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October 4, 1961

UNITED STATES of America ex rel. Anthony SCOLERI
William J. BANKMILLER, Warden, Eastern State Penitentiary, Philadelphia, Pennsylvania

The opinion of the court was delivered by: GRIM

Relator, confined in a Pennsylvania prison under sentence of death for first-degree murder, has petitioned for a writ of habeas corpus. He appealed his conviction to the Supreme Court of Pennsylvania, which affirmed the judgment, Commonwealth v. Scoleri, 1960, 399 Pa. 110, 160 A.2d 215. The Supreme Court of the United States denied certiorari, 1960, 364 U.S. 849, 81 S. Ct. 93, 5 L. Ed. 2d 72. Respondent has filed an answer to the petition for habeas corpus, and extensive testimony has been taken.

The murder trial began at Philadelphia Monday, November 17, 1958, and lasted nine days. Relator's defense was an alibi. On the sixth day, Saturday, relator's brother testified for the defense. Later that day relator testified in his own defense. The brother's testimony conflicted with relator's in such a way as to weaken relator's defense considerably and made it appear that relator would be convicted.

 On the morning of the seventh day of the trial, Monday, November 24, a guard at Holmesburg Prison, Philadelphia, found relator, 'lying on cell Bed, with left arm cut in a few places, cell in some disorder & Blood spattered on floor & Walls.' The guard summoned a prison doctor at about 6:35 a.m. The doctor arrived on the scene at about 7:00 a.m., and examined relator both in his cell and in the hospital block of the prison, to which he was carried on a stretcher.

 On examination, the doctor found 24 shallow cuts, between the wrist and the elbow, in relator's left arm. Only one cut, near the elbow, went through the skin, and when the doctor examined him, blood was flowing very slowly (the doctor called it 'welling') from only this cut. At the time of the examination relator was conscious, his pulse rate was 74, his blood pressure was normal (the reading being 130/82), his color was good, his breathing was good, and his general physical condition, save for the cuts, was good. He appeared strong enough to run. His eyes were squeezed tight shut, his head was rolling back and forth, and he did not speak. While the doctor was treating him, cleaning, sterilizing, and suturing the cuts, relator tried to fight the insertion of the sutures. He did not respond when the doctor asked that he twist his hands or move his fingers, a test of possible damage to the the tendons.

 At the doctor's direction relator was given 600,000 units (an average dose) of penicillin to prevent infection from the cuts, and 100 milligrams of thorazine (Chlorpromazine), a tranquilizer, to quiet him.

 Directly after this treatment relator was placed in a wheel chair and taken to the prison yard, where he was carried and placed on a stretcher in a prison van for transportation to the trial. In the van he appeared to be listless, motionless, lifeless, and in a stupor. On arrival at the place of trial, City Hall in Philadelphia, relator was carried out of the van on a stretcher to an elevator, where the guards placed him on a chair to get him on the elevator. On leaving the elevator he was again placed on a stretcher and carried on it to an anteroom to the court room.

 In the anteroom he was examined by Dr. Bove, a physician in the Police Surgeon's office, at about 9:30 a.m. At that time relator was sitting in a chair. He appeared somewhat somnolent and his pupils were contracted, but he revived easily when the doctor applied aromatic spirits of ammonia to his nostrils, although he resisted this attempt to revive him. His pulse was full and regular, about 78. The doctor took out a pack of cigarettes and said, 'Tony, have a cigarette.' Relator reached over, took a cigarette from the pack, and put it in his mouth. He retained his position in the chair. During the examination relator answered when the doctor spoke to him. In the doctor's opinion relator was then alert enough to know what was going on, 95% of full alertness, and was competent to stand trial.

 When the trial resumed, relator lay motionless on a stretcher. Dr. Carideo remained continuously in attendance on him that evening, and there was no change in his condition. At one point during the evening relator said he was cold and pulled a blanket up close to his neck. He also asked for water.

 At 10:20 p.m. on the seventh day of the trial, after the defense had completed its evidence and before the prosecution presented its rebuttal evidence, defense counsel objected to the production of any rebuttal on the ground that relator's condition at that time was such that defense counsel were unable to consult with him or talk to him about the evidence about to be offered. The response of the court was:

 'I have been advised before we brought him in that he was able to consult. I have been advised by the doctors. A doctor is here in attendance, and he has stated that since that time he is better able than he was five hours ago, which antedated the time we started this session by two hours, and you notice this, he has asked for water, and he has asked for a blanket, and inasmuch as some of the testimony has been taken within his presence and within his hearing, I do not propose to have this case interrupted any longer.

 'Your objection is overruled.'

 The trial proceeded.

 When the trial recessed that night relator was returned to the prison at about 11:45 p.m. He walked into the van at City Hall that night. When he arrived at the prison he walked out of the van ...

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