Joseph Alvin Schantz v. Frank A. Eyman, Warden, Arizona State Prison

418 F.2d 11 Joseph Alvin SCHANTZ, Petitioner-Appellee, v. Frank A. EYMAN, Warden, Arizona State Prison, Respondent-Appellant. No. 22764. United States Court of Appeals Ninth Circuit. Oct. 31, 1969, Rehearing Denied Dec. 8, 1969. Carl Waag (argued), Asst. Atty. Gen., Darrell F. Smith, Atty. Gen., Norval C. Jesperson, Asst. Atty. Gen., Phoenix, Ariz., for respondent-appellant. Charles D. Roush (argued), John J. Flynn and James Moeller of Lewis, Roca, Beauchamp & Linton, Phoenix, Ariz., for petitioner-appellee. Before MADDEN, * Judge of the United States Court of Claims, and MERRILL and BROWNING, Circuit Judges. BROWNING, Circuit Judge. 1 Respondent appeals from an order of the district court in a habeas corpus proceeding which set aside petitioner's conviction of murder in the Superior Court of Maricopa County, Arizona, and ordered petitioner's release from custody unless the State afforded petitioner a new trial within ninety days. We affirm. 2 Respondent did not deny petitioner's factual allegations, and the district court, without objection, accepted them as true. The facts, thus established except as noted, are as follows. 3 Petitioner was charged with the murder of his…

Respondent appeals from an order of the district court in a habeas corpus proceeding which set aside petitioner’s conviction of murder in the Superior Court of Maricopa County, Arizona, and ordered petitioner’s release from custody unless the State afforded petitioner a new trial within ninety days. We affirm.

Respondent did not deny petitioner’s factual allegations, and the district court, without objection, accepted them as true. The facts, thus established except as noted, are as follows.

Petitioner was charged with the murder of his wife. He pleaded not guilty, and served written notice of his intention to rely upon the defense of insanity as required by Arizona law. Ariz.R.Crim.P. 192 subsec. A, (1956), 17 A.R.S..

The county attorney asked petitioner’s counsel to submit petitioner to a psychiatric examination by the State. Petitioner’s counsel refused. 1 The county attorney then filed a motion asking the Superior Court to require petitioner to submit to such an examination. He withdrew the motion on the day set for hearing. 2 3 On that same day he sent Dr. Paul Bindelglas, a psychiatrist, to call upon petitioner at his home, without giving prior notice of Dr. Bindelglas’…

(concurring).

I concur.

I do not, however, feel that we need speculate on what an attorney’s presence at the critical moment might have accomplished. Such an inquiry may be pertinent in cases where it is not otherwise readily apparent that the accused at the time was in need of legal advice as to his rights. It may be necessary in cases such as Wade v. United States, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967) (and perhaps Massiah v. United States, 377 U.S. 201 , 84 S.Ct. 1199 (1964)), where some role for the attorney other than his traditional one of legal adviser is found to exist. Such is not the case here, where the need for legal counsel was obvious.

Under Arizona law Schantz had a right to refuse to submit to examination. Whether or not he should have waived this state right was a decision he should not be expected to have made without the advice of his attorney. That decision could have had important results on trial. It was a lawyer’s decision. Defendant was, then clearly entitled to advice of counsel in making the decision and to the presence of counsel at the time he was asked to make it.

Whatever the motive for defendant’s refusal of examination then,…