360 F.2d 514 | D.C. Cir. | 1966
Lead Opinion
On consideration of appellant’s motion for leave to withdraw his appeal, in part, or in the alternative for leave to withdraw his appeal in whole, and no opposition having been filed thereto, it is
Ordered by the court that appellant’s motion for leave to withdraw his appeal in whole is granted.
In view of Chief Judge Bazelon’s opinion we have written this short memorandum to explain our action in granting appellant’s motion to withdraw his appeal. We do not feel it necessary to present our views on the various matters discussed by the Chief Judge. The motion came to us through counsel from an appellant adjudged competent to stand trial in a ruling not challenged before this court. There was a psychiatric report — not conclusive, by any means— finding him competent to make determinations affecting his appeal.
At the trial the Government contended that assuming appellant had been suf
The prison authorities did not find that he required treatment in a mental institution. He anticipates release upon service of his sentence in the not distant future, and will even be eligible for parole this spring. The case was argued June 2, 1965. On December 7, 1965, he asked dismissal of the appeal, reporting that he had been making good progress in his prison adjustment, including correspondence courses, and concluding for additional reasons that further maintenance of the appeal was not in his interest.
The case is marginal. We are aware as is appellant that he may need continuing psychiatric assistance, but we did not believe under the circumstances that the interest of justice required further proceedings against his will. Accordingly, on December 27, 1965, we entered an order granting appellant’s motion to dismiss the appeal.
Concurrence Opinion
(concurring).
My brethren view the issues underlying the appellant’s request to withdraw this appeal as “marginal.”
On the one hand, the record is replete with evidence that appellant suffers from a serious mental disorder, which casts substantial doubt on his competence to abandon this appeal. It also reveals serious inadequacies in the trial of the issue of criminal responsibility, which cast substantial doubt on the validity of the conviction appealed. I do not refer to inadequacies in the sense of mistakes of trial court or counsel, but rather to the shortcomings in the system presently governing the administration of- the insanity defense. On the other hand, appellant will soon be eligible for parole, and does not wish to impede its consideration by the pendency of this appeal.
At trial his defense was that he did not commit the robbery and that, even if he did, it was the product of a mental disease. The jury found against him
The pre-trial and trial record disclose undisputed evidence of serious mental illness. Shortly after appeallant’s indictment on February 5, 1963, the trial court committed him to Saint Elizabeths Hospital for a ninety-day mental examination to determine his condition at the time of the offense and his competence to stand trial. The Hospital reported:
As a result of our examinations and observation, it is our opinion that Nathaniel B. Henderson is mentally competent for trial, although he is suffering from a mental disease, Schizophrenic Reaction, Chronic Undifferentiated Type. It is also our opinion that he was suffering from this mental illness on or about [the date of the alleged robbery] * * *.
At trial, appellant called two Saint Eliza-beths psychiatrists, Drs. Dabney and Owens. Dr. Dabney testified that, on the basis of his observation of appellant twice a week for ninety days and letters he received from appellant every day, it
The post-trial record casts still more doubt on appellant’s competence to abandon his appeal. After taking this appeal, appellant instructed his counsel not to urge any issue of insanity. Because counsel was “unable to determine whether appellant’s direction * * * [was] materially or principally motivated by a mental condition (schizophrenia) and by a desire to punish himself,” he moved this court on February 25, 1964, to consider appellant’s mental capacity to waive the insanity issues. He submitted with his motion an affidavit from Dr. Dabney stating, on the basis of his pre-trial observations, that appellant’s “present insistence not to appeal on the basis of mental illness * * * is a reflection of the features of his mental disorder, with which he still seems to be suffering.” This court then requested Dr. Lanham, Director of the Legal Psychiatric Service, to examine appellant. He reported:
It is my opinion that Henderson continues to suffer from a Schizophrenic reaction, chronic undifferentiated type, although as is characteristic in that illness, many of his more blatant and more bizarre symptoms are now in remission. It is further my opinion that his direction to his counsel to abandon the issue of insanity on appeal is materially motivated by his impaired mental condition.
Not infrequently, persons who have had a psychotic break wish to deny that they are in any way mentally ill, when their acute symptoms are in remission. I believe this is true in Henderson’s case. Furthermore, he manifests many distinctly paranoid trends. * * *
In addition, even though he denies his mental illness, he recently got into the prison hospital and refused to leave until he could see the prison doctor and get tranquilizing medication. Thus, while appealing for medical and psychiatric help on the one hand, he rejects the possibility of obtaining it on the other. This kind of dualism is not infrequently encountered in schizophrenic persons who must be hospitalized against their protestations, while at the same time attracting attention to themselves as mentally disturbed. I believe that his judgment and reality testing are quite impaired. * * * [T]here is no question that the end result of his behavior is self-defeating, unrealistic, and self-punitive. [Emphasis supplied.]
This report of serious mental illness required a full and scrupulous inquiry into appellant’s competence to abandon the issue of insanity which was pressed so hard at trial. We therefore remanded to the District Court for such a hearing, “in order that the record before this court may be supplemented.” To insure the fullest inquiry, we specifically empowered the District Court: “to order additional mental examinations of appellant; to receive from counsel suggested questions of fact for consideration in the course of any mental examinations of appellant and for determination by special findings of facts by the court; to hold evidentiary hearings; * * * to make additional findings of fact, and conclusions of law. * * * ”
But nine months later, appellant again changed his mind for the third time. He again wants to abandon certain questions of insanity. Hence we are again confronted with the issue of his competence to make such decisions and we are still without an adequate basis for resolving that issue.
The need for such a basis is especially critical since, as will plainly appear hereafter, the issue of appellant’s sanity was determined on an inadequate record. Despite the uncontroverted evidence of mental illness and Dr. Dabney’s categorical statement that the alleged robbery was a product thereof, the Government presented no countervailing psychiatric evidence. It sought to discharge its burden of establishing sanity beyond a reasonable doubt
Appellant, like most criminal defendants in the District of Columbia, is indigent,
When sanity is in issue, an adequate and comprehensive mental examination is essential to a fair trial.
It is not suggested that the prosecutor surrender the cross-examination of psychiatric witnesses. The adversary system requires acute cross-examination of the psychiatrists’ conclusions.
The record upon which the sanity issue was determined was also inadequate in other respects. Appellant’s pretrial motion for a mental examination showed that (1) he had a “voluminous” medical record from at least two federal prisons where he was regarded as a “paranoid personality with strong passive dependencies” and “significant problems in the sexual area”; (2) his wife observed that during- the six months before his pretrial examination, he had “become extremely nervous, depressed and morose, and [had], on several occasions during this time, wept alone and in the presence of others for no apparent reasons,” and that he expressed a belief that his relatives hated him, although she observed no evidence of such hatred; (3) a person who had employed him six days a week for ten weeks before the alleged robbery observed that he “exhibited signs of unusually severe nervousness and seemed to be mentally disturbed”; (4) a United States Probation Officer, who held a master’s degree in psychiatric social work, observed that appellant “appeared depressed and manifested personality disturbances”; (5) appellant related to counsel a detailed history of abnormal behavior from the time he was fifteen, including convictions for sodomy and indecent exposure. None of the evidence available from the prison records, the wife, the employer, the Probation Officer, or the detailed history of abnormal behavior was presented at trial.
Other deficiencies in the defense appear from the trial transcript. For example, Dr. Dabney said he relied on certain tests. He was not asked, and did not say, what these tests were, what they were designed to show, or what they did show. He said his only personal contact with appellant was on his “rounds.” He was not asked, and did not explain, the nature of these “rounds” and the extent to which they involved personal contact. Dr. Owens said his diagnosis of mental illness was consistent with appellant’s “history prior to hospitalization.” He was not asked, and did not detail, what that history was and why it was consistent. Since our decision in Durham v. United States,
Ordinarily the jury has, with the aid of the court’s instructions, the task of determining the question of responsibility.
The jury is not adequately informed by expert testimony given only in terms of the legal standard or in terms understandable only by other experts, nor by-a description limited to the present symptoms of the accused. It needs the sort of information the expert ordinarily requires and relies upon in making a diagnosis in the clinic. This includes, inter alia, detailed information about the defendant’s background, his family situation, his relationships with others, and earlier manifestations of mental disease.
The duty to inform does not end with ■ the presentation of such material; counsel must insure that the significance and meaning of the information is clearly explained by the witnesses. Defenses other than insanity may involve matters familiar to the jurors; in such cases they can sift and appraise the evidence without special assistance.
Ideally, of course, counsel should be sufficiently knowledgeable in behavioral phenomena to marshall the relevant materials and assist the jurors in understanding them. This would help to avoid a determination based on uninformed speculation and pure chance rather than on a rational analysis of the evidence. But the attorney, generally appointed by the court, is not ordinarily — and cannot be expected to be — so knowledgeable. Without expert assistance it is often difficult if not impossible for him to determine what facts are relevant or how to discover them and then present them in a meaningful way.
We need no longer indulge the fiction that all members of the bar can proceed without such help. In August 1964, Congress provided that “Counsel for a de- ■ fendant who is financially unable to obtain * * * expert * * * services necessary to an adequate defense in his case may request them in an ex parte application.” 18 U.S.C. § 3006A(e). Such services should not only enable counsel to determine more effectively the relevant facts and how and where they can be found but also should provide the necessary information for properly examining
As appears from the foregoing, appellant’s present motion to abandon certain insanity issues on appeal is, in effect, a request to waive his right to a fair trial. It also appears that there has been no adequately informed determination that he is competent to do so. Ordinarily in such circumstances, a new trial would be appropriate. However, additional considerations are present which militate against it. Appellant will be eligible for parole shortly and for release upon expiration of his sentence in about a year. A successful defense of insanity would result in mandatory commitment to a mental institution for an indefinite period. Thus appellant’s decision to withdraw his appeal appears reasonable on its face. It might be unfair to subject him to any other course. If he is a danger to the community because of his illness, civil commitment is available.
I have a sense of frustration about appellant’s imprisonment without adequate proof of criminal responsibility. But I reluctantly accede to his wish to abandon his rights since this may well be in his best interest.
. Appellant requested leave to -withdraw all issues of insanity and all others which would require a new trial, or in the alternative to dismiss the appeal entirely. Since the only substantial issues in this appeal either relate to insanity or would require a new trial, the motion is in effect one to withdraw the appeal.
. Appellant was sentenced to from two to five years’ imprisonment.
. Cf. Hansford v. United States, 122 U.S.App.D.C. 320, 353 F.2d 858, decided Oct. 29, 1965 (Bazelon, O. J., dissenting).
. The Hospital gave a similarly boilerplate response to a request by appellant’s attorneys for supplementary information: “[Appellant’s] reasoning process about the conduct of his appeal and other legal matters related to bis conviction for robbery is rational and * * * he is competent to make intelligent choices among available alternatives open to him on this matter.” This court has criticized such conclusory reports. See Leach v. United States, 122 U.S.App.D.C. 280, 282, 353 F.2d 451, 453 (1965), and cases cited therein.
. The record was also supplemented by a memorandum to the trial judge from appellant’s probation officer describing his interviews with the examining doctors concerning appellant’s “treatability.” It had been the District Court’s hope “that if the psychiatrists recommended treatment or felt that treatment would benefit Henderson, the possibility that Henderson would * * * move under Rule 35, Fed.R.Crim.P., might afford a solution by way of placing Henderson' on a probation conditioned on his taking such treatment as would be recommended, ultimately leading to out-patient treatment.” The District Court concluded that the reports and interviews “now seem to afford no basis for this” because the psychiatrists did not view appellant as a “treatable prospect.” The probation officer’s memorandum did not discuss appellant’s competence to abandon issues of insanity on appeal. In any event, the memorandum is no substitute for the hearing, with examination of witnesses, required for a judicial determination of competency.
. See, e. g., Davis v. United States, 160 U.S. 469, 486-488, 16 S.Ct. 353, 40 L.Ed. 499 (1895) ; Tatum v. United States, 88 U.S.App.D.C. 386, 389, 190 F.2d 612, 615 (1951).
. Dr. Owens testified that appellant conld tell right from wrong and would not have committed the alleged robbery with a policeman at Ms elbow. But Dr. Owens’s opinion was circumscribed by Ms limited observation of appellant. And this testimony in terms of the “right and wrong” and “policeman at the elbow” tests means no more than that the accused did not display “particular symptoms which medical science has long recognized do not necessarily, or even typically, accompany even the most serious mental disorder.” Durham v. United States, 94 U.S.App. D.C. 228, 242, 214 F.2d 862, 876, 45 A.L. R.2d 1430 (1954).
. See Judicial Conference of the District of Columbia Circuit, Report of the Committee on Problems Connected With Mental Examination of the Accused in Criminal Cases, Before Trial 17 (1965).
. McDonald v. United States, 114 U.S. App.D.C. 120, 312 F.2d 847, 849, n. 4 (1962); Williams v. United States, 102 U.S.App.D.C. 51, 55-58, 250 F.2d 19, 23-26 (1957); Brennan, Law and Psychiatry Must Join in Defending Mentally III Criminals, 49 A.B.A.J. 239 (1963); Goldstein & Fine, The Indigent Accused, the Psychiatrist, and the Insanity Defense, 110 U.P.a.L.Rev. 1061, 1062 (1962).
. Cannady v. United States, 122 U.S.App. D.C. 120, 122-123, 351 F.2d 817, 819-820 (1965); Mitchell v. United States, 114 U.S.App.D.C. 353, 316 F.2d 354 (1963); Winn v. United States, 106 U.S.App.D.C. 133, 270 F.2d 326 (1959).
. Blunt v. United States, 100 U.S.App. D.C. 266, 275, 244 F.2d 355, 364, n. 23
(1957). See Williams v. United States, 102 U.S.App.D.C. 51, 55-56, 250 F.2d 19, 23-24 (1957) :
“If the psychiatrists require more information about the defendant’s background and history than they can obtain from him, an investigation should be conducted to obtain such information. If there is reason to doubt the accuracy of information supplied by the defendant or his family or friends, the information should be checked by investigators. If physical tests can help to determine the existence or character of illness, such tests should be made.”
. Blunt v. United States, supra note 11 at 275, 244 F.2d at 364, n. 23. See Wright v. United States, 102 U.S.App. D.C. 36, 41, 250 F.2d 4, 9 (1957): “If the Government feels that psychiatric opinions which come into evidence ought to be based on examinations of greater scope and intensity than has been the practice heretofore, it can and should arrange to have such examinations made.”
. Goldstein & Fine, supra note 9; cf. Report of the Attorney General’s Committee on Poverty and the Administration of Criminal Justice (1963).
. See Goldstein & Fine, supra note 96 at 1963-64.
. Cf. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962); Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). See also Rollerson v. United States, 119
“Where the community fails to supply —for those who cannot — the effort and resources required for an adequate exploration of the issue, the trial becomes a facade of regularity for partial justice.”
. See, e. g., Rollerson v. United States, 119 U.S.App.D.C. 400, 343 F.2d 269 (1964); Carter v. United States, 102 U.S. App.D.C. 227, 236, 252 F.2d 608, 617 (1957).
. 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430 (1954).
. See, e g., Rollerson v. United States, 119 U.S.App.D.C. 400, 343 F.2d 269 (1964) ; Jackson, v. United States, 122 U.S.App. D.C. 324, 353 F.2d 862, decided Nov. 4, 1965, adopting, 118 U.S.App.D.C. 341, 343, 336 F.2d 579, 581 (1964) (separate opinion) ; Heard v. United States, 121 U.S. App.D.C. 37, 45, 348 F.2d 43, 51 (1965) (statement of Bazelon, C.J.).
. See, e. g., Blocker v. United States, 116 U.S.App.D.C. 78, 320 F.2d 800, cert. denied, 375 U.S. 923, 84 S.Ct. 269, 11 L.Ed.2d 167 (1963); McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847 (1962) (en banc); Hawkins v. United States, 114 U.S.App.D.C. 44, 310 F.2d 849 (1962); Durham v. United States, 94 U.S.App.D.C. 228, 241, 214 F.2d 862, 875 (1954).
. See generally Rollerson v. United States, 119 U.S.App.D.C. 400, 343 F.2d 269 (1964), and authorities cited therein; English & Finch, Introduction To Psychiatry 70-100 (2d ed. 1957); Noyes & Kolb, Modern Clinical Psychiatry 130-69 (5th ed. 1958); Judicial Conference of the District of Columbia Circuit, Report of the Committee on Problems Connected With Mental Examination of the Accused in Criminal Cases Before Trial 31-33 (1965).
. Defenses based on claims such as alibi, self-defense, entrapment, etc., ordinarily involve factual questions within the realm of the jury’s experience.
. “Oourt-appointecl counsel who give valuable days without compensation are often assigned to disturbed defendants * * *. [Tjhere are a great number of indigent defendants and relatively few lawyers familiar with criminal trial practice. Hence, it is very often necessary to appoint lawyers who understandably know little about such practice, and even less about the special difficulties of presenting the insanity defense. The Bar has responded beyond the call of duty and good will. But how much preparation in depth can we expect under such circumstances ?”
Jackson v. United States, 118 U.S.App. D.C. 341, 347, 336 F.2d 579, 585 (1964) (separate opinion).
. See generally Goldstein & Fine, The Indigent Accused, the Psychiatrist, and the Insanity Defense, 110 U.Pa.L.Rev. 1061, 1064-66 (1962).
. This may be panels of experts available in such cases, individual appointments, or some other system.
. Decision of the appeal would also require resolution of appellant’s substantial contention that he has a right to submit to the jury the issue whether he committed the act charged before introducing evidence on responsibility. This court has recognized the potential prejudice to an accused resulting from a combined trial of sanity and commission of the act charged. See Trest v. United States, 122 U.S.App.D.C. 11, 350 F.2d 794 (1965); Harper v. United States, 122 U.S.App.D.C. 23, 350 F.2d 1000 (1965).