The opinion of the court was delivered by: DITTER
The defendant was convicted of air piracy despite his contention that at the time of the offense he lacked the mental capacity to conform his conduct to the requirements of law. Defendant's motions for judgment of acquittal or a new trial were denied and sentence imposed. He has appealed, and I am filing this opinion in order to inform the Court of Appeals of my reasons for refusing his motions.
In support of his motions, defendant, Lulseged Tesfa, a native of Ethiopia, raised three contentions:
(1) he was denied due process because the court improperly found that he was competent to stand trial;
(2) the manner and form of the voir dire constituted an abuse of the trial court's discretion and denied defendant a fair trial before an impartial jury; and
The facts giving rise to this criminal prosecution are set forth at length in United States v. Green, 373 F. Supp. 149, 150-51 (E.D. Pa.), aff'd., 505 F.2d 731 (3d Cir. 1974). Suffice it to say for present purposes that defendant and another man, Michael Stanley Green, boarded National Airlines Flight 496 on July 12, 1972, in Philadelphia, and seized the airliner by force as it neared Kennedy Airport in New York City. After demanding $600,000. ransom, the two skyjackers ordered the crew to fly the airplane back to Philadelphia. Although the plane's captain escaped after landing, the rest of the crew, the passengers, and skyjackers remained inside the aircraft on a runway at Philadelphia International Airport until the early hours of July 13, when, using the remaining members of the crew as human shields, Tesfa and Green transferred to a second aircraft in which $500,000. and three parachutes had been placed. Thereafter, upon Tesfa's instructions the second airplane took off and headed south. As they approached the Gulf of Mexico, the skyjackers ordered the copilot, who was in command of the airplane, to fly to Jamaica. Seizing an opportunity when Tesfa momentarily left the cockpit, the copilot slammed the door shut and initiated maneuvers which alternately threw the skyjackers against the overhead and floor of the cabin. He ultimately set the airplane down on a small landing field in Texas, and together with the flight engineer escaped through a cockpit window. Four stewardesses remained inside the aircraft with Tesfa and Green until late on the afternoon of July 13 when the skyjackers surrendered to the F.B.I. Green was tried separately and convicted by a jury of air piracy. I denied his post-trial motions, and the Court of Appeals affirmed. See United States v. Green, supra.
II. COMPETENCE OF THE DEFENDANT TO STAND TRIAL
Defendant's contention that this court improperly found him competent to stand trial -- and consequently deprived him of due process -- for convenience may be broken down into three sub-arguments. First, he asserts that he was not accorded a fully adversary hearing on the issue of his competency consonant with procedural due process. Second, he contends that I was biased and prejudiced, and conducted myself as "both presenter of evidence and trier of facts with respect to Defendant's competency." Finally, he argues that the evidence established that he was incompetent to stand trial and that my failure to make such a finding constituted a denial of substantive due process.
The defendant's competency was, from the outset, a primary concern of this court. Only two months after the skyjacking, and upon the motion of the Government,
I ordered that Tesfa be examined at the Medical Center for Federal Prisoners in Springfield, Missouri, where he was then confined, for the purpose of determining his mental competency to stand trial and to understand the proceedings against him. The result of that examination was a report of the Springfield Psychiatric Staff, dated October 31, 1972, and signed by Dr. Robert Jack Eardley, the Deputy Coordinator for Mental Health, in which he and three other physicians found that the defendant was not schizophrenic
but was malingering. The staff concluded he was competent, and on December 18, 1972, Dr. H. B. Fain, the Acting Chief of Psychiatric Services at Springfield, ordered that Tesfa be discharged from the medical center and returned to this court for trial.
On February 1-2, 1973, I conducted a hearing to determine the defendant's competency. Dr. Eardley testified that in his opinion, defendant was competent. Defense counsel produced four witnesses -- Dr. J. Stephen Goldberg, a general practitioner and Chief Medical Officer at the Federal Reformatory at Petersburg, Virginia, to which Tesfa had been transferred from Springfield; Dr. John Hugh Wallace, a psychologist at the Petersburg facility; Dr. Robert J. Murney, a consultant at Springfield; and Dr. Robert L. Sadoff, a privately-retained psychiatrist practicing in the Philadelphia area -- all of whom testified that defendant was incompetent to stand trial. At the conclusion of the hearing, and relying largely on the comparatively long period of time Dr. Eardley and the other members of the psychiatric staff at Springfield had had to observe and examine the defendant, as contrasted with the much shorter times the other psychiatrists and psychologists had spent with him, I found him competent.
On May 14, 1973, on the basis of new information brought to my attention by the Government, another competency hearing was held. At that proceeding three expert witnesses unanimously agreed that defendant was not competent to stand trial. Dr. Arthur David Boxer, a psychiatrist on the staff of the Forensic and Psychiatric Unit at Holmesburg Prison, opined that Tesfa was schizophrenic. Albert Levitt, the chief psychologist for the Psychiatric Division for the Court of Common Pleas of Philadelphia County, stated that he believed that defendant was suffering not from schizophrenia, but rather from a dissociative reaction stemming from his incarceration. Dr. Francis Hoffman, a psychiatrist and the director of the Psychiatric Unit for the Philadelphia Common Pleas Court, concurred in Mr. Levitt's conclusion. Accordingly, on May 18, 1973, I adjudged the defendant to be incompetent to stand trial, and directed that he be sent back to the Springfield Medical Center.
Upon Tesfa's return to Springfield, Dr. Eardley assigned Dr. Emasue Snow, a staff psychiatrist, to be his treating physician. In December, 1973, the psychiatric staff issued a report signed by Dr. Snow diagnosing defendant's condition as social maladjustment and concluding that he was competent to stand trial.
Prior to defendant's trial, another competency hearing commenced on October 15, 1974. Dr. Eardley, who had left Springfield the previous July to become the Regional Administrator for the North Central Region of the Bureau of Prisons, stated that as of the time he last saw Tesfa, he believed him to be competent to stand trial. Dr. Emasue Snow also testified that it was her opinion the defendant was competent. At the conclusion of Dr. Snow's testimony, I found that there was sufficient evidence to conclude that the defendant was competent as of May, 1974. Since more than five months had elapsed since then, however, I directed Dr. Eardley, pursuant to 18 U.S.C. § 4244, to re-examine the defendant for the purpose of determining his competency at the present time. Dr. Eardley requested that Dr. David Taub, a psychologist, also be directed to examine Tesfa, a request which I granted.
The following day, after Drs. Eardley and Taub had examined the defendant for approximately two hours, a new competency proceeding -- to ascertain defendant's competency as of that date -- began. Both men opined that Tesfa was competent to stand trial. Dr. Taub also stated that in his opinion, the pressure and tension of the trial would cause defendant's mental condition to deteriorate "no more than for any ordinary person." At this hearing I also directed certain questions to the defendant and asked his attorney's opinion as to Tesfa's competency. Counsel responded that he had experienced no difficulty over the last month or so in communicating with the defendant, explaining things to him, and obtaining information from him. At that juncture, I commented upon the evidence presented and concluded that the defendant was "able to understand the proceedings against him rationally and factually . . . able to assist in his own defense and . . . competent to stand trial."
On October 29, 1974, upon completion of the jury selection process, certain inappropriate behavior on the part of the defendant both in and out of court
prompted me to hold yet another inquiry on the issue of his competency to proceed. At this proceeding defendant called to the witness stand Dr. Gerald Cooke, the chief psychologist at Norristown State Hospital for the previous year and a half. Dr. Cooke had been privately retained by the defense as an expert consultant. He stated that he believed that defendant was suffering from a hysterical dissociative reaction, that his behavior was neither conscious nor voluntary, and that he was incompetent to stand trial.
Dr. Eardley, who had at the Court's direction returned to Philadelphia for the purpose of examining the defendant, testified that in his opinion Tesfa's behavior was both conscious and voluntary, and that he remained competent. On October 30, Lois Briggs, a consulting psychologist at Springfield who had first interviewed the defendant in August, 1973, and who had together with Dr. Eardley, examined him the previous day, fully concurred with Dr. Eardley's conclusions and voiced her disagreement with Dr. Cooke's findings.
On November 22, 1974, the day after the jury returned a verdict of guilty, the court commenced a post-trial competency hearing. At the outset, I stated for the record certain observations regarding the defendant's behavior of which I had made notes throughout the course of the trial. I thereupon called to the witness stand, in succession, one of my law clerks and my courtroom deputy, who had, at my instruction recorded their observations of the defendant's conduct in the courtroom both when court was and was not in session. The three of us made ourselves available for questioning by both defense counsel and the assistant United States attorney.
Dr. Eardley, at my direction had returned to Philadelphia, had examined the defendant, and was present in the Court room while these statements were made. I also brought to his attention five portions of the trial notes containing statements by defense counsel about his observations of and contacts with Tesfa. In addition, Dr. Eardley read affidavits prepared by two members of defendant's family which dealt with his behavior during trial and recesses. Finally, Dr. Eardley read counsel's post trial motion, which contained certain factual information. Having considered his past contacts and observations of Tesfa, his post trial examination of Tesfa, and this other material, it was Dr. Eardley's opinion that Tesfa had been competent prior to trial, during trial, and as of that date. Defense counsel objected to my making any findings as to competency at that time, since he wished to present further evidence to me. Accordingly, I refrained from doing so.
At defense counsel's request and in order that Tesfa's parents could be present, sentence was imposed on December 2, 1974, despite the fact that the additional evidence on the issue of competency had not been offered. Prior to pronouncing sentence, I reviewed the record and concluded that Tesfa had been competent prior to trial, remained competent during trial, and was then competent (N.T. 5-8, Dec. 2, 1974). This finding, however, was made with the specific understanding that it would be set aside in the event that additional evidence persuaded me that my decision was incorrect. Although I did hear more testimony, I remained convinced of Tesfa's competency before, during, and after trial.
On December 3, and December 10, 1974, Dr. Cooke testified that after examining Tesfa for approximately fifty minutes on December 2, it was his belief that defendant was suffering from a hysterical dissociative reaction and was therefore incompetent. Dr. Robert Sadoff, who had testified for the defense both at the February, 1973, competency hearing and at trial, stated that he concurred in Dr. Cooke's conclusions.
No formal finding was made at the conclusion of the testimony on December 10, 1974, for two reasons. First, I anticipated that there would be additional testimony and evidence, and secondly, I wished to afford counsel the opportunity to file such memoranda as they felt might be persuasive. There were no more tests and no further testimony. Nothing I heard on December 3 or December 10, 1974, in any way caused me to alter the conclusion I reached on December 2, 1974: Tesfa was competent before trial, during trial, after trial, and at the date of sentencing. In making this finding I credit the testimony of the two physicians, Dr. Eardley and Dr. Snow, and the two psychologists, Dr. Taub and Miss Briggs, and reject the testimony of Drs. Cooke and Sadoff.
"It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial." Drope v. Missouri, 420 U.S. 162, 171, 95 S. Ct. 896, 903, 43 L. Ed. 2d 103 (1975); see Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836 15 L. Ed. 2d 815 (1966).
Indeed, this prohibition is "fundamental to an adversary system of justice [citation omitted]." Drope v. Missouri, supra, 420 U.S. at 171-72, 95 S. Ct. at 904. For federal cases the test of competence to stand trial has been formulated in terms of the sufficiency of the accused's present ability to consult with his attorney with a reasonable degree of rational understanding as well as a factual comprehension of the proceedings against him. Id.; Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 789, 4 L. Ed. 2d 824 (1960); United States v. Pogany, 465 F.2d 72, 77 (3d Cir. 1972).
Although the defendant asserts he was denied due process insofar as my competency determination was concerned, it is difficult indeed to imagine what additional procedures or safeguards the defendant could have been afforded. Competency hearings were held before, during, and after trial. The observations of those who saw and spoke with him during this time were submitted for evaluation. The defense was given an opportunity to conduct further tests and to offer additional arguments.
In all respects I fully anticipated and satisfied the Chief Justice's admonition in Drope, supra, that even when a defendant is competent at the commencement of his trial, a judge must always be alert to circumstances suggesting a change which would render the accused unable to meet the standards of competence. 420 U.S. at 181, 95 S. Ct. at 908. From the record and the foregoing summary of the many determinations of Tesfa's competency, it is abundantly clear that at each and every proceeding he was accorded the procedural safeguards mandated by due process: the assistance of counsel, fair and adequate notice, the confrontation and cross-examination of witnesses, and a decision by a fair and impartial tribunal based upon the evidence and applicable rules of law.
. . . or upon its own motion, the court shall cause the accused, whether or not previously admitted to bail, to be examined as to his mental condition by at least one qualified psychiatrist, who shall report to the court. For the purpose of the examination the court may order the accused committed for such reasonable period as the court may determine to a suitable hospital or other facility to be designated by the court. If the report of the psychiatrist indicates a state of present insanity or such mental incompetency in the accused, the court shall hold a hearing, upon due notice, at which evidence as to the mental condition of the accused may be submitted, including that of the reporting psychiatrist, and make a finding with respect thereto . . . .
The Court of Appeals for this Circuit had occasion to consider Section 4244 at length in United States v. Pogany, supra. In that case the district court implied that it would hold a competency hearing after the accused was examined by a psychiatrist selected by the Government. Defendant underwent such an examination, but upon receipt of the Government's psychiatrist's report -- and solely on that basis -- the court refused the accused's motion for a competency hearing. In reversing defendant's conviction in the trial which followed, Judge Hunter stated:
Fairness requires that the examining psychiatrist pursuant to a § 4244 motion be an officer of the Court and responsible neither to the defense nor the prosecution. United States v. Theriault, 440 F.2d 713 (5th Cir. 1971); In Re Harmon, 425 F.2d 916, 918 (1st Cir. 1970). In United States v. Theriault, the Court stated:
"Sec. 4244 concerns examination to determine if the defendant is competent to stand trial. The court appoints a psychiatrist who examines the accused and reports to the court.
Rule 28 [Fed.R.Crim.P.] authorizes the court to appoint its own expert witness, who is expected to be neutral and detached. He advises the parties of his findings. . . .
The impartial expert appointed under Rule 28 at the request of defense counsel to inquire into defendant's sanity is not a prosecution witness but the court's witness . . ." 440 F.2d at 715 [footnote omitted].
465 F.2d at 78. Thus the "marshalling of factual evidence" and appointment of Dr. Eardley, both of which the defendant views in his brief as improper, were precisely the kind of activities appropriate, indeed essential, to a trial court's function where competency of the defendant is at issue.
More fundamentally, the defendant seems to view my calling and questioning of witnesses in the competency proceedings as somehow inimical to the truth-finding process. The Court of Appeals for the District of Columbia Circuit recently addressed this question in United States v. Liddy, 166 U.S. App. D.C., 95, 509 F.2d 428 (1974). In response to appellant's claim that certain actions of Judge Scirica at the first of the so-called "Watergate" trials constituted prejudicial error, the court said:
The precepts of fair trial and judicial objectivity do not require a judge to be inert. The trial judge is properly governed by the interest of justice and truth, and is not compelled to act as if he were merely presiding at a sporting match. He is not a "mere moderator." As Justice Frankfurter put it, "federal judges are not referees at prize-fights but functionaries of justice." Johnson v. United States, 333 U.S. 46, 54, 68 S. Ct. 391, 395, 92 L. Ed. 468 (1948) (dissenting in part). A federal trial judge has inherent authority not only to comment on the evidence adduced by counsel, but also -- in appropriate instances -- to call or recall and question witnesses. [footnotes omitted]
Id. at, 509 F.2d at 438. Indeed, the court went on to characterize "Judge Scirica's palpable search for truth" as "not only permissible., [but] in the highest tradition of his office as a federal judge." Id. at, 509 F.2d at 442. Under our system of equal justice under law, an inquiry into a defendant's competency to stand trial must be deemed as deserving of a judge's zealous efforts to ascertain the truth as a case potentially involving the leaders of our national government.
Defendant next asserts that I erred in ruling on the issue of his competency without first committing the body of expert testimony into the hands of a psychiatrist, psychologist, or a non-interested attorney. This contention not only was untimely made,
but files in the face of both the wording of 18 U.S.C. § 4244 and the case law. The statute plainly speaks in terms of a "judicial determination" of mental competency and to the "finding by the judge." See United States v. Holmes, 452 F.2d 249, 267 n. 25 (7th Cir. 1971), cert. denied, 405 U.S. 1016, 92 S. Ct. 1291, 1302, 407 U.S. 909, 92 S. Ct. 2433, reh. denied, 409 U.S. 1002, 93 S. Ct. 305 (1972). And in United States v. Horowitz, 360 F. Supp. 772 (E.D. Pa. 1973), judge Huyett held that competency is a factual determination and the judge the finder of fact. At least four Circuits which have considered the question agree. See United States v. Holmes, supra; Hall v. United States, 410 F.2d 653, 658 (4th Cir.), cert. denied, 396 U.S. 970, 90 S. Ct. 455 (1969); United States v. Huff, 409 F.2d 1225, 1228 (5th Cir.), cert. denied, 396 U.S. 857, 90 S. Ct. 123 (1969); United States v. Davis, 365 F.2d 251, 256 (6th Cir. 1966). Lastly, I find quite repugnant the suggestion that a district court should delegate the solemn duty of evaluating conflicting evidence to one to whom that responsibility has been entrusted neither by the Constitution nor by statute.
Turning to the issues of the proper standard of proof in a competency determination and whether that burden was here met, it is firmly established that a prior adjudication of mental incompetency gives rise to a rebuttal presumption of continued incompetency. See e.g., Hurt v. United States, 327 F.2d 978, 981 (8th Cir. 1964); Gunther v. United States, 94 U.S. App. D.C. 243, 215 F.2d 493, 496 (1954). My order of May 18, 1973, had precisely this effect, and the presumption of defendant's incompetence persisted until my finding of October 16, 1974, that he was then competent.
Defendant posits that my finding of a restoration of competency could be premised only upon proof beyond a reasonable doubt.
Because of the subtle and often nebulous considerations inherent in ascertaining the "intellectual and emotional capacity of the accused to perform the functions which are essential to the fairness and accuracy of a criminal proceeding," cf. United States v. Horowitz, 360 F. Supp. 772, 777 (E.D. Pa. 1973), quoting Pouncey v. United States, 121 U.S. App. D.C. 264, 349 F.2d 699, 701 (1965), a lesser standard than proof beyond a reasonable doubt, for example, a showing by a preponderance of the evidence, see, e.g., People v. Bender, 20 Ill. 2d 45, 169 N.E. 2d 328, 333 (1960); Jordan v. State, 124 Tenn. 81, 135 S.W. 327, 329 (1911), perhaps should apply in determinations of competency.
Nevertheless, for the benefit of any court which might at some future date have occasion to review this matter, I shall state for the record that as of October 16, 1974, and at all times thereafter, before, during and after his trial, up to and including December 10, 1974, I concluded the defendant was competent beyond a reasonable doubt to stand trial.
In so finding, I accorded considerable weight to the findings and conclusions of the court's witness, Dr. Eardley. Not only did he possess the requisite degree of neutrality and detachment contemplated by Section 4244 and Rule 28, Fed. R. Crim. P., see United States v. Pogany, supra at 78; United States v. Theriault, 440 F.2d 713, 715 (5th Cir. 1971), and impressive credentials,
but most importantly he, of all the psychiatrists and psychologists who interviewed defendant during the course of these proceedings, had spent the most time with him and acquired the greatest familiarity with, and insight into, his condition. That a witness' intimate familiarity with one claiming to be incompetent entitles his testimony to be accorded great weight is beyond question. See United States ex rel. Phelan v. Brierly, 312 F. Supp. 350, 354-55 (E.D. Pa. 1970), remanded 474 F.2d 1338 (3d Cir.), cert. denied, 411 U.S. 966 93 S. Ct. 2147 (1973); cf. United States v. Freeman, 357 F.2d 606, 623 n. 53 (2d Cir. 1966). Dr. Eardley's findings were, moreover, concurred in by other experts. For example, at the October 15-16, 1974, competency hearing, Dr. David Taub testified that he believed that the defendant was competent and that the trial would have no egregious impact upon his mental condition. And at the October 29-30, 1974, proceeding both Miss Briggs and Mr. Levitt opined that the defendant remained competent and that his inappropriate behavior was both conscious and voluntary. At the post-trial hearing, Dr. Eardley's conclusion, though up-dated by a further examination, remained unchanged. By contrast, Dr. Cooke alone testified that he believed Tesfa to be incompetent on October 29. He was joined in this opinion by Dr. Sadoff at the post-trial hearing on December 3, 1974.
Dr. Cooke's testimony, however, was considerably weakened by his admission that he was not present, nor was any professional person present, while Tesfa completed three psychological tests on which Dr. Cooke relied (N.T. 114, 218, Dec. 3, 1974). These tests were merely left with Tesfa, who was then in custody at the Philadelphia Detention Center, on October 8, 1974. So far as the record shows, while Dr. Cooke may have told Tesfa to complete the tests, he did not tell him not to seek help from other inmates or even inquire afterwards if he had done so.
Dr. Cooke picked up two of the tests on October 11, and the third on October 19 (N.T. 187-88, Dec. 10, 1974). A fourth test by Dr. Cooke, the Rorschach, produced a result that was inconsistent with his diagnosis (id. at 201). Another test was administered on October 19, 1974, but none thereafter. Thus, tests which were an "important" part of Dr. Cooke's evaluation (id. at 247) that Tesfa was incompetent may have reflected Tesfa's responses, the responses of other individuals, or a combination of the two. I was astounded by this procedure, particularly when Dr. Cooke stated that in a hospital or clinic someone would have been present to monitor the tests and prevent the exchange of information (id. at 253, 267-68).
Dr. Cooke's reasoning process in reaching a preliminary conclusion of incompetency also bears on the weight to be accorded his testimony. Dr. Cooke said he first suggested to defense counsel that Tesfa was incompetent because he, Tesfa, "rejected consistently [the notion that] he was insane or mentally ill," (id. at 255) and thus could not assist in the preparation of such a defense (id. at 232-33). However, Dr. Cooke himself was not prepared to state that Tesfa had ever lacked mental responsibility (N.T. 85, Dec. 3, 1974; N.T. 212-13, Dec. 10, 1974). In short, here was a psychologist
who said that this defendant was not competent because he refused to go along with a proposed defense, a defense which the psychologist did not even contend was valid.
Dr. Sadoff's reliance upon the results of Dr. Cooke's tests
-- in addition to the disparity in his diagnosis of defendant's condition during and after trial -- tended in my view to make his conclusions both tentative and suspect. It is well-settled that although the testimony of medical experts on the issue of a defendant's competency, albeit generally advisory, cannot arbitrarily be ignored, Mason v. United States, 402 F.2d 732, 737 (8th Cir. 1968), cert. denied, 394 U.S. 950, 89 S. Ct. 1288 (1969); Mims v. United States, 375 F.2d 135, 143 (5th Cir. 1967), it is but one factor to be considered and rises no higher than the reasons on which it is based, Feguer v. United States, 302 F.2d 214, 236 (8th Cir.), cert. denied, 371 U.S. 872, 83 S. Ct. 123 (1962); Hodges v. United States, 408 F.2d 543, 555 (8th Cir. 1969); United States v. Horowitz, 360 F. Supp. 772, 777 (E.D. Pa. 1973).
In essence, defense counsel's contention that his client was incompetent is rooted in Tesfa's refusal or inability to cooperate in asserting the defense of insanity. Adopting Dr. Cooke's theory, counsel argues that since a man in perilous circumstances should cooperate with his attorney, the only explanation for Tesfa's failure to do so must be that he was incompetent. I am unpersuaded. I am no more persuaded than I would have been had Tesfa rejected an alibi defense and refused to furnish the names of friends who would state that he was not on the airplane, but was with them.
I do not know why Tesfa rejected the proposed insanity defense. (See N.T. 232-33, 255, Dec. 10, 1974). Perhaps I am being naive, but it may be that he was simply too honest, and was thoroughly ashamed of what he had done.
A second possibility involves his background and heritage. There was testimony from members of Tesfa's family that in Ethiopia a great deal is expected of the eldest son. Failure on his part would bring disgrace to the entire family. This evidence was elicited to show that after Tesfa failed out of Howard University his feeling of rejection and disgrace brought about the insanity which was the central theme of the defense. Thus, it is entirely possible that Tesfa's failure to cooperate with his attorney was a face-saving device to benefit his family. Tesfa might have felt that it would be less painful for his family to believe that he had become mentally ill in the United States and was a victim of injustice, than to admit that he had become a criminal.
Finally, it may be that Tesfa is very shrewd,
was convinced that the best way to avoid punishment was to avoid trial, and the best way to avoid trial was to convince his lawyer he was incompetent. In brief, he may have reasoned that his chances of deportation were better as an accused who is incompetent than as a convicted air pirate.
I have no doubt that Tesfa was uncooperative with his attorney, but I concluded that this was a voluntary, conscious choice on his part. Not everyone who rejects advice is incompetent. Many men, in the face of overwhelming evidence and medical advice, smoke too much, drink too much, eat too much, and live sedentary lives. This may make them bad insurance risks, but it hardly establishes their incompetence. Every lawyer has had clients who disregard advice and plunge into legal quagmires. They may be foolish, but they are not incompetent. So it may have been with Tesfa. I accepted the fact that he did not cooperate with counsel, but I emphatically rejected the proposition that this established he was unfit to stand trial.
Defendant contends that I abused my discretion during the jury selection process by (1) refusing his motion to allow counsel, rather than the court, to conduct the voir dire ; (2) refusing to ask prospective jurors all the questions submitted by his counsel; (3) propounding questions insufficiently geared to ascertain bias or prejudice, and thus preventing him from intelligently exercising his preemptory challenges; and (4) refusing to strike one venireman for cause on the basis of his responses to my questions.
"The purpose of voir dire examination is to safeguard the right to jury trial which 'guarantees to the criminal accused a fair trial by a panel of impartial, "indifferent" jurors.'" United States v. Liddy, supra, U.S. App. D.C. at, 509 F.2d at 434; see Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1642 (1961). The impartiality requirement demands that voir dire act as a filter capable of screening out those prospective jurors unable to lay aside any opinion as to guilt or innocence and render a verdict based on the evidence. Id. at 723, 81 S. Ct. 1643; United States v. Liddy, supra, U.S. App. D.C. at, 509 F.2d at 434. Under Rule 24(a), Fed. R. Crim. P., a trial judge has broad discretion to mold the manner and mode of voir dire to meet the demands of the case at bar, and can be reversed only for an abuse of discretion which is substantially prejudicial to the accused. Id. at, 509 F.2d at 434-35; United States v. Bamberger, 456 F.2d 1119, 1129 (3rd Cir.), cert. denied sub nom. Elam v. United States, 406 U.S. 969, 92 S. Ct. 2424 (1972), and Crapps v. United States, 406 U.S. 969, 92 S. Ct. 2424, and 413 U.S. 919, 93 S. Ct. 3067 (1973).
The short answer to defendant's first objection is that absent an abuse of discretion, refusal to allow counsel to conduct voir dire examination is not error. United States v. Addonizio, 451 F.2d 49, 65-66 (3d Cir. 1971), cert. denied, 405 U.S. 936, 92 S. Ct. 949 (1972), reh. denied, 405 U.S. 1048, 92 S. Ct. 1309. Examination of prospective jurors by the trial judge conforms to Rule 24(a), Fed. R. Crim. P.,
and is the standard practice in most federal district courts, see The Jury System in the Federal Courts, Report of the Judicial Conference Committee on the Operation of the Jury System, 26 F.R.D. 409, 466 (1960); United States v. Addonizio, supra, 451 F.2d at 65; see also Campbell, Delays in Criminal Cases, 55 F.R.D. 229, 247 (1972).
In Ham v. South Carolina, 409 U.S. 524, 527, 93 S. Ct. 848, 850 (1973), the Supreme Court held that although a trial judge is constitutionally compelled, where requested, to inquire into the possibility of racial prejudice on voir dire,
he is not required to put the question in any particular form, or to ask any particular number of questions on the subject simply because he is requested to do so by the defendant. See also Featherston v. United States, 491 F.2d 96 (5th Cir.), cert. denied, 417 U.S. 971, 94 S. Ct. 3176 (1974); Ross v. Ristaino, 508 F.2d 754, 757 (1st Cir. 1974); United States v. Addonizio, supra, 451 F.2d at 66. Appended to this opinion are the interrogatories ultimately put to each prospective juror, (Appendix A) and those proposed by the defense (Appendix B). Even a cursory comparison of the two demonstrates that the questions I propounded provided a comprehensive and exhaustive inquiry into each prospective juror's possible bias or prejudice with respect to air travel (#12) and the airlines industry (#14-16); psychiatry (#34, 35) and the insanity defense (#36-38); foreign students (#43, 44) and students who advocate revolution (#46); and the defendant's race (#45) and nation of his origin (#47). Such a thorough interrogation plainly did not constitute an abuse of discretion.
Defendant's final contention with respect to jury selection stems from my refusal to dismiss for cause a venireman who admitted having certain negative opinions and prejudice concerning psychiatry and the insanity defense, foreigners, and persons favoring revolution. In each instance I thereupon asked whether he nevertheless could put aside his feelings and decide the case solely on the basis of the evidence produced in court and my instructions, and in each instance, he responded affirmatively. I therefore refused defendant's motion to challenge for cause, although his counsel later exercised a preemptory challenge to excuse that venireman.
The test that I applied was that laid down in Irvin v. Dowd, 366 U.S. 717, 723, 81 S. Ct. 1639, 1642-43 (1961), wherein the Court stated:
To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court: Spies v. People of State of Illinois, 123 U.S. 131, 8 S. Ct. 22, 31 L. Ed. 80; Holt v. United States, 218 U.S. 245, 31 S. Ct. 2, 54 L. Ed. 1021; Reynolds v. United States, [98 U.S. 145, 155, 25 L. Ed. 244].
See also United States v. McNally, 485 F.2d 398, 403 (8th Cir. 1973), cert. denied, 415 U.S. 978, 94 S. Ct. 1566 (1974); Johnson v. United States, 484 F.2d 309, 310 (8th Cir.), cert. denied, 414 U.S. 1039, 94 S. Ct. 539 (1973). Thus, although defendant perhaps wisely elected to exercise his preemptory challenge, an insufficient basis existed for me to grant his motion to strike for cause.
IV. QUALIFICATION OF THE GOVERNMENT PSYCHOLOGIST
Defendant's final argument is that I erred in accepting the testimony of the Government psychologist, Albert Levitt, on the issue of defendant's sanity. Specifically, defendant contends that not only did Mr. Levitt fail to possess the special qualifications essential to an expert witness, but that his opinion was based on conjecture and guesswork rather than valid and accepted testing procedures.
It is of more than passing interest that at the May, 1973, competency proceeding, defense counsel was willing to stipulate that Mr. Levitt was eminently qualified. Moreover, in United States v. Green, supra, 373 F. Supp. at 157-58, I concluded that Mr. Levitt was qualified to testify as to the competency of Tesfa's co-defendant, and in its unpublished per curiam affirmance, the Court of Appeals held that my conclusion was not erroneous.
The initial question of whether an expert witness possesses sufficient capacity and qualifications to testify is, of course, within the discretion of the trial judge. United States v. Trice, 476 F.2d 89, 91 (9th Cir.), cert. denied sub nom. Clayton v. United States, 414 U.S. 843, 94 S. Ct. 103 (1973). Clearly, the testimony of psychologists, as well as psychiatrists, is admissible on the question of insanity. United States v. Brawner, 153 U.S. App. D.C. 1, 471 F.2d 969, 994 (en banc, 1972); Jenkins v. United States, 113 U.S. App. D.C. 300, 307 F.2d 637, 643 (en banc, 1962). As Judge Bazelon pointed out in Jenkins :
The critical factor in respect to admissibility is the actual experience of the witness and the probable probative value of his opinion . . .
The determination of a psychologist's competence to render an expert opinion based on his findings as to the presence or absence of mental disease or defect must depend upon the nature and extent of his knowledge. It does not depend upon his claim to the title "psychologist."
Id. at, 307 F.2d at 646. And Mr. Chief Justice (then Circuit Judge) Burger, concurring in the same case, emphasized that "many factors other than academic degrees go to the admissibility and weight of the ...