. Cannella, in the United States District Court for the Southern District of New York, for violating, by his role in the robbery, 18 U.S.C. §§ 371, 2113(a) and 2113(d). Vaughan has never disputed his participation in the robbery, but rather has contended he was not sane at the time, because he had taken STP (a drug related to LSD) the evening before.
The principal issue in this appeal is whether Vaughan's right to a fair trial and his waiver of a jury were impaired by the trial court's continuous reference to, and apparent reliance upon, a letter written to the court by Vaughan immediately prior to trial, not introduced as evidence in the case, and which at the beginning of the trial the court said it would disregard.
Vaughan's letter to the district court in part contained an offer to plead guilty to the conspiracy count on the understanding the trial judge would place Vaughan in a rehabilitation center operated by a court-appointed psychiatrist who had examined Vaughan.*fn1 The district court explained to Vaughan on the day of the trial that it could not accept a plea because of the question of Vaughan's responsibility for his actions. That is, under the circumstances, the Court did not wish to take the responsibility of accepting a guilty plea, but thought it more appropriate to consider all the testimony regarding Vaughan's sanity at the time of the robbery. In assessing the voluntariness of Vaughan's jury trial waiver, the court indicated that the letter would have no role in his ultimate decision:
"* * * I will make every effort that I can to forget everything that is in this letter because when I try the case I can only decide the case on what appears in the evidence in the case, the exhibits and anything that happens during the trial, and I will not be able to render any decision based on any of the facts that you recite in your letter * * *"
Vaughan thereupon affirmed his election to waive a jury.
During the trial, two psychiatrists were called by the defense to testify. Both were court-appointed, one selected by the defense, and one by the prosecution. Each testified at length concerning his diagnosis of Vaughan's mental condition at the time of the robbery (based on statements made by Vaughan, including the claim he had taken STP before the crime was committed), as well as his condition at the time of trial. In a pre-trial report, Dr. Ralph S. Banay, one of the psychiatrists, described Vaughan's conduct at the time of the crime to have been the product of an "abnormal and unrealistic state of mind." The other psychiatrist, Dr. Hugh F. Butts, found Vaughan to be "psychotic," at the time of the crime. He also found that "as a result of mental disease the defendant lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law."
In the course of the testimony of Dr. Butts, the court frequently asked him questions to clarify and expand various points. These questions reflected the trial judge's deep concern and his careful weighing of the evidence. However, he asked Dr. Butts about the contents of the pre-trial letter written by Vaughan to him, using the letter, though it was not admitted into evidence, as an indication of Vaughan's mental condition. For example, the judge said to Dr. Butts:
"What I want to ask you about is generally what that letter indicates. You see there is a bargaining feature to this letter. In other words, do these fellows that have these symptoms also become bargainers, they want to know if they do certain things, whether they can get something in return? In other words, he is offering to plead there to a conspiracy provided his conditions are met. This kind of bargaining, do they have this kind of a tendency, do they bargain with people in situations like this?"
The court later handed Dr. Butts the letter from Vaughan, and the following colloquy then took place:
"The Court: It is the same kind of thing you elicited from him. The only reason I put it in is that it seems to me it covers a lot of the same ground that you covered and I got exactly the opposite view from it as you did.
The Witness: That strikes you as a very lucid letter.
The Court: Of course. Not only lucid, but the kind of a letter, with the education he has had, I don't know how he did this. That is why I asked him whether he actually wrote this letter himself or whether somebody wrote it for him and phrased it for him. I can't see how a fellow, if he has this psychotic ...