Decision of Judge Kevin T. Duffy, United States District Court for the Southern District of New York, vacating state conviction and granting writ of habeas corpus is affirmed on the basis that prisoner was never afforded a Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969), colloquy at a time when he was competent to stand trial. The State's waiver and ratification arguments are rejected.
Kaufman, Chief Judge, Oakes and Meskill, Circuit Judges. Kaufman, Chief Judge, concurring.
This case presents an all too familiar pattern of breakdown - of societal, institutional, medical and legal failure adequately to cope with a person. Perhaps inability to solve an insoluble problem is a better description, since the intentions of those attempting to cope - psychiatrists, psychologists, correction officers, judges and lawyers - have in no case been untoward.
The John Suggses of life begin with an utterly crippling home environment. Early on they exhibit signs of unusual, bizarre and even destructive behavior, often the result of traumatic experiences. Society, with humanitarian motivation, institutionalizes them, ostensibly to protect itself or them, more probably because no alternative exists. The depth of the mental/emotional problem proves too great, the number of Suggses too large, the resources for positive assistance too few. When released into society, criminal behavior is probable, not merely possible. A rape, a robbery, a mugging or worse ensues.
The legal system then assumes jurisdiction over the problem. Somehow the rights of the individual must be protected, while the danger to society is removed. Questions of competency to stand trial and of criminal responsibility arise. The psychiatric experts and the judges who must rule disagree; both psychiatry and law are insufficiently advanced to attain the scientific precision necessary to resolve these questions. Yet decisions have to be made. After a period of years the case is just as insoluble as it was in the beginning.
The posture of John Suggs' case before us may be rather briefly stated. Its history is more complex. Its psychiatric background is extensive. Its resolution is, as one might suspect, hardly free from doubt.
The People of the State of New York appeal from a judgment of the United States District Court for the Southern District of New York, Kevin Thomas Duffy, Judge, vacating Suggs' convictions for rape and robbery and granting a writ of habeas corpus to issue within sixty days unless Suggs is permitted to replead in state court*fn1 on the basis that Suggs was never afforded the colloquy on voluntariness mandated by Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969), at a time when he was competent to stand trial. 430 F. Supp. 877, 884 (S.D.N.Y. 1977); 390 F. Supp. 383 (S.D.N.Y.), vacated on other grounds, 523 F.2d 539 (2d Cir. 1975). The judgment was rendered after an evidentiary hearing in which Judge Duffy found Suggs incompetent at the time of his guilty pleas. 430 F. Supp. 877.
To consider the State's contentions adequately requires a detailed recounting of both the ten years of litigation preceding this appeal and the facts underlying this protracted judicial history. At the risk of some repetition, we first provide a skeletal, chronological summary of the prior state and federal proceedings with the goal of minimizing the confusion wrought by the complex and lengthy record.
After Suggs' arrest, he was psychiatrically examined by Dr. Emanuel Messinger in July, 1968, to aid in determining whether Suggs would be afforded Youthful Offender treatment. This report, which arguably found Suggs competent to stand trial, was lost. Thus, as subsequently revealed, none of the state judges who considered this case was aware of these psychiatric conclusions.
On September 13, 1968, Justice Emilio Nunez of the State Supreme Court, New York County, accepted Suggs' pleas of guilty to one count of rape and one count of robbery after a discussion with Suggs which evidently satisfied the judge of the pleas' voluntariness. As the colloquy continued, however, appellee's unusual responses prompted the court, sua sponte, to order a psychiatric examination. However, the court did not reject or otherwise mention the pleas of guilty accepted immediately preceding the commitment order. The parties differ on whether Justice Nunez ordered the examination solely for purposes of sentencing, or to determine competency as well.
A second group of psychiatric examinations performed by Drs. Martin Lubin and Laszlo Kadar between September 19 and October 21, 1968, at Bellevue Psychiatric Hospital (Bellevue), pursuant to Justice Nunez' order, found Suggs incompetent to stand trial. On the basis of these reports, and without knowledge of the Messinger report, appellee was determined incompetent by Justice Samuel Gold on November 6, 1968, and was committed until competent to Matteawan State Hospital (Matteawan) on November 15, 1968.
When the authorities determined that appellee could stand trial, he was returned to Justice Mitchell Schweitzer, who required a second examination by Dr. Messinger, performed in May, 1969. This report substantially corroborated the earlier Messinger diagnosis and was also misplaced after the proceeding before Justice Schweitzer. Justice Schweitzer then certified Suggs as competent, and sentenced him on June 6, 1969, on the basis of his previous pleas of guilty before Justice Nunez without inquiring into the validity of or factual basis for the earlier pleas. The sentence was imposed after Suggs personally informed the court that while he did not wish to withdraw his previous pleas of guilty, and wished to accept sentence on those pleas, he felt that he had been incompetent when he originally pleaded guilty. A series of state appeals and state collateral attacks followed, which are not particularly important in resolving this appeal.
On February 25, 1975, Judge Duffy granted appellee's petition for a writ of habeas corpus without an evidentiary hearing. He concluded that Suggs was denied due process of law because the state courts had never conducted a full and complete inquiry into voluntariness, as required by Boykin v. Alabama, supra, decided four days prior to the sentencing hearing before Justice Schweitzer. The district court first found Suggs incompetent when he entered his pleas of guilty on September 13, 1968, as judicially determined by Justice Gold. Thus the pleas were void under McCarthy v. United States, 394 U.S. 459, 22 L. Ed. 2d 418, 89 S. Ct. 1166 (1969), and Pate v. Robinson, 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836 (1966). It then held that the 1969 sentencing by Justice Schweitzer was not a valid substitute for a guilty plea because no Boykin colloquy had been conducted at this later time. 390 F. Supp. 383.
During the pendency of the State's appeal from Judge Duffy's decision, the two Messinger reports were discovered. We vacated Judge Duffy's order and remanded the case for an evidentiary hearing by either the state court or the district court on Suggs' competence at the time the guilty pleas were entered, in light of the newly discovered Messinger reports which contradicted the Lubin/Kadar reports. We left to Judge Duffy's discretion whether he or the state court would conduct the hearing. United States ex rel. Suggs v. LaVallee, 523 F.2d 539, 543 (2d Cir. 1975).
On remand, Judge Duffy ordered that a factual hearing be held in state court for the convenience of the state judges who would be required to testify. 400 F. Supp. 1366 (S.D.N.Y. 1975). The scope of this reference is in dispute.
A full-blown hearing on Suggs' competency was conducted by Justice Anthony Melia, in the Supreme Court, New York County, on November 17 and December 1, 1975. He found that Suggs was competent when he entered his pleas and that in any case, contrary to Judge Duffy's prior decision, 390 F. Supp. at 383, Suggs had ratified the pleas at sentencing. People v. Suggs, Nos. 3063/68, 3063A/68, 2251/68 (N.Y. County Sup. Ct., filed Dec. 3, 1975).
Judge Duffy then set aside Justice Melia's findings and ordered a federal hearing on the issue of competency. 422 F. Supp. 1042 (S.D.N.Y. 1976). He again found Suggs incompetent on September 13, 1968, and followed his earlier opinion, 390 F. Supp. 383, granting the writ, 430 F. Supp. 877.
The State contends first that Judge Duffy was bound by, or erred in not following, the decision of Justice Melia holding Suggs competent at the time of his guilty plea. The State contends second that, if Suggs was incompetent at the time of his September 13, 1968, plea, he abandoned or waived the incompetency claim at the sentencing proceeding when he was competent and is therefore precluded from raising it in the habeas corpus proceedings under Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497, 45 U.S.L.W. 4807 (1977).*fn2 Finally, the State argues that appellee ratified the pleas at the time of sentencing by not withdrawing them when given the opportunity.*fn3
The State does not contend that, if its arguments are insufficient, Judge Duffy's factual findings are clearly erroneous. However, in the course of addressing the State's arguments, which we believe cannot prevail, the validity of the district court's findings and decisions will become manifest. We begin with an in-depth recitation of the facts.
A. Suggs' Preindictment History
1. Early Childhood History.
John Suggs evidently was born in New York in June of 1951, is black and has lived in New York City all of his life. Much of his personal history is unclear in the lengthy but still incomplete record that ten years of legal proceedings have produced.*fn4 The record vividly reveals an unstable home environment, devoid of parental supervision and attention. From his birth appellee was shuttled back and forth between his mother*fn5 and his "aunt."*fn6
Suggs was an habitual truant from school, usually riding subways or wandering in parks. In early childhood he exhibited unusual behavior. On several occasions he set fire to newspapers in the house, but ordinarily notified the fire department shortly after starting the blaze. His aunt also reported that he set fire to furniture in her home, and that he once killed a parakeet by pulling off the bird's head.
Suggs was referred to the Wiltwyck School for Boys (Wiltwyck) at the age of ten, originally by the Manhattan Children's Court on a delinquency petition following a burglary incident in which he was implicated. The petition was changed to a neglect petition after investigation uncovered the obvious parental neglect.
His behavior problems continued unabated. When his mother died about a month after his admission, Suggs evidently became obsessed with the idea that the children in his dormitory were responsible for her death. In retribution he set fire to the dormitory, but did so where it would be found and no one would be hurt. On another occasion he was found packing dirt into the exhaust of a truck used to transport the children with the aim of blowing it up. At some point he became convinced that he too was responsible for his mother's death. While still at Wiltwyck, approximately at the age of eleven, he attempted suicide by drinking mercury from a thermometer. According to the Wiltwyck records as subsequently set forth in the Rockland State Hospital (Rockland) files, Suggs' method of establishing friendship was to engage in assaultive conduct; there were numerous acts of hostility against other student-inmates as well as against teachers. The medical director, aware of the threat Suggs posed to himself and others, and unable to arrest Suggs' delusional thinking, finally suggested institutionalization at Rockland.
Suggs was admitted to Rockland in August of 1963. When he was initially examined by Dr. Katz, a psychiatrist, he appeared to have a normal intellectual level with orientation and memory intact. But Dr. Katz also noted Suggs' long history of auditory and visual hallucinations, his tendency toward obsessive, compulsive thinking with delusional and paranoid aspects and the severe impairment of Suggs' insight and judgment. The initial impression of the psychiatrist was that "there is much of a schizophrenic about this youngster but he is extremely emotionally deprived and now unable to accept any close relationship, although he verbalizes a desire for it." He concluded that Suggs "may be ultimately a schizophrenic."
There was little change in Suggs' condition after admittance. Not long after he arrived at Rockland his ward was changed because he was fearful of attacks by other patients. He was later diagnosed as having "primary behavior disorders in children. Conduct disturbance."
At the age of thirteen, in 1964, he left Rockland for the Thanksgiving holiday but did not return. In January, 1965, he was found in New York City, and after a psychiatric examination was placed on convalescent status, so that he could reside with his aunt while attending a neighborhood clinic. He was discharged in November, 1965, when it was learned that Suggs was in "Warwick" Training School (Warwick).
Suggs may have been sent to Warwick for having shot or stabbed his aunt's husband. Incidental to this commitment, he was examined in July of 1965, this time at Bellevue, apparently pursuant to a Children's Court order on another neglect petition, and possibly because of his failure to attend the aftercare clinic when placed on convalescent status at Rockland. He was initially diagnosed, despite his "sunken, depressive attitude," as "not psychotic at present," though evidencing a strong tendency in that direction.*fn7 A later report by a psychologist, Ms. Barron, referred to Suggs as a "powderkeg about ready to explode," with feelings of "inadequacy, helplessness and depression." She accurately predicted that "under severe stress" he would "be unable to institute appropriate limits on his own behavior, and rage reactions are probable." She too felt that while "he functions superficially in a reasonable fashion," he is "at a borderline level of integration, and may regress rather rapidly under repeated tension or additional trauma." Her diagnostic impression was "character disorder with paranoid and borderline features (passive-aggressive-aggressive type)" with "potential for schizophrenia." Because of his emotional instability and deprived home environment, Bellevue recommended another stay at training school.
At this point the already unclear record becomes further muddied. It appears that when Suggs was released from Warwick to his aunt, he attended Charles Evans Hughes High School for four or five months. There his difficulties continued as he apparently "kidnapped" a schoolmate for a period of four hours. The authorities then sent him to Hampton State Training School in April, 1967. The record of his behavior at Hampton and whether he was released or simply escaped is barren, but it is known that he left Hampton in April of 1968, at age sixteen. Ms. Barron's prediction of a "powderkeg" seems to have been quite accurate.
B. History of Suggs from May, 1968, Through Pleas of Guilty Before Justice Nunez
1. The Charges and Psychiatric Examination by Dr. Messinger.
On May 6, 1968, Suggs was arrested for feloniously assaulting a patrolman on the City College campus, where appellee may have taught karate.*fn8 Shortly thereafter he was charged with numerous rapes and robberies allegedly committed in April and May of 1968.*fn9 Because he was under nineteen years of age - he reached seventeen in June of 1968 - appellee was entitled to consideration for youthful offender treatment. The chief probation officer, Mr. Reeves, requested a prepleading psychiatric examination,*fn10 which was a fairly routine practice at that time in youthful offender cases. Suggs was examined first by a psychologist,*fn11 then by Dr. Messinger, a psychiatrist, at the Supreme Court Psychiatric Clinic on July 17, 1968, to assist the court in deciding whether youthful offender treatment was appropriate.*fn12
The psychological report is important since it was the basis for much of the subsequent psychiatric report of Dr. Messinger, the discovery of which caused our court to remand the previous grant of the writ in this case. This report explains that Suggs "answers or not as he happens to feel at the moment, & refuses such tasks as he wishes. Much of the time he was angry and complaining, reciting various grievances, etc. He sat with his back turned to Ex. [examiner] for part of the time." Evidently his "variable cooperation" made for "extreme swings" on the psychological tests which ranged from "defective to superior." The psychologist thought that Suggs had "an intellectual potential well above average, but he has never submitted to the discipline of learning, so that he reads and spells at approximately a third grade level." Despite Suggs' lack of cooperation on most of the Rorschach tests, Suggs "demonstrated that he is able to function very well when he is so inclined." The psychologist concluded that "such projective material as we have, does not suggest a true thinking disorder, nor a psychosis. He impresses as willful, defensive, hostile, negativistic, paranoid, & anti-social. We would classify him as a narcissistic [ sic ] behavior disorder*fn13 of extreme degree, a poor prognosis is quite likely." (Emphasis in original.)
A clinical history sheet evidently prepared by Dr. Messinger on July 17, 1968, shows only superficial mention of Suggs' prior unusual behavior. It refers to his stays at Wiltwyck and Warwick. Beyond this, little psychiatric information is revealed by the history. It indicates that Suggs complained of "'black-outs.'" It also quotes him as saying that "people yell all the time." Suggs' inability to distinguish truth from fantasy is highlighted by much of the information he provided.*fn14 Suggs was initially diagnosed "Without Psychosis, but pathologic, emotionally unstable, with depressive and paranoid trends."
On July 23, 1968, Dr. Messinger, who evidently had before him none of Suggs' psychiatric histories compiled at other institutions, submitted a formal report to the Supreme Court of the State of New York, indicating "that [Suggs] is without psychosis and of average intelligence." The next four paragraphs discuss the psychological tests, mentioning appellee's composite I.Q. of 95, and quote the psychological report. Dr. Messinger's own observations were as follows:
At interview defendant displays a restless, truculent attitude as he tries to justify his habitual and extreme maladjustment on the conditions under which he was born and raised. He expresses violent antipathies towards his sister and his father, as well as all authority and parental surrogate figures. Review of his past shows that from his earliest years he has been indolent, rebellious, and intolerant of any restraint or restriction. He gets into fights both in and out of institutions and says, "I don't need friends. If I make friends sooner or later they are my enemies."
Defendant's personality classification seems best described as that of the Pathologic Personality Group. Emotionally Unstable Type, with depressive and paranoid trends.*fn15
The court's copy of this report apparently went astray. It was not in the court file at the time of the plea proceedings before Justice Nunez. Its existence did not become known until April 1, 1975, when it was discovered by an Assistant Attorney General while the first appeal to this court from Judge Duffy's initial issuance of the writ was pending.
2. Purported Suicide Attempt.
Following Dr. Messinger's examination on approximately July 26, 1968, Suggs was sent to the Brooklyn House of Detention for Men. On August 1, 1968, he was placed under special mental health observation due to a " self-inflicted injury" and an undated letter from Suggs suggesting the possibility of suicide.*fn16
According to Warren A. King, the psychiatric social worker who conducted the mental health evaluation, Suggs told him that Suggs had attempted to hang himself to "retaliate against parents because they refused to write or visit." King noted in his report that before the transfer, he had warned the correction officers that "this inmate could possibly be assaultive." He stressed that Suggs had a "long history of acting out behavior and resulting institutionalization" and "is quite disturbed, and has a great deal of underlying hostility." This incident apparently was not known to Suggs' counsel or to any judge before whom appellee appeared until the hearing before Judge Duffy in January, 1977.
3. The Plea of Guilty Before Justice Nunez.
On September 13, 1968, Suggs, accompanied by his Legal Aid lawyer, Donald Tucker, pleaded guilty before Justice Nunez to one count each of rape in the first degree and of robbery in the first degree in satisfaction of all counts of the indictments. It is on this date that appellee's competency is in question. According to Mr. Tucker, Suggs came out of his cell on September 13 demanding to plead guilty to the charges and fully admitting his guilt as to all of them. Suggs signed a statement to that effect for Mr. Tucker.
Prior to accepting the pleas an extensive colloquy was held between Suggs and Justice Nunez, which was alluded to at length both by Justice Melia in the subsequent state court evidentiary hearing and by Judge Duffy in his opinions. Suggs related some of his family and school history, and in the process stated that he had been examined at the psychiatric clinic "right downstairs."*fn17 In response to the court's questions, Suggs described one rape incident and one robbery. Asked the reason why he attacked the rape victim, he said, "I just had it in mind." When asked why he threatened another woman and stole her purse, Suggs replied, "I just wanted to steal it."
During the course of the colloquy, Suggs answered affirmatively questions concerning the voluntariness of his plea,*fn18 subsequently mandated by Boykin v. Alabama,*fn19 supra. Immediately before ...