Henry W. Jackson v. United States
336 F.2d 579
D.C. Cir.
1964
Check Treatment

*1 JACKSON, Appellant, Henry W. America, STATES

UNITED Appellee.

No. 18225. Appeals Court States Circuit. of Columbia District

Argued 1964. June Aug. 1964.

Decided (appointed E. Rollow Mr. William ap- Washington, C., court), D. pellant. Atty., Frescoln, Asst. U. Mr. Max S. Acheson, C.

with whom Messrs. David Q. Atty., and Frank Nebeker U. S. Attys., Lowther, Joseph U. Asst. A. S. brief, appellee. Judge, and Chief Before Bazelon, Judges. Circuit WRIGHT and McGowan, PER CURIAM: Appellant tried without jury viola convicted of narcotic 4704(a)'; 21 U.S.C. 26 U.S.C. tions. § presented principal issue right to cross-examine here concerns reliability police about the officer report informant on arrested. evidence was that The Government’s approached on officers were by one Ethel

the street Gaskins that a man of a certain de- told them sitting scription in the Frank- was then on his lin Delicatessen with narcotics person. deli- The officers entered the *2 580 court, ap- Thus men, Ibid. the the motion.” the asked catessen mag- determining cause, step probable herein, like the outside pellant store, warrant, issuing in- must be Outside the them. istrate talk to could asking underlying questions, police formed of the circumstances the while An officer from which the officers concluded appellant to run. started credible or the informant was him across street the tackled Aguilar v. from formation reliable. See State recovered narcotics delicatessen and 1509, Texas, 108, 12 pocket. 84 378 U.S. S.Ct. his coat evidentiary (1964). And L.Ed.2d 723 the through in received Information greater here, when, requirements are may in relied on if “the formant be Id., at warrant is absent. 378 U.S. sufficiently given accurate is 111, 84 S.Ct. 1509.1 directly sus to the lead officers the States, Wong pect,” 371 Sun appellant police Here arrested the 413, 471, 480, 407, 9 L.Ed. 83 S.Ct. U.S. solely on the information obtained 441 as a substantial 2d “so Kelley As in United this informant. crediting hearsay pre is the basis States, F.2d 111 298 States, sented,” 362 U.S. Jones v. say appellant 310 we can that if 269, 725, 257, 735, 4 L.Ed.2d 80 S.Ct. was not arrested when was asked basis Such substantial step outside, certainly ar- he was pre had where informant “[t]he exists by the outside rest time he was escorted viously information. His accurate questioned by police. the the Under story sources was corroborated other circumstances, probable the issue of petitioner information. And reliability depends cause to arrest the police known the Id. at of Miss Gaskins as an informant. But 271, 80 736. S.Ct. at Thus there acting appellant, pro se, the at- “requirements reliability particu tempted police offi- cross-examine the larity,” Wong Sun v. United reliability cer about the of Miss Gas- 407; supra, 479, 371 U.S. at S.Ct. prior occasions, kins’ information vague” or information must not be “too interjected: “No, trial court won’t we “from too untested a source.” Id. at go going into that. We are into 482, major 83 S.Ct. 407. Here con our stated, that.” For reasons it was reliability cern in of the questioning error to rule out as to the formant as demonstrated information police basis officer's conclusion given. previously she had the informant was reliable. officer testified knowing testimony informant, Gaskins, re Miss Without what liable, judgment given, however, final the officer but his is not the would have we deliberate, judg impartial prejudicial one. do not know “[T]he how that error judicial required reversing Therefore, ment of officer” “to was. conviction, weight credibility assess the of the remand the to the we case complaining offi information which the District Court hold a with directions to hearing probable cer adduces as Id. at cause.” the issue of Miss Gaskins’ 481-482, reliability. 414. 83 S.Ct. at When a motion A new trial will ordered be suppress challenges “probable hearing lower shows that believing cause for of the court’s existence exclusion of this issue from trial grounds prejudicial. on which the is warrant was was finding In the of a absence

sued,” 41(e), F.R.Cr.P., prejudice, “[t]he Rule the conviction will judge Any shall is receive evidence on stand. determination of the trial judge will, course, sue of appealable fact the decision Though Aguilar 112, 1. involved a search war at n. S.Ct. 1513 and thus drew rant, upon Fourth both Court noted that in de- search arrest cases applies termining “of course to arrest Amendment Fourth Amendment’s warrants,” quirements. as well as to search U.S. psychiatric Report, this court. See Greenwell v. United disorders.” Final Congress: “Drug addiction is not *3 108, (1963). symptom 111 a disease but is of a mental a H.R.Rep.No. psychiatric disorder.” disposition, In of we do not view this 2388, Cong., 84th 2d Sess. 54 appeal, on this reach the other issues Cong, 1956, p. U.S.Code and Adm.News Judge including in considered Supreme 3293. The Court: “[I]t separate opinion. that Bazelon’s Since generally ad- conceded that a narcotics raised, issue has it not been heretofore dict, particularly one addicted to the use may subject too of a motion heroin, of is in of mental and a state trial or other relief on remand. new physical illness.” Robinson Califor- v. Remanded with instructions. nia, 660, 8, 667, 370 U.S. see n. 82 S.Ct. 1417, 1420, (1962). 8 L.Ed.2d 758 Our BAZELON, Judge (concurring Chief recognized court has that defense “The part dissenting part) in in : insanity drug gen- of on based addiction agree opinion the court’s with erally presents jury a issue as to crim- only issue it reaches. But I think the responsibility.” inal Brown v. United which, record discloses circumstances U.S.App.D.C. -, 331 F.2d though raised, amount to denial of a (1964). Prince, In United States v. plain requiring fair trial and error D.D.C. Crim. No. 349-63 a suc- 52(b), versal under Rule F.R.Cr.P. grounded insanity cessful defense was presen- These circumstances relate to the drug in addiction.2 insanity appellant’s tation of Before the defendant had been drug Henry age 25, Jackson, has been a Hospital committed to St. un- Elizabeths 15, addict since he was 12. On November D.C.Code, 90-day der 24-301 men- § 1962, prostitute lived told he tal examination. He returned as had heroin. he He was arrested competent Hospital’s to stand trial. The posses- and narcotics were found in his report added: years sion. He was sentenced to seven “ prison.1 in drugs actively e [H] was addicted 15, 1962, insti- on or declarations from about November Authoritative tutions in all of the criminal acts he is three branches Govern- with which drug recognize charged, by him, ment a relation between committed probably Presi- most addiction and mental illness. The related to that addic Advisory However, dent’s tion. it is further our Commission Narcotics Drug drug opinion Abuse: “Most addicts that while Mr. personality suffer some from disturbances shows evidence deviation * * * range normal, from it in sufficient which cover a wide is not in Under and ‘traffickers’ narcotics. Unfor- impose He was indicted in two counts. tunately, statutes, 4704(a) which sentenced these § U.S.C. mandatory penalties years. can nei- severe that to months to 2 Under 21 U.S.O. suspended pro- 174, years, nor diminished ther be he was sentenced concurrently. parole, are not calculated to bation or sentences to run rehabilitative ‘the medical and As in Hawkins v. United Congress recognized 340-341, which 288 F.2d treatment* (concurring opinion) (1960) : their [addicts] essential ‘to relieve 124-125 “ * * * tragic drugs dependency appears to re- from all that record, nothing appellant store more than them to a constructive status society.’ ‘tragic addict, with a de unfortunate drugs’ prior pendency no record Bell, D.D.C. States or otherwise. 2. See also United v. of convictions —narcotics (1962); statutory presumptions United States make No. 969-61 Crim. Purcell, every possessor virtually Crim. No. 487-62 D.D.C. of narcotics Carroll, (1963); caught appellant ‘pusher,’ v. Wallace United States a web designed legislation, primarily D.D.C. No. 383-62 Crim. which is peddlers punish professional to deter and diagnosis began, Jackson an- trial degree Before to warrant time, open that he wanted nounced in defect at this disease or citing insanity defense, probable suffer- to raise that he was it nor is drugs. But the court or defect addiction mental disease from report Elizabeths St. said: “The November on or about Well, says you mental case. syndrome are not a resulted report specifically [read- will read time. addiction help you?” ing] would that How Cameron, “Signed/ M.D. Dale C. Later, however, defendant “Superintendent *4 defense, again asked to raise the Hospital” Elizabeths “St. agreed subpoenas forthwith court issue Sep- 10 o’clock on set for Trial was Elizabeths who for the doctors from St. court-appoint- 9:30 1963. At tember had examined the defendant. mental for a counsel moved ed defense appeared, the court the doctors Before alleging (1) examination, inter alia: if he counsel would asked defense ready prep- to assist in the refuses Defendant replied: question them. He defense; (2) defend- aration of his and “Yes, ready proceed.” Yet a I will be past indicated the medical record ant’s before, the defendant few minutes presence This hear- of a mental disease.3 lawyer open for a new asked ing followed: attorney [‘subpoena because “this won’t “ please If it counsel]: [Defense my case’]”, defense counsel doctors Honor, motion I have filed Your I “This is first time ever had said: for a mental examination. subpoena him ask to a doctor. heard you file did “The Court: When colloquy And this followed. it? I told him to sub- “Defendant: Today. Mr. : counsel] “[Defense poena case. I all the doctors prosecutor] showed Lowther [the I had mental examination while had been me an examination * * * was at St. Elizabeths there. ago. time made some just “Defense counsel: You “The Court: know of these doctors.” heard you can- that we have here the rule day not, called for the case is psychiatrists Elizabeths The St. ex- for a mental file a motion they cases, testifying in other but when interrupting amination. That they directly finished, had came to Jack- game. game middle of the ball then said in son’s trial. counsel Defense vulgarism. stall, That is a to use judge prose- a conference with the that, records he cutor at bench “That denied. will be prosecutor had and the obtained ready you for trial ? “Are just short had had with conversation he been counsel]: “[Defense testimony doctors indicated that their ready for trial—(cid:127)” defendant, helpful to the would not be calling appear that counsel did not but that the defendant insisted It would stand, day then took the of the trial that there them. doctors learn until the questioned He had them a mental examination. defense counsel had been briefly. coun- He did not ask about the extent in the case one month. Other been defend- motion for mental ex- of the doctors’ contacts with the had made the sel argued preliminary mo- one doctor mentioned that' ant. When amination and regard- suppress had “information evidence. “reviewed” tion to ed nor anyone else revealed such wliat basis there was We cannot know trial, although allegation one St. Eliza- that defendant’s counsel’s “past psychiatrist pres- “past referred beths medical record indicated infra. episodes of confinement.” See Neither eoun- ence of a mental disease.” history person confinement,” episodes for a each committed past 90-day examination, engaging or in ex- these did not and when ask what counsel personal interviews, making a tensive or the nature did ask about He were. investigation. Moreover, the from the nor- collateral of Jackson’s “deviation drug addiction its rela- de- sources He did ask whether this mal.” problems “substantially on which mental or tion crime affects viation disagree. psychiatrists substantially processes no im- Such factors emotional psychiatrists pairs doubt make it difficult controls.” McDonald v. behavior public testify, 312 from institutions only sympathize can did not ask about we with them. He they relationship addiction should advise court when between have been make kind of ex- unable to disease. required proper amination clinical suddenly courtrooms from other Called time, lack of standards because of facili- memory, largely testifying knowledge. Owens, or ties Dr. a St. notes,4 personal ward psychiatrist, recently Elizabeths testi- flatly Jackson had said “ you adequate fied : f haven’t done [I] testimony *5 But their no mental disease. complete examination, examination they gives could have no assurance you opinion render then should not questions his back- about answered presence the ill- to or absence of mental normal, ground, his deviation Morgan hearing ness.” addiction on the effect of and motion, presently on a U.S.C. processes. said We pending appeal in this No. court. expert’s chief value of an testi- “[t]he 244). 18,178 (Transcript, p. fields, mony field, other in this as in all upon the from which his psy- rests material in Late the after the reasoning opinion is fashioned and the testified, prosecutor chiatrists had the * * by progresses he from material which “out of an abundance caution his conclusion.” Carter v. United put in record some the medical the Eliza- stuff this defendant over at St. (1957). the It is for trier beths, as has seen He then counsel it.” responsi- of fact to decide issue of the Librium, prescriptions Thora- read bility. psychiatrists provided The here given defendant, zine and Tofranil the no data for decision. quan- periods, for short in considerable drugs prescribed they It tities. The is conceivable that did not psychiatrist, Dabney, even have the data.5 Time and resources Dr. a staff who was present 3inay permit taking psychosocial the staff conference at available separately at time. 4. The first doctor: tion are not Doctor, you kept “Q. did mention that he These are had been on the violent ward there? patients presently 350 5. There are I “A. do not his ward notes here Pavilion, John the maximum se- Howard so I do not know whether he had been curity Elizabeths, where of St. section point The on the violent ward or not. criminally con- most of insane are I think when seen at the Staff he was Only as- fined. of the any symp- Conference he did not show signed are to the Pavilion certified toms referable to a mental disorder Psychiatry Board of the American Neurology. * * v addition, are, in There eligi- psychiatrists, of4 whom are The second doctor: staff you any prescribe for Board Did medica- ble to take the examination “Q. physicians The ratio for Mr. time? certification. tion other) knowledge, (Board-certified patients my in no. “A. Not Pavilion allows “Q. Your show no medication the John Howard thus records patient regard your each 4 minutes of medical to Mr. Jack- about services day. Hearings on H.B.. 9072 son? attention a records, fact, St. “A. before the Ad Hoc Subcommittee on As matter of Cong., Sess., Elizabeths, for mediea- 1st which would include orders 88th designed subpoenaed to is and was not such defendant information reading by allowing range testify expert trial. After at the a wide testi mony. records, prosecutor vitality legal testi- the ward rules Dabney may say depends adversary system, “I that Dr. told on the fied: morning “specially persons, that on in the hall this which me out motivated * * * psy- parties people counsel, who are and their certain occasions makes large possible chotic, doses best case for their side. The parties present on, may appear witnesses, to be ‘their’ ‘their’ Thorazine events, versions of right. ‘their’ thought theories of law. defendant should all requires parties Such a model that the that.” know engage process in a constant of ‘correc “sat- said was then counsel Defense adversary’s tion’ of the material. Wit by” the made recitals isfied with penetratingly nesses must be cross-ex pur- expressly declined prosecutor amined, opposing versions of events com rec- the medical raised the matter sue prehensively presented, conflicting prosecutor’s statement Yet the ords. * * * crisply propounded.” theories knew a doctor there was had shown Fine, Indigent Goldstein & Accused, something bearing defendant’s Psychiatrist, Insanity and the De sanity was essential evidence fense, 110 U. OFPa.L.Rev. 1061 presentation of the fair to a point, if not appeared adversary system at this it Here collapsed. think before, more time prosecutor Defense counsel and had not insanity de- preparation of the studied the available information or- request Though did not counsel fense. effectively. They der to joined it might sponte it, well have sua *6 agreeing with the court that there day granted Even one a continuance. insanity psychia- no valid defense. The to defense counsel allowed would investigate appear expert trists did not witnesses and extent of nature present explain viewpoints, to their psy- from which the mental examination but as of triers fact to announce their had no Jackson that chiatrists concluded only verdict of “no mental illness.” The had no Jackson disease. Since person get any steps who took to before plainly present opportunity non- to real the court the information on which the defense, have a fair he did not frivolous depended prosecutor. defense was the trial. only adversary himself, The was Jackson years after Durham Ten who insisted on his defense lacked but U.S.App.D.C. 214 F.2d capacity the financial and intellectual to this rec- 45 A.L.R.2d 1430 help. it without meaningful ord indicate ex- would meaningful respon- insanity ploration A of the issue of criminal defense quires lacking jurisdiction.6 adequate sibility for is in this resources examina- tion, exploration ordinarily jury. preparation. for Medi- That issue is corollary legal necessary cal and of the rule allow- resources are scarce and among ing laymen responsibility Jackson is to decide not even the “deserv- poor.” indigent, uneducated, must fullest be He is engaged possible. unemployed, The Durham rule has in con- Simpson has, also tion to See determine whether defendant claimed, history 320 F.2d 803 as he of blackouts appeared memory. nothing trial the de in which it with loss of There is might record, however, indicating fendant substantial defense wheth- insanity. investigation of I said: er such was ever con- * * indigent that no trust- ducted on behalf of “It is clear defend- worthy regarding pres- by intelligence,’ conclusion ant of ‘borderline either equivalent’ court-appointed by ‘epileptic counsel, ence or absence of St. Elizabeths Hospital, of this could be reached the context or the Government.” thorough-going investigá- case without a

5g5 expect depth society. preparation in can we A addict offensive duct part life, circumstances? of such doubtless he is of most shadowy of those who sub-culture personal or Yet we need to know robbery, craving their live for causes of the behavior we condemn social peddling. prostitution, At or shoplifting, only culpability to assess but to re- necessary hospital, to dis- hours the individual and to remove habilitate “tragic dependency the roots of his cover possible those causes others will drugs” deprive of some- would care pit. fall into the same The need for might greater be else need prevention plain prison since sentences readily might respond more and who only often result in the return to the too drug addict. Time than a treatment dangerous streets criminals. We more St. Elizabeths which the pro- rules, have devised institutions and testifying spend in is time taken determining responsibility cedures hospital. their Court- work at the discovering preventing and for caus- give days appointed valuable counsel who crime, willing es but have not we been assigned compensation often allocate sufficient resources to task. like Jackson disturbed defendants Economy of resources of human suspicious and shown the record to be feeling may among the reasons no one great demanding. Moreover, are a there why wanted discover Jackson acted indigent and rela- number tively defendants society as he did. Unless is to abandon lawyers few familiar with criminal inquiry culpability people into the like practice. Hence, very it is often trial Jackson, dispense culpability as a appoint lawyers under- condemnation, basis we cannot coun- standably prac- such know little about justice. such tenance reduced Even an tice, special and even less diffi- about inadequate system must more presenting insanity defense. culties than had. There should be a responded beyond Bar has the call opportunity pre- trial with new a fair duty good But how much sent his will.