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UNITED STATES EX REL. SOUDER v. WATSON

April 28, 1976

UNITED STATES OF AMERICA ex rel. KENNETH SOUDER, Petitioner
v.
ULYSSES S. WATSON, M.D., Superintendent, Farview State Hospital, Waymart, Pennsylvania, Respondent



The opinion of the court was delivered by: HERMAN

 Before the court is a petition by a state prisoner for a writ of habeas corpus which challenges the constitutionality of Section 411 of the Pennsylvania Mental Health and Mental Retardation Act of 1966, 50 P.S. § 4411. *fn1"

 Petitioner is a citizen of the United States and of the Commonwealth of Pennsylvania. In 1962 he was sentenced to life imprisonment upon a finding of guilty of murder in the first degree. He was initially imprisoned at Graterford. In 1965 he was transferred to the State Correctional Institution at Pittsburgh. At his request, he was transferred to Farview State Hospital in 1967. In 1971 he was returned to Pittsburgh.

 While at Pittsburgh, the prison's deputy superintendent filed a petition for commitment of Souder. A hearing on the petition was held on April 27, 1972, pursuant to 50 P.S. § 4411 (hereafter "§ 411") in the Luzerne County Court of Common Pleas. COMMONWEALTH v. SOUDER, No. 1813, March Term, 1972. Petitioner received no personal notice regarding this hearing nor was he present at the hearing. His mother received notice of the hearing but she did not attend. Officials of the Western Penitentiary and the county public defender were notified of the hearing. After the hearing began, but before any testimony was presented, the public defender came into the courtroom and entered his appearance on Souder's behalf. No relative, guardian or friend of petitioner was consulted about the action to be taken prior to the filing of the commitment petition. Petitioner was not represented by counsel in any of the proceedings prior to the April 28th hearing.

 The psychiatrists and experts who evaluated petitioner were appointed by the court. They were also employed as consultants by the State Correctional Institution at Pittsburgh. No independent expert was appointed to assist petitioner at the commitment hearing.

 The psychiatrists who examined petitioner for the purpose of reporting to the court did not inform him of the purpose of the examinations or that he had a right not to speak with them or that anything he said could be used against him.

 At the hearing, the Commonwealth presented the testimony of a psychiatrist who was employed as an outside consultant by the prison. A written report of another psychiatrist -- not present at the hearing -- employed as a consultant by the prison was produced as were other written records submitted by the records officer of the prison. The public defender presented no testimony on Souder's behalf.

 At the conclusion of the testimony, which lasted twenty-seven minutes from the time the public defender entered the courtroom, the following ensued:

 
COUNSEL FOR THE PROSECUTION: "Your Honor, that concludes our case except that Dr. Herbert C. Thomas in accordance with his duties under the Act will file his report, but for some reason he could not be here and, in fact, they were about to ask for a postponement."
 
BY THE COURT: "We will consider Dr. Thomas' report, but in the meantime, we will sign the order granting the Petition and have the proper authorities arrange for the transfer of Kenneth Souder from the State Correctional Institution at Pittsburgh to the Farview State Hospital for inpatient care and treatment."

 Petitioner filed a habeas corpus petition in the Supreme Court of Pennsylvania which was denied. On April 10, 1974, he filed a pro se petition for habeas relief with the District Court for the Middle District of Pennsylvania. The district court denied petitioner leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). *fn2" On appeal, the order denying leave to proceed in forma pauperis was reversed and the case remanded. SOUDER v. McGUIRE, 516 F.2d 820 (3d Cir. 1975).

 On September 26, 1975, the Luzerne County Court of Common Pleas ordered Souder's release from Farview and he was transferred back to the State Correctional Institution at Pittsburgh. *fn3" At an unspecified time, the former respondent in this case, Michael McGuire, was succeeded by the ...


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