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August 24, 1973

Morris LANDSMAN, Defendant

Pierce, District Judge.

The opinion of the court was delivered by: PIERCE


PIERCE, District Judge.

 Morris Landsman is charged in this indictment with bribery of an IRS agent on or about December 13, 1972. The indictment was filed January 12, 1973, and the matter set down for arraignment on January 22, 1973. On January 20, 1973, the defendant was admitted to Mt. Sinai Hospital with complaints apparently associated with a large left internal carotid aneurysm (giant aneurysm) at the base of the frontal lobe of the brain which had been discovered in December of 1971.

 Defense counsel immediately brought the defendant's condition to this Court's attention, raising first the question of his physical competency to stand trial, and then the question of mental competency. During the ensuing months the defendant has been examined by three doctors retained by the defendant, and by three Court-appointed doctors, pursuant to 18 U.S.C. § 4244, with respect to the issue of mental competency and, pursuant to a similar procedure established by the Court, on the issue of physical competency. Reports from a total of eight doctors have been filed with this Court on one or both competency issues.

 Because the conclusions set forth in these reports are in conflict, this Court ordered a competency hearing on both the issue of physical and mental competency, scheduled, first, for June 1, 1973, immediately prior to trial. The hearing and the trial were adjourned at defense counsel's request for unrelated reasons until August 23, and August 27, 1973, respectively. At the hearing the Court required the defendant's presence for a brief period in order to explain to him on the record his rights and risks with respect to the issues being decided. The defendant did appear, and after the Court talked with him, he was given the option to stay for the hearing or to leave. He chose to retire to the witness room where a cot had been provided for him, and later left the Courthouse. He was not, therefore, present during the hearing.

 Four doctors, each of whom have examined the defendant recently, testified at the hearing. Two of them were retained by the defendant -- Dr. Labe C. Scheinberg and Dr. Edwin A. Weinstein; and two were Court-appointed -- Dr. Bennett M. Derby and Dr. Norman Weiss. This Court would not be so bold as to venture a summary of the testimony in medical terms, but the gist of what the doctors say is as follows.

 The doctors are in accord on a number of factual matters. The defendant has a giant aneurysm near the left optical nerve at the base of the left frontal lobe of the brain. Such aneurysm is the cause of the defendant's progressively deteriorating eyesight. He is at this time functionally blind in the left eye, and his sight in the right eye has been reduced to a half-field due to loss of peripheral vision. They agree that the aneurysm is not operable and that its effects are irreversible and progressive. They agree that a giant aneurysm, such as the defendant has, usually expands slowly and that the chances of it rupturing are far less than with the smaller, congenital type of aneurysm; but that rupture could occur in spite of the medication for high blood pressure presently prescribed for the defendant. They agree that emotional stress increases the risk and that should rupture occur it could cause death or serious brain damage. They agree that the defendant is severely depressed, apathetic, and exhibits impaired judgment and memory deficits.

 In short, the doctors agree that the defendant is not a well man, physically or mentally, and this Court accepts this general conclusion. However, many people who are not well are legally able to stand trial, and it is this Court's heavy burden to decide whether or not, in this instance, the defendant's physical or emotional problems are so severe as to bar a substantial public interest in the resolution by trial of a criminal indictment.

 As to the defendant's physical competence, this Court must determine if the defendant's presence at trial would substantially increase the risks to his health or life; and whether his present physical condition is such that it may substantially impair his ability to present a proper defense. See United States v. Knohl, 379 F.2d 427, 436-437 (2d Cir. 1967); United States v. Sweig, 316 F. Supp. 1148, 1165-67 (S.D.N.Y.1970). I am as satisfied as is possible under the circumstances that the defendant's presence and participation in this short trial will not substantially increase the risk of the aneurysm rupturing, particularly given the agreement that a giant aneurysm usually expands slowly and does not often rupture. This would seem to represent the consensus of the doctors, although the range of expressed probability varies from Dr. Derby's estimate that the chances of rupture are one in a thousand to Dr. Weinstein's carefully couched statement that there is "some risk, but not high in percentage terms." The Court takes its lead (and what comfort it can), however, from Dr. Scheinberg, the defendant's personal neurologist. He says that "there is not much greater risk in rupture at trial than under ordinary life stress and circumstances," which the defendant endures daily. Thus, with the safeguards which are more fully set out at the end of this decision, it would seem that there is not substantial physical risk such as to warrant the adjournment of the trial. In fact, because the defendant's physical condition will progressively worsen, albeit slowly, it is imperative to proceed with trial as soon as possible if there is going to be a trial at all. See United States v. Sweig, supra at 1167. Whether or not the defendant's physical condition is such that it may impair his ability to present a proper defense is a different issue, and in this case, is better confronted in connection with the question of mental competency.

 As to the defendant's mental competency to stand trial, this Court must determine whether the defendant is presently insane, or otherwise so mentally incompetent that he is either unable to understand the proceedings against him, or unable to assist his defense counsel in his own defense. 18 U.S.C. § 4244. The test which this Court must apply is whether or not the defendant has a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding; and, with a rational as well as a factual understanding of the proceedings against him. See United States v. Sullivan, 406 F.2d 180 (2d Cir. 1969).

 Although the doctors each describe essentially the same outward manifestations of the defendant's state of mind, they are at odds with respect to the severity, the cause and the conclusions to be drawn from the symptoms.

 Dr. Scheinberg, and to an even greater extent, Dr. Weinstein, believes that the defendant's severe depressive state and attendant behavior is the result of an organic brain disease, caused by the aneurysm pressing against the area of the brain which controls the mental processes involving judgment, memory, ethics, etc. Both conclude that the defendant is irrational and legally incompetent to stand trial. Dr. Weiss and Dr. Derby believe that the defendant's behavior is the result of a moderate to severe reactive depressive state, exacerbated by the rather sudden change in the circumstances of the defendant's life, from a successful accountant in his early fifties, to a man in his late fifties indicted for a federal felony, beset by an untreatable 1 1/2 inch balloon in his brain and unable to work because of both of these factors. Each concludes that the defendant is rational and is competent to stand trial.

 This Court does not intend to attempt to choose between these theories of causation. For the questions which must be resolved here, it is the effect, not the cause, which is the critical issue.

 All of the doctors relate that they have discussed the pending criminal charge with the defendant and their descriptions of those conversations convinces this Court that the defendant has a good grasp of what he is charged with, of the possibilities of an entrapment defense, of the consequences of a conviction, of his legal rights, and of a general concept of how a trial proceeds. ...

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