Matter of Lomax

1272 dur- the trial and beginning' of

both at the instructions, they consid- must

ing the defendant of each guilt innocence

er the they one de- if found

separately and that bearing have no guilty should

fendant I must assume

upon other defendant. Fi- instructions.

that the heeded the against appellant War-

nally, the evidence extremely strong. There was con-

ren was guilt. of his independent evidence

siderable

Furthermore, there no sub- I believe was and, con- prejudice this record

stantial

sequently, I no reversible error. D.C. see (e). 11-721 I dissent

Code appellant

the reversal on Warren. LOMAX,

In the Matter of Elmos R. Appellee.

No. 10311. Appeals.

District of Columbia Court of

Argued May 18, 1976.

Decided Dec. April 19, 1977,

Rehearing en Banc Granted Judgment of December

Vacated. appellate U.S.App.D.C. 7, 22-23, courts are 401 F.2d slow to overturn a trial ( 1968) ; Roselli, g., F. court’s refusal United States v. 432 sever. E. United States Cir.1970), Robinson, (9th denied, U.S.App.D.C. 286, rt. 401 2d 901 F. ce (1970) ; Wiley States, 2d 27 L.Ed.2d v. United (4th (1971) Granello, Cir.), denied, ; F.2d 820 United States cert. (2d 1966), denied, cert. 81 S.Ct. 5 L.Ed.2d Cir. original joinder if Even were incorrect here, when, majority asserts, especially true circuit .this very misjoinder proof strong. government’s others have held such can .that States, Baker harmless error. v. United

1275 Wasserstrom, Silas Public Defender J.

Service, C., Washington, D. with whom Weisberg, Defender Frederick H. Public Service, C., Washington, was on the D. brief, appellee. FICKLING,

Before HARRIS MACK, Judges. Associate HARRIS, Associate Judge: This is an from order of the petition dismissing appel- trial court for judicial hospitalization releasing lee’s and appellee Hospital, from Saint Elizabeths jury appellee, after a found that although ill, likely injure was not him- self or if allowed remain at others liber- ty. Ap- 21-545(b). See D.C.Code § pellant, Superintendent Eliza- Saint Hospital, prejudicial beths contends that a opening by appellee’s statement trial coun- sel tainted a re- requires the verdict and Appellee argues mand for a new trial. government may that the from patient verdict favor of a under Hospitalization Mentally Ill Act of the (D.C.Code seq.), 21-501 et and that § accordingly we dismiss the should argues He if further the trial court’s appealable, order no reversible error oc- government curred. hold that has We releasing from an order an allegedly mentally ill from custo- dy, opening and that certain remarks appellee’s irreparably preju- trial counsel jury. diced the conclude the trial We government’s court erred in denying the mistrial, motion for a and reverse. I Morrison, Alexia Atty., Asst. U. S. C., purpose proceedings Washington, For D. with whom Earl Sil- J. bert, subject appeal, Atty., which are the of this Mr. Terry U. S. and A. John admitted to Elizabeths Martin, Attys., C. Lomax was Saint Asst. U. S. Wash-

John pursuant ington, C., Hospital August brief, appel- D. were on the for hospitalization provision of Superintendent, emergency lant Elizabeths Saint Hos- pital. Superin- 21-521.1 D.C.Code § institutionalization, Appellee period from had been admitted to Eliza- The first Saint ap- Hospital August beths to March ended when on five earlier occasions. petitioned Smothers, appel- psychologist then Dr. a clinical

tendent the court Elizabeths, hospitalization. gave expert testimony 21-541. de- judicial lee’s Id. Saint § appellee’s scribing mental illness as cata- In the Mental accordance with § schizophrenia expressing tonic hearings held his Health several Commission opinion dangerous that Lomax would be appellee should be determine whether phy- himself if he not committed. A report were hospitalized. Its recommended ei hospital ap- sician testified Elizabeths for ther his detention Saint pellee’s ailments, gave physical his placement period his an indeterminate appellee’s prognosis deteriorating through Appellee, foster care home. health should certain his self-destructive counsel, See D.C. demanded trial.2 Lay witnesses habits continue unchecked. Code 21-544. also testified as to their observations of proof Superintendent’s civil . appellee’s peculiar behavior. trial was directed towards appellee’s alleged dangerousness showing attempted Appellee’s trial counsel himself inability his to care for with- prove on cross-examination that both Mrs. supervision. Appellee’s out wife testified Lomax Smothers biased Dr. were hospitalized repeatedly in that he had been hospitaliza- their beliefs as to need for years, recent and that March 1975 hos- addition, a social from the tion. worker pitalization of his was a direct result start- impression hospital concerning testified her ing opener. a That her with can attack —gained visiting the Lomax house- appellee stopped short of harm when encouraged her hold—that Mrs. Lomax lapsed a into catatonic state. Police offi- dependency husband’s and him like treated him in that cers arrived to find condi- still appellee’s child. testified to She also tion, having his also lost control of bowels. ability hospital. in the care for himself conversation, appellee Unable to draw into finally they (so Mace as to in- used avoid appellee The concluded that should they juring recognized a man to be whom involuntarily committed because he not be ill) away opener. in order the can to take dangerous to himself or others. was not appellee Lomax further testified that Mrs. appellee’s ordered re trial court then The her, frightened seriously often and that he lease, (b), 21-545 but D.C.Code § neglected physical appearance, slept his stayed the that order for effectiveness of clothed, vacantly long stood and stared for A of this hours. motions division court intervals, persisted eating and in foods ap granted stay pending this an interim endanger which would healths He also his stay peal, after con and later extended the permitting extensively, tobacco the chewed by the sidering written submissions juice person, clothing, his thereof to soil parties.3 bedding. appellee pellee (During an acute suffers from the fact leave. took unauthorized principal period displayed symptoms His able counsel’s mental illness. he cata- appears schizophrenia.) with in dissatisfaction tonic He was readmitted .treatment that, discharged not of April reasons from the fact for arise in November 1972. placement record, him again a foster care home He was admitted Elizabeths to Saint case, being been achievable. That has not in until December remained Feb- ruary later, record total freedom —which indicates 1975. month he read- One equipped presently appellee to handle— mitted, is not but was released in after a June hospitalization day voluntarily, later, available alterna- are the He or trial. returned one informally, (We been advised have tives. he was unable to return to his former after peri- however, appellee some apartment has received his wife had He which vacated. hospital since oral July. leave from ods of in was released The confinement with argument.) proceeding which is concerned com- August menced in 1975. major portion dissent reflects of the 3. disagreement ¡the vigor colleague’s actions of Notwithstanding the earlier with of our granting stay, dispute dissenting opinion, division motions there is no pro-

II release from of the analogy. vide a useful Confinement jurisdiction Appellant maintains that our depend upon current ill does appeal by over this is established D.C.Code patient’s mental continuing state 1973, 11-721(a)(1), which makes review § Thus, peti- patient files health. when Superior all able final orders of the Court. corpus, is his tion for release on habeas Appellant “party further contends that as a present status, e., currently he is i. whether aggrieved” by order, may ap the final he ill, mentally which at issue. Dixon peal pursuant right a matter of to § Jacobs, U.S.App.D.C. (b). Appellee challenges these as Although his mental sertions, they contending that incon flux, condition often will be i. state legislative purpose sistent e., deteriorating responding either Act, Hospitalization Mentally vi- Ill treatment, argued it cannot be olative patient’s government right appeal would have no rights, contrary to common sense. We from an grant erroneous habeas cor- appellee’s do not arguments persua find pus petition. If reversal is deemed neces- sive. sary, patient’s additional evidence current condition on re- be offered Hospitalization of the Men See, Mullen, g., mand. e. Cameron v. tally Ill provision Act contains no concern U.S.App.D.C. 235, 387 F.2d 193 ing right appeal from either the Russell, Overholser v. grant or petition denial of a judicial Further, if F.2d 195 hospitalization.4 Moreover, as this is not Superintendent’s petition for commitment taken the United States or granted had been pa- in this and the case District Columbia from an en order alleged prejudicial tient then error trial, tered in a criminal governed it is not trial, patient had been committed D.C.Code 23-104. Unless the could not be denied the very provi nature the civil commitment simply because a retrial would be directed sions dictates proceedings that under them temporally toward a different mental con- exempt somehow are from scope the broad dition than that in which was issue the of the provisions review 11-721, there § proceeding. accept first argu- To such an is statutory concluding basis for that ment in ap- would be effect to eliminate all appeal this permissible. is not peals from proceedings. mental health Appellee grant may contends that petitioner It well be cannot petitioner the right to challenge an re from adverse decision in a § patient lease hearing seek retrial of 21-542 before the Commission on the issues is meaningless, since a Mental civil com Health. The directive mitment proceeding is only immediately concerned with Commission “shall order [re- the current patient, release,” mental spondent’s] suggests state of the § rather than with his Congress condition at some intended no review of such past. fixed time in decision, see an step We no merit in as next administrative argument. principles this contemplated governing in event of a decision the use of the corpus habeas writ against petitioner to secure is trial in the Su- appellee’s emergency hospitalization respondent-patient. continued notification pending appeal. rule, directing We deal with this sub- think We do not this ject opinion, disposi- in given, Part III of this whom notification must be infra. question tive of of who appellee points out, Super.Ct.Ment.H.R. government may As presumed to be be 6(c), provides knowledgeable remedies, legal which for notification of the as its while appropriate require respondent an from adverse in order it is that a proceeding, formally civil commitment mandates such be advised of his. petition, and is an and -545. the court dismissed the 21-544

perior Court. §§ sig- has a issue, government which of the however. official need not reach We the commu- protecting nificant interest in allowing construe 11-721 persons, We nity dangerous from ill and § after Superior decision review of a Court in- protecting persons in such well as respondent hearing in a 21-545 juring themselves.5 § event, pro prevails. In such an the statute Similarly, we find no merit peti dismiss the court shall

vides “the appellee’s suggestion that a of the retrial (b). 21-545 tion and order release.” § patient bar would violate the constitutional Assuredly is a final order that action against jeopardy. are well double (a) We judgment sort 11-721 which § interests at in an in aware that the stake contemplates. Nothing in the commitment voluntary proceeding are civil commitment gen exception to this indicates an statutes and, proportions, regard of transcendent reviewability. eral rule is affixed

less of the civil label which Super conclude that the also proceedings, We seen fit to ex such we have “aggrieved” by an adverse intendent protections normally tend to them which court, and therefore judgment adjudications. reserved criminal 11- appeal under proper party D.C.App., Hodges, See In re A.2d juvenile cases precedents 721(a). Our In re Ballay, 157 approach to the con a common sense show civ (in 482 F.2d 648 (1973) example, party. For cept aggrieved proceedings il mental ill who has been or dangerousness proven held that a child ness we have must be be Sip aggrieved. In re yond committed is doubt). dered a reasonable Denton v. Cf. 455, 458-59 D.C.Mun.App., Commonwealth, A.2d (Ky.1964). py, S.W.2d 681 gov Nonetheless, that the also have held it We would strain both the lan aggrieved guage purpose the dismissal jeop ernment was of the double petition in inter delinquency ardy guarantee view of its to extend to bar this children. proper upbringing appeal.6 est in the McDonald, D.C.Mun.App., 153 A.2d

In re jeopardy The double clause of Breed v. [Although provides: Fifth Amendment shall 1779, 44 L. Jones, “[N]or subject any for the same offense preclude such now (1975), Ed.2d put in jeopardy to be twice of life or limb. Mc undermine appeal, it does not upon . . .” we eschew reliance While concept of interpretation of Donald’s “criminal”, of “civil” or the na- labels case, appel aggrieved In this party.] proceeding ture of a mental health is fun- suit, lost it when party to the lant was a judgment aggrieved by and there- narrower, possible was not make 5. It be to would appeal). concept fore could not hypertechnical interpretation of party, aggrieved do decline to but we of an jeopardy directed County is The double clause Application 6. Richmond See so. of prosecutions, multiple against not Cruelty criminal Society to the Prevention for appeals. against government United States 236, Children, App.Div.2d 204 N.Y.S.2d 11 1013, 332, 342, Wilson, 913, 420 95 S.Ct. (1960), affd, 217 N.Y.S. 9 N.Y.2d 707 (1975). However, judges (3 L.Ed.2d 232 43 within 86, dis 7 97 2d 176 N.E.2d context, government where point), such senting dismissed successful, require is if a new trial Mental Island nom. Staten denied sub eert. County the constitutional clause acts as which Society, Inc. v. Richmond Health appellate impediment Cruelty to Society to initiation the Prevention for government. United States 375, 290, L.Ed. review Children, S.Ct. 7 82 368 U.S. 1006, 358, 369, Jenkins, unsuccessfully 95 S.Ct. 420 U.S. (charity (1961) which 2d 336 (1975). charity 43 L.Ed.2d sought under of another funds upon dissolution cy pres latter’s doctrine damentally distinguishable type mentally likely from the he is danger ill and to be a jeopardy action to which the double bar to or others. D.C.Code himself applies. course, underlying prohi (b). 21-545 notion Of as a matter of con against bition jeopardy prohibition, Congress double is that an stitutional could individual should not be twice tried or con make mental illness a crime. See Robinson California, 666-67, victed for the same offense. See 82 S. United 370 U.S. Wilson, (statute States Ct. 420 U.S. 95 S. L.Ed.2d (1962) (1975). person making Ct. 43 L.Ed.2d 232 A narcotic addiction a crime contra venes the Cruel Punishment alleged ill and Unusual is not on trial for Clause); Texas, Powell v. having “offense”, committed an we do cf. (1968). 88 S.Ct. not view civil L.Ed.2d commitment' —aimed basical ly Although prosecutions, delinquen criminal at treatment for the afflicted individual cy adjudications, proceed comparable punishment —as for ings liberty, all result the loss of of a crime. conviction value”, Speis “an interest of transcendent Appellee argues that a mental health Randall, er 357 U.S. proceeding analogous juvenile is to a delin- 1332, L.Ed.2d 1460 there are ob (1958), quency hearing, Jones, Breed vious distinctions between a determination supra, Breed, bars this the Su- person mentally likely that a ill and preme juvenile put Court held that a endanger himself or others on the one jeopardy proceeding object “at a whose hand, and a criminal conviction or delin to determine whether he has committed quency determination on the other. acts that a criminal violate law whose potential consequences include both the jeopardy The double clause stigma inherent in such a determination prohibit repeated attempts was meant to deprivation and the liberty many defendant, thereby the state convict a years.” 421 U.S. at 95 S.Ct. 1785. harassment, protecting expense, from him States, and ordeal. See Green v. United Appellee’s reliance on Breed is mis 187-88, 78 S.Ct. L.Ed. placed. Supreme Court’s decisions ex However, appellee 2d 199 con tending procedural rights cedes, nothing there is in the Act juveniles charged with offenses reflect an prevents filing hospital repeatedly awareness of similarity juve between petitions hospitalization judicial new delinquency nile determinations and adult perceives person’s men whenever it that a Jones, criminal convictions. Breed v. su tal confinement.7 condition warrants pra, 1779; 95 S.Ct. In re Win Thus, appeals preclude government ship, 358, 366-67, 397 U.S. jeopardy guarantee the basis the double id. at 90 S.Ct. interests which protect would fail to (Harlan, J., concurring); In re secure, fur guarantee designed Gault, 1, 22-24, 27-29, 36, inapplicability of indicating ther 1428, 18 See also In re proceedings this nature. safeguard F., M. D.C.App., W. 312 A.2d (1973) (Harris, J., dissenting). argues that Additionally, appellee purpose The of a betray legis civil appeal commit the this would to allow ment proceeding is not the Hospitalization decide whether a of design the lative of engaged has in legislatively policy frustrating con the Mentally Ill Act conduct, demned but to proceedings. determine whether fail to see expedited We of recognize repetitious 1973) ; People (1st We the commence Cir. proceedings might op Ill.App.3d ment Sansone, reach a level N.E.2d pressiveness (1974). which would he violative of due process rights. Gaughan, See Gomes single, orderly appeal irreparably injured, stay how a taken to vindi a denial of the private public cate in presented the considerable have would a risk of substantial superintendent appellee’s Appellee previ- terests with which the is harm to wife. purposes ously her, entrusted could vitiate the the had the as- attacked recent Act. An appeal govern only the sault fell into a ca- stopping what when he ment perceives stay undoubtedly is be a flawed also tatonic trance. The himself; preferable appellee assuredly he ju entire benefitted to reinstitution the hospitalization process. sorely-needed dicial The sub has received medical atten- during public stay. in tion stantial interest fair trials cannot the existence of The complete public stay, a in pro tolerate insulation of these interest also called for a light appellee ceedings possibility might cases in from review those patient. persons the outcome favors the attack other than his wife. Somerville, Illinois v. 469- regard stay do as un 35 L.Ed.2d 425 We Pugh, constitutional. Gerstein Jorn, United States 103, 120-23, S.Ct. 547, 27 govern 54 (1975), the Court ruled that the constitutional, As find statutory, we persons jail ment could before criminal policy grounds operate which would merely upon trials a nonadversarial show appeal jurisdiction defeat our over ing probable cause. The Mental Health pursuant authority broad bestowed hearing Commission conducted under §§ hold that we this court both 21-542(a) greater pro and 21-543 contains empowered obligated appel- to review permits protections, and detention cedural lant’s contentions the merits. upon finding respondent a that the likely endanger ill himself context, In this or others. noncriminal Ill findings certainly are ade Commission’s ap- reaching the substance Before standpoint quate from constitutional a upon however, the exist- peal, we comment pending justify as well detention an vigorously chal- ing stay order which so True, trial. Kendall v. before Cf. colleague.8 lenged by dissenting our (petition F.Supp. 420 (W.D.Ky.1975) probable respondent is alleging cause that pending stay of a propriety dangerous and that he to himself or others (1) upon four factors: depends capacity lacks to authorize own prevail on likely to the movant is whether constitutionally hospitalization is a ade (2) whether appeal; merits of quate detention before hear basis for injure irreparably stay denial of the would ing)- stay would movant; (3) whether addition, is, ample precedent There parties interested substantially harm other persons who staying release of whether proceeding; (4) confined improperly have been declared public interest. Vir stay inbe would party takes the adverse while Association ginia Petroleum Jobbers Jones, supra, 421 U.S. In Breed Commission, 104 Federal Power made no Supreme Court 259 F.2d stay of its Ninth Circuit’s objection corpus. habeas granting obvious writ reverse, As it is order we do Appeals for ap Court of States strong United that there likelihood stayed the release similiarly has pellant prevail in this court. this circuit would wrongful- held have been person it of a appellant or not himself Whether decision (by stay thereof was filed. granted eration another 8. After the had been pendingmotion. court), mootsthat reconsid- divisionof the a motion 1281 ly Wright, first stated that committed. United States v. for mistrial. She U.S.App.D.C. 309, 313, 1311, 167 anticipated testimony 511 F.2d of the social worker (1975). The Circuit has would Mrs. had self- 1315 Second reveal that Lomax stayed corpus release serving Appellant objected on bail of habeas motives. hearsay petitioners pending state’s from any testimony such would be both witness, granting a District Court decision the writ. lay opinion and the Vincent, find United States ex Rice v. 486 rel. therefore be inadmissible. We stay (2d 1973). open F.2d 215 Cir. The instant aspect impropriety in this no presents worker, process problem.9 though due statement. The social ing in expert qualified by court as not stay deny equal pro Nor does the to de dynamics permitted intrafamily was stay potentially A tection. release ap- between scribe some of the interaction any pro would be available impres her pellee and his and to state wife ceeding Hospitalization under the relationship. outline of sions of their Mentally Ill Petroleum. Virginia Act if the point varied lit expected proof Jobbers Association criteria are satisfied^ presented and did testimony tle from the similarity case therefore has no scope proper opening re not exceed Indiana, 715, Jackson v. 406 U.S. 92 S.Ct. 731, Cupp, 394 U.S. marks. Frazier v. Cf. 1845, (1972), 32 L.Ed.2d 435 Baxstrom 1420, 22 736, L.Ed.2d 684 89 S.Ct. Herold, 107, 760, v. 383 15 86 S.Ct. 468, West, 471- 486 F.2d States v. United L.Ed.2d (1966), 620 both which invali denied, 416 U.S. 1973), cert. 72 (6th Cir. procedural handling dated differences 1968, (1974). 305 40 L.Ed.2d S.Ct. 94 separate persons classes of institutionalized States, D.C. See also Robinson United v. for mental illness. The (1976). App., 361 200 A.2d question in Humphrey Cady, v. 405 U.S. (1972), 92 S.Ct. L.Ed.2d 394 addi hand, 31 the two the other On enough which improper, the Court found substantial were disputed comments tional evidentiary hearing, requested warrant likewise granting and one called procedural involved against opening discriminations her course of In the mistrial. one involuntarily per appellee’s class of committed statement, asserted counsel show, sons. tried had been that he proof would in another before some months there proceeding health mental

IV did appellee concluded jury had or to oth himself danger to present a turn now mer We to the ultimate that Dr. additionally stated ers. Counsel opening its of the her state witness, expert hospital’s Smothers, jury, appellee’s ment to the counsel secure failed to having “chagrined” representations appellant made three which involuntary commitment appellee’s improperly claims influenced the in seek- persistence trial, and that prior granting immediate motion necessitated (1974), re 661 recently L.Ed.2d 38 94 S.Ct. have discussed 9. A number of cases re F.Supp. vacated mand, process requirements 379 for commitment the due 957, 95 grounds, 421 U.S. g., other proceedings. Compare, manded on v. e. Dor emus (1975), 445 (D.Neb.1975); L.Ed.2d Farrell, F.Supp. 44 Bart 509 402 (D.Conn. F.Supp. Arafeh, 1265 Logan (E.D.Pa. Kremens, F.Supp. 346 ley 1039 402 aff’d, 1972), 93 S.Ct. noted, 1975) ; prof), juris, Cady, Humphrey (1976) ; Kendall L.Ed. F.Supp. Lynch Baxley, True, supra, however, not, They con do Wayne (M.D.Ala.1974) ; 2d 394 Bell v. Coun appellate question review F.Supp. ty Hospital, sider General 652, § A.L.R.3d Schmidt, Annot. (E.D.Mich.1974), is before us. and Lessard Cf. psychopath (involving (1970) sexual F.Supp. (E.D.Wis.1972), vacated 17 at 705 proceedings). grounds, 414 U.S. remanded on other ing appellee’s hospitalization verdict, prior was the result cuss the substance of the and of his desire ap- to have more control improper over his comment followed counsel’s pellee than necessary. contrast, was opening found We have statements. counsel’s nothing in the record on which such an ar represented statement had the earlier ver gument impugning appel- the motives of importance the doc dict as an element of rationally tor based, confronted, could have been and was lee’s case. are not We unsup States, we find Carsey thus these statements to be the court in v. United ported allegations unwarranted of bias. 392 F.2d 810 (1967), Jones, U.S.App. See United States an offhand mention of the mere exis Instead, appel- previous D.C. n. 433 F.2d 1108 n. of a tence trial. States, jury Johnson v. United U. lee’s counsel the to credit this invited S.App.D.C. 19, highly influential informa irrelevant and However, gave assessing appellee’s court a sub tion in current mental the sequent cautionary instruction which had have no but that condition. We doubt jurors previous pro the government warned of the limited nature of the alluded to a opening argument, not appellee we would reverse ad ceeding in which had been judged mentally dangerous, on the basis of those remarks alone. ill and and en fact, couraged jury to take note that the However, references to the counsel’s appellee’s properly cite such counsel prior proceeding and to civil pa grounds conduct as a mistrial.10 A in that trial were jury’s verdict so attorney tient’s is not free to follow a pat- value, clearly probative and so without of conduct. more lenient standard Cf. designed sway jury, they ently States, supra, Carsey United grounds for a mistrial. There constituted (Tamm, J., dissenting). 392 F.2d at 818-19 purpose is no for which evidence of cautionary instruction trial court’s past appellee’s jury’s conclusions on earlier appellee’s given which was the close of been ad- state of mental health would have jury’s opening did cure statement not The second instant case. missible exposure improper remarks. to the appel- exclusively with jury was concerned simply court admonished suitability for lee’s current are evidence opening statements not hospitalization. Counsel’s introduction just “arguments are that”. counsel appellee could prior finding in favor of inadequate inform charge was confuse and mislead served have incompetence of the “evi- jurors of the find- such a surmising jurors into of their con- dence” was revealed their task. bearing on ing had a it. sequent obligation disregard We irrepa- that the second conclude minimize Appellee attempts to knowledge of rably its influenced by argu of those remarks impropriety di- remarks were verdict. The jury’s first prior to the reference ing separate that a influencing the improperly rected toward made one subsequently was issue in jury’s ultimate deliberations witnesses, hospital’s own e., present dan- proceeding, appellee’s i. eliminated cautionary instruction court’s others, hence himself or gerousness to govern any possible prejudice. While According- be held to be harmless. cannot mention of passing did make ment witness the case ly, judgment reversed instances trial, the two prior jury trial.11 remanded for new offsetting. The witness’ comparable or Reversed and remanded. dis- He did not inadvertent. remark was States, supra, the earliest Carsey be held at trial should 11. The new v. United 10. appellee time, dissenting). continue J., (Tamm, since feasible at 817-18 392 F.2d completion. hospitalized pending its MACK, dissenting: jury a Judge, On December found that Associate mentally Mr. Lomax was ill but was not separate a two occasions On likely injure himself or others a re- Lomax, respondent found while sult of that if allowed remain illness at ill, danger not a to himself or was liberty. following day,4 The the trial court others, and a released court ordered him respondent’s ordered immediate release Hospital. from Elizabeths Petition- Saint pursuant Hospital, from the to D.C.Code er, Superintendent Acting the Hos- of (b). government ex- pital, speaking through representative, pressed appeal its intention to ver- Attorney, the United States has this asked order, dict and the release and requested a court to insure the continued confinement stay appeal. of the order of pending release Lomax, of Mr. to reverse the last order of judge The trial request. denied the He release, and to remand for a new trial. did, however, delay twenty- the order for Through process rejecting the tortuous of hours give government four time to respondent’s position, majority stay court, a seek noting, this inter opinion government holds that the has a alia: right of in an commit- proceeding pursuant So, ment to the District going unless we are to assume a Hospitalization of Columbia Mental- paternalistic of the type Government, of and if ly Ill (the Act).1 Having Act cleared thus scrap we do that we have to the Consti- way order, for reversal of tution, the release you . . deprive . can’t a it holds that the trial court required life, liberty property with- response declare a mistrial in certain re- process out due of law. It is the Fifth by respondent’s marks made counsel in the Amendment directly which is effective opening Finally course of her statement. us, deprive here. I can’t So man this importantly, pend- and most decides liberty of his one minute more than he ing resolution of the and now deprived should be of it.

retrial,2 respondent may be confined invol- certainly give I day [s]tay. won’t ten untarily Hospital. Elizabeths I Saint you give get I’ll 24 hours to to the Court unjustified find these conclusions to be Appeals. stay I’ll it for 24 I hours. disturbing. am reluctant to do .... 19, 1975, On December the United States

I. Attorney ap- filed in court a this notice of stay, peal stay I turn pending ap- first to the matter and a motion for be- authority peal. cause that is the under which The Motions Division ordered that Mr. Lomax is against confined of the trial court’s release his will effectiveness Hospital. stayed Moreover, despite pending St. would be further or- Elizabeths order cursory court, stay following filing the rather of a given treatment der this stay. majority,3 response to the motion for the facts considera- temporary stay remained in effect until go tions relative thereto heart to the court, why when this without government January reasons has no granted government’s motion opinion, Pub.L.No.88-597, Virginia (1964), v. Fed Assoc. 1. Petroleum Jobbers 78 Stat. Comm’n, Pub.L.No.89-183, r’evised and eral Power 110, codified. (1965), Stat. 751 D.C.Code codified seg. et § 21-501 judge verdict in the trial took the 4. Another majority judge’s opinion. but deferred on the 17th absence See note judge, question re who the trial of release to majority supports stay by 3. The references day. next turned the ,to criteria cases traditional set forth civil having nothing to do commitment. See stay pending court, ap- impossible the outcome of this tion I find peal. 22, 1976,respondent On March justify filed on either or statu- in this court a motion tory to reconsider the grounds. stay, attaching copy petition thereto aof longer It can no doubted that involun corpus supporting writ habeas tary hospital is commitment to a mental memorandum filed the United States ac deprivation liberty which cannot be of 18, 1976, February District Court on thus complished process of without due law. fully for the time setting first forth consti- 563, 580, Donaldson, 422 U.S. O’Connor v. objections

tutional to his continued 2486, (1975) 95 S.Ct. confinement.5 J., (Burger, concurring); Jackson C. 1845, stay improvidently Indiana, 715, I believe that 32 L. the was U.S. court, granted agree Ballay, this and I with Mr. re 157 U.S. Ed.2d 648, (1973). App.D.C. 59, 66, Lomax that his confinement de- continued 482 F.2d prives solely rights him his are not process of Fifth Amendment Due considerations procedural process to the substan procedural, substantive and involve well due but power protection and on the equal of limitations the laws.6 tive constitutional pa the constitutional to commit. While It process seems me that the due de power not been that have rameters of very clause little if it not bar means does traced, clear: much is finitively liberty deprivation the at unauthorized justified the basis on must be “Commitment here. authority issue Lawful the in- for .” . . legitimate state interest. voluntary confinement of Mr. Lomax Donaldson, supra 422 U.S. O’Connor jury ceased its verdict when returned 580, at 2496. 95 S.Ct. and the trial court ordered his release. under time, advanced generally respondent’s Until confinement The interests for justification statutes as pursuant contemporary had standards and been mentally ill procedures Respon- involuntary commitment forth in Act.7 set to the injury prevention pursuant have are the persons dent should been released patient, injury to the procedures, he prevention public, those standards and treatment released, ac- for care or but (cid:127)would been for and the need have 1975, 25, August basis 5. the District on have been informed We August 27, petition -522). re- (§§ On denied Mr. Lomax’s 21-521 Court hospitalization ground corpus for emer- spondent’s on the sole continued writ of habeas yet gency court authorized his available reme- was he had not exhausted observation September 21-523). presented (§ he certain On dies had not because order hospital- judicial respondent’s arguments petition this court. his (§ (civil commitment) 21- was filed He has now done so. ization 541). applicability arguments filing triggered majority rejects today those That Superior pursuant 21-528, to which to reconsider denies the motion of § effect respondent’s (and lift) stay. judge continued ma- note See ordered Court Septem- September jority opinion. detention, 3. On also on held 18, Mental Health Commission ber analysis protection “Equal 6. in the Fifth 21-542). hearing (§ two continuances After that under area is the same as Amendment place opportunity Hospital give Buckley Amendment.” Fourteenth home, the Commission in a foster Mr. Lomax Valeo, L. 96 S.Ct. and, delay longer could it concluded citing Weinberger (1976), v. Wies Ed.2d 659 respondent’s recommended November enfeld, 636, 638 95 S.Ct. n. (§ period 21- indefinite for an commitment (1975). 43 L.Ed.2d 514 requested 544). Mr. Lomax then my process is- view of the due Because of Following -545(a)). (§§ 21-544 sues, I to discuss the merits see no need jury verdict, on December court the trial argument. equal protection petition re- and ordered dismissed ,to required release, do spondent’s Thus, was seq. et D.C.Code (§ 21-545(b)). respondent Elizabeths was to St. admitted Donaldson, supra jurisdiction, O’Connor training.8 civil justified is Indi 2486; and, Jackson v. “mentally 95 S.Ct. when ill 1845; ana, supra illness, likely injure because of Humphrey Cady, persons himself or other if allowed to re- liberty.”9 main at here found Civil generally Developments the Law: justified, such commitment Ill, Mentally Commitment 87 Harv. supporting there evidence such a L.Rev. 1190 finding. Apart from the conceded mental respondent, general- illness of the evidence Columbia, In the District of substan- ly ailments, pictured a man physical power limitations on the tive commit human frailities and a who wife was either clearly persons ill defined unwilling unable or Congress Act. has decreed that in this to be caretaker.10 parens patriae power gained 8.Although us, currency, then is not before because issue Supreme but not without The the Act’s definition of the commit- limitation. of narrow class, Judicial of table I note that there is considerable Massachusetts described Court power constitutionality this limitation on the in doubt about of statutes state’s Matter Oakes, permit solely 123, Rep. (Mass. Josiah 8 which Law 125 ground 1845): on the finding of mental illness and with dangerousness person [T]he to self or others. to restrain an insane liberty implicit Supreme great in This view is is found in that Court’s law of humanity, Indiana, necessary in construction of Jackson v. makes to con- statutes 716, going large 1846, 406 fine those whose U.S. 92 32 436 be S.Ct. dangerous (1972), Humphrey Cady, v. themselves or others . 1048, necessity law, 92 And the S.Ct. L.Ed.2d 394 which creates the 31 (1972). Recently, ques- a number of have creates limitation law. courts of the expressly Leonhardt, particular so 414 held. Stamus tions then arise in each must F.Supp. 439, (S.D.Iowa 1976); ease, patient’s safety, 450-51 Suz whether a own or F.Supp. 1113, others, Quisenberry, requires uki 411 1124- that of he that should (D.Hawaii ; 1976) Harrell, time, 25 Doremus v. restrained for a certain and whether F.Supp. 509, (D.Neb.1975) necessary 407 517 restraint for his restoration (three-judge court) ; True, Kendall v. F. will be conducive The restraint 391 thereto. Supp. 413, necessity (W.D.ICy.1975) (three- long 418-19 can con- continue as the judge court) ; Lynch F.Supp. prop- Baxley, limitation, This is the and the 386 tinues. 378, (M.D.Ala.1974) (three-judge 389-92 er limitation. court) ; Wayne County Hosp., Bell v. Gen. (emphasis 1973, (b) D.C.Code F.Supp. 1085, (E.D.Mich.1974) 384 1096 added). (three-judge court) ; Schmidt, Lessard v. 349 F.Supp. (E.D.Wis.1972) (three-judge 1078 10. A medical doctor testified at court), vacated and remanded on other respondent’s neglect physical well-being of his grounds, 414 94 S.Ct. L.Ed. 38 might prove ten to fifteen fatal —in well remand, F.Supp. (D.C. 2d 661 on 379 1376 years old.) years. (Mr. 52 Lomax is now Wis.1974), vacated and other remanded on re- Petitioner’s evidence also indicated grounds, 44 L. long spondent periods stands for of time judgment (1975), Ed.2d 445 reinstated large quantities he likes to consume that salt, remand, F.Supp. Crim.L.Rep. exacerbate the both of which habits (E.D.Wis. May 28, 1976) ; State legs feet; in his that he fails edema Krol, ; (1975) 68 N.J. 344 A.2d 289 copious medication; he chews take his Levias, re In 83 Wash.2d P.2d 588 juice tobacco con- amounts of tobacco and .the (1973) ; Lazaro, State e® rel. Hawks v. appearance; unsightly to his tributes (W.Va.1974) ; S.E.2d see but par- periods nothing long in for he stares Fhagen Miller, N.Y.2d N.Y.S. mute; and that he ticular and is sometimes cert, denied, 2d 278 N.E.2d voluntarily once returned Elizabeths to St. did, jury found, as this one had after another Evidently confinement the statute. is not committable that he under (as protection opposed ill for their own ,the others, potential danger ma- As for ,the solely ground prevention injury emphasizes respondent’s jority opinion “at- others) widespread opener. was not in coun this This his wife with a can tack” on try ago. century until a in This use of March “assault” occurred so-called It is interesting to note that the trial court legal cial and judgment potential that his shared jury the reaction of the doing harm, others, such for to himself or to evidence.11 great enough justify such a massive liberty. curtailment of making In this petitioner I have no doubt that and the determination, serves the criti- experts medical who at trial in fa- testified cal introducing pro- function of into the petition genuine vor of the share a lay judgment, cess a reflecting values good faith belief that Mr. Lomax’s in- best generally community, held in the con- by involuntary terests would be served cerning potential the kinds of harm that Clearly they disagree commitment.12 justify confining in State jury’s determination that Lomax is Mr. compulsory treatment. [Footnotes However, not committable.13 neither omitted.] opinion experts of medical nor the order of statutory authority this court constitutes did the one before This concluded—as for the indefinite confinement of Lo- respondent’s potential doing Mr. it—that Act, max. sufficiently Under determination great justify harm or, can liberty.” be made the trial court curtailment of “such massive case, by jury. confinement, this sanctioning continued has, effect, court reversed that verdict. significance jury’s role process. a denial substantive due proceedings such been described has Supreme Humphrey Cady, Court in su validity stay fares no better The 509, pra 405 at 92 at 1052: U.S. S.Ct. analysis. procedural process due Even a legiti- is a assuming, arguendo, that there most, all, if Like not other with States depriv- justifies state interest which mate legislation, similar conditions Wisconsin is, liberty, respondent his it nonethe- ing solely on the medi- such confinement not less, achieve it unconstitutional to judgment cal that the defendant men- is Respondent has been manner chosen here.

tally treatable, ill and but also on the so- one, theory and it him. is a familiar when, prior trial, to the first after repudiated repeatedly, have as has been wife, respondent lapsed courts with his altercation person’s uniting a realize that “[1] come to testimony into a catatonic state. His wife’s theory rights it is that on is instructive: philosophy questionable is in his best interests [By : I un- Lomax] for Mr. Q. Counsel supra Quisenberry, and law.” Suzuki v. bad that, Lomax, at derstand Mrs. hut that Winship, 8, In re 397 at 1130. note you can did he threaten with the time 1068, 358, 368 25 L.Ed.2d 90 S.Ct. U.S. opener? (1967) ; (1970) ; Gault, 1 In re U.S. 387 funny thing No; and it’s a .... A. (10th Heryford Parker, Cir. v. 396 F.2d 393 you, did he? didn’t But he Q. threaten 8, Farrell, supra 1968) ; at v. note Doremus say me either that he threatened A. I didn’t 1039, F.Supp. Bartley Kremens, 513; 402 say No, that he did. I didn’t times. court), (three-judge (E.D.Pa.1975) 1045-46 expressed agreement judge his The noted, 964, juris, prob. 424 96 S.Ct. ,the jury verdict in this case: with (1976). 1457, 47 L.Ed.2d 731 juror, feel, sitting as a 13th . . I . along with the I have voted that lay opinions 13. Conflicting and medical 12, harmful I think he is that don’t other Wisconsin, question In new. not evidence I think on the don’t to others juries since 1880 have been relied on where say he harmful we adduced that could person for com a confine whether decide himself, really. treatment, periodic pulsory psychiatric efforts jury trial running eliminate made to have been thread 12. I that a common note “juries provision [refuse] often too opinion because majority throughout is the notion ex medical when order commitment respondent substan- to fewer is entitled appropriate.” perts it [think] . . rights . procedural de- a criminal than tive 8, Cady, supra Humphrey 405 U.S. note delinquent juvenile because fendant help at 1052. punish at 509 n. government but not seeks 1287 854, 43 months, hearing, no L.Ed.2d 54 To the extent held twelve relevant, suppor I is find reasons, pursuant to no stan- Gerstein statement of dards, respondent’s position.17 period. tive What Ger and for indefinite requires per but a hearing stein not a se process concept due While timely judicial probable determination of one, that there elementary it seems flexible at prerequisite to detention. Id. cause person is process is denial of due when course, 119-26, Act, S.Ct. 854. hearing. An held committed or without requires 21- no less. D.C.Code §§ hearing before he entitled to individual is 523-525; Barnard, U.S.App. re property deprived any significant 305-306, D.C. Certainly inter- an individual’s interest.14 liberty freedom to personal est in his —the Surely my colleagues, by chooses, reliance go and the come he Gerstein, suggest do mean to precious let more than to be alone15 —is process surrounding safeguards re- due any property. Mr. Lomax has been denied spondent’s is, (that initial confinement freedom, contrary established law.16 judicial probable determination cause opinion majority suggests that re- trial) justified pending his detention spondent’s justified continued post-trial detention is justify can also detention. constitutionally because the Mental Health process requires nature “[D]ue hearing findings Commission more bear duration some probable satisfy requirement than cause purpose for reasonable relation to the Pugh, Gerstein S.Ct. which the individual is committed.” Jack- 80-81, Shevin, ; (1971) Leonhardt, supra 14. Fuentes v. 407 U.S. Stamus v. 446; Quisenberry, supra S.Ct. Bod note Suzuki v. Connecticut, 1127; Farrell, supra die Dor emus v. note Goldberg (1971) ; 515-17; Kremens, 28 L.Ed.2d 113 Meisel v. note Kelly, F.Supp. (E.D.Pa.1975) ; Saville Family (1970) ; (M.D.Tenn. Treadway, 430, F.Supp. Sniadaeh v. 287 404 432 1820, 337, Cory., ; 1974) (three-judge court) Bartley Finance 395 U.S. 89 S.Ct. v. Kre- ; (1969) mens, 1053; supra 12, 1049, 23 L.Ed.2d Mullane v. Central Co., 349 note at Kendall 306, True, supra 8, 419; Lynch Hanover Bank & Trust 339 U.S. v. note at v. Bax 313, 652, supra 8, Wayne ley, 387-88; 70 S.Ct. 94 L.Ed. 865 note at Bell v. supra 8, 1097, County Hosp., at Gen. note only name, 15. The freedom which deserves 8; 1102; Schmidt, supra v. note Lessard pursuing way, long as our own so Attorney General, F.Supp. Dixon v. 966 325 attempt theirs, deprive we do not others of court). (M.D.Pa.1971) (three-judge impede or their it. Each is efforts obtain proper guardian health, pretrial of his own wheth- a 17. Gerstein involved detention of bodily, spiritual. Supreme er mental and Mankind held criminal defendant. The Court greater gainers by suffering requires ju each other the Fourth Amendment good themselves, probable to live as seems compelling than cause as dicial determination of good liberty prerequisite each to live seems to the as extended restraint Mill, Liberty, following Respond prior rest. 18 [John Stuart on and to trial. arrest challenging (Gateway confinement, 1962).] pretrial ed. is not his ent in standards since it accord with the already Donaldson, 563, Act, procedures v. 16. O’Connor 422 95 of the U.S. respondent right guarantee in 45 McN secured L.Ed.2d 396 S.Ct. Director, Institution, Barnard, supra v. 16. eil Patuxent 407 In re Gerstein. note stay. post-trial 32 L.Ed.2d 719 is this court’s U.S. S.Ct. What is at issue 8; (1972) ; Humphrey therefore, supports respond Cady, supra Gerstein, note in fact supra Gault, present 12; Speoht In re v. Pat note claim that his confinement ent’s terson, illegal, 18 L.Ed. he held 87 S.Ct. since has been since his ; States, (1967) requisite judicial Sebastian v. United 2d determination without ; (8th 1976) probable In re 531 E.2d Barnard, Cir. cause. 455 E.2d Indiana, son supra, only length be justified U.S. at for the of time Thus, required at arrange hearing S.Ct. 1858. if the commitment is a full on the a short term confinement with a limited need commitment.18 purpose, safeguards appro lesser be Although respondent’s involuntary com priate, then but the duration the con initially permissible, it mitment was could strictly finement must limited. be Where constitutionally after that continue ba permanent practi the commitment is in its longer sis no existed.19 O’Connor Don effect, it requires safeguards cal commen aldson, supra, 422 at S.Ct. with a long surate term Id. commitment. 2486; Indiana, supra, Jackson “A confinement 1845. 1845; Director, McNeil v. that is fact indeterminate cannot rest on Institution, supra. Patuxent Thus the stay procedures designed to authorize a brief operated ordered this court new period of observation.” McNeil Direc commitment, my opinion its consti tor, Institution, Patuxent tutionality fails. then,

Clearly, petitioner could not law- II. fully respondent indefinitely, have confined trial, solely without basis of I would therefore dismiss this emergency temporary admission or petitioner hold that the in a civil commit It post- commitment. also that follows proceeding ment has justified trial confinement cannot be respondent. a verdict favor of the commitment, temporary the basis of the my pos opinion, no other conclusion is purpose since of that short term deten- sible and intent design in view of the respondent’s tion was to determine need Keeping in stat mind that Act. “[a] commitment, judicial purpose and that ute curtailment sanctioning such a drastic its ver- was served when the returned narrowly, rights must be citizens dict. construed,” signifi it is even grudgingly, provide, cant that the Act does not nor emergency justi- detention is Just petitioner in such suggest, even that a hearing probable fied until a cause might Significantly proceeding conducted, temporary can detention only, also, applicable Rules mention probable following finding cause respondent. Super. appeal by Ct.Ment. necessary believe that confinement is can guilty property Lynch supra found not Baxley, ment by thereafter 18. note insanity. supra ex Farrell, In United States reason of See also Doremos v. note (2d Vincent, Bartley supra rel. 515; Kremens, Rice v. Cir. note at stayed 1973), appeals an order Wayne County Hosp., of 1049; the court Bell at Gen. government pending appeal by 1102; the supra 1097-99, of release note Lessard at corpus; grant the Schmidt, supra of of a writ of habeas a note at 1091. prisoner serving for a first- was life sentence is, majority notes, course, as the 19. There murder, attempted degree and at murder precedent continuing lack of for confine no ,the tempted robbery, appellate court was appeals, pending even final resolution of ment might that he flee. concerned challenged court declared the after one has fundamentally distinguishable, is case This cases, illegal. In all of these confinement here, has been found not since the individual judicial however, find there been a has first forms distinction to committable. be ,the person ing a criminal act committed majority has this case. The the crux of statutory standard. a or was committable under staying any precedent the for failed to cite majority, by the Breed the cases cited Of person has the factfinder a whom release of Jones, 44 L.Ed. committable, guilty not not or be found to example, (1975), in an involved 2d 346 government an the takes while robbery. appel The dividual convicted of Harris, 20. Covington Wright, in United lant States (1975), 419 F.2d App.D.C. was 511 F.2d govem- by a of destruction of convicted Furthermore, 6(c). properly it is not neces H.R. under the terms committable sary right further imply majority, such a the the drawing Act. The from precedents statute; purposes contrary. juvenile delinquency proceed the in quite ings respondent suggests, aggrieved as to is an party, As common sense dic who cor Jones, rectly Breed v. meaningless tates that it is infer a observes U. and, successful, S. retry if the trial, (1975), patient, always pa preclude appeal by at now since the would an is government tient’s current mental status which is at goes in such It cases. on argue majority recognizes, issue.21 As the noth there are obvious distinctions juvenile ing prevents petitioner delinquency between bringing proceedings a from petition new mental patient proceedings, to commit when health but are we by ever such left wondering action is his men what distinctions are. warranted those At least jurisdiction, tal in this Thus the distinctions only condition. discernible governmental both, without significance, interest is true since an liberty In re respon interest continue the confinement of the is stake. Hodges, D.C.App., mandatory dent. Yet the 325 A.2d 605 language Sec In re Ballay, supra 79-80, tion (b) requires 21—S4S his 482 F.2d at release. Con tinued 668-69. legislative confinement subverts that

mandate. I am also majority’s concerned with the summary

I unpersuaded by petitioner’s claim, am recital that it finds statutory, “no accepted constitutional, by policy grounds” majority, that D.C.Code which operate 11-721, applicable is to defeat proceedings jurisdiction our § under under I Section Act. fail to how the The see Su- 11-721.

perintendent Hospital considerations are of Saint obvious and the Elizabeths statuto- ry is by “aggrieved” pa- a considerations slightly order to release less so. Certainly tient who has been a by time-consuming appeal, found not to majority’s period analysis factor, psychiatrist for a hours until duty analogizing admitting hospital a civil can examine commitment trial to a ha- person corpus alleged hearing, mentally unpersuasive. beas to be ill. It D.C. question Code incorrect 21-521 and A §§ to state that -522. wheth .the alleged patient currently mentally er ill or not to be be detained beyond always corpus period ill is at issue in a initial hour without a habeas ac 4& by brought patient seeking tion court order. Id. §§ release -523. Section requires receiving from 21-524 then confinement. That issue was court present hospital’s petition emergency of course in the observa- case cited ma jority, petitioner sought diagnosis persons temporarily tion and because de- release ,the “primarily ground tained confinement under the Act to review written sanity that he had recovered record and make his a determination within was longer dangerous appropriateness hours to himself or Dix as to the of further others.” hospitalization Jacobs, U.S.App.D.C. 319, 322, seven-day period. on v. for a seven-day contrast, 427 F.2d court in- must either order patient might person’s ground voluntary hospitalization seek a writ on the or order the illegal by virtue immediate release. If orders the confinement of a the court jury finding nondangerousness seven-day hospitalization, requires and the sub sequent noncompliance ,the probable patient’s upon request, authorities patient’s hearing the terms of cause pitalization the issue further hos- the Act. The current on of his mental be held hours would not be before the court must within status 24 hearing. case; receipt request rather, for the a determination such a the after of for be, given probable jury’s findings, hearing issue If cause is the is held and is play. legal? found, provisions his come Sec- confinement other into 21-542, example, requires Mental tion for .the Thus, example, provides promptly 22. the the Health to examine Act Commission hearing. emergency only patient hospitalization promptly to hold a Un- emergency 21-544, where a finds that certified exists and der if the Commission § 1290 rights and the emasculation forming to individual

disrupts expedited the timetable specifically protect of a tailored to Act,22 statute very the the is inconsistent core of rights. those able to assert such less primary The Act’s thrust was therewith. rights the secure civil long-neglected group.23 of a It evolved III. “profound congressional out concern of a mentally Cov for the liberties of the ill.” that the re- Finally, majority the holds ington Harris, U.S.App.D.C. 136 remarks opening spondent’s trial counsel’s Thus, 617, provisions 419 F.2d 623 government as prejudicial to the were so written to insure that no one would were fa- in his require reversal of the verdict hospitalized against his or will for her to reach this I vor. see reason While period, an unnecessarily lengthy unless a any oc- issue, if error I am convinced that jury patient or trial court determined the statement, during opening the curred It mentally dangerous. to be ill and is by the trial instructions of was cured the noteworthy here even with several mistrial judge, to declare a whose refusal continuances of the Com Mental Health not, my opinion, certainly did amount hearing, mission less than four months of abuse discretion.24 elapsed emergency between the admission isolated com- apart counsel’s Quite signing Lomax and Mr. of the re the ment, reference made several witnesses order, lease in conformance with the Act’s prior references respondent’s Such trial. provisions. contrast, In his confinement any situation expected in retrial can be already order this court has lasted unexpected have certainly could not been indefinitely. twelve months and could last denial the trial court’s in view of case the very indignity is Act was the by respondent’s coun- request —made designed prevent. subsequent testimony to events sel—to limit Moreover, I to see fail to the first trial. I think the facts of this case demonstrate prejudiced by a government is how the quite vividly danger inferring the respondent being the informed right by the government. Unless prior dangerous at some was found not it is respon- held time, that that does not include the issue is since ultimate and not his present mental condition dent’s ancillary right stay seek previous time release order condition pending appeal, I see a threat Rights Hearings mentally dangerous, on the Constitutional is not ill and Mentally. immediately If, the Subcomm. Ill it shall order release. Before Rights hand, Comm. the Senate Constitutional other the Commission finds that Cong., Judiciary, respondent mentally dangerous, 1st 2d Sess. on the 91st ill and (1969-70). 21-545(a) requires promptly to set court hearing and, for a if matter g., See, Cupp, 394 24. e. Frazier requested, all it shall be accorded with 684, aff'g 734-37, S.Ct. speed. Finally, (b) reasonable re- § 21-545 1969) ; (9th Robinson F.2d 777 Cir. quires upon finding court or States, D.C.App., 361 A.2d United jury, patient be, as the case D.C.App., States, ; (1976) United Smith v. dangerous, ill either not or not denied, cert. 315 A.2d petition court shall dismiss and order his ; (1974) Mares 42 L.Ed.2d release. (10th States, United 409 F.2d 1968), denied, U.S.App.D.C. Ballay, cert. re Cir. Carey ; Covington (1973) 22 L.Ed. 564 482 F.2d States, Harris, supra United note 623; Protecting Rights Mentally F.2d 810 Ill, S.Rep.No.925, Cong., (1964) ; 2d Sess. 88th petitioner majority Both verdict.25 prior of the

have noted the outcome Talmadge VAUGHN, Appellant, E. In view of like- trial was “irrelevant.” trial, prior I lihood of disclosure of the STATES, Appellee. UNITED by the preferable think it that it be made No. 9648. accompanied by appropriate in- court, offer, therefore, suggestion I structions. Appeals. District of Columbia Court of previously made in to the identi- reference Argued June 1976. problem arising cal in the context of crimi- Decided Jan. 1977. nal trials: retrials, previous references trials likely to be Such references made. prejudicial par sometimes be to the ty who does not make them. think We objective

the ultimate of a fair trial is likely

most if at be achieved out gives judge

set of retrial the caution instruction,

ary judges as in this some do, following

circuit to the ‘The effect:

defendant has been tried before. [If mistrial, been

there has so You state.]

have no concern law with that. The

charges you solely to render a verdict evidence this trial’ [Carsey v. States,

United

207, 392 (1967).] ap-

Such an instruction particularly seems

propriate where, here, the issues before juries

the two are not in fact identical.

IV.

In conclusion, I am concerned that the

majority today destroying the effective-

ness statutory of a designed pro- scheme

tect rights ill. It

doing so at time jurisdictions when other

are adopting protections employed

therein as representing enlightened ap-

proach required one ap- I

Constitution.26 would dismiss

peal, lift stay, permit the court’s Mr.

Lomax to be released illegal from his con-

finement. I respectfully dissent. is, course, why Act, many pro- 25. specific re- but of its contemplated safeguards well, including trial are not the Act. cedural ade- quate prior notice, prompt bearing, and particularly 26. See state and federal cases cited in notes the assistance of counsel. See 16, supra. Lynch County Baxley, Wayne 8 and It has been held these Bell v. Gen. process Hosp. supra Schmidt, decisions due mandates and Lessard v. note .that the substantive standard set forth

Case Details

Case Name: Matter of Lomax

Court Name: District of Columbia Court of Appeals

Date Published: Apr 19, 1977

Citation: 367 A.2d 1272

Docket Number: 10311

Court Abbreviation: D.C.