Frendak v. United States

KERN, and FER- Before GALLAGHER REN, Judges. Associate

FERREN, Judge: Associate Frendak jury appellant A found Paula murder, D.C.Code first-degree pistol with- carrying § license, 22-3204. out a D.C.Code § at Fren- Troubled evidence introduced trial, competency hearings and at dak’s sanity her hearings court conducted result, As a the time of the crime. objection— court decided—over Frendak’s interpose * Messrs, express participation appreciation curiae We wish to as amicus our Gardner for appointment Adlock and Galeota and the form of Shea court. & Street, K second, on the seventh floor of 1735 “insanity” phase of the trial. The office guilty by then found rea- Frendak Frendak, a co-work- Appellant N.W. Paula son of counts. on both afterwards, er, ex- immediately departed she had plaining secretary appeal, challenges On Frendak the ver asserts, attorney. Within grounds. dict on her appointment alternate She first, that there was insufficient evidence of fatally shot minutes, discovered Titlow was premeditation support and deliberation to building. hallway the first floor jury’s initial determination that she left shooting, Frendak Following the Second, first-degree committed murder. Atlanta, Mi- traveling through Washington, joined by government and Frendak — Turkey before ami, City, Spain, Mexico present validity amicus curiae —attacks the February she was arrested on of Whalem v. Emirates, Dhabi, after Arab Abu App.D.C (en banc), 346 F.2d 812 passport at refusing to surrender baggage in which the United of her airport. A later search Appeals States Court of for the District of a .38 caliber carrying was revealed that she judge Columbia Circuit held that the trial ammunition, empty two pistol, 45 rounds has discretion to raise an March cartridges, pocket knife. On and a objection over the of a defendant found Dhabi surren- in Abu authorities competent government to stand trial. The Mar- dered Frendak to the urges court, addition, this in to hold that shal, District brought back to the who her finding is, competency to stand trial relating to the charges of Columbia to face itself, sufficient to demonstrate that a de May Titlow. On murder of Willard capable fendant is rejecting the defense. first-degree indicted Frendak was We government pro- conclude that without a carrying pistol murder duced support sufficient evidence to a con- license. first-degree viction for murder. As to the trial, her Fren- issue, however, reinterpret preceding second we In the Wha- months lem, supra. We hold that exam- psychiatric series of dak underwent a may not force an defense on a competency. determine her inations to competent defendant found to stand trial if hearings at competency There were four the individual intelligently voluntarily testimony varying gave which psychiatrists decides forego reaching and her condition about Frendak’s mental result, however, we further hold that concerning with counsel ability to consult finding the court’s competency to stand Ultimately, proceedings against her. not, itself, trial is sufficient to show that deter- hearing, the court after the fourth the defendant capable rejecting suffering from appellant mined that defense; disorder, cooperate was able to personality make inquiry further into whether the de- counsel, a rational possessed with her fendant has made an and volun- understanding pro- well as factual tary decision. Because it is unclear wheth- cogni- her, fully ceedings against and was decision, er Frendak made such a we re- Accordingly, charges.1 zant of the mand for proceedings. further competent concluded that she was Facts; I. Proceedings to Date trial, right to although stand it reserved sponte issue sua competency raise the At the afternoon approximately 2:15 on 15, 1974, proceedings. of January any point Titlow left his in the Willard longer Judge hearing in the incompetent involved 1. were no Penn first found Frendak at that case, hearing Ugast compe- Judge conducted a third stand trial on October then July incompetent April length on tent on time that had and found Frendak 1975. Because of the hearing, Finally, con- elapsed previous a fourth com- after since the petency hearing, December fact that that she was and in view of the cluded attorneys appeared and the who had trial, government brought it with to Titlow and At evi- to sell introduced shortly before dence Titlow demonstrating that had been had left the office him range, killed two close the transac- complete shots fired at and his in order to murder that, giving pis- that the last shot had been probably fired stated tion. after She lay hallway someone standing over Titlow as he floor tol to Titlow first worked, A expert on the floor. an un- police firearms building where they grabbed identification testified ballistics had appeared, woman known tests showed re- positively that bullets fled. twice, then gun, Titlow shot covered from body pan- had been fired had Titlow’s she testified Frendak also weapon by the from Paula Frendak she had fearing seized icked the city, and left in Abu Dhabi. Frendak been The found framed. carrying first-degree guilty murder addition, Hur, who had worked Robert pistol without a license. Titlow, with both Frendak and testified three prior January that on occasions had been Although evidence of 1974,Frendak him had followed and Titlow. proceedings, in the competency introduced Voit, co-worker, Another Thomas recalled a de- Frendak refused raise therefore, similar incident day ap- which occurred on the court, fense at trial. of the murder. Frendak had followed Aldock, Voit as amicus pointed Esquire, John Titlow as they the office and left took raise deciding curiae to aid it whether the elevator motion, down. When elevator under au- on its the defense own off, lobby, got reached the Frendak turned supra. Whalem v. thority of “Willard, it,” said, to Titlow and this examina- also mental The court ordered a meaning this is floor. Titlow then your of her question on tion of Frendak the that explained going he were and Voit responsibility. criminal bar, although eat snack basement subsequent court re- hearing, the they fact out the slip intended to basement Kirby C. reports ceived Dr. Edward door avoid her. Because basement Office Pyschiatry the staff of Forensic locked, door was the men returned to the Psychiatric of the and Dr. Leon Yochelson lobby nearby. and standing noticed Frendak that, of Tit- stating time Institute at the followed building She of the to a them out murder, suffering been low’s Frendak had cafeteria, but they did not enter. When impaired her from illness a mental which lunch, returned from they found Frendak extent that controls to behavioral such waiting in the again, and she took lobby wrongfulness appreciate she not could up elevator with them. conform her conduct and of her could secretary in A the inci- the office recalled requirements of law.2 conduct to the shooting. immediately preceding dents from Pepper, psychiatrist Dr. J. Franklin testified She soon as Titlow had that as Hospital, Elizabeths testified St. his coat taken closet and left from the had a explaining appellant hearing, call, regular for his office sales Paula Fren- tenden- “some “paranoid personality” with dak, desk, who had sitting at her fol- been think- cy lap psychotic over into some left, him out. lowed she she told the As mur- Titlow’s ing.” When asked whether secretary that arrangements she made had condition, Dr. product der had been supervisor with her time to see to take off level in the some Pepper responded that “at lawyer. later, A minutes her Titlow few mind, at some Miss workings of Frendak’s fatally was found wounded. . there . psychodynamics level of . mental ill- her Frendak, connection witness, a causal between Ms. however, testified, ness the event.” He owning weapon admitted murder the cause “unable taking it with mur- that he was to discover the scene of the Although neither however, explained, relationship.” she der. She had effect Kirby from suffered as Dr. stated that she 2. Dr. Frendak’s illness Yochelson described schizophrenic.” “paranoid psychosis, probably “schizophrenic reaction, paranoid type,” while the current expressed reservations about Kirby ap- Dr. nor discussed Dr. Yochelson pellant’s validity of that rule. present capability considering consequences rejecting was tried of the case insanity phase defense, Pepper specifically Dr. stated that heard which had before the same appellant consequences understood the presented Amicus evi- trial on the merits.4 He her decision de- not to raise supporting dence Freedricks, a former fense.3 first called Mark Frendak, who recounted neighbor of Ms. argument hearing, In oral amicus demonstrating appellant’s several incidents expressed reservations about the current him, including spit- toward hostile conduct Whalem, supra, light status of him, him, accusing him avoiding ting at later Court decisions in North Car- Kirby, Yo- being agent. a CIA Doctors olina v. Dr. chelson, again testified. Pepper and Faretta v. Califor- that, stated Kirby and Dr. Yochelson nia, suffering view, been their Frendak had argued, He illness, characteriz- major psychotic from a rule, trial court apply should the Whalem delusions, and looseness hallucinations ed traditionally interpreted, raise the feared she particular, of associations. and leave the of its cur- her, especially plots against that there were rent validity appeal. Both Frendak and Dr. CIA. with the by persons associated prosecution opposed the trial court’s logical con- Kirby any specific, did not find imposition defense. After Frendak’s crime and nection between the hearing the argument evidence and on both expressed his belief mental disease but sides, prior reaffirmed his was if she had committed the ruling appellant control reduced behavioral because of “her stated, stand trial. He however: Dr. Yo- mental illness.” account of her does, Assuming, as the Court that no appel- between a causal link chelson did see higher degree level or competency murder, explaining lant’s illness and required of the respect defendant with forming close great difficulty that she had her ability to raise raise the issue— and that people, attachments with other the insanity defense of find that she is was, —I the anxiety. She great this caused decision; appreciate able to the but I develop pos- beginning to speculated, doctor would be less than candid if I did not also afraid and was feelings itive about Titlow point out that the Court would have res- feelings. Titlow’s murder of those ervations ability appreciate about her to eliminating provided a means of all facets of such a decision on her own anxiety. source of her serious external higher degree mental health if a of com- hand, believed other Pepper, Dr. on the petency required respect with to the disor- personality only that Frendak had ability to make that decision. tendency to- with at most a borderline der psychiatric He then found that the evidence characterized psychosis, ward a condition throughout proceedings adduced the raised suspicion, unwarranted hyper-sensitivity, a sufficient men- appellant’s about self-importance, jealousy, excessive responsibility crime tal at the time of the to ascribe evil others and tendency to blame connecting no require insanity the court raise the He found motives to them. rule, mental disease although appellant’s link between under the Whalem Pepper explained government the essen established 3. Dr. the main reason until the appellant beyond given refusing a reasona had for to raise the of the offense tial elements then, phase, Only defense was that it would be an admission ble in the second doubt. insanity. guilt. question of the trier of fact reach the M., D.C.App., See In re 407 A.2d C. W. Columbia, pro- States, D.C.App., (1979); the District of a bifurcated United Bethea v. ceeding may be conducted when a defendant cert. A.2d 911, 94 & n.67 defense; accordingly, the tri- raises an (1977). er of fact does not consider the issue of charge first-degree murder. She explaining that he did not believe she was at the time of the mur- produced delusional suf- prosecution concedes that der, since her actions before and after second-degree ficient murder crime indicated she had known what submission of its to warrant case-in-chief doing she throughout period. the entire asserts that the jury, the case to the but she for her motion behalf, denying trial court erred in

Ms. Frendak testified her own first-degree stating acquittal on the judgment that she had had little contact with neighbor, Freedricks, her former Mr. govern- murder the close count did him any grudge; not bear that she did government failed ment’s case because the Titlow; kill and that murder was all demon- to introduce evidence part she Cor- of what described a “Rand premedita- had strate that she acted poration game plan.” On April than on im- tion and deliberation rather the jury returned a verdict of not pulse.7 insanity. reason of evaluating a of insufficient claim imposed Because had evidence, court must review appellate appellant’s opposition, defense over light most favorable the evidence in the ap he concluded that he could not commit jury’s government, recognizing pellant hospital pursuant to a mental credibility to determine court, 24-301(d).5 The D.C.Code § justifiable inferences draw witnesses and appellant re accordingly, directed that Franey v. Unit testimony. from their government leased unless initiated civil States, 1019, 1022 ed proceedings days D.C.App., commitment 382 A.2d within pursuant D.C. Williams (1978); 21-541.6 § D.C.Code (1976); App., 357 A.2d II. Sufficiency of the Evidence Fench, denied, 1234, 1242 (1972), Appellant’s argument first is directed at 35 L.Ed.2d sufficiency supporting of the evidence case, In such 343 A.2d When a raises an acquitted ground, and is the individual would examine on that court stated automatically hospital for appellant’s “committed at the motion trial court’s denial of mentally up days, ül” within for This court acknowl- close of all the evidence. period which is entitled to a release or she edged, that in hearing person at which “the confined shall Appeals District Columbia Court of sanity proof’ have the burden has been exception Circuit carved out an had 24-301(d). The § restored. D.C.Code rule, encompassing the situation waiver 301(d) provisions of § automatic commitment unsuccessfully which seeks “a defendant apply do raises an when the trial court judgment acquittal conclusion at the objection. defense over the defendant’s first-degree government’s murder case 309, Wright, U.S.App.D.C. United States v. 167 presents own defense.” evidence in his then 311, 1311, (1975); Lynch 511 F.2d see v. 1313 (citing Franey, supra, 1022 n.5 382 A.2d at 1063, Overholser, 705, 369 82 8 180, States, U.S.App.D.C. 127 Austin v. United States, (1962); Bethea v. United States, (1967)); v. United 382 Belton F.2d 129 64, (1976), D.C.App., 365 A.2d 91 n.59 201, (1967). U.S.App.D.C. In F.2d 150 127 382 911, 2979, 433 U.S. 53 L.Ed.2d case, expected reviewing was such the court (1977). 1095 the the introduced to consider evidence in prosecution The court in the case-in-chief. parties, all the court With the consent of thus, Austin; Franey purport reject stayed pending appeal; did not its Frendak order binding apparently on the Detention Austin therefore remains in the Women’s Ryan, A. P. v. in See M. Center. court this case. 310, (1971). D.C.App., 312 Nonethe- 285 A.2d States, Franey D.C.App., 7. In v. United 382 government less, we conclude that because 1019, if 1021 this held that A.2d produced its case-in-chief evidence in evidence after the court’s introduced judg- motion to withstand the defendant’s acquittal judgment denial of a motion for acquittal, consider we need not ment case-in-chief, government’s at the close validity of current Austin. he or she waived the to contest H., D.C.App,, appeal. In re A. denial on See B.

371 412; Austin, U.S.App. It is only government pro- supra where 509 F.2d at 127 136, duced no evidence from 187, 190, which a reasonable D.C. at 382 F.2d at might fairly mind guilt beyond infer a rea- case, suf evidence was In this sonable doubt that this court can reverse a jury’s determination support ficient to States, conviction. See Wooten v. United premeditation with Frendak acted 281, D.C.App., 343 (1975); A.2d 282 United the evi deliberation, From impulse. not on Fench, States supra U.S.App.D.C. government in its dence introduced 1242; 470 F.2d at Austin v. United case-in-chief, could have found States, n.20, U.S.App.D.C. to the gun with her brought Frendak (1967). F.2d applying 138 n.20 This, itself, scene of the murder.8 standard, reviewing court makes no le- premeditation and de highly probative gal distinction between circumstantial and States, v. United liberation. O’Connor direct Franey, supra evidence. 382 A.2d (1979); D.C.App., United 399 A.2d 1023; States, Calhoun v. D.C.App., Peterson, U.S.App.D.C. supra (1977). A.2d 509 F.2d at Under the District of Columbia Brooks, 449 F.2d U.S.App.D.C. first-degree statute, murder D.C.Code (1971); Hemphill v. prosecution § bears the burden States, 46, 49, 402 F.2d U.S.App.D.C. of proving not only that a crime com was permits It “an inference mitted intentionally but that it was done already the scene appellant arrived on premeditation and deliberation. See calculat possessed calmly planned States, Harris D.C.App., v. United 375 A.2d ed intent to kill.” Belton v. United Austin, (quoting supra 127 201, 203, 382 F.2d 137); 382 F.2d at (1967). Furthermore, the record indicates Peterson, United States v. 166 U.S.App.D.C. day shooting, that on the Frendak 75, 78-79, 411-12 To large carrying passport prove premeditation, government from which the money, amount show gave that a defendant “thought, be Frendak had formulat jury could infer that fore acting, taking to the idea of a human ed an murder. escape plan before the life and a definite decision to [reached] addition, evidence of Frendak’s kill.” Sutton, United States v. supports the behavior before the crime also App.D.C. 208, 216-17, 1210- premedita- inference that she acted with (1969) (footnote omitted) (quoting Aus tion, tin, impulsively. On a few occasions supra n.12, at 127 U.S.App.D.C. at 186 murder, had Frendak weeks before the n.12). F.2d at 135 Deliberation is work. On the followed Titlow as he left for proved by demonstrating that the accused she day shooting, particular, acted with “consideration and reflection way to upon preconceived kill; trailed Titlow and his friend on their design to turn lobby of ing apparently lunch and waited in the mind, it over giving it second thought.” they until (footnote building they where worked omitted). Id. Al Furthermore, though specific no returned from their meal. amount of time is neces murder, sary to advised her premeditation day demonstrate before the she and de liberation, attorney supervisor see her evidence must demonstrate that she had to afternoon, that the accused failed to impulsively, did not kill but when Titlow passion, regular the heat of sales call orgy or in an of fren leave the office for his Harris, zied activity. supra day, 375 A.2d at that Frendak also remained supra again Peterson told following day, the she office. On government’s gun 8. The the mur- evidence demonstrated number of der later identified as the and, appellant box; although purchased gun weapon printed that prior murder, the on the a few months murder; day appellant mur- to Titlow’s after the on the after the never returned home der, police weapon appellant’s the when in she had the murder with her discovered apartment gun empty an in Abu Dhabi. box with the serial she was arrested Alford, su- despite supervisor light reservations in early that she had leave pra, Faretta, supra. for an appointment attorney. with her and Then, when Titlow left the office to make a the trial parties The not assert that do call, Frendak, sales waiting who been had applying in the court its discretion abused coat, in the office with her him. followed rather, that Whalem rule. They argue, Moments mortally later Titlow was found Whalem substantially undermined been wounded. in Faretta by Supreme the Court’s decisions accordingly and rule the This support evidence was begin must be reconstructed. We therefore the pre- inference that Frendak acted with considering Whalem analysis our meditation and deliberation rather on than succeeding cases. impulse when she shot Titlow.9 Frendak’s accordingly claim to contrary the fails. Cases Whalem and Later A.

III. The Validity Current of the Whalem Whalem, Court In the United Rule Cir- Appeals for District Columbia the cuit, banc, sitting en held that presented during

Evidence the com- four a question as to when there is sufficient petency hearings suggested had and at trial the responsibility mental defendant’s that Paula Frendak have been insane issue must become time of Thus, at the time she Titlow. shot Willard pur . . part of the case. . [I]n after had convicted Frendak of justice, judge suit of a trial murder, first-degree the trial found de impose the discretion to unwanted ques- squarely himself confronted with the . . . fense on [Id. Whalem, supra, whether, tion apropos he 818-19.] 337-38, 346 F.2d U.S.App.D.C. at should raise an defense over the ] [11 opposition Af- defendant. conducting thorough inquiry ter specific with the stan- The declined establish court amicus,10 help exercising guide judges concluded that in dards to him, stated, required ambig- under the circum- their The court discretion.12 judge had stances, interpose conclude a uously, it would Appellant Austin, Hemp- part supra, upon relies the circuit 11. Whalem in based was hill, case, Lynch, supra. distinguisha- This in court’s decision U.S.App.D.C. Overholser (1961) (en Hemphill, ble from 288 F.2d 388 Austin and the vic- where banc), grounds, blows, suggest- rev’d on other multiple tims were killed with (1962), where the ing S.Ct. 8 L.Ed.2d 211 that the were heat murders done the discre- court held that the trial had passion. contrast, this case deceased change request tion to refuse a defendant’s addition, shot was twice. the evidence guilty plea there when indicates that Frendak followed the deceased indicating at the time he had been insane days killing for several made before crime. The court thus affirmed prearranged excuse to leave the office. These of insani- of not reason court’s verdict planned facts are far more indicative ty to Saint the defendant’s commitment shooting impulsive than one. Court, appeal to the Elizabeths. On contest, appellant not did did not and the Court type The trial court conducted the of eviden- consider, validity of the trial court’s verdict tiary hearing-on insanity by the cir- mandated Lynch insanity. guilty by reason of not Robertson, cuit court United States v. n.3, Overholser, Court re- (1974), whenever evidence in a case raises versed, acquittee holding could that an question” a “sufficient automatically to a mental committed insanity at the time of crime. Because had raised institution unless Robertson not bind was decided 1974 it does judges Superior Court. M.A.P. v. Ryan, D.C.App., (1971). Al- 285 A.2d 310 footnote, 12. In stated: court though, appears implicitly it rigid Dis- No standard to control exists accepted Robertson, yet formally we have re- deciding should trict Court in whether adopted that decision. See Wilson v. United As quire to be submitted. issue D.C.App., 403 A.2d the sound discretion matter within

373 given judges it trial guidance abused his or her if ditional has to discretion he or she despite failed to raise the defense the exist- has factors been to mention several ence of “a combination of factors which to inter- support would a court’s decision required inject the trial to the insani- pose are the Among the defense. these Id. 120 U.S.App.D.C. at ty 338, issue.” 346 crime, desire of bizarre nature it, F.2d at 819. In the case before the court defense, to raise the counsel concluded had not erred insanity at differing experts as to views in refusing interpose to the defense because offense, defendant’s the time of the and the psychiatric both reports negated an insanity his or her (as behavior at it indicates trial Id. 120 U.S.App.D.C. at 338, 346 States v. condition). See United mental F.2d at 819.13 Robertson, 325, 335, 507 U.S.App.D.C. 165 Although 1148, (1974). Although circuit has the court reaffirmed 1158 occasions,14 recognized compe- on several only ad- the decision Court, Redmond, by insanity); People District 16 this must be resolved reason of v. by 931, 543, [Whalem, supra 938-39, on Cal.App.3d Cal.Rptr. a case case basis. 548- 120 94 U.S.App.D.C. n.10, (1971) (a competent per at 338 346 F.2d at 819 must be 49 defendant Boyd n.10.] insanity plea); Peo v. mitted to withdraw 193, 289, 293-94, ple, 194- 108 Colo. 116 P.2d appears 13. It a few courts in other statute; (1941) (interpreting under 95 Colorado jurisdictions have considered issue. While plea of not no can court enter circumstances judges most of these courts have accorded trial guilty by defendant when reason impose the discretion to defense on any plea; has abso refuses to enter defendant accused, they generally explained have not guilty); plea not lute to be tried on decision, and, by the rationale behind the 61-64, State, 58, Md.App. White 17 299 A.2d v. large, very helpful. their decisions are not 873, denied, 875, (1973) (trial court did id. cert. Fernald, 754, (Me. 1968) State v. 248 A.2d 761 permitting competent not defendant to (trial err in refusing court did not abuse discretion in trial; insanity plea asserting a withdraw plea before permit to plea defendant to withdraw of not asserting is no guilty by different from insanity); State, reason of Walker v. defense, any 666, 671, whether de Md.App. 170, other affirmative 21 (1974) 321 A.2d 174 (where of trial fense raised is a matter strat competent, should be court has before it uncon- egy tradicted to be determined in consultation evidence that counsel accused was insane at Gonzalez, client); People the injustice time with 20 N.Y.2d v. manifest permit 289, 294-95, 538, insanity plea); to 229 N.Y.S.2d withdrawal 282 Paultz, 113, 117, 220, denied, (1967), State v. 299 Minn. 217 390 U.S. N.W.2d N.E.2d 971, 223 cert. 190, (1974) (to promote 1093, just (1968) (not 192 determination 19 1182 law, authority interpose improper raise an for trial court to fail insanity defense defendant had not sponte affirmative defendant sua where ly pursued) (citing Smith, Whalem); defense; State v. appearing pro had failed to se raise 639, 642-43, 1154, 88 Wash.2d P.2d represented counsel had defendant been (1977) (en banc) (judge power had inherent it would who failed to raise impose insanity sponte objec defense sua over attorney had consulted been assumed counsel; tion of defendant and it would be unprepared to risk who was the client permit unconstitutional conviction of a de institution). confinement in mental legally fendant who was insane at the time of crime); State, 578, Md.App. the 585-87, cf. List consistently upheld v. the discre 14. The court has 451, they 308 A.2d judges, 455-56 vacated decided to tion both when of trial grounds, on other they 271 Md. 316 A.2d 824 not. Com raise the defense and when did (1974) (defense authority pare U.S.App.D.C. counsel had to enter Wright, v. States insanity plea irrespective of defendant’s ex (1975) v. 511 F.2d 1311 press objection; not Ashe, court did abuse dis U.S.App.D.C. 478 F.2d refusing permit cretion in court) defendant to with (1973) (defense properly by trial raised plea guilty by draw Simms, reason of v. with United States Hermann, evidence); the close of the State v. United 463 F.2d 1273 and Cross (Mo.1955) (dictum) (evi States, S.W.2d F.2d 957 insanity may dence U.S.App. over (1968); be introduced v. United 122 curiam), Trest objection if (1965) (per his friends counsel D.C. up defense). set 15 L.Ed.2d Bradley, People Gauze, (1966); But see Cal.3d 717- 532 U.S.App.D.C. cf. (1972) (per Cal.Rptr. 463 F.2d 808 542 P.2d (1975) (en banc) curiam) (failure pursue insanity (a defense not court cannot its own discretion). compel plead motion abuse of 374 of the Whalem rule. aim relevant, stated the Cross

tent is highly defendant rationale, declared U.S.App.D.C. explaining 128 its the court accord, (1968); responsibility 389 F.2d 960 that the has trial Robertson, in- was States v. F.Supp. 444, prevent one who 430 447 of the conviction offense, (D.D.C.1977), emphasized committing the court has that an sane at the time of criminal weighed defendant’s reasons must be as lacks such an individual because part presentation of of rele- not be and, accordingly, a full must responsibility Whalem, U.S.App. vant supra 120 responsibility. the issue of criminal punished.16 Robertson, supra see Overholser U.S.App.D.C. 165 at at D.C. at 1160; accord, 507 F.2d at 288 v. Lynch, U.S.App.D.C. Snyder, 117, 121-22, U.S.App.D.C. rev’d (en banc), (1961) F.2d (1976).15 F.2d The court 875-76 circuit 705, grounds, other moreover, explicitly, the stated that the (1962). Were this reject the defendant’s decision to rule,17 it would of the purpose Robertson, supra could be controlling. any giving difficult to justify at F.2d at 1160. the defense once the discretion refuse It is say, summary, fair to that in deci- could evidence that aware of became Whalem, court, sions following the circuit jury finding support a effect, encouraged judges to focus fact The that insanity. reason of their principal on those attention factors therefore, discretion, granted trial courts (especially expert testimony) related to been ac- may have suggests that the court strength supporting po- of the evidence one At least knowledging other interests. insanity defense, tential rather than on the suggested court has of the circuit member present not to defendant’s desire raise Whalem rule per- of the flexibility that ability on the current to make decision recognize the judges to mits trial choice. raise the not to who chooses defendant Robertson, supra See

The of the de- deemphasis circuit court’s (separate F.2d at 1161 generally App.D.C. fendant’s choice is consistent with remand, refusing obvi- of an the conviction 15. On allow the District Court Robertson defendant, mentally irresponsible ously several to a summarized factors relevant judge’s (1) a de- decision to raise the defense: is as there when defense, quality supporting of the evidence responsibility time at the fendant’s mental (2) wishes, (3) quality of the defendant’s part of the that must become issue defense, decision raise the defendant’s not to U.S.App.D.C. at [Whalem, supra 120 case. 337, (4) the mo- reasonableness of omitted). (footnote See F.2d at 818 opposing tives for Standards, generally Function The ABA throughout personal court’s observation 1.1(a) (1972).] Judge the Trial § proceedings against Rob- the defendant. See ertson, F.Supp. at 446. Lynch, supra, advanced 17.In the circuit court -type It rule. a Whalem rationale for another explained 16. The court stated: society in ensur- has an interest major One of the foundations the struc- criminally re- ing insane one who concept ture of the criminal law is supra Lynch, ceives rehabilitation. responsibility, If [a defendant] ... 393-94; doing does not know what he is or cannot Note, This 53 Tex.L.Rev. prod- his conduct his acts are control uct of a mental ly First, respects: theory is deficient in two defect, he is moral- disease or time presumes was insane at who one criminally responsible. blameless and not in need insane and offense is still words, legal . . . In other definition Second, premise it is based on the treatment. in a is a criminal case codification automatically commit the court can judgment society respects of the moral raises insanity acquitee when the court even responsibility; and if a man man’s criminal expressly re- Court the defense. law, eyes blame- insane appeal, explaining jected this notion on eyes society subject less in the and is not insanity de- raised an who had not punishment in the criminal court's. automatically committed. not be could fense the courtroom between confrontations supra. society the individual and See note 5 uphold this structural foundation guaran- Bazelon, accord, those constitutional People logic render J.); statement of C. Redmond, Cal.App.3d jeopar- put 94 Cal. counterproductive tees Rptr. 543, 547 they were very values dy human 39, at 91 400 U.S. preserve. meant to [Id. parties assert, All appeal to this none- at S.Ct. 168.] theless, that the Whalem rule does not ac- cord respect to the Faretta, supra, years A few later in competent They choice of a ar- defendant. for the concern expressed similar Court gue that the rule leaves too defense; control right of a defendant to to much discretion force unwanted in- an Amendment recognized that the Sixth sanity defense on a defendant if self-representa guarantees right “the to supporting a defense such personal make one’s tion —to own result, sufficiently compelling. they Such 819, at 2533. 422 95 S.Ct. ly.” Id. U.S. at maintain, Supreme is inconsistent with the a state prohibited Accordingly, the Court Faretta, supra, Court’s recent decisions in accept an requiring a defendant from Alford, supra, emphasize which appear attorney when he wished instead right defendants have must to make pro se recognizing that pro se. While defense, they decisions central their since the de conduct ultimately may defendant must consequences bear the deci- these detriment, the Court to his or her own fense turn, therefore, sions. We to these Su- be honored “his declared that choice preme cases, in Court order to assess their which respect individual out of ‘that for the impact on Whalem. ” 422 Id. U.S. the lifeblood of the law.’ Illinois v. (quoting 95 at 2541 at S.Ct. Impact B. The of North Carolina v. Al- Allen, 337, 350-51, 90 397 S.Ct. U.S. ford and Faretta on the v. California J., concur (1970) (Brennan 353 Rule Whalem Dougherty, 154 ring)); see Alford, supra, Court held 1125 F.2d 473 that it was not trial unconstitutional for a (1972).18 accept guilty plea from a defend impor- both stress Alford and Faretta ant protested who his innocence. U.S. to make permitting tance of a defendant 38,91 at (citing S.Ct. 160 Lynch v. Overhol concern central to the defense —a decisions ser, 705, 719, U.S. L;Ed.2d in Whalem. given any significance little if (1962)). emphasized The Court case, renders Neither that a defendant claiming innocence Alford, the Court rule unconstitutional. may crime nevertheless rea important does not a defendant expressly stated that pleading guilty; sons for example, for right absolute, have an constitutional pleading guilty charge to the or to a lesser plea. accept offense, have the trial court to re may defendant be able 11, 91 S.Ct. Alford, 38 n. supra at ceive a shorter sentence he or she U.S. than 160; Overholser, risking 369 U.S. Lynch would Id. 400 conviction. U.S. see L,Ed.2d (1962) (by see McCoy 91 S.Ct. v. United 82 S.Ct. follows, States, U.S.App.D.C. 177, 179, there- presumably It implication). its explained The fore, although supports Court reinter- Alford rationale, stating: Redmond, Whalem, preting see California 938, Cal.Rptr. at Cal.App.3d against involuntary supra, prohibitions The relaxed, imply a constitutional unintelligent pleas Alford does not should not be defense. forego right but neither should in arid an exercise tactical, decisions, strategic expressed array concern of trial Court a similar during rights Wil- before and in Estelle v. which must made 1691, 1697, attorney. Any liams, rests with the accused and approach when duties of it stated: other rewrite System. legal judges and counsel in our adversary system, Under our a defend- once ant vast has the assistance counsel the 545-46; v. United see Jones Faretta, CahRptr. at Similarly, the Court’s decision A.2d 183 years D.C.App., a few after did not make it Although inter (rehearing granted). unconstitutional for a trial court to pose Although accused automatically commit spoke Court rather judge, broad terms of a defendant’s if the to a mental institution right defendant, “constitutional to conduct his own de has raised than the fense,” Faretta, supra 422 has a the state supra, see note 5 S.Ct. at the decision is limited to proceed- right commitment to initiate civil recognizing a Sixth Amendment acquittee. ings against an se; appear pro upon the it did not confer U.S.App.D.C. Wright, 167 United v. right accused a constitutional to control all 1311, (1975). The 1313 511 F.2d aspects Clyburn of the defense. See following a convic- risk of civil commitment States, D.C.App., 381 A.2d substantial, if the especially be tion could denied, (1977) (dictum), n. 7 435 cert. U.S. crime involved violence. 999, 1656, (1978) 98 S.Ct. 56 L.Ed.2d 90 object to the may Second, the defendant ; (Faretta it does does not overrule Whalem confine type of of treatment or quality recognize not hold that a an in subject may she be ment to which he or incompetent right or insane If in mentally ill. an institution for self-representation).19 care, may individual psychiatric need of Nevertheless, underlying philosophy receiving whatever prospect of prefer the with Alford and Faretta is inconsistent There prison. treatment available currently interpreted. Whalem as moreover, are, restrictions “numerous succeeding substantially cases have laid differ hospital which in a mental routines emphasis strength more of the evi- on the prison.” Mat in a significantly from those supporting dence an defense than 43, 39, Hardy, 137 thews v. contrast, on the Al- defendant’s choice. denied, 607, 397 (1969), cert. 420 F.2d 611 respect ford and Faretta reason that for a 1231, 423 1010, 25 U.S. 90 S.Ct. person defendant’s freedom a mandates (1970). has written One commentator permitted that he or funda- she be to make pri with interferes hospitalization itself mental decisions about the course of the him shield patient cannot vacy, since the proceedings. both observation self from constant staff patients his fellow and the underlying We find the rationale Faretta Furthermore, in patients appel- institution. compelling support Alford for hands case, brutality at the position hospitals risk lant’s in this since there are their at and even persuasive their fellow residents why reasons convict- defendants life in an tendants, subject to may be may accept ed of an offense choose overcrowded, inade jury’s institution which potentially verdict rather than raise a maintained, and First, staffed, quately poorly successful a de- in the Law— [Developments acquittal unsanitary. fendant may fear that an Ill, 87 Mentally will Civil Commitment result in the institution of commitment (foot (1974) 1190, 1195-97 proceedings to confinement in a Harv.L.Rev. which lead R., J. omitted); Parham v. 62-63, 482 F.2d at supra, 157 bility Thus, may insanity remain. ac- 651-52; at 1198- supra Developments, at quittee found to have committed criminal 1201.21 may acts and labeled insane see oneself well Hardy, “twice cursed.” v. See Matthews oppose the may also Finally, a defendant supra 42-43, 137 420 at F.2d because imposition insanity defense of an (quoting 610-11 rel. United States ex political or crime as he or she views the Herold, (2d Schuster v. 1073 insanity finding of religious protest which Cir.), 396 U.S. S.Ct. Robertson, supra, denigrate. See addition, (1969)). many 24 L.Ed.2d 96 1158; cf. F.2d at U.S.App.D.C. at illness, persons do not understand mental n.13,507 F.2d at U.S.App.D.C. at id. 165 and some have an irrational fear of the J., dissenting) (pointing (Wilkey, 1165 n.13 Thus, mentally ill. an individual once la countries in other examples of “horrors” beled may socially insane be ostracized and permit- were if courts might that arise here by employment victimized or educational defense over ted to raise Developments, supra discrimination. See defendant).22 any of a wishes 1200; R., supra, - U.S. see Parham v. J. forego event, may choose to a defendant at -, (Stew- S.Ct. id. at he or feeling that the defense because art, J., concurring). defense insane, raising the she is not or that Fourth, to an admission consequences equivalent other of would be collateral Snyder, guilt. insanity acquittal can also follow the See United 117, 121, throughout generally U.S.App.D.C. defendant life. See potential Columbia, provides A 20. The with a District of defendant possibilities unqualified protection rights be- of these for civil must be made aware insane, adjudicated persons accepts or her decision. those even those the court his fore Nevertheless, currently who are institutionalized. D.C.Code who an individual because 1973, 21-564(a). may no mentally § crime time of the ill at the insane, may longer be so disturbed recognize advisable, 21. We chooses that a defendant who she he or a transfer would be that defense, although and, men- capable, not to raise an if to consider must have treatment, tally ill and in need of can be trans- accept these risks. present ferred because of mental illness to a sen- mental institution after trial and before tencing, Frendak, example, maintained who for 22.Ms. 24-301(a), or while § D.C.Code murder Titlow’s framed her for that CIA prison, In either § D.C.Code 24-302. finding part plot, of insani- feel that situation, very likely he or suffer she would she ty lie of the defense would make a many deprivations if and social not all the sincerely vigorously asserted. insanity acquittal. approbation which follow an Merkouris, People (1976); rights only tional after the trial had Cal.2d capa P.2d himself that accused was assured making ble of voluntary view, In our these reasons sub Faretta, supra, choice. stantially outweigh express purpose of 2525; supra, S.Ct. 400 U.S. at Whalem : to ensure that some abstract con We conclude 160.25 cept justice is satisfied protecting one assurance type must seek the same who may be morally blameless from a con reject an when a defendant chooses to in punishment viction and which he or she sanity The court must ensure defense.26 might choose accept. the de Because the conse understands the defendant fendant must bear the ultimate conse quences and makes the of his or her choice quences decision, of any we if conclude that Moreover, voluntarily. because the decision a defendant has acted intelligently and vol whose dealing with an individual untarily, a trial court must defer to his or it is question, mental health was once in her decision to waive the defense.23 the de especially important ensure follows, however, It the underlying refusing capable intelligently fendant protective rationale of Whalem is suffi v. United make the defense. Hawkins ciently compelling that the trial court still D.C.App., 385 A.2d must have the discretion to raise an insani Thus, respect the the trial court need sponte, sua ty when a defendant it determines that defendant’s choice when does not have capacity to reject doing and “knows he is what acknowledge defense. We that a defendant Adams open.” eyes choice is made who forego chooses to McCann, ex rel. relinquishes safeguards important intended 236, 242, L.Ed. 268 protect persons who are not legally re Faretta, (1942); accord, supra 422 U.S. at sponsible punishment from their acts 835, 95 S.Ct. culpability and eyes in the of society.24 Faretta holding here we do Supreme summary, by and our per Court rule; rather, mitted the the waive we defendants to constitu not abolish earlier, Supreme guilty pleads 23. As we An noted in like who Court individual Alford Alford, supra, including judge rights, declined to hold that a waives several constitutional constitutionally accept required by jury right to intelli his an or to trial to confront and gent stated, voluntary guilty plea. against and accusers, It privilege how as well as the ever, “by Alabama, states statute or otherwise” Boykin self-incrimination. right could confer on defendants a to have their 89 S.Ct. 23 L.Ed.2d or, plea alternative, accepted, accepting plea could bar the courts from of one who maintains his or her innocence. Id. knowingly requirement 26.The that a defendant n.11, light 400 U.S. at 38 91 S.Ct. 160. In privilege intelligently right waive a significant reasons that a defendant applied See e. been g., in a number of contexts. electing defense, insanity for not to assert an guilty); (decision plead Boykin, supra to emphasis of and because the increased on indi Arizona, 436, 86 S.Ct. 384 U.S. Miranda Faretta, vidual choice in Alford it we deem (waiver privilege (1966) of important to in limit the trial court’s discretion against self-incrimination); v. United Adams this area. McCann, 269, 63 S.Ct. States ex rel. 317 U.S. jury (1942) right (waiver to 87 L.Ed. 268 of Although right insanity to raise an de- States, D.C.App., trial); Hawkins v. United accepted country, fense is well in this the Su- (waiver right (1978) to of A.2d trial); preme Court has never held that criminal Negron v. New States ex rel. United right defendant has a constitutional an to raise 1970) (waiver York, (2d 434 F.2d Cir. Texas, See Powell v. 392 U.S. right speaking non-English to of 88 S.Ct. But trial); McPher States v. translation at United cf., Strasburg, State v. 60 Wash. 110 P. 192, 194-95, son, 421 F.2d (1910) (en State, banc); Sinclair v. (waiver right to be of 1129-30 (1931) (per curiam). Miss. 132 So. 581 Warden, trial); present Reeves v. choosing pro- 25. The defendant in Faretta to right (4th 1965) (waiver Cir. of to 926-27 course, pro was, waiving ceed se of his Sixth illegally evidence). obtained exclude Amendment to the assistance of counsel. Determining for Whether C. Procedures reinterpret consistently philoso- with the Insanity phies underlying May a Trial Court an Court’s deci- Raise sions in Faretta and Alford. In accordance Sponte Defense Sua Whalem, with trial will still have position government’s It is the duty confront issue if stand competency finding the evidence proceedings adduced in the is, itself, indication sufficient raises a “sufficient as to a defend- waiv intelligently capable defendant is ant’s mental responsibility at time ing the court an defense and that Whalem, supra, the crime.” U.S.App. deciding should further when not look 337,346 D.C. F.2d at 818. The will sponte. sua whether raise the defense also continue to have the discretion to inter- finding We indicates disagree. Such sponte pose defense sua an against present that a “has will of a defendant to stand ability lawyer his to consult with discretion, however, trial. That is limited. under degree rational reasonable permit Rather than judge (as a trial standing a rational whether —and Whalem) raise pro understanding well as factual quantum whenever there is a sufficient Dusky ceedings him.” against evidence supporting require we 4 L.Ed.2d respect choice of a defend- curiam). is standard (1960) (per This capable ant of voluntarily intelligently designed whether the accused to indicate making that choice. The will now the case enough knows about the facts of have the discretion to raise an insanity de- coherently to her attor relate them his or sponte fense sua only if the defendant ney and understand the nature capable making, made, and has not proceedings. It is not to measure intelligent intended voluntary decision. It remains, then, capable whether suggest the defendant also proce- for us to dure which judges making important should decisions on follow making that determination.27 to the defense. Cf. relating matters April 1978, appellant support 27. On filed could such a defense. What a motion hearing case, opinion against for suggesting protects en banc in this in the Whalem case ruling might require rejec- that a favorable here is the ously mentally irresponsible is obvi- conviction defendant who binding tion of Whalem should a decision who a division criminally Ryan, supra. responsible this court. M.A.P. v. This held Court, subsequently by judgment motion facts of the denied acts. this the order In the 6, July type approach of the en banc on 1978. of do not the this case Appeals had in the situation which Court of today reject Our decision does not Whalem. F.Supp. [Robertson, at mind 430 in Whalem. fact, a decision of the United States District 447 n.4.] adopted Court in the District of Columbia has Whalem, rejecting are aware While not we view, finding similar it to be consistent with the holding reinterpret rule. that our here does rule. stated: That court believe, however, v. M.A.P. We do not The Court’s decision to honor defendant’s follow, inflexibly, Ryan, supra, obliges us to opposition imposition to of an de- ruling philosophical sub- has been whose basis supported by language impli- fense is the and Supreme by subsequent stantially undermined Supreme cation of the opinions States Court’s Bell, Ralpho generally California, v. Court decisions. See in Faretta v. 422 U.S. 390, 607, 368, 806, U.S.App.D.C. 629 186 2525, (1975) 569 F.2d 95 S.Ct. 562 45 L.Ed.2d and ruling (1977) blindly (panel prior cannot follow North 400 Carolina v. U.S. 91 clearly controlling later doctrine S.Ct. 27 face of 162 Just as M.A.S., Court); may forgo representation the enunciated elect Corp., Broadcasting just 357 may Inc. Van Curler counsel and as a defendant enter plea F.Supp. (D.D.C.1973) (court guilty need of 691 for reasons bother than his guilt, prior ruling failed so too follow if the earlier decision should a defendant who is com- petent which, they rationally been and law had whose decision is made to consider facts or with, consequences different and with an have mandated a awareness of its dealt result). . parties agree rein- proceed here be allowed to All the to trial without intro- order; they defense, though terpretation differ is in duction of an of Whalem even may proper there formulation. be evidence in the case which to the instances, nonetheless, David, may be States v. In some n.19, (1975) (waiver 511 F.2d 362 n.19 judge to the sufficient for a trial advise jury trial); Eyman, Sieling v. 478 F.2d possible consequences defendant of the (9th 1973) 214-15 (entry Cir. the insanity plea, the become assured plea); Williams, In re F.Supp. consequences defendant understands those (D.D.C.) (same), order on modified other his or by questioning the defendant about grounds, 104 U.S.App.D.C. F.2d defense, and rejecting the her reasons for 379 U.S. reasons make decision on the basis the 689, 13 L.Ed.2d 572 see But ex- given, they manner in which are the Hewitt, rel. McGough ex defend- pressed, any evidence the and (3d 1976). 342 n.2 generally, Cir. already the record. capacity ant’s mental Arizona, Westbrook v. S.Ct. may have cases, still judge In other curiam). (per desire inquiry doubts such an after reason, For this hold that we those situations additional information. suggests whenever the evidence a substan examina- judge may psychiatric order tial sanity of the defendant’s at whether tions determine judge time of the must her or impaired mental his condition has inquiry designed conduct an to assure that the de- ability to raise fully defendant has to decide whether been informed of available, the alternatives comprehends point, judge may At fense.29 this consequences of de failing to assert present appoint choose to amicus counsel fense, freely chooses to or raise waive concerning defendant’s mental The scope inquiry capacity. vary according determination will case, present circumstances es each the de judge If the finds that pecially background in relation to the voluntary making capable fendant condition of the Johnson defendant. See forego an insani intelligent decision Zerbst, respect the de ty (1938).28 important note, L.Ed. It is jury’s permit fendant’s decision and dealing the court is because Redmond, People v. verdict to stand. See sanity an individual whose has been 938, Cal.Rptr. at supra, Cal.App.3d at questioned, a cursory explanation or a rote If, hand, other interrogation satisfy cannot the court’s or has can not convinced that the defendant duty. Hawkins, supra Cf. 385 A.2d at 747 intelligent voluntary not made such a (waiver trial); David, su waiver, to raise the discretion pra, strength The (same). sponte.30 that defense sua impede poten- a defend- One factor which could 28.The mental health of defendants with tially ability may vary ant’s choice to make an successful defenses currently inability significantly. would be the of one who is defense relates sole- present mentally ly recognize ill to to an mental individual’s condition phe- Such are a “common nothing condition. refusals time of the crime. It indicates about among mentally v. ill. nomenon” O’Connor person’s sanity at the time trial that 2486, Donaldson, 584, 422 U.S. 95 S.Ct. may place years take months even after or J., concurring). (1975) (Burger, C. mentally offense. Even if a defendant was ill at the he or time she could have situation, Ordinarily trial 30. in this regained sanity any event, in the interim. appoint will and choose to raise the defense disturbed, mentally even if the defendant is still bearing on present amicus curiae incapable it does not follow or she of that he is Judge Ugast jury, did in the defense to the as intelligent making regarding an choice the de- instances, most some when the this case. Boyd, generally fense. See In re 403 A.2d stand- the defendant’s reasonable choice from Mullen, (1979); v. n.5 Cameron U.S. example, point if defense —for is to refuse the App.D.C. n.29, 202 n.29 facing misde- a is conviction for the defendant (1967); § D.C.Code 21-564. may court meanor short sentence —the and a choose not to raise the defense. David, supra 167 at potential insanity the individual’s defense should not be a factor in the court’s deci- 511 F.2d 362-63.

sion, except to the extent evi- such not If finds that did the court Frendak determining dence is useful in whether the in- reject an intelligently voluntarily and of presently capable rationally is sanity (or, necessary, if finds defense deciding reject the defense.31 remand) rejecting after so it Frendak is not case, Judge Ugast In this conducted a interpos- —and thus decides that the court thorough inquiry into Paula Frendak’s con- appropriate exercise ing the is an dition at the time of the crime and con- be will acquittal its discretion —the present opposition sidered her to the de- If, however, decides valid.32 court fense. He did make a specific (or free making) Frendak made finding regard to whether Frendak comprehension of the adequate choice with intelligent had made an voluntary deci- will stand consequences, then her conviction sion on whether to raise the defense. He ac- sentence and the enter trial stated, fact, “would less than Redmond, 16 Cal. supra, cordingly. See candid if he did point not also out that the 938, Cal.Rptr. 548. App.3d at Court would have reservations about her So ordered. ability appreciate all facets of such a decision on her own mental health. . .” concurring: Judge, KERN, Associate suggests This statement that the court had quite This for the trial poses case doubts about making whether Frendak was should question: difficult What action voluntary decision. Ac- evi confronted with cordingly, take when we must remand the case for further dence raises a “sufficient proceedings. which at the responsibility to a defendant’s mental Because the already trial court has con- defendant, crime,” ad yet the time of the ducted an inquiry ques- extensive into the trial, judged insists stand appellant’s tion of sanity, court, on re- raised? should not be mand, may decide already that it suffi- States, hand, On the one Whalem v. United cient evidence to make a determination. If (en so, no further inquiry is necessary. See banc), 382 U.S. Sieling, supra Recognizing at 215. in- 124, 15 (1965),requires the L.Ed.2d herent making a retrospec- difficulties of insanity to interpose court to the defense tive validity determination of a waiv- one who the conviction of “forestall years before, however, er made we leave to mentally responsible eyes of is not the law the trial court option conducting On criminal acts.” otherwise hearing new to decide whether Frendak California, U.S. hand, other v. Faretta would still choose to refuse an de- (1975), fense, S.Ct. and whether she now volun- tarily North Carolina intelligently waive that defense. decided Robinson, 27 L.Ed.2d 162 Pate S.Ct. S.Ct. Wha- subsequent (1966); Dusky 15 L.Ed.2d 148 Court lem, defendants supra, 362 that criminal emphasize U.S. at time, judicial economy although holding today, will often dic- In accordance once with our question” hearing tate a both “sufficient confronts the issues. court, impose it can decline to the defense on grounds: (1) provisions either of two the defendant commitment The automatic presently capable intelligently 1973, 24-301(d), apply voluntari- if the do § D.C.Code ly waiving defendant, there in- judge, is insuffi- raises than the rather situation, appears cient evidence sanity time of the In such submitting only offense to warrant that issue to the un- be committed defendant could jury. Accordingly, conducting inquiry, in the D.C. procedures of der the civil commitment may hearing court the choose to hold into the Code 21-542. § point Wright, supra. defendant’s mental health at either in supra; note competent must be to it followed she decide allowed themselves make the was also to truly significant How- concerning insanity. decisions the not raise the to defense course of their defense. ever, about expressed “reservations ability appreciate to all facets court, view, properly This my accom- basis defend on the her decision not to [of modates Whalem with Alford and Faretta competen- degree of insanity] if a higher by concluding that when there is evidence is re- cy to stand competency trial] [than support to the defense of to make quired respect ability with to the yet the objects defendant raising to such circumstances that decision.” these Under court remand is so that the trial necessary require we respect to the choice can ascertain whether the defendant capable defendant voluntarily capable If waiving making intelligently that choice. The so, accept the court her decision must court will now have the discretion to raise not, proceed pro- impose punishment; to if sponte sua if the not ceedings appropriate after verdict is capable defendant of making, and take insanity must guilty by reason of made, has not and volun- place. tary (emphasis decision. add- [At

ed.)] It seems to me that our decision enables GALLAGHER, Judge, concur- Associate trial proper to strike be- balance ring in the result: preventing guilt being tween imposed from majority I difficulty do not have the upon a mentally responsible opinion with Circuit the United States for his yet otherwise act permit- criminal Whalem,1 especially Court’s decision in ting defendant, capable iswho of choos- been way when one examines the it ing and who must bear the ultimate conse- of applied progeny later quence choice, finally of his decide this United States District Courts whether accept possi- conviction and risk jurisdiction. all, except an aca- as After imprisonment ble or to avoid re- criminal exercise, so demic not now matter it does sponsibility possible risk hospitalization. landmark much what a decision Given extraordinary importance inter- been many years ago if it has stated both the community and a defendant of his preted succeeding years. and honed over the defense, decision to waive the insanity it juncture thing at this important The more conclude, seems correct to we do as in this law as state of the present to look at the opinion, competency that a deci- it has emanated from the landmark undergo trial, standing alone, does not auto- sion. matically capa- mean that at trial he is also effect, if genuine I will discuss first what “voluntarily intelligently” ble of waiv- Alford and Faretta any, have had on ing Rather, insanity. defense of briefly at then issue in this case. I will look concludes, (At 380): Whalem to determine whether it has inquiry conduct an [T]he it, shortcomings majority attributes designed to assure the defendant has succeed- whether and then examine been fully informed alternatives ing District years the United States available, comprehends consequences any real difficul- appears Court have had of failing to assert freely ty to defendant’s applying pertains it chooses to raise waive the defense. insanity. plead declination to Here, judge, the conscientious re-exami- amicus, triggered apparently assistance of assumed since What nation of Whalem in this case is the trial, conten- the defendant was stand Whalem v. United 15 L.Ed.2d 100 his mentally responsible for otherwise tion that Whalem was the deci- shaken that, then sions in believe North Carolina v. U.S. criminal acts. We must justice, judge (1970), of pursuit S.Ct. impose an unwant- Supreme where the the discretion to Court decided that have conse- accept was not unconstitutional and the to ed on a defendant defense plea proof from of a defendant who nevertheless quent additional burden innocence, So, is protests query his and in Faretta v. our prosecutor. Government California, was a combina- there whether in this case (1975), where the required tion factors which of for, Court decided that under the Amend- if Sixth issue inject judge to right represent ment a has the to defendant is existed, do so his failure to such factors trial, himself at no matter how ill-ad- er- and constitutes an of discretion abuse may appear. Actually, vised the 337-38, choice nei- U.S.App.D.C., ror. [Id. ther Alford nor Faretta the dif- approaches added; 819-20; foot- emphasis F.2d at ferent considerations laid bare in Whalem : notes omitted.] major One of the foundations for the previously rejected We the contention structure of the law is the criminal con- the mat Whalem in overrules Faretta cept responsibility, of the law is clear hearing. said sponte ter We of a sua that one whose acts would otherwise be D.C.App., Clyburn v. United criminal has crime at if committed no all 260, 263-64 A.2d n.7 incapacity age because or of due to men- 56 L.Ed.2d U.S. 98 S.Ct. tal responsible condition he is (1978): those acts. If he does what he not know must a court Faretta does not hold that doing or cannot control his conduct or de- an or insane recognize incompetent his acts product are the of a mental dis- The himself. right represent to fendant’s defect, ease or morally he is blameless right conduct own one’s criminally and not responsible. The such circumstanc- indeed be hollow under judgment society the law in this Moreover, right to counsel es. respect in any given is tested case different rest on inquiry sanity into the accused. considerations; pro- affords the former words, legal other definition insan- sovereign, while against tection ity in a criminal case is a codification of successful, culpability latter, if removes judgment moral society respects mental requisite in the absence of the a man’s responsibility; criminal and if state. law, man is eyes insane in the he is conclusion, I see no reason to disturb eyes blameless in the society and is not prop- might even this court if a division of subject punishment in the criminal me be not so, erly as it seems do courts. might say the Su- I seriously doubt. In the courtroom confrontations be- preme in Faretta Court commented tween society the individual been right self-representation “the uphold must this structural founda- beginnings since the protected by statute by refusing tion to allow the conviction of exceptions, . few our . . With Nation. obviously mentally irresponsible de- also accords each of the several States fendant, and when there is sufficient himself represent re- as to a defendant’s mental . . .” 422 . sponsibility at the time of the any- scarcely Consequently, there part issue become of the case. Just must concept of thing startling about new corpus as the insist that Faretta. delicti proved be before a defendant who that, among oth- majority complains convicted, confessed so too not show things, er Whalem does must the forestall conviction of the defendant eyes sensitivity one who in the law desire is not as refrain what strikes me from an defense. District Court fashioned The fact necessarily sensible, might matter that Whalem well which workable criteria respected the desire of the in in court on remand utilized the trial holding was no there abuse of discretion on issue: resolving in case part of the trial in not sponte court sua support- (a) quality “the of the evidence injecting defense;” ing the App.D.C. F.2d at matter;” (b) “the wish on, Robertson, Later in United (c) decision quality “the of defendant's 507 F.2d 1148 defense;” not to raise the Whalem, a progeny of the same court stat- (d) of defendant’s “the reasonableness ed what seems to be inherent from Wha- opposing presentation motives lem : defense;” rejection it is a defendant’s which [SJince observations (e) personal “the Court’s triggers inquiry, rejection a Whalem course throughout the defendant should not have controlling. been [Id. proceedings against him.” [Id. 165 U.S.App.D.C. F.2d at 446.] 1160; emphasis in original.] has not Whalem It to me that seems goes court say implementation any difficulty caused rejection and his rea- [the defendant’s] in this District Court years over the weighed sons for it should have been gone jurisdiction. seems to have That court presentation evidence derived from a full so, doing as has its business in about of testimony relevant to the issue of majority As Appeals. Circuit Court of [Id.; criminal responsibility. emphasis prob- opinion out, posing the points in cases added.] judges decided lem the trial have sometimes plain enough. That True seems it is that sponte raise sua expressly lay declined to down a they not. The Circuit sometimes rigid standard to bind There always has almost affirmed.2 Court deciding require whether juris- law in this body an established submitted, issue to be instead left question which seems entire- diction on this problem to the trial court to resolve —as a I reasonable, guidance. for ly and is there matter of discretion on a case to case basis. see it. no reason to utilize However, contrary to majority opinion, I do not manifesting view insensitiv-

ity to the wishes of the defendant. Cer-

tainly it appear does not to have been con- insensitively

strued by the United States

District jurisdiction. Court in this re-On Robertson,

mand in United States v.

F.Supp. (D.D.C.1977), example, supra. majority opinion,

2. See note 14 in the notes see period longer mental institution for a than - U.S. -, -, potential jail g., sentence. E. Robert- J., (Brennan, dissent son, L.Ed.2d 101 supra, F.Supp. California 934-35,94 part).] Redmond, ing in relevant supra Cal.App.3d guarantee a defendant Amendment does represented been careful to construe Lower courts have participate right grant nothing right counsel Faretta to self-representation. more than a cert, denied, co-counsel), in trial as 972, United States v. Wil- See (1977); helm, (3d 1978) 53 L.Ed.2d S.Ct. 570 F.2d 464-66 Cir. Hill, (10th (Sixth 526 F.2d Amendment does not entitle accused to denied, 1975) (same), U.S. representation by nonlawyer); cert. United States v. Cir. . (2d Cir.) (Sixth Cyphers, 48 L.Ed.2d S.Ct. Ballay, In re Frendak, indicated particular, Ms. has states, (1973). In some 651-53 hospital that she considers the worse than may affect and, any prison adjudication avoid institution- in order to strikes, example, the there, hunger for gone legal rights, alization person’s may suicide, jury, medication. attempted and refused serve on a federal to vote or ability to obtain or her even restrict his reason, Third, defendant, good also adjudication Such an driver’s license.20 may stigma insanity. choose to avoid the any may adversely affect the Columbia, may In the District of in- For legal system. with the interaction consider an after it or her stance, attack used to has found the accused of an offense witness, be ad- could capacity as a trial beyond a reasonable Bethea v. doubt. attack missible in a criminal 94 & D.C.App., A.2d his or put who of a defendant character n.67 Furthermore, in issue. her character Al surely adjudication record of such an though insanity acquittal officially ab subsequent proceeding any be used blame, solves the defendant of all moral Ballay, generally civil commitment. eyes responsi many some element of

Case Details

Case Name: Frendak v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Oct 24, 1979

Citation: 408 A.2d 364

Docket Number: 11043, 11046

Court Abbreviation: D.C.