Frederick L. Salzman v. United States of America, James E. Lowery v. United States

conditions, This court’s release adduced,

granted already for reasons

subjеct by the District to modification significant Court in the event of

change underlying circumstances. Judge partici-

Circuit TAMM did foregoing opinion.

pate-in the order and Appellant, SALZMAN,

Frederick L.

v. America,

UNITED STATES Appellee. LOWERY, Appellant, E.

James America,

UNITED STATES Appellee.

Nos. Appeals

United States Court District of Columbia Circuit.

Argued Feb.

Decided Oct.

As Amended Nov.

walk; he became confused as to direc- at 14th tions and entered Franklin Park K He testified that there Streets. approached by man whom he was Appellant subsequently identified as Salzman, engaged in conversation. man, Ap- Another identified at trial as pellant Lowery, joined the conversation a drink he re- and offered Walker which Lowery Appellant then fused. broke park bench, pressed over a bottle jagged edge throat, and de- Walker’s money Ap- manded his and valuables. pellant Salzman removed from $37.00 high billfold and confiscated Walker’s ring gold school watch. Walker promptly police notified and estimated robbery approxi- time that the was mately August 16, m., 1:00 a. further described both assailants. search After an unsuccessful police company park two in the officers, joined Muns Detective Walker Washing- Jr., Stephen Owen, F. Mr. by patrol for search Park Police Riley ton, C., Mr. E. D. with whom Shortly after a. m. car at about 2:00 (both appoint- Casey, Washington, D. C. they responded from to a call a. m. 4:30 court) brief, for ed officer, Mc- Park Officer another Allister, Police 21,172. appellant in No. first who testified Appellant an- Washing- Kennan, Jr., Salzmаn encountered Mr. Robert M. C., approximately ton, a. m. 2:00 Mr-. M. other at D. whom Franklin against park Schultz, Washington, (both nearby them ap- and warned D. C. drinking. brief, them pointed by court) did not arrest He was on the suffi- appellant 21,201. were not at that time since for in No. a. m. ciently At about 4:00 intoxicated. Cohen, Mr. William M. Asst. U. S. again encountered same the officer Atty., with whom Messrs. David G. them for men and arrested two Bress, Atty., Q. Nebeker, U. Frank S. Appellant placed drunkenness. When Atty., brief, Asst. U. were on the S. Appel- squad car he saw Salzman Jr., appellee. Reynolds, Mr. William G. something rear under lant “ease Atty., appear- Asst. U. also entered S. object The officer seized seat.” 21,201. appellee ance for in No. description of matched the Walk- Wright Before and Robin- Burger, police ring earlier forth er’s set Judges. Circuit son, Subsequent re- search radio broadcast. gold The officer watch. vealed Walker’s Judge: BURGER, Circuit Muns and Walker then called Detective scene. appeals These are consolidated 22 D.C.Code § robbery, convictions one of identified Salzman Walker (1967).1 although sure he could the robbers Walker, complainant, he observed one identification since James police awaiting car. seat of the to take a him the back while bus decided in. pend Texas, S.Ct. withheld Decision in this case was U.S. ing disposition v. State of Powell L.Ed.2d 1254 gument morning of fact of misstatement following made a one Walker alleged discrepancies points positive thereafter identification descriptions Appellant trial. of the shirt. This con Salzman at identified The record Walker af confrontation tention without basis. After the initial evidentiary the broken forded a basis Muns retrieved substantial and Detective park. predi prosecutor at could the trashcan the from which the from bottle argument fingerprints taken from the bottle the of reason cate as a matter Latent matching why inference; obviously subsequently identified as this is were able Appellant objection. fingerprints of Salzman. trial the counsel made no period The relates corresponding second error claimed to the During the jury’s request, some three hours after August and Butler Detectives time on began they deliberations, that responded emer- Henningar to an had George Washington advised to: gency Hos- call m., pital approximately 2:00 a. (1) robbery Appel- the time of the Lowery Appellant they spoke who with Lowery park; lant in the awaiting for knife wounds was (2) Lowery the Appellant time that in a rob- claimed received which he hospital; was admitted the to and condition, bery. the of- of his Because robbery the time of the They of Walker. him contact later. ficers decided to did, al- the scene of the however, examine agreed defense counsel Prosecution and leged robbery Lowery Appellant and robbery that testified that the Walker concluded that it could not have occurred m. neither about 1:00 a. occurred in ing Hav- the fashion described him. the other two was able to remember Lowery’s Appellant also observed agreed counsel then to a times. Both hospital, at the shirt the two bloodsoaked suggestion judge trial that if the of the it matched the de- detectives realized scription transcript, in the times were available “T-shirt” blue white with reporter —a the read them to court would given by neck Walker. jury. jury band— then recalled and the was reporter informed the court would that met and officers then Walker These if the her to see informa- any judge since the trial offer did not * * It cautionary The should be additional hearsay challenge instructions. clear resulting chronic alcoholism late.

comes too intoxication crim- cannot be held to be Many occasions trial when arise in theory inal on the the sick- that before objection testi- valid mony made to could be became at some ness chronic there was grounds hearsay on or other period voluntary earlier or series act because, passed example, counsel for led to acts which the chronic condi- the fact can be estab- knows person person tion. A sick ais sick evidence; or other lished admissible though exposed to conta- himself may prove point the to waive because gion may and a at one time who may unduly. emphasize it otherwise voluntarily have been intoxicated may simply time Or to save desire has become chronic alcoholic and unimportant. consider it unable use therefore is control his questions When a submits beverages of alcoholic is not to con- be during deliberation, the its it within voluntarily sidered intoxicated. deny judge discretion the trial objecting While not to an instruction permit request. the United States v. Appellant on the effect of Salzman’s 1958); Jackson, (3d 257 F.2d Cir. ability necessary specific the to form Henry States, 204 F.2d intent, government the the close of at (6th 1953).2 judge Cir. The triаl requested the trial to the an instruction permit did not abuse his discretion effect that chronic alcoholism was itself testimony. ting jury to the the receive except not a defense to a crime Indeed, procedure the commend was a only drunkenness and could considered be genuine able and effort to avoid specific as to the issue intent. prejudice Appellant Lowery. requested

Defense counsel “intoxication” fur instruction without II. request ther elaboration other than a APPEAL SALZMAN’S permitted the be the fact to consider of chronic alcoholism. Appellant He filed writ makes two claims Salzman requests ten agreed for appeal to his relate instruction on both which given. The presented a instruction defense as defense trial. He adjudged in essence of the instruction was that he had been a “chronic crime, upon toxication was not for defense alcoholic” his arrest drunken- alleged degree morning but the rele intoxication ness crime, and, same specific such, vant in the of the element determination lacked the testimony Corley necessity see v. United of restraint which On U.S.App.D.C. judge to avoid in order must exercise repeated (dissenting opinion). еmphasis giving to the undue specific Thus, intent. instruction con- offense. there was no factual cluded : upon judge foundation which the trial might predicated have the instruction Now, chronic alcoholism not a Appellant says now the court charg- robbery defense to the crime of given. should have indictment, ed in this but the defend- sobriety ant Salzman’s condition III.4 by you be taken into consideration past Our effort cases over the dozen determining in- whether he was so years scope or more to establish broad forming incapable toxicated as to jury’s inquiry into required specific intent. processes and emotional accused affirmatively Since defense counsel has not led us to treat either narcotics agreed with the form of the instruction addiction per or alcoholism as a se basis given objection and made no application the Durham- ground urged, precluded now we McDonald rule. McDonald v. United considering the issue unless 312 F.2d plain error. Fed.R.Crim.P. 52. (1962) (en banc); Durham v. Unit ed 214 F.2d facts case —the 45 A.L.R.2d 1430 The ex preceding robbery, events the rob perience under Durham had tended bery, testimony police officer trial-by-label become a and in McDonald Appellant who warned Sаlzman and later sought we inquiry to direct the into him, concealing arrested and the act of factual compel broad areas which would property jury stolen —show expert testify witnesses in terms of probative significance Ap found no impact of disease on volition and pellant Salzman’s condition of capacity to control behavior. This de alcoholism. Under these circumstances emphasized importance psy of the we find no error. chiatric classifications of disease and emphasis directed more Appellant on the nature claim Salzman’s second consequences and the alleged of error ab is the failure trial normality judge it related to criminal re instruct that chronic sponsibility. Despite our continued ad alcoholism be a defense to a crime against specific monitions excessive on intent the crime reliance arose labels of, and medical classifications5 product out or a was of the chronic tendency rely on First, request classifications alcoholism. for such labels continued and as a result found we instruction was made. Fed.R.Crim.P. necessary adopt is, it Second, effect, what a 30.3 the entire thrust of the legal dеfinition of mental disease and de spe defense was at the lack directed legal fect problems relate to the cific Appellant’s intent in because of defining discerning presence proffer toxication. There was no testimony suggesting or relationship responsibility. of criminal be absence Mc alleged tween chronic alcoholism and the Donald, supra. McDonald, Even after States, Judges See Wright Osborn United 385 U.S. As to Part III and Rob- 323, 11, 429, n. 332 separately. 87 S.Ct. 17 L.Ed.2d inson have also written States, 394 Gaskins v. United E.g., States, Carter v. United 102 U.S. (No. U.S.App.D.C. 20,252, De decided App.D.C. 236, 227, 608, 252 F.2d 1967) Kelly States, 20, cember v. United : Campbell See also v. United U.S.App.D.C. U.S.App.D.C. 260, 266-273, (dissent (1962) 307 F.2d panel join ing opinion); All members in ‍‌‌​​​‌‌‌‌​‌‌‌‌​‌‌​‌‌‌​‌​‌​‌‌​​​‌​‌​‌‌​‌‌‌​‌​‌‌‌​‍Parts Blocker v. United opinion affirming I and II of this F.2d (en banc) opin convictions these In Part (concurring cases. III Burger Judge expresses ion). his own views. cogni app testimony on sole here problems continued some tion and volition that of a Health ear.6 Department social described worker who apparently Appellant would Salzman lacks the chronic alcoholic as one who step He backward. take have us drinking. capacity to control his Such alcoholic” “chronic the words would have enough, testimony, course, ex not of mental disease a label elevated to charge cept where the drunken does responsibility But criminal defect. ness; give does not a satis exclusively attáehed label not turn factory determining criminal basis Here condition. to the accused’s responsibility. statute, 24 from treatment label derives seq. (1967), classifi et D.C.Code § Finally, I see no which warrants basis precisely this court what cation which relationship a treatment of the between Washing McDonald, Harried, and said in respon- chronic alcoholism and criminal inappropriate” determi “may ton sibility different from that which this responsibility. nations imposed relationship court has on the anything in Easter I Nor do find between narcotics addiction and criminal Appellant supports Salzman’s responsibility. First Heard v. United fact, position. quite clear we made there that recently and most in Gaskins v. States, supra note we summed to a of chronic alcoholism the defense up: charge intoxication is relieving upon rested mental disease as upon responsibility, of mental decisions define boundaries Our also responsibility incident absence drug interplay within which particular of this sickness nature fact addiction is confined. by Cоngress. forth as set addiction, per- standing alone, does Easter, supra, finding U.S.App.D.C. at 36 mit a or de- of mental disease fact, however, n. at 53 n. 8. fect. Evidence 361 F.2d of that conjunction probative has value in Paralleling effort to withdraw our illness, evidence of mental correspond- trial-by-label from was deprivation the effect of a of narcotics ing desirability having expert testi- alleged dynamics mony explain on a cir- behavioral is relevant controls manifestations, illness, developments, recognized, too, its cumstance. We have capacity behav- control effect to protracted that addic- extensive and proc- ior the mental emotional and on may controls tion so deteriorate such course, accused, and, esses of produce irresponsibility to within impaired or illness de- whether the insanity our test. stroyed controls so the accused those that omitted).8 op. p. 3) (footnotes (slip longer agent.” Id. was a “free no States, cepted alcoholism, Washington E.g., but coun- definition of v. 129 United argued (1967); a U.S.App.D.C. 29, Easter that it was not 444 sel in 390 F.2d separate U.S.App. States, a illness but form of Harried v. United 128 330, (1967); distinct illness. F.2d 281 389 D.C. Hender States, U.S.App.D.C. son v. United 380-386, 123 States, 127 8. See alsо Green v. United 514, (1966) F.2d 360 (1967); U.S.App.D.C. 272, 383 F.2d 199 (concurring opinion); Unit Rollerson v. U.S.App. States, 122 v. United Greene U.S.App.D.C. States, 400, F. 119 343 ed 150, (1965); Castle 352 F.2d 366 D.C. States, (1964); 2d Castle v. United 269 398, States, U.S.App.D.C. 120 v. United 492, 398, U.S.App.D.C. 402, F.2d 120 347 denied, (1964), 381 F.2d 492 cert. 347 (concurring opinion), cert. 496 L.Ed.2d 687 S.Ct. U.S. denied, 1568, 14 S.Ct. 381 U.S. (1965); Brown v. United L.Ed.2d 687 (1964); F.2d interesting Hightower U.S. it is to note v. United this context only commonly App.D.C. cert. is there ac- that not no proceeds opinions to logic and Gas- in this case Heard addiction, question, holdings and because discuss narcotic kins —that my problems important, I set forth alone, evidence” standing not “some the own raise views. to or defect of mental disease equally responsibility issue—is I alcohol applicable chronic to the case of person question a is whether drunkenness, charge Except in a ism. claiming to be alcoholic should a chronic raise the per sufficient se acquitted crime if the evi some must show issue. The accused suffering a dis- finds that he was capacity to con he lost the dence that has product ease and a that his actions were simply respect trol behavior whether, therefore, disease; drinking, in other contexts proper disposition person a such well.9 facility to a a treatment rather than penal I institution. think Affirmed. answered in аffirmative. should be WRIGHT, Judge: Circuit J. SKELLY long-standing In the crim debate over responsibility always questions inal been Appellant there has Salzman raises strong jurisprudence regarding relationship a conviction our criminally responsible responsibility. that to hold man a alcoholism to criminal argues voluntary, the Specifically, his actions must have been consider, Accordingly, product of “free will.” a should have been allowed found, there acquit the when has a consensus that and to if it whether been so lacking, charged robbery— type a certain of case free will is act with — product raise from which defendant such case of disease suffering alco- to criminal involuntariness a defense claims to be —chronic prosecution. been true is inade- This has where holism. Because the record quate claim, present various forms of automatism have been his convic- claimed,2 However, one has acted under tion is affirmed. because punish denied, one for an act since to 384 U.S. 86 S.Ct. mentally way re- which he was no Horton L.Ed.2d 1009 jus- sponsible of all would be denial Consequently, every crime tice. element, must be a mental there argument Appellant carries Salzman’s is, mind a state or condition of rеquest over that we the brink of a criminal act makes doer of holding “the law rule our and, therefore, responsible for that act acceptable concept legally separate a punishment. liable to per the suf which se excuses ailment “ Blackstone, be,’ says must ‘There liability.” Carter v. ferer from criminal act’; an and Hale has ‘both a will and supra 3 at note 252 there no will ‘where is stated I, course, take would not F.2d at 617. offense, can be no commit an there step. on the such a These observations Bishop transgression.’ also said has relationship and crim between alcoholism great or ‘there can be no crime responsibility with the inal are consistent an evil mind.’ small without See United States views of other courts. “Mr. Holmes has remarked Justice (2d F.2d 629 Cir. v. Mala , fronte imports in a cer- intention ‘an act Phillips, 1966); v. District of Columbia a contrac- tain sense. It is muscular 854L55-67, Court of General Crim.Nos. spasm something more. A tion and April 26, Sessions, is not an act. The contraction g., Blackstone, See, e. Commen W. ” * * * willed.’ must be muscles (1854). t Burdick aries Burdick, The Law of § W. Crime up requirement: summed omitted.) (Footnote (1946). act, a mental ele- “In to an addition Williams, ment, will,’ variously Law 484-485 Criminal ‘the G. called ‘the Part) intent,’ guilty (2d ed.1961, : intent,’ The General evil ‘the ‘the considered, just intent,’ type mind,’ case is nec- “In the and ‘the criminal an- essary attacked is the defendant has a This crime. where constitute generally sleep, justice, during requirement there is other an inherent resist, he will then compulsion,3 which could external threat * * * ”5 responsible. not be involuntarily person a has been by crime, actions deciding intoxicated responsibility made course, therefore, And, postulates been a “free will” there has law others.4 recognizes and then known deviations. long area mental tradition postulates Thus can be undermined that: illness a broad certain areas where there is “ * * * person commit [A] free exist. consensus that will does not act, yet respon not be a criminal consensus, in the Once there is as such was, controlling today, disease sible. If some illness area inquire particular acting allowed to whether the truth, him power within E.D.Pa., Forbes, responsible States v. United Fed.Cas. no doubt that law, 15, (No. pp. 1141, 1142-1143 only question relates to and the 129) (1845). the curious although In one case the conse- verdict and the form of the quent that, disposition was reached result defendant. It insanity not claim drinker could chronic if where the defence is otherwise in an intoxi a сrime committed to the is raised relation automatism state, if the defense waking he could raise ordinary cated life. Per- affairs of of severe was the result charged insane state his withdrawal sons with crime—even by stopping symptoms say caused shoplifting offence as —sometimes Drew, drinking. v. D. it, why they United States his did do not know 14,993) (No. Mass., p. 913 Fed.Cas. This a black-out at the time. easy line of defence to be ac- is too ceptable Pike, to a in the absence of court case of State In the now famous convincing Neverthe- medical evidence. N.H.Sup.Jud.Ct. 49 N.H. 399 possible less, perfectly defence it is a jury: instructed the court had trial “ adequately supported. * * * if Thus where there whether ‘that from diabetes took over- sufferer dipsomania, disease as such a mental drug, of insulin and another dose had that dis- the defendant and whether dream-state, induced in him a kind of a killing ease, Brown whether the by was held the Court of this evidence disease, product were of such was the ” capable Appeal Criminal amounting to be of of jury.’ questions fact for the charge to a defence to general In a dis N.H. at 407-408. * * *” shopbreaking. responsibility, of criminal cussion court stated: (Footnotes omitted.) “ * * pro- supra. е.g., See, disease is the When Note W. Blackstone, power, 1, 27-32; man pelling, uncontrollable Gillars v. United weapon, innocent as —the moral elements mental guiltless men- material. If his as the (9th 4. 1 J. § Law Bishop, Criminal strength bodily moral, tal, is sub- ed.1923). intoxication, Voluntary on the involuntary pressed jugated to an ag hand, was considered as “an other service, it is immaterial whether it is gravation offense, than rather man, disease, another or done an excuse for criminal misbehavior.” any physical of art force or a brute 1, 26. 4 W. Blackstone, operation fault without or nature set in courts, Even the most moralistic how ”* * * part. on his ever, recognized long have term N.H. at 441. drinking may sometimes relieve a Eng.Rep. Oxford, Regina responsibility it v. if induces a Denman). jurisdic frenzy”: (Lord (1840) This “fixed “ * * * extensively voluntary this area. with dealt A is a has drunkard tion States, demon, Washington U.S. gives him v. United intoxication privilege. If, however, App.D.C. Mc 390 F.2d 444 no habitual U.S.App. frenzy produced by or fixed practice, though is Donald v. United D.C.120, (en banc); (1962) F.2d 847 such madness con U.S.App. par by v. United tracted ty, the vice and will Durham (1954). places the man the same con D.C. contracted, first, diton involuntarily. if it were ” * * * drinking. example, Keller heavy For class ic claiming within to be necessary for crim states: the free will lacked appears responsibility. reason No inal disease, or “Alcoholism is a applied why concept not be should behavior, disorder characterized question is whether disease.6 drinking repeáted of alcoholic pat recognizes society the behavior beverages exceeds to an extent by the diseased tern in is caused ordinary dietary customary use or so, If not free will.7 determinants drinking compliance social responsi no criminal there be should community, and which customs of recogni determining bility. societal In health, drinker’s interferes with the (1) explored: tion, areas should be four inter-personal economic or relations (2) opinion, existence medical functioning.” (3) facilities, treatment methods group Another on the addictive focuses legal governmental rec opinion, and describes nature of alcoholic. Plaut ju (legislative, ognition executive it as: dicial) exploration, I sufficient find . On “a condition in an individual which law, hold, matter of consensus control alcohol intake lost over his which a disease that chronic alcoholism consistently the sense that he is unable may control behavior in some instances drinking stop to refrain from оr to does, in those instances where and that drinking getting intoxic before imposed.8 be criminal sanctions ated.” II etiological Similarly, variety fac- Opinion Medical found, disagreement tors has been specific as to of alco- set of factors is There are definitions various necessary profession. or for the sufficient condition in the medical holism used general, psychological physically disease. fac- group de- on the One focuses tors, groups bilitating of chron- sometimes characterized antisocial effects opinion facilities 6. This the disease Reasonable estimates that discusses way It in alters suffice. chronic alcoholism. can be effective should voluntary hand, protect in- in order to status of the law on On the other “over-protective” Voluntary from cus intoxication is not individual toxication. general life, intent of his some a crime of todial care for the rest defense to might (as im it has been on his treatment be noted con- limitations posed. example, length aggravation of- maximum For sidered as fense). specific intent, of time for commitment to a For crimes facility might voluntary a defense the maximum term intoxication can be be chargеd. he was if the can show that he was the crime with which defendant just Further, treatment — not custodial so drunk at the time the crime required. necessary warehousing be could not have formulated the Cf. — would Cameron, Parker v. Rouse intent. See U.S.App.D.C. (1967). And, since no ele F.2d 451 373 ment of volved, necessarily in disease is recognition approach no- 7. This is a open the defendant it would be will, responsibility, tions of criminal disease, free opt disease, to raise the defense of not ing culpability are com- moral sanction the criminal instead for subject munity beliefs, to evolution ap should, judge if it route. The trial change light of scientific advances pears might be to him that a defendant problems. exposure particular suffering alcoholism, the de inform safety society ignored right to raise the dis fendant of his operative approach. such an One of as a defense. ease present before the factors which must op Department Quoted U. S. applied class defense of disease Welfare, Health, Al- Education of treatment behavior is the existence cohol and Alcoholism 6 Analogously methods facilities. promise area, T. Plaut, the mental illness no of 10. Problems Alcohol cоmplete every (1967). cures in case is needed. (rather single of devel disorders,” course than a “personality are said be as ; (8) opment) need to utilize along factor, and cultural a causative preventive variety treatment and Dif of physiological determinants.11 found; approaches, non-medical as well types are of ferent alcoholics into medical.”14 of alcoholics noted division Jellinek’s major area.12 types in the ais work five Mendelson, head Dr. H. J. of no clear definition That there is and Con- for Prevention National Center agreement complete alcoholism and In- the National trol of Alcoholism deny ground for causes is not a its Health, noted: stitute of Mental might ing The same it disease status. decades, sig “During past two certainly epilepsy; cancer or said of made in been nificant advances have illness. for mental the same can be said accept professional both of profusion There of definitions rather ance that alcoholism is a disease strong disorders, de various mental transgression. than a moral form of ill or not bate over whether professions have assumed health For their causes are. nesses and what contempo developing leadership in psychiatrists example, instance one study rary approach treat Hospital testified from St. Elizabeths incorporates of ment alcoholism which soeiopathic personality disturb that a goals. Most humanistic scientific and a mental to be ance was not considered leg recently adopted the courts have psy defect; later one month ‍‌‌​​​‌‌‌‌​‌‌‌‌​‌‌​‌‌‌​‌​‌​‌‌​​​‌​‌​‌‌​‌‌‌​‌​‌‌‌​‍disease or al precedents view islative testified from the staff chiatrists same an ill individual and coholic as opposite effect.13 to the litigation process confinement medical point is not whether patients hopefully will of alcoholic profession up exact come has disappear.”15 soon Rather, approach function- label. Finally, Al in 1956 the Committee profession, a sub- al—does the medical Mental coholism Council it, part alcoholism as stantial view Health of American Medical Associa subject disease, properly medical passed tion formal resolution that that, mea- It clear treatment? seems “ * * * general profession rec test, qual- does sured alcoholism ognizes syndrome of alcoholism ify aas disease. justifiably illnеss which should have recommending Plaut, a broad physicians.” attention of view, functional states: Facilities Treatment Methods and then “Alcoholism is considered only recently re Since light alcoholism comprehensive ‘illness’ in the of a ceived the attention the medical medical health which includes an aware- view profession deserves, now feels it it is (1) multiplicity causal ness of: surprising availability that the of treat factors; probable existence methods, especially ment many development different courses Concept See, e.g., Psychiatric 11. Jellinek, 12. E. The Disease As American (1960). sociation, Alcoholism Research in Al Clinical II, III, VII, VIII, IX coholism Ch. U.S.App. Blocker Etiology Diethelm, (Cole ed.1968); O. D.C. (1955); D. Alcoholism Chronic Snyder Society, (eel.), Plaut, supra 14. T. Pittman & C. Note Drinking Patterns Culture Mendelson, The National Center sttpra Plaut, T. Note 37- Alcoholism, Prevention Control ; Alcoholism, Alcohol NIMH, Research in Alco- Clinical VII; V, VI, Zwerling & Ros Note Ch. holism, supra Note 11,174. enbaum, and Person Alcoholic Addiction Psy Rosenbaum, Zwerling su- alty, Quoted Handbook & 1 American chiatry pra facilities, lags patients behind need.17 How can be worked with. As Plaut ever, years in recent there has been a notes: thority recognizes lcoholics doubtedly aversive being, process. cussion in the literature. And aid to and a host of group psychodrama have received dis burgeoning crease in facilities for alcoholics. While py.18 group therapy,19 drug therapy,20 recognizing sufficiently to These treatment methods will un veloped throughout Various methods have go, I feel used with alcoholics. conditioning, hypnotherapy process Anonymous.22 treatment that we of methods and a how altered, route special much farther we have and have now new ones alcoholics out of the programs program into a treatment very important been, Psychothera progressed added, every rapid exists — A and are such as and great potential for treatment of alcoh and au in holics can receive munity lished a ther, creating state 130 in variety Although much that eration, fect on its “ * * * already ^[*] alcoholism clinics are hospitals,26 agency at a supposedly existence as changes mental health centers treatment *"25 and treatment rapid emergency been can have a Evidence in ability and in-patient pace, facilities, great needs to be done unmotivated accomplished. emergency 1966.28 The com organizatiоn, op services.27 Fur with more than country to work with substantial philosophy accumulating care in some being being patient. care have estab Alco deal de ef in in profession old methods as the revived olics.29 ways seeks surer to return the alcoholic normally functioning Finally, below, life. This is as discussed there ais medicine, aspects true in almost all massive in movement states and especially establishing true of federal level toward re- important mental illness. isWhat is that search and treatment facilities for alco- used, being apparently resulting methods are with holics. This movement in success,23 some to treat in alcoholics. Also tremendous increase the number of encouraging employed is the work Chafetz methods facilities and to treat showing others24 that “unmotivated” alcoholism. See, e.g., Barton, Unique 17. Deficits in the 642. “The Role Treat of Alcoholics Anonymous.” Plaut, supra 10, ment Alcoholism and Recommenda T. Note Correction, Alcoholism, supra 62. tions Alcohol Alcoholism and Psychiatric Emergency 9, Services Note 35. 1679-1685 (1 968); Blane, Trends the Pre Alcoholism, 23. Alcohol supra Note Alcoholism, vention Clinical Re 9, 37-38. Alcoholism, supra 11, search Note 1-9; Blane, Psycho Chafetz, Hill & 24. Evaluation Research the Alcohol Clinic therapy Alcoholics, Psychiatric Quart. Serv J. Around-the-Clock Studies on Alcohol ice of the Massachusetts General Hos Psychiatric Plaut, 10, supra pital, Emergency T. 53-54. Note Alcoholism supra Services, 17, Note Zwerling Rosenbaum, supra 18. & Note 1674-1678. 641; supra Alcoholism, Alcohol supra Plaut, Note 33. 25. T. Note 81. Curtis, Therapy Alcoholics, Id., 19. Group 26. 02-64. Alcoholism, Clinical Research su- Ibid.; Chafetz, supra Note pra Note V. Ch. Major Plaut, 28. T. Some Issues De Alcoholism, 20. Alcohol supra Note veloping Community Services 9, 33. Drinking Persons with Problems Plaut, supra 21. T. Note Alcoholism, adjunct supra therapy.” Alcohol 22. “A most Note valuable Zwerling Rosenbaum, &

369 ap- include in its an article Hutt to Legal Opinion pendix. Hutt concluded: legal problem is literature on The “Judges lawyers and are trained on it centers just developing. Most of holding competent to de are not law. We recent Circuit decisions the two exactly type noncriminal for cide what punished cannot be alcoholics that procedures like public are most health 20 law review Of drunkenness.30 ly decisions, chronic in rehabilitation of result 13 com case notes on these competent, and ap But we are favorably inebriates. the courts’ on mеnted duty, make certain along we do have proach medical-reha to alcoholism procedures present remaining that criminal (the seven sim lines bilitative The cannot cases; unf are not continued. ply none commented noted system expected respect avorably). typical 31 note states: A justice sick criminal that condemns recognizing is “By that alcoholism people jail are sick. because acknowledged a disease, the courts ” * * * 34 accepted universally almost conclusion * * * t [I] authorities. medical Recognition Governmental accepted by and generally medical is clearly area, than perhaps In this more ‘jail psychiatric authorities recognition others, alcoholic,’ he needs place for for the overwhelming. alcoholism a disease punish than rather rehabilitation Congress Legislative: omitted.)32 (Footnotes ment.” recog ago Congress long As as 1947 Further, of the law reviews all almost nized alcoholism as a disease when de- implications those pointed to the enacted for the rehabilitation a law cisions, appreciation medical and of our alcoholics.35 The first section of alcоholism, accused for alcoholics stated; law any crime. purpose chapter “The is to have discussed Several writers alcoholism, concluding program rehabili- problem establish a for the alcoholics, medical, promote essentially crim tation of tem- it inal, medical, perance, provide for is instructive one.33 It psychiatric, and treat- Enforce other scientific on Law President’s Commission * * Justice, alcoholics; ment ment and Administration jail Drunkenness, singled for out to substitute for sentences Force Task on Note, (1967). Hinnant, Cir., La.L.Rev. 342-343 4 27 30. Driver ; Columbia, (1966) v. District of Easter Hutt, on Court Decisions Recent (1966) U.S.App.D.C. 33, 361 F.2d 124 50 Challenge A North Alcoholism: banc). (en Judges Association Its American Members, on President’s Commission law review notes were: 31. The 13 favorable (1967); Enforcement and Administra Law Brook 8 Ariz.L.Rev. lyn 351 33 Justice, (1967); Task Force tion L.Rev. 52 Cornell L. 324 (hereafter (1967); President’s Drunkenness 1966 Duke L.J. 545 Q. 470 H, Commission), Appendix (1966); (1966); 4 109-119 1422 54 Geo.L.J. Ky.L.J. (1967); Merrill, (1966); Hutt & Is the Alcoholic Houston L.Rev. 276 55 Prosecution?, (1967); 6 (1966); Immune from Criminal La.L.Rev. 340 201 27 (1966); Murtagh, (1967); Mun.Ct.Rev. Ar 5 12 142 41 Tul.L. S.D.L.Rev. Intoxication, ‍‌‌​​​‌‌‌‌​‌‌‌‌​‌‌​‌‌‌​‌​‌​‌‌​​​‌​‌​‌‌​‌‌‌​‌​‌‌‌​‍(1966); for Ford rests Public 35 767 Rev. 140 1966 U.Ill.L.F. (1966); Slovenko, (1966); (1966); ham L.Rev. 1 Alcohol 11 Vill.L.Rev. 861 Law, (1966). ism the Criminal Lee L.Rev. Washburn 23 Wash. & (1967); Kirbens, L.J. 269 Alco Ark.L. Chronic other notes were: 20 seven Responsibility, (1967); hol Addiction Criminal 16 DePaul L.Rev. Rev. 365 (1967); (1967); 54 A.B.A.J. 877 13 How.L.J. 203 Rutgers (1966); L. N.C.L.Rev. Hutt, 118-119. (1967); M.L.Rev. Rev. & 7 W. Wayne (en- (1967) D.C.Code §§ L.Rev. (1947)). acted 61 Stat. prosecution other drunkenness medical and scien lieu 7(b) will tific methods of treatment which such misdemeanor.” Section (A). involved The maximum term of com- benefit individual fully public. protect mitment more or cannot exceed the maximum purpose accomplish imprisonment der term of the misde- charged. given problem Responsibility chronic al alleviate the meanor coholism, of the District the courts Commissioner District hereby Columbia authorized Columbia create centers are detoxification judicial out-patient of the fact that a and in- take notice treatment facili- Act Congress bodies the same rested provides even further. civil commitment of nt In 1968 advisory, need another, ^[*] (August 3, 1968), alcoholic Congress *" proper misdemeanor can be Public Law any It not policy. rehabilitative medical, chronic alcoholic substituted alcoholics, only provides sick 90-452, new law institutional, which treatme for this it also civilly 90th goes em- ar- ty-two problem, of which states: medical large majority ties. Typical Maryland’s, State authorize Legislative: recognize problem states recognition establish within the have has been massive. alcoholism as a medical States research of alcoholism as passed the first past facilities.37 laws, ten facilities, section years, For he, “prior hereby recognized committed if to trial for such as “Alcoholism is misdemeanor, voluntarily requests problem health an illness and (1967). (1949), 36. 24 § 46-12-1-13 D.C.Code §§ N.M.Stat.Ann. (1967). 46-12.7 § (years The state laws are cited Hygiene N.Y.Mental Law 301-309 §§ enacted) years the laws were : (1965). 373(11) (1959). § Ala.Code Tit. 55 (1961), §§ § N.C.Gen.Stat. 122.7.1 (1966). Alaska Stat. 47.30.470 § (1967), 122.35.13-.17 122.65.6-.9 § (1955). Ark.Stat.Ann. 83-701-717 §§ (1967) . Safety & Cal.Health Code 427-427.13 § (1965), N.D.Cent.Code §§ 23-17.1-01-07 (1965). (1953), 54-01-19, subd. 4 54- § §§ 17-155a-j (1961). § Conn.Gen.Stat.Ann. (1965). 38-01-09 (1953). Fla.Stat. 396.011-.121 § (1959). Ohio Rev.Code § 3701.141 (1964). Ann. Ga.Code 88-401-412 §§ 2101-2108 Okla.Stat. Tit. §§ Ann. Idaho 67-3108-3120 §§ Code (1968) . (1965). 430.020, §§ Ore.Rev.Stat. .080-.100 (1967), ch. 34 429.16 ch. § Ill.Rev.Stat. (1961). (1961). 100-10 § 91% (1953). Tit. 2101-2113 §§ Pa.Stat. (1957). §§ Ind.Ann.Stat. 22-1501-1513 (1962), R.I.Gen.Laws Ann. 11-45-1 § (1961). Iowa 123A.1.8 § Code (1951). 40-12-1-23 §§ (1953). Kan.Stat.Ann. 74-4401-4413 §§ (1967). Ann. S. C.Code 32-895-904 §§ Ky.Rev.Stat. (1960). 222.020.195 § S.D.Sess.Laws ch. (1958). § La.Rev.Stat. 40-2008-8.3 (March 14, 1967). 22 §§ Me.Rev.Stat.Ann. Tit. 1351-1355 (1963). Tenn.Code Ann. 33-801-811 §§ (1954). (1953, art. Tex.Rev.Civ.Stat. 5561c (1960). 1-4 art. 20 §§ Md.Ann.Code 1967). (1962). § Mass.Gen.Laws 123.80 (1957, Ann. §§ Utah Code 55-13-1-7 (1949), Mich.Stat.Ann. 330.18 436.- § § 1967). (1951). 47a Vt.Stat.Ann. Tit. 18 §§ (1957), 144.- 144.81-.84 § § Minn.Stat. (1967). (1967), 253A.03, 831-.834 .07 § (1966), Ann. § Va.Code 18.1-200.1 § (1967). (1966). 32.378.1-.4 (1957, § §§ Neb.Rev.Stat. 83-157-169 Wash.Rev.Code §§ 70.96.010-.900 (1951). 1965). 83-307.01-03 (1967). (1965). 433.250-.290 W.Va.Code Ann. § § Nev.Rev.Stat. 27-6-1-5 (1947, (1935, 1963), § § 172.1-.14 Wis.Stat. 51.09 51.25 § N.H.Rev.Stat.Ann. 1967). 26:2B-1-6 N.J.Rev.Stat. §§ (1966) (en App.D.C. 33, 361 F.2d general econ affecting welfare and banc), alcoholic held that an courts is fur omy Alcoholism State. subject drunken- not be recognized to could convicted an illness ther ** *."38 holding a rec- ness. recovery Crucial each treatment and- addition, ognition a disease: states, that alcoholism provide, in Of these a chronic for the civil commitment “This alcoholism addiction—chronic dangerous himself alcoholic who is universally accepted —is almost now or to others.39 medically symp- aas disease. toms, noted, already may appear as Executive Obviously, ‘disorder of behavior’. ad- Johnson 1966 President In March public, appearances in this includes regarding Congress health dressed ungovernable by here, unwilled problems in the United and education the victim. that is conduct When States. He stated: accused, criminally for which he is a dis- “The alcoholic suffers judgment of there can be no ” ** eventually yield which will ease passed upon conviction him. adequate treat- research and scientific (Footnote Driver, 356 F.2d at 764. present limited Even with the ment. omitted.) knowledge, can be of our much state “ * * * by is defined [Alcoholism suffering reduce the untold done to Congressional the a Act of 1947] by this uncounted waste caused and ‘sickness,’ Congress not find did affliction. necessary specify it whether it is Secretary of I have instructed mental, physical or a combination of Health, Education, to: and Welfare etiological both. intrica- Whatever its Advisory —appoint Committee cies accompanied is deemed a sickness which is Alcoholism; power with loss of to con- beverages. trol in —establish the Public Health Ser- use of alсoholic cause, congressional judgment sup- a center for research on vice ported prevention, only by in control treatment the evidence alcoholism; case adduced in the Court General Sessions but the record of the hear- —develop program in or- education ings on the Act of entire understanding public der to foster legislative Act, history fact; based on scientific an additional abundance authorities private —work with * * Congressman *. As Miller of agencies on the level State local Nebraska stated on the floor of the compre include in this disease [to] during House on the debate Act: programs.” hensive health Jail is not the their answer to trou- 4. Judicial people ble. are We think sick decisions, In two Circuit Driver and need and technical at- scientific Hinnant, Cir., (1966), and psychiatrists F.2d 761 tention of and medical Columbia, personnel.” Easter v. District of 124 U.S. addition, provide 38. Article 2C § three other states Md.Code the commitment of alcoholics: Miss. Arkansas, 39. are: These states Connecti- (1950); Code Ann. §§ 436-01-12 Mont. Indiana, Kentucky, cut, Georgia, Kansas, Rev.Code Ann. 38-701-711 §§ Maine, Massachusetts, Minnesota, Ne- Wyo.Stat.Ann. § vada, Hampshire, Mexico, New New New compila- Hawaii is not included Carolina, Dakota, York, North North 39; tions of in Notes state laws Island, Tennessee, Pennsylvania, Rhode the Hawaii code was unavailable at Texas, Vermont, Virginia, Virginia West time was written. cites, see Note For code and Wisconsin. Quoted President's Commission, 33, Easter, not a at 20 L.Ed.2d 1254 (Footnote omitted.) at constraint. There a af divided Court a firmed Texas conviction Conclusion drunkenness, Eighth holding opin- From the examination of medical prohibit Amendment did not a con ion, legal opinion, methods dealing viction. The Court was facilities, recog- governmental level; fact, constitutional Mr. Justice nition, clear that alcoholism seems opinion explicitly applauded Marshall’s disease, subject properly of medical experimentation among jurisdictions of criminal sanction. attention instead dealing responsibility: with criminal Therefore, should fashion this court “ * * * [F]ormulating a ‍‌‌​​​‌‌‌‌​‌‌‌‌​‌‌​‌‌‌​‌​‌​‌‌​​​‌​‌​‌‌​‌‌‌​‌​‌‌‌​‍consti regarding persons rule alcoholism so reduce, tutional if rule would not elim claiming from the can to suffer disease inate, experimentation, fruitful whether, take the issue of developing productive and freeze the ease, responsibility each the criminal dialogue psychiatry between law and lacking. needed for conviсtion is ”** rigid into constitutional mold. Ill 536-537, 392 U.S. at S.Ct. at question of alcoholism as a de dialogue spirit, In this I think that being fense to crime here treated among pro over alcoholism the medical responsibility. of criminal fession, government legal and the Columbia, “In the District the for of profession point reached a has responsi mulation of tests of criminal recognized disease be a should as basis * *."41 bility is entrusted to the courts denying responsibility for criminal for The issue is not one of constitutional produced by actions the disease. Eighth (the pro mandate Amendment’s The I rule would fashion for alcoholism scription punish of cruel and unusual parallels this court’s rule in of the area ment) statutory interpretation nor one of insanity. be would instructed (the Congress). 1947 Act of if it finds defendant was suffering disease, compelled It from a follows that we are not and that his rely product disease, on actions were a of it for in basis the decision Driver, supra (Eighth Amendment), guilty. should find the defendant not or Using Easter, supra (1947 and, procedures, in part, civil Act in commitment 42 Eighth therefore, Amendment). And, defendant should then-be committed to Supreme opinions appropriate facility.43 an As Court’s in Powell Texas, insanity, v. State of with 392 88 labels should avoided. U.S. S.Ct. be supra will It be likened to Durham v. Note did not it. United per- U.S.App.D.C. of an or a 94 at F.2d at tlie movements imbecile ”* * * in a delirium a fever. son of Easter, U.S.App.D.C. at 361 F. do, however, light 42. Those cases shed 2d at 52: in this area their discussions of disease “ * * An element of essential negating responsibility. as Driv- criminal responsibility ability criminal is the er, F.2d at 764: specified avoid the conduct in the defi- “Although misdoing objectively his nition of crime. Action within the comprises jdiysical elements of a enough. guilty not To be definition is crime, no crime has been nevertheless person engage of the crime must re- a perpetrated because the conduct was sponsibly Thus, in in- the action. an neither intent nor actuated evil sane who does the act is not accompanied with a consciousness guilty law, the crime. The in such a ingredients wrongdoing, indispensable morals, him case based on absolves * * * of a crime. Nor can his mis- responsibility. So, too, in penalized transgres- a behavior be ” * * * case of an infant. police regulation pro- sion aof —malum statute, necessitating no intent to do 43. Under the civil commitment hibitum — persons punishes. pres- what §§ alcoholic’s D.C.Code act, suffering in com- ence not his for he from mental illness can be is prоduct par was or only was not a would be experts should case not In each would, in each case. ticularized It identify disease, symp also the course, product make be hard to a showi thereof and how behavior toms ng45; however, in those cases where illn affected his the defendant was showing made, a is there is no rea ess.44 Thus evidence action debilitating aspects disease, “a others illness defined Mental mitted. psychosis compulsive drinking. which sub- nature of the or other disease area, impairs stantially health of In as with the mental illness: “ person.” 501. Under § 21 D.C.Code * * * [S]ince definition, jmrposes of commit- for this ment, whether the defendant a disease alcoholic would I think that ultimately or defect the triers for be could statute within the come obviously fact, its cannot resolution dangerous civilly to himself ” if committed * * * by expert opinion. be controlled others. or McDonald under alcoholics Commitment U.S.App.D.C. provisions separate statute at 851. seq., as amend- et § 24of D.C.Code gave legal In McDonald the court (Alcoholic August Rehabilita- ed insanity definition of which the 90-452, Law Public Act of tion apply. well, this area a McDon- provide Congress). Those sections 90th approach guide. аld be our should How- of alcoholics for civil commitment for ever, that was not decided until the case repeated up days, period eight years experience courts had up days. In addition cases juncture Durham rule. At this provides lieu commitment Act to wait seems best until the trial prior prosecution who for misdemeanants juries experience courts and have some committed to trial choose to expert testimony on the nature of commitment can- This treatment center. judicial fashioning alcoholism before impris- term of maximum exceed the definition the disease. charged. for the misdemeanor onment only “product” insanity opinion intended to cover The test This area was Alcoholic Re- stated Carter v. United where the situations those apply. 227, 236, Thus does habilitation Act apply (1957): opinion de- to to is intended “ charged committing fel- * * * a fendants with concerning [T]he facts 7(b) ony. However, that under § I note concerning disease and the facts apply Act, does that Act not justify reasonably act are to such as there are avail- unless misdemeanants to the conclusion that ‘But for this dis “adequate appropriate treat- able ease the act would not been com have ” a case where the facilities. ment” mitted.’ inapplicable rea- held for such a apply. isAct The dissenters Powell State of v. opinion son, this would Texas, 392 U.S. S.Ct. declaring that to make clear I wish L.Ed.2d 1254 who would have within the illness alcoholism a mental punish held it unconstitutional statute the commitment terms drunkenness, that assumed a show- such way illness it a mental indicates that is ing would not arise for other acts: insanity defense. the terms of within Indeed, findings not foreseeable “It is opinion al- stressed that as those which here— decisive relieved of should be coholics responsibility being namely in- defendant’s their actions were part toxicated pattern was a of the disease, produced not their because of his disease and due simply illness, mental disease is a the because, compulsion symptomatic of that dis- physical both, mental or or would in the ease—could be made a disease. driving case of offenses such as a car automatic; not be would Commitment intoxicated, assault, theft, or while illness, need there would robbery. require Such offenses inde- hearing. independent See Bol- be an pendent acts or conduct and do Harris, ton typically part flow from and аre not F.2d 642 syndrome disease above, no medical there is noted 44. As If chronic alcoholism. an alcoholic agreement al- definition of on an exact should be convicted criminal con- emphasize definitions Some coholism. duct which is a characteristic socially drinking involuntary part pattern excessive criminally trial, son to re hold defendant events. At his on an indictment for sponsible. robbery,1 the Government introduced evidence, which, jury, if believed proposing The I test am is not novel. proved participated he in the had Judge jurisdiction In our own Tim Salzman, hand, crime. on the re other Murphy of the of Columbia District drinking lated that he had been exten Court of General formulated Sessions sively robbery place, before the took just such a test in the of an alcoholic case day that he recall little could about the charged disorderly conduct: brought out, “ which it occurred. He * * * the defendant can [l]f too, that he had been arrested drunk show he alcoholic many previously, enness on occasions was intoxicated at the time of the of adjudged also been a chronic fense, he will still have show however, testimony, alcoholic.2 Other his conduct at the time of thе offense significance added little to the of the lat involuntary. here The is his crux ter event.3 degree self-control, awareness. * * * judge, approbat trial with the f was so drunk that [I] * * * counsel,5 ion trial in Salzman’s had lost control of his ac structed the tions, substance that found not should per chronic alcoholism not guilty.” se de robbery, fense to capacity but that the accused’s I think that in future al- cases chronic specific to form a intent steal attempt coholics should be allowed to prerequisite awas to conviction for that showing. such a Having guilty offense.6 been found charged, Salzman now that the contends ROBINSON, III, SPOTTSWOOD W. judge, instructions, in his should have Judge: Circuit distinguished voluntary between setting in which we must examine involuntary intoxication, and should have appeal relatively Salzman’s short and acquit told the if his acts were uncomplicated sequence litigative product of his chronic alcoholism. him, nothing disease as afflicts here- 17, infra, accompanying 3. See note prevent punishment.” in would his text. n. 392 U.S. at 88 S.Ct. infra, accompanying See note (dissenting opinion of Mr. Justice For text. tas). These Justices would seem to be open, however, showing to a that some appeal. Not counsel on this involuntary act was а “characteristic and part pattern of the disease Voluntary drunkenness, 11, 6. see note in afflicts” the defendant. fra, is not of itself excuse for crime. assumption, The Powell dissenters’ King States, U.S.App.D.C. v. United 125 however, may not be so clear. For a 318, 323, 383, (1966); 372 F.2d 388 relationship of discussion between Bishop States, App.D.C. v. United 71 behavior, alcohol and criminal see Slo- 132, 136, 297, (1939). F.2d 107 301-302 venko, supra 33; Pittman, Note Public is, however, It relevant ne to and Intoxication and the Alcoholic gate Offender specific intent. Heideman v. Unit Society, in American Pbesident’s States, Com- U.S.App.D.C. 131, 128, ed 104 supra mission, 33, 13. 943, (1958), denied, 259 F.2d 946 cert. 959, 800, 359 U.S. 79 S.Ct. 3 L.Ed.2d 767 Phillips, 46. District of Columbia v. Crim- (1959); States, Proctor v. United 85 (unreported), inal Nos. DC 854-55-67 U.S.App.D.C. 341, (1949); 177 656 Cong.Rec. reprinted (May in 113 H5584 App.D.C. States, Sabens v. United 40 16, daily 1968, ed.), at H5587. 440, (1913). Compare 443 Parker v. U.S.App.D.C. 343, 123 (1967). 1. D.C.Code § 346-347, 1009, 1012-1013 (1966). 359 F.2d August, adjudication in 2. This occurred 1966, in rob- month which the same bery was committed.

375 Columbia,7 among questions These are we Salzman v. District of In Easter would Alcoholics have us decide. Rehabilitation that the held attaching criminality- “preclude[s] Act8 these Clarification areas law jurisdiction to intoxication would, course, highly desirable, be Since chronic alcoholic.”9 of a acceptance of would Salzman’s invitation the criminal the role of alcoholism light shed some much on these needed undeniably problem to be process vexing problems. principles But basic single con than more reckoned with jurisprudence, in our fortified unnaturally text, frames not Salzman against judicial history, lessons of caution is and difficult broad our consideration cluding conc those on lusions—i n concerning potentialities of sues alcoholism16 —that defense in the chronic alcoholism firmly supported by concrete evidence. public inebriation.10 crime other than virtually Here we have evidence on alcoholism, relation to in its Is chronic subject integral in the overall criminality generally, dealt with be quiry. specialist A clinical in alcoholism intoxication,11 involuntary as a form Department for the District of Columbia exculpating sickn illness12 or Health, defining a chronic alcoholic as 13 in theory he who ess on the cannot who master his drink com irresistible ing, flicted it had an testified Salzman is habitual drinking loses pulsion imbiber after loses to drink and who control his drink over he, ing power starts, just Can once he his any of self-restraint? about Among all glar than behavioral more one whose we are told.17 impaired by ing substantially evidentiary controls are are infor deficiеncies defect,14 justly as ability mental disease or mational voids to Salzman’s responsibility?15 forego drink, sessed with first and as (en 33, U.S.App.D.C. purposes); F.2d 50 361 stance was taken for 7. medicinal 124 Brown, 1966). 390, State v. Kan. banc 38 16 P. 259 (public drunkenness excused 24- §§ 744 61 Stat. 8. D.C.Code ignorance intoxicating potentiality (1967). see District But to 24-514 501 beverage). Act Alcoholic Rehabilitation of Columbia 1967, See, e.g., Stat. 618 12. Durham v. United 35, U.S.App.D.C. F.2d at 52. at 9. 124 U.S.App. v. United McDonald Texas, Compare Powell v. State 120, 1962). (en D.C. 312 F.2d banc 2145, 514, L.Ed.2d 1254 S.Ct. U.S. Columbia, 13. See Easter v. District supra 7, U.S.App.D.C. 35, note at decision, supra did note Easter Our 361 F.2d at See that character. issues of touch supra See the cases 35-36, cited U.S.App.D.C. note F. at 52-53, 61. at 2d Columbia, See Easter v. District of su- pra note recognizes common law 11. Even the F.2d at 52. voluntary invol- between distinction untary de- former intoxication —the Texas, 16. See Powell v. State of specific precludes in- only if it fense 517-531, note 392 U.S. at 88 S.Ct. an element essential tent which 2145. crime, if a defense the latter destroy degree expressed only present to in a sufficient Government witnesses Burdick, generally opinions cognition. W. their on See so Salzman’s ‍‌‌​​​‌‌‌‌​‌‌‌‌​‌‌​‌‌‌​‌​‌​‌‌​​​‌​‌​‌‌​‌‌‌​‌​‌‌‌​‍state of (1946); 213, briety of 216-21 at the time Law Crime the offense. Salz 777, Perkins, himself, testifying Law 781-95 man after Criminal R. to his drink ing prior Wharton, (1957); robbery many Law & Criminal the to and his ed.1957). (R. only intoxication, Anderson arrests Procedure that said App.Div. Koch, you People high “[s]ometimes are also some See (conviction you higher you 623, times are N.Y.S. 987 and sometimes just you doing.” operating while intoxi- don’t know what motor vehicle are intoxicating sub- because cated reversed drinking power to trial counsel satisfaction on his voiced effect of his govern the are left Thus his behavior. we charge.22 compulsive just in dark how the as to my view, any considera In broader is, really drinking to and as Salzman’s chronic alcohol tion of the interweave of relationship to it bore the causal ism in law the fabric of for which otherwise criminal conduct complete lack here doomed almost was convicted. by the trial of medical evidence,23 to the case on a claim too narrow Moreover, the record discloses justify “plain approach even a error” at trial his alcoholism Salzman asserted sum, on In Salzman’s we negate specific only in appeal.25 effort to an upon, dispose not called in order to ele steal is an essential intent to appeal, nearly to render so far-reach That ment оf the crime of robbery.18 ing join I decision as seeks. Salzman defense— defense —and the sole was the conviction, in affirmance of his but jury which his counsel to advanced duty postpone performance would of our opening in summat statement19 probe mysteries deeper to into the in connec to court the trial ion,20 day chronic alcoholism to the when we tion to the with its instructions jury.21 adequate are afforded de record concisely, charge, plainly court’s through veloped adversary theory case, covered that all vital issues at trial level. supra note 6. cited 18. See cases “the intoxication instruction” and that jury adjudica- be told that Salzman’s opening to statement counsel’s Defense tion aas chronic alcoholic should be con- specific intent alluded to sidered the determination as to wheth- the rob- an essential element steal as bery specific er there was intent. charged, was with which Salzman objection show would registered and stated that Salzman 22. No to the under proposed of the offense he was at the time point. court’s instruction on this had supra. response the influence alcohol note See adjudged previously al- bеen a chronic inquiry, court’s after the court had in jury precisely coholic. structed the as it had would, stated that Salzman’s counsel closing argument counsel Salzman’s said that “[s]atisfied.” he was jury’s neces- attention to the called the sity robbery specific proof intent Compare Texas, supra Powell v. note cases, urged “to find 517-531, U.S. 88 S.Ct. 2145. guilty of rob- not of the crime defendant Powell dealt with chronic alcoholism in bery by did fact that he reason claim, the context of a constitutional specific intent do have the rationale, perhaps its in somewhat small- question.” day Con- acts degree, these applicable judicial er resolu- tinuing, had been that Salzman said questions tion nonconstitutional * * “adjudicated a chronic alcoholic well. gets control and does drink without who 52(b). 24. F.R.Crim.P. gets stage numb his mind alcohol;” hence, urged, it was “he States, 25. See Osborn v. United 385 U.S. specific acts.” intent to do these 332 n. 87 S.Ct. L.Ed.2d requested, and the States, The Government 394 U.S.App.D.C. (No. Gaskins v. United it would 20,252, 20, 1967) trial court informed counsel Dec. give, 30; instruction the effect at 9 n. Robertson v. United alcoholism, standing alone, U.S.App.D.C. 309, 310, 124 702, 364 F.2d robbery, Kelly (1960) ; a defense to but that Salzman’s v. United condition should be taken into considera- (1966) ; tion on the whether he was too Smith v. U.S. nеcessary specific App.D.C. 300, 305, to form the intoxicated 353 F.2d only requested counsel intent. Salzman’s See also F.R.Crim.P. 30. examine notes Lowery’s Appellant accompanied him to available, if it showed the tion was and spoke hotel address. The detectives jury receive it. exact times the would Lowery Appellant about shirt and his were informed that he had left it at the morning, following out the hospital. As the three men leav- were presence response jury and in standing ing, Walker, in who had been jury’s question, the court the first re- room, Ap- hall outside identified testimony porter portion of the read a pellant Lowery as one of his robbers. Appellant of Lowery officer who interviewed also identified him at Fur- Walker trial. hospital: at the proved ther for the search shirt fruitless. Park went to Franklin We back responded looked it over we I. Headquarters, Headquarters, our LOWERY’S APPEAL we this matter Detec- discussed Muns, tive R. Harold Lowery Appellant raises two is type in similar case that occurred appeal: prosecu sues on first time, park approximately at the same argue erroneously permitted tor was talking m., a. to him he 1:00 jury to that the shirt described gave description us in his two by police Walker and the shirt described particular ease. Appellant Lowery officers ho w visited hospital shirt, hearsay objection, was the same Counsel made a con- subsequent disappearance ceding have made he should dur- guilt. consideration, ing shirt evidenced a consciousness of trial. trial After Appellant Lowery judge permitted characterizes the ar receive this necessary rob- intent for the reporter crime testimony read the court in- bery. support defense was there stated that to the twenty prior Appellant troduced record of some concerning testimony time hospital, for drunkenness and convictions Lowery admitted to the was testimony Department clin- a Health robbery was the time of the Walker specialist ical that he a “chronic was approximately m. 1:00 a. alcoholic.” Lowery Appellant claims now Appellant Salzman first claims testimony given response that the judge failing the trial erred in dis- hearsay; question the first testimony was tinguish voluntary between and involun- concerning the last charge tary jury. alcoholism his to the given leading response ques to a He relies Easter v. of Colum- District portions tion; reading that the of both bia, U.S.App.D.C. 33, 36, him, jury prejudiced particularly to the (1966), in which we said:

Case Details

Case Name: Frederick L. Salzman v. United States of America, James E. Lowery v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Nov 4, 1968

Citation: 405 F.2d 358

Docket Number: 21172, 21201

Court Abbreviation: D.C. Cir.