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United States Supreme Court


No. 78-6603

Argued:     Decided: October 9, 1979

On petition for writ of certiorari to the Supreme Court of Illinois.

The petition for a writ of certiorari is denied.

Mr. Justice WHITE, with whom Mr. Justice BRENNAN joins, dissenting.

In United States v. Wade, 388 U.S. 218 (1967), this Court held that a post-indictment lineup is a critical prosecutive stage in which an accused is entitled to have counsel present under the Sixth Amendment. In reliance on Wade the highest court of the State of New York has held that a pretrial psychiatric examination is also a critical stage in which the accused has a right to have defense counsel present. Lee v. County Court, 27 N.Y.2d 432, 318 N.Y.S.2d 705, 267 N.E.2d 452, cert. denied, 404 U.S. 823 (1971). Accord, State v. Corbin, 15 Or.App. 536, 516 P.2d 1314 (1973); State v. Anderson, 8 Wash.App. 782, 509 P.2d 80 (1973).

In the instant case, however, the Supreme Court of Illinois has refused to extend Wade 's Sixth Amendment analysis to pretrial psychiatric examinations and thus has aligned itself with every Federal Court of Appeals that has decided the issue, e. g., United States v. Trapnell, 495 F.2d 22 (CA2 1974); United States v. Greene, 497 F.2d 1068 (CA7 1974), cert. denied, 420 U.S. 909 (1975), and with many other state courts, e. g., People v. Martin, 386 Mich. 407, 192 N.W. 2d 215 (1971), cert. denied, 408 U.S. 929 ( 1972); State v. Wilson, 26 Ohio App.2d 23, 268 N.E.2d 814 (1971).

In view of the conflict among highest state courts over whether a pretrial psychiatric examination constitutes a critical prosecutive stage in which the accused is entitled to have counsel present under the Sixth Amendment, I would grant this petition and accordingly dissent from the Court's refusal to do so.[ Larsen v. Illinois 444 U.S. 908 (1979) ]

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