Rudolph N. Thornton v. Honorable Howard F. Corcoran

Although there is an such confrontations. had she Appellant, her selection lineup why a suggestion in the record before him both opportunity to observe why a line- fact possible, not and partici- was attack,6 during she and and pro- held, up the identification composite was not of a preparation pated . not, on employed here does cedure accurate proved to be drawing which unnecessarily record, to have been seem focus police’s initial enough lead respects. suggestive in other Appellant. con- validity pre-trial of the Given Sessions, need we at General frontation regard to any question with pursue at as evidence propriety use of its in- possible “taint" trial or its identifications.

court Affirmed. THORNTON, Rudolph N. Petitioner (concur- Judge BAZELON, Chief , v. ring) : CORCORAN, F. Honorable Howard pre- Although questions I find Respondent. very the score close case sented No. 21974. toas required corroboration of both Court of United States pre-trial of the identity propriety and Circuit. District of Columbia I presented identification, facts on the Decided Jan. 1969. affirming the conviction. concur allowing witness police practice of identify sus crimes es and victims largely unstructured, unre pects in the surroundings viewable certainly not States, could General Sessions United after Wade

tolerated 1926, 18 L.Ed.2d 218, 87 S.Ct. out pointed (1967). As this Court States, 133 U.S. in Clemons v. -, -,

App.D.C. 408 F.2d * * * evident

It must be a confrontation of such conditions those of than harder control

much lineup, much also formal clear establish difficult more undisputed exactly testimony what is, were. conditions these least, fraught perils to practice degree sparing suggesting use prudence. part of here, how- pre-trial identification police

ever, were before occurred freshly placed Wade on notice arranging scrupulous fairness need impressions particular Moreover, opportunity these have she did Not attack, inter were formed before there Appellant she to see Ap and the action between witness specifically attention distinguish called noticed proba pellant might enhance the his individual to some supra. of mistaken identification. bilities ing See note characteristics. Palmer, Washington,

Mr. Allan M. C., petitioner. D. for the Roger Zuckerman, Mr. E. Asst. U. S. Atty., Bress, with whom Messrs. David G. Atty., Q. Nebeker, U. and Frank S. Asst. Atty., opposition U. on the S. were petition. Sidney Edelman, City,

Mr. York New filed a brief on behalf of Eliza- beths, as amicus curiae. Allen, Washington, Mr. William H. C., brief, D. filed a as amicus curiae. Dobrovir, Washington, Mr. William A. C., brief, D. also on the as amicus curiae. Judge, Before Bazelon, Chief

Burger Judges. Robinson, BAZELON, Judge: Chief After the Court of General Sessions grand over bound to the jury complaint charging for action on a rape girl, 11-year-old him with the of an Rudolph pre- requested Thornton N. indictment mental examination under 24 301(a) (1967). D.C.Code The District ordered him committed for 60 days Hospital to Saint Elizabeths for an examination to determine not his competency stand trial but also wheth- er suffering Thornton was from a mental alleged illness at the time of the offense. During period requested dis- permit trict to order the independent psychia- his counsel and an trist to attend staff conference that would be held filed its report with the District Court. His mo- explanation. tion was denied without petitioned Thornton then this Court directing writ mandamus the district judge to issue such an order. Since appeared to the Court “that further con- pe- sideration of mandamus required,” tition will be we entered July directing interim order on Saint Elizabeths hold its staff concerning petitioner with- awaiting disposition pe- out of tition, record the tape, conference on audio such record- ing kept to be sealed sole vari- there note that the The Court did until further custody of the questions the construc- ous Court. order of this the Federal Rules tion 35 [of Rule auxiliary orders were en- Subsequent new and of Civil were Procedure] July September 20 and Oc- 9, tered substantial, rested the existence but it here relevant. 17 tober that jurisdiction squarely on of mandamus real the fact that there was doubt I any had whether the District Court power order a defendant to at all to begin realization with the We physical a examination. submit to peremptory writs common-law that 104, 14. 88 at 278 n. mandamus, prohibition in 389 at S.Ct. U.S. as such junction are, directed distinguish- when may The Will decision * * “extraordinary judges, remedies proceeding present in that able from extraordinary really causes.” reserved party there the the Government was 260, 258, Fahey, 67 parte U.S. Ex 332 seeking In that a of mandamus. writ (1947). 1559, 1558, 2041 “general 91 L.Ed. policy against piece- S.Ct. context the function mandamus appeals” strengthened The traditional “an meal court inferior confine an precepts has been “to of the constitutional awareness prescribed of its to exercise speedy a lawful a trial that a man is entitled to compel its jurisdiction exercise or to to may placed in not be twice that duty authority to do so.” is its when it jeopardy at for the same offense.” Id. Ass’n, Evaporated 319 Milk 98, Roche Nevertheless, v. 88 S.Ct. at 275. 941, 938, 21, L.Ed. 26, 87 opinion 63 S.Ct. U.S. flavor of Chief Justice’s sharp (1943). The restrictions any 1185 Will of in- chill the enthusiasm must partly placed upon mandamus arise thus court an ex- termediate traordinary to issue such unfortunate “have the because such writs criminal case. writ making a consequence liti- of say a to that writ of Which is not obliged personal gant, counsel to obtain a criminal mandamus never issue of liti- one his defense to leave point Supreme itself As case. Fahey, parte gants Ex him.” before Will, invoked suc ed out in “It been 260, More 1559. 67 at 332 U.S. at importantly, S.Ct. cessfully of trial where the action sought dur- when mandamus totally deprived court the Government ing to the counter trial runs right prosecution, Ex its initiate “finality requirement con- [that] 241, States, parte 53 287 U.S. United charac- is an historic dition of review (1932), 129, where power S.Ct. 77 L.Ed. 283 appellate procedure,” teristic of federal judicial overreached its court 323, States, U.S. 309 Cobbledick United v. rightful deny the Government 540, 541, 324, 84 L.Ed. 783 60 S.Ct. conviction, parte Ex fruits of valid (1940). 72, States, 27, 37 S.Ct. 242 U.S. (1916).” 129 And this 61 L.Ed. encounter with In most recent its compel trial has issued writs a criminal mandamus context judges interpretations of the our to heed trial, Supreme Court vacat- a unanimous Procedure. Federal Rules Criminal by the ed a writ issued Seventh 10, U.S.App.D.C. Sirica, 127 Ross See v. richly opinion Appeals in an Court of (1967) ; Blue v. United 380 States, 557 F.2d cf. limiting the use citations larded 315, 321, U.S.App.D.C. 342 119 States, 389 mandamus. Will v. United (1964), 894, denied 380 F.2d cert. 900 269, 90, L.Ed.2d 305 88 19 U.S. S.Ct. 944, 1029, 964 13 L.Ed.2d 85 U.S. S.Ct. carefully doing (1967). In so the Court Gasch, U.S.App. (1965); v. 131 Jones employed language it narrowed the had 1231, 1242 254, 265, F.2d 404 D.C. support of mandamus a writ Holder, Schlagenhauf 379 civil case v. petitioner here does not L.Ed.2d U.S. S.Ct. (1964): claim District Court has ex- that “findings power, Court for its rather it has of fact the issu- ceeded authority ing when it failed exercise its court and some “to statement of the seeking duty party legal reasoning.” so.” A is its to do court’s at Id. oft-repeated has, To mandamus phrase, S.Ct. extent in- showing precludes “the burden choate record requisite this case right findings fact, issuance of the writ ‘clear mandamus is ” indisputable.’ inappropriate remedy. Life & Cas. an Bankers Holland, 384, 74 Co. S.Ct. II test, 98 L.Ed. 106 This general appellate argues expressive logic while writs, States, 218, to Wade v. reluctance issue such is not a United 388 U.S. uniformly guide. 1926, (1967), the trial 87 18 useful Where L.Ed.2d 1149 S.Ct. recognition compels right court entrusted with substantial dis to is coun- may during along con cretion, error reside a sel his staff conference at Saint appellate Supreme court tinuum and the can mean Elizabeths. Court con- showing there, holding ingfully speak of a “clear of in cluded the accused Gasch, U.S.App. lawyer lineup, abuse.” Jones v. 131 entitled to a at his (1968) 1231, wording plain 1242 F.2d D.C. 404 “the of [the Sixth Amend- * * * added). encompasses (emphasis In other circum ment] counsel’s however, duty stances, necessary the of the trial to assistance whenever a assure ” authority meaningful ‘defence,’ 225, his cannot be to exercise id. at 87 guise elaborate, 1931, at rendered unreviewable “under the S.Ct. went to parte judicial Ex of discretion.” guaranteed [T]he accused is that he 129, States, 287 53 S.Ct. U.S. against need not stand alone the State 132 In the such situations trial any stage prosecution, of the at for- not, court has erred it has the informal, out, mal or court where vel clearness non of its error be more might derogate counsel’s absence from paper. a than an actual litmus catchword right the accused’s to fair a trial. * * * Thus, when the invokes the sum, principle In the of Pow- power appellate protect the of court to an succeeding ell v. Alabama and cases right, right asserted the constitutional requires any pre- that we scrutinize protection exists or it and merits does trial of confrontation the to accused not. An examination of of the merits presence determine whether of required his claim is in order decide to necessary preserve his counsel is which is the once that exer case. But right basic defendant’s fair a trial completed, appellate cise has been right meaningfully as affected hardly retrospect court can assess in to cross-examine the witnesses right whether the was “clear and indis him to have effective assistance putable” all the time. of counsel at the trial itself. 226-227, (footnote Id. at 87 at S.Ct. hand, however, On the other even omitted). may depend upon a constitutional claim a implications time, pointed factual situation the At of the same the Court readily not sweeping which can out Wade be assessed without that its words did apply of “preparatory steps” the benefit full In a trial record. va not to all be- cating Will, specifically distinguished the writ issued in fore It Su trial. preme ultimately upon taking fingerprints Court relied “the of or a blood attempt grounds sample “knowledge failure justification supply techniques technology reasoned is suf- ficiently available, its action.” 389 U.S. at at S.Ct. and the variables propriety techniques enough, 278. To a determine few that the accused mandamus, therefore, opportunity meaningful writ of we must has the for a light scrutinize the claims confrontation the Government’s case requirement through Supreme ordinary processes of the at trial set represent ence at Elizabeths will Saint the Government’s of cross-examination important experts presentation of confrontation with expert witnesses and likely testify experts.” Id. at the Government. his own evidence 1932; Moreover, just Supreme see also as 227-228, 87 S.Ct. 757, argued California, Wade that once witness hav- Schmerber ing suspect lineup identified a in a L.Ed.2d 86 S.Ct. unlikely to retract identification at psychiatric might argued that a trial, experience suggests our such a scientific resembles examination representatives rarely Elizabeths lineup. In closely than more test testimony contradict in their at trial an might also addition, such examinations they opinion have voiced at the staff lineups distinguished on other from Finally, many conference. the fact that Thus, grounds. at Saint the examination wishing insanity defendants to assert nature; prosecutorial indigents who, practical defense are impartial required to be the doctors matter, rely upon must an examination Be- accused. in their evaluation 301(a) under 24 D.C.Code this, same is neither the there cause question raise their into defense calls suspect of abuses sort reason to the confidence with which we can con- Wade, see 388 U.S. the Court troubled requests for such clude that examina- 1926, 228-239, nor evidence 87 S.Ct. truly “voluntary.” tions are More- occurred. abuses have that such majority pretrial examina- over, the case, re- Ill are, in this like one tions the defense; lineup, by unlike a quested the anything is thus but clear what compulsion no involved literal there is guidance we should draw from Wade in these circumstances. complicated in this context. The task is by argument men- further factor

Unfortunately, that the that we the cannot to assume the assimilated that staff can should be tal examinations single pur- defining treated as a Amendment whole the scientific Sixth tests petitioner’s right experi- support poses to the assistance of finds scant administering jurisdiction in counsel. amicus curiae brief submit- ence of this insanity realm ted Unlike the the in this case and the the defense. samples, fingerprints other there information available to this blood agreement among experts typical Court1 indicate that the is at best small theory technique concerning conference includes both an either the interview diagnosis ill- the appropriate of mental individual committed for exami- to the legion. attending nation deliberations The “variable factors” ness. staff members at individual is examining is true that While it present. does not theory Elizabeths are doctors at Saint distinguish parts between discreet these practical impartial, moreover, mat- as a demanding of the conference in that his normal- all involved ter ly testify of those some independent psychiatrist counsel or an when the for the Government attend, be allowed to but in- the issues insanity In trial. defense is raised at may quite volved different. petitioner con- this case counsel strong petitioner’s appearance he Insofar that as the cede that evidence is charged, concerned, that and aver the staff conference is committed the acts trial, assuming principal the Sixth claim can issue at Amendment not be competent, privi- resolved will be that Thornton is found reference lege true, against responsibility. If there self-incrimination. this is The Su- preme disposed of doubt his staff confer- issue in can be little Cases, the Dis Before Trial Criminal See Judicial Conference 31- Report Columbia, 33 [hereinafter Judicial Con- trict Report]. With ference Comm. on Problems Connected the Accused Mental Examination 700 ground no Arizona,

Wade on the der the “evidence entire load.” Miranda v. 1602, a testimonial or communicative nature” 86 16 S.Ct. L.Ed.2d lineup. was extracted 694 388 U.S. at There be sound rea- 1929; distinguish 221-223, 87 see also S.Ct. at sons between criminal acts California, accompanying Sehmerber 384 U.S. and the mental state of argument measuring scope S.Ct. This the actor hardly can do privilege. in the context of a service self-incrimination since But psychiatric however, examination, prove where the Government must both a critically will,” the words of the accused are “vicious act” and a “vicious we important determining simply his mental con cannot assume a distinction be- privilege dition. The cases that have con few tween the two insofar as the rejected claim, have this issue sidered self-incrimination is concerned.2 reasoning their been less than suggested It has also been that the de- satisfying. Circuit, for ex Fourth fendant waives whatever self-incrimina- ample, reasoning premise from the might privilege enjoy tion otherwise the Government in all federal cases bears requests pro- when he the Government to proving sanity burden argu- vide a mental examination.3 This beyond accused a reasonable doubt once psychiatric ment has force insofar as properly raised, issue has been Da peti- examination is involved. But the States, vis v. United U.S. question tioner here raises (1895), S.Ct. L.Ed. 499 has con general procedures during followed government that “if cluded is re period temporary commitment quired load,’ ‘to shoulder entire to Saint Elizabeths for exam- only cannot be denied to the re access His ination. claim to the relates ascertaining liable means of the truth staff conference before held the concerning sanity.” a defendant’s Unit report submits its to the Dis- Albright, 719, ed States v. 388 F.2d 724 Court, represents trict a much (4th 1968); see Cir. also Alexander v. report more formal One confrontation. 33, States, (8th United 380 F.2d 39 Cir. dealing procedures with followed at 1967); Pope States, v. United 372 F.2d Elizabeths, with which the amicus 710, (8th 1967), 720-721 Cir. vacated accord, curiae brief of is in the grounds 651, other 88 S.Ct. that states 2145, 20 L.Ed.2d 1317 But this by The staff conference attended is argument necessity, from com however following personnel the with the in- pelling, longer justifies interrogation no frequency: psy- dicated senior staff regard of the defendant without for the (always); physicians chiatrist staff partici Fifth Amendment (often); psychologist (always); so- pation charged, in the acts where the (often); psychiatric cial worker res- Government of course “shoul- training (often).4 must also idents in reasoning 2. For proceeding.” the and recommendations inal 18 4244 U.S.C. advisory group history of one that has confront indi context problem conceptual guilt” the ed difficult cates that “issue of meant reconciling psychiatric legislative guilt interviews “issue of other than an by insanity.” guilt criminal defendant with the broad issue of reason of privilege, Nothing background applica tenets of self-incrimination Report suggests any statute, however, Judicial Conference 55- see tion of the 56, pre long except governing practice statute 107-118. The reason but state courts, relating sanity pro in examinations federal trial ments from Columbia, cluding Ed District see tection of the Fifth Amendment. States, U.S.App.D. 104 monds v. United Report provides (1958), 144, 3. See Judicial that Conference 116 260 F.2d 474 C. - the accused “no made 117. statement * * * shall examination course against ac 4. Id. at 32. be admitted evidence guilt any crim on the issue cused

701 agree speak may dividualized an encounter. defendant individ- aWhile examining he ual freely when under a doctor examination number to an faces members, examination, im- not requests is most of whom has argument to a a mediately seen before. The that that he consents never clear fatally disruptive prove privilege lawyer a in- will similar waiver hearing con- at a the staff fluence is com- self-incrimination practice pelling.7 medical ference. Sound culminating staff conference make the underlying inseparable exam- from the IV single a doc- interviews inations and considerably problem A different is showing of such tor.5 But without posed by part of the staff confer two, we compelling nexus between ence which defendant does not at that a waiver to conclude reluctant stage no At issue self- tend. privilege re- of the self-incrimination arise, incrimination can and there is corresponding garding entail a one must direct confrontation between the accused concerning the other.6 waiver potential witnesses. Government sap these do not But considerations self-incrimina- To the extent petitioner’s claim that his counsel should when the individual tion issue arises strength. be allowed to attend all battery the assembled interviewed ability of defense counsel to cross- argu- conference, experts at his staff examine Government witnesses cru during right at to counsel ment cially important not issue of part becomes least of the conference competency to stand trial also when justifi- compelling. more The standard trial, insanity at raised defense excluding counsel from cation pointed as this Court has often out. See examining of “the room is that because States, Henderson v. 123 United U.S. personal ex- nature of the intimate * * App.D.C. 380, 360 F.2d 518- *, presence of a amination (concurring opinion); Rol legal party, in a non-medical third States, U.S.App. lerson v. United impair severely capacity, the ef- would 343 F.2d 274-275 D.C. ficacy examination.” States, (1964); Jackson v. United Albright, F.2d States v. U.S.App.D.C. 341, 346, 336 F.2d reasoning much This also loses a conference is involved. force when staff party” argued lawyer undeniably Hospital “third A is a Saint Elizabeths has relationship. doctor-patient As de- its amicus curiae brief that the to the fatally may attorney physicians adequately a such, can feel is fense cross-ex- may testify disruptive the con- influence. But staff amine its staff members who hardly private as in- as Government on basis of the is ference ** * concerning persons under staff conference is committed 24 5. “The culminating exami- the accused’s been made event D.C.Code have Id. a staff conference. These sta- nation.” might suggest a tistics that staff confer- sev- devotes 6. Saint corollary is ence not such an inevitable description pages of brief to a eral pretrial require a a examination as to rule an as Staff Conference “The Medical a that waiver the self-incrimination Integral Examina- the Medical Part of regarding encompass latter must a carefully tion,” it of which in the course regarding waiver former well. however, out, points to the decision that note, also, Supreme “in the discre- made as the a conference We Court ob- hold recog- In a Director.” served Wade “to to tion of Clinical refuse Court, report right the District later to' nize the to fear counsel re-emphasized hospital jus- discre- has will counsel obstruct the course of conference, tionary contrary assumptions of the to nature staff tice is the basic approximately upon pointing operated out this Court has which reports Dis- to the courts of the some 570 Sixth Amendment cases.” 388 U.S. at January 237-238, Columbia since trict of 87 S.Ct. at 1938. reports it will make available and files V However, the to counsel. logic The claim that displayed make such an enthusiasm to apply Wade v. United States should reports to the As re- available defense. to staff his conference at Eliza- year cently to a allow as last refused anything beths is therefore psychiatrist reports access to the defense right frivolous. If to his cross-examine Washing- psychologist. of its staff See pro- witnesses him can be States, U.S.App.D.C. ton United way, argument tected in other his And 32, 390 F.2d Moreover, of constitutional dimensions. to the in- whether the failure is due responsibility our for the administration attorneys ability of to defense obtain insanity of the defense in the District interpret experience hospital files, to our may require of Columbia the exercise of all too clear trial coun- has made it supervisory power. our But the com- frequently to sel are unable cross-exam- plexity of the issues involved and the un- government sophisti- ine witnesses with they certain factual matrix within hardly problem, moreover, cation. persuades must be resolved us that a jurisdiction.8 Ideally, unique to this attempted solution should not be experienced specialized, there be a should petition of this context for a writ of revolving legal problems bar skilled mandamus. not, mental illness. There is how- about peti Even realistically probably could we ever, conclude the there constitutionally tioner legal corps. entitled to fur will such a never be protection rights ther conference, represent lawyer appointed indigent at the staff may we cannot be incompetent certain that defendant who presence appropriate may of counsel is the stand trial or who mental- been have remedy. may ly alleged be that alternative ill de offense time recording parts may vices such as all any exposure some or have had little if may satisfy of the problems. lawyer staff His skills as a Constitution at less cost to the effective enable him to educate himself con- cerning ness range legal conference. broad issues But at stake. alternatives to be considered appointed even the most determined at- can torney better be evaluated with the aid of difficulty learning will have even post-trial pro full factual smattering psychiatry record sufficient ceeding. intelligently Saint Elizabeths ar Government cross-examine gues in witnesses, the amicus curiae brief prepare sub let alone his defense. mitted at the Court’s greater invitation that the Much attention undoubt- must reports edly records and discovery available to devoted of de- already attorney the defense enable whereby sophistication vices this lack of adequately cross-examine part the Govern on the bar can be combatted. hospital. Thus, ment starting witnesses from the point An obvious the in search hospital the brief assures us that not is the where the defendant re- only copies can the defense obtain of psychiatric ceives a examination. Cer- report, the medical staff conference tainly lawyer struggling the to inform lawyer also for the the accused can ex himself not about the mental condi- amine the all the material tion of his client but also about the ab- records considered at the staff confer psychiatry strusities of forensic is en- informally ence and the discuss case expect cooperation titled to the fullest hospital pérsonnel with all whose ob hospital. from the If he not does receive patient’s servations included any, may fairly ask to ex- the court The full record to file. available this authority ercise compel to the co- trial to Court after will enable us better operation hospital. judge adequacy of the both the of alterna- these Insanity generally, Goldstein, 8. See A. The Defense 122-140 how, previously of Orders and if The this Court of information sources tive delay presently issued in this case to avoid the made avail- of as material such appellant’s during responsibility adequate, to examination and trial our able is not rights petition of our of the consideration the for a protect constitutional the promote admin- writ of mandamus are vacated insofar the efficient and accused any they might require as justice can best be carried future action istration of by participants, since we con- the have out. that mandamus not offer an cluded does recognize concluding the well we so In appropriate remedy.9 disposition Our resolving argument of powerful in favor preclude not, course, of the trial does today. al- claims this reconsidering original from the March leged committed in offense was petitioner Rudolph motion of the N. revolves, insanity of defense 1968. The light of the Thornton illumination course, upon then mental- he was whether opinion. by this Since issues cast ly acts the criminal and if whether ill so may opinion play in this well discussed product of that were the if committed part any subsequent appeal if the and he is convicted succeeds If illness. competent to is found stand challenging appeal his in an eventual convicted, trial we assume hos- Hospital, at Saint examination recordings pital destroy tape will not pyrrhic. prove At victory that re- it has made the staff conference directed examination future date fresh cently conducted. March will health last mental toward his So ordered. Supreme sorely tardy. Court But hardship in in- often that stated Judge (concurring BURGER, Circuit appropriate not an eases dividual vacating dissenting of all orders and Sehlag- g., See, ground for mandamus. e. else): as to all Holder, enhauf v. against policy the Court now the or- Since vacates S.Ct. 234 my extraordinary writs which ders to dissent November the issuance addressed, no more broad considera- 1968 was need mandamus roots as unavailability judicial must as to of man- administration said tions seeming logic propri- prevail damus in case nor this as ety commanding Superintendent prompt case. the individual relief require normally anything mention mentions exclu- It would today petition rejection sivity power responsibility. We this our why pro- retro- does not see no reason courts cannot of mandamus can for a writ rights vitality or- spectively of these crim- tect constitutional affect they during period which defendant from violation doctors inal ders necessary policemen prosecutors. i.e., time as well as Certainly were entered — peti- suggested underlying no one has ever a decision reach assigns (1967), dis- the dissent D.C.Code which failure of tion. peti- tinguish on the to the Police Board decision Commissioners between a duty preserve pending public peace” “to and an order mandamus tion for prevent crime,” however, decision, “to renders demands impotent jurisdictionally clearly the orders exam- that while state constitutionality police as ine t'ne con- are terminated in this case entered operation to- decision duct. our future temporary day, they As orders di- declared void are not past operation. alarm voiced rected the trial in this case to The their power of by make certain that a staff was the the dissent pending held, superfluous a it should an order be all enter this out, point Sep- find we in this sort we as did our order a of of in case decision 301(b) steps puzzling. tember that 24 D.C.Code these were made While necessary by responsibilities only the the certain failure of the au- rests Hospital superintendent to which thorities of a at Saint Elizabeths they they com- committed what had been do assured this Court accused examination, i.e., nowhere petency the statute would hold a staff conference. do — any Hospital by ju- extraordinary of action and St. relief have process conspicuously throughout dicial as to he should reach how been absent diagnostic My litigation.1 Superintendent medical conclusions. this The of today curiously concurrence in the result reached St. Elizabeths ambiguous is upon predicated my previ- posture. Having complied is of course expressed ously hasty judicial orders view that the with and unwarranted ac- validity, en- now vacated should not have been tion which had the the color placed Superintendent being I first have tered in the instance. is now effect prior appendix opinion compliance in an to this thanked for his forbear- ance, orders which are now vacated. and informed this Court’s after- perplexity underlying the-fact statement, majority though even legal issues. expresses sig- totally dicta, as to views legal problems which I nificant cannot “puzzlement” expressed by join. previous As with the actions in majority in its Note 9 is self inflicted disagreement my of a this case one readily by dispelled can be reference perceive any I cannot threshold nature. to the facts the case. legal predicate upon which the valid ma- ordinarily rejection It is correct that rely. jority can now Not the least retrospectively of mandamus does not the deficiencies is fact that there is interlocutory mandates, affect but when longer controversy” no a “case the interim orders are vacated Indeed, this Court. both tenor and judges same who them entered because majority’s substance the discussion is they recognize now that mandamus is advisory hortatory. purely It does appropriate, neither available nor then merely purports resolve but not east nullity I submit that the those interim issues; “illumination” on the St. Eliza- firmly argue, orders is To established. beths is advised the Court’s majority vacating does, that “assumption” preserve it will original orders validity does affect their recordings; tape parties neither of the acknowledging is no more than being to do or ordered refrain from impossibility “unringing human doing anything. IAs have else- noted the bell.” where, compliance St. Elizabeths’ dutiful prior orders, with the Court’s which methodology extraordinary majority cognizant, seems moots judicial course of action in case— might whatever issues otherwise have majority— and now retracted judicial any power existed. So far as help should noted be since it could well concerned, St. Elizabeths is us avoid such a situation the future. tape free to do it what wishes with its merits, Without decision recordings. majority entered a series of ill-advised Regardless “jurisdictional” acknowledged of the assumptions ves- orders on now tiges might thought which validity. have Especially have been today’s orders, survived expressions significant the “interim” is the fact that of the three majority operated demonstrate five orders on someone never entering stop-gap party proceeding. infirmities or- made a to the More- legal over, thought ders without hardly foundation. There can emergency October 1968 interim orders directed St. required action; immediate there Elizabeths were intended to irreparable was no claim preserve quo likelihood of the status order- because injury; fact, prereq- ing they changed traditional an affirmative act warranting' judicial uisites status; accelerated three of the orders cannot Assuming arguendo September response did tered was in jurisdiction, supplemental have it is that no clear emer hasty to a memorandum filed gency requiring August 20, situation existed 1968 which contained no hint judicial response; emergency. the interim order en ju- virtually preserve barren factual matrix and justified intended to briefing or man- without the benefit of be no there could because risdiction argument; consequently, non-party. such discussion jurisdiction of a damus plainly and in no dicta sense authori- majority, in- I think it Unlike To the tative. extent the intimations engage in an appropriate at this time to may require that the Fifth Amendment Fifth and discussion extended pretrial presence psy- counsel at applicabil- their Amendments Sixth chiatric examinations and Staff Confer- examinations; ity no is- psychiatric to disagree. vigorously I must More- ences Al- us. no case sues and over, practical I see no theoretical though point in the raised justification apart from the Fifth disposition original pleadings, of this permitting Amendment for counsel unnecessary to renders it reach case pretrial My encounters.2 attend these majority’s questions. The decide those previously expressed on these views mat- more present all the discussion seems present purposes, ters suffice for unnecessary expressed of its in view appendix I admittedly will attach them in the novel aversion decide legal important face issues in the this statement.

APPENDIX States Court For the Circuit District Columbia 21,974. Term, September No.

Rudolph Thornton, Jury N. Grand #859-68

Petitioner July 9, [Filed 1968] Corcoran, F.

Honorable Howard

Respondent. Judg- Burger Judge, Before: Chief Circuit Bazelon, Robinson, es, in Chambers. ORDER

PER CURIAM. appearing the Court that further consideration of already petition required, mandamus and that will be Hospital sixty days, been committed to it is over Court, sponte, sua that Saint Elizabeths Ordered awaiting concerning petitioner hold its staff conference disposition petitioner, record the.conference and that the custody kept tape, recording sole audio sealed and until order of this Court. further foregoing Judge participate order. BURGER did 17,1968 (Appendix). p. 711, infra, October dissent order filed See Appeals United States Court of for the District of Columbia Circuit 21,974 No. September Term, 1967 Jury Grand No. 859-68 Rudolph Thornton, N. Petitioner, July

v. [Filed 1968] Corcoran, Honorable Howard F.

Respondent. Bazelon, Before: Robinson, BURGER and Circuit Judge; Chief Judges, in Chambers.

ORDER

PER CURIAM. appearing requested to the Court that relief which procedures Court, affect Hospital, certain at Saint Elizabeths sponte, sm curiae, submit, invites the as amicus on or before July 18, 1968, setting desirability brief forth its views on the feasibility (1) permitting independent psychia- defense counsel and present trists to be Hospital’s at staff conferences which determine the concerning competence recommendations to stand trial mental condition at alleged offense; (2) permitting transcrip- time of the tion, by tape, audio or video of staff conferences for use defense independent psychiatrists counsel and conferences-; present at establishing procedures assuring other that defense counsel are effectively personnel able to cross-examine trial participation their in the staff conferences. Court, sponte, sua Allen, Esquire, also invites William H. Chair- man of the Legislation Findings Committee to Seek as a Result of the Standing Committee on “Problems Connected with Mental Examination submit, Accused in Criminal Cases Before Trial” to curiae, as amicus July 22, 1968, setting a brief forth his views on the requirement above matters. The the aforesaid briefs printed be' is waived. Judge

Circuit participate foregoing BURGER did not order. States

for the District of Columbia Circuit 21,974 No. September Term, 1967 Rudolph Thornton, N. Jury Grand Term 859-68 Petitioner, July [Filed 1968] Corcoran, Honorable Howard F. Judge of the United States District Columbia,

Court for the District of

Respondent. Burger Bazelon, Judge, Before: Chief Robinson,

Judges, in Chambers.

ORDER CURIAM.

PER Hospital Elizabeths St. the motion behalf consideration of On July 9, of this Court requirements of the order for relief from and pre-trial status appellant to his permission to return for thereto, opposition it is of St. on behalf motion aforesaid the Court Ordered denied, Hospital and it Elizabeth's Hospital shall Elizabeth’s that St. ordered the Court Further July comply this order Court’s forthwith understanding his Judge record BURGER desires Circuit implying construed as is not to be this is not intended order staff held requirement conference be that a staff held, that, if a conference Hospital, when to what subject of the Court as order to further it is be recorded recordings. use, any, may if be made United States Court Circuit

for the District of Columbia Term, September 21,974 No. 859-68) (Grand Jury Thornton, No.

Rudolph N. 884-68) Petitioner, (Criminal No. Sept. 1968] [Filed Corcoran, F. Honorable Howard

Respondent. Burger Judg- Robinson, Bazelon, Judge, Before Chief es, in Chambers- ORDER

MEMORANDUM PER CURIAM. Following rape, Rudolph com- his indictment N. Thornton was During Hospital

mitted Saint Elizabeths a mental examination. period 60-day commitment, petitioned of that this May directing for a writ of the district mandamus independent permitting case to issue an order his counsel and an psychiatrist be held before to attend the staff conference that would respondent report its filed with the District Court. opposed petition, reporting conference that the “staff challenge.” postponed petitioner’s present has been until resolution of petitioner’s man- Since we concluded that “further consideration petition required,” to un- damus not wish will and since did we necessarily delay process, an the examination this Court entered July directing order on its Saint Elizabeths hold awaiting disposition petition, and that tape record be sealed and the conference on audio kept custody in the sole order of this until further Court. day submit separate invited order the same we In a establishing desirability stating curiae brief views amicus adequately cross- ability counsel to

procedures of defense to assure trial, by permitting the attendance either personnel at examine conferences, by transcribing conferences, staff staff of counsel at by other devices. re- requesting Hospital elimination motion then filed a [ing] to conduct a July quirements 9' order*“direct concerning appellant such conference to record and conference staff importance argued “the tape.” that in view of on audio operation and requested as the as far of the action [Thornton] concerned, hospital seeks

management * * * decision conducting any a final conference until to defer * * *” is reached. brief, its amicus curiae submitted A week later “the court assured motion for relief that stated in reference to its conference, denied, compliance full if said motion is July court, expiration prior 9 order of this be held will hospital.” period commitment to authorized July Subsequently, Hospital’s This denied the motion on Court conference, holding Hospital, to the District certified a staff competent In to stand trial. view Court that Mr. Thornton was language Hospital’s previous representations the order and thought July plain to be was we had that a staff conference of held, petition disposition tape pending of the preserved and on our final for mandamus. appears to the Dis- returned now Thornton been Mr. recogni- trial, Court, competent released trict found to stand contemplated our pending zance trial. the staff Since July held, assistance order enlist the 9 has not been at this time we rectify steps necessary of the district to take whatever misunderstanding

whatever Since Saint Elizabeths occurred. request staff conference this court time that the advised at the of its petition for postponed on the until a final had reached decision been “postponement not affect mandamus that staff conference would verity reached,” that the confident to be we are conclusions promptly adequately situation can be rectified. It is so ordered. Judge foregoing participate order.

Circuit in the BURGER did Court of States

for the District Columbia Circuit September 21,974 Term, 1968 No. Jury Thornton, Rudolph 859-68 N. Grand (Criminal 884-68) Petitioner, Oct. 1968] [Filed Corcoran, F. Honorable Howard

Respondent. Burger Judge, Robinson, Before: Chief Bazelon, Judges, in Chambers.

ORDER

PER CURIAM. case, September filed In this the above-entitled petition for delay, designed while memorandum order avoid peti- proceedings pending of mandamus was decision writ stated, order tioner’s criminal the memorandum case. As adequately promptly and can be “confident situation having informed been now This Court rectified” District Court. rectify mis- steps promptly taken have not been further resulting hold the understanding occurred, to in a failure which has Court this assured staff conference Elizabeths which Saint July order if from would be held its motion relief denied, this Court it is were sua, expediting sponte, in Court, by interest of Ordered September

proceedings, order of memorandum aforesaid (1) proceed forthwith Court be modified to direct the District to petitioner delay to be any to cause the whatsoever and without further by the placed position prior the certification in to in the same was competent to to authorities the District Court that he proceed trial, forthwith stand to direct curiae representation amicus accordance with the contained petitioner brief, upon, staff which to accord to this relied July conference, in this order the incidents directed Court’s contemplate commitment 1968. This does not the further order Hospital except minimum for whatever to Saint Elizabeths period required is conduct the conference. copy of this

The Clerk of this forthwith a certified Court shall issue order to the District Court. Judge foregoing participate order.

Circuit BURGER did not

United States Court for the District Circuit of Columbia 21,974 Term, September No. Thornton,

Rudolph N.

Petitioner 18, 1968] Nov. [Filed Corcoran, F.

Honorable Howard

Respondent

BURGER, Judge, dissenting: during my foregoing (which

I dissent from the was entered order me). court is I this absence and without notice to dissent because totally authority power or direct order St. without lawful holding holding a staff or not on the matter of proc- conference; diagnostic or on how it the internal conduct Superintendent may rely carrying statu- esses on his out tory competency relating stand trial. duties to the determination of

Congress Superintendent by exclusively in the statute1 vested certify duty an accused is whether St. Elizabeths by competent trial; the District not bound stand 301(b)

1. 24 D.C.Code certification; criteria for that determination are issue. certifying power person, Superintendent, in an vested official diagnostic process not his staff. and internal administrative steps by Superintendent performance informs himself in which the statutory duty beyond totally power is a medical matter surely beyond competence judges any court court. Superintendent by reach St. Elizabeths his conclusions reading record, by personally interviewing accused, the medical any consulting pro- with staff-members or other means which judgment physician proper.2 very large fessional seem Indeed a Superintendent of such number are made certifications being can, course, staff conference held.3 His certificate challenged hearing; and he can be cross-examined in the District C'ourt any alleged diagnostic process may explored. infirmities in his simply irregular judges physicians me it is not To to instruct my they diagnosis; how should make a view the order entered Judges commanding Bazelon and Robinson on 1968 October Superintendent Elizabeths St. a hold conference and tape recording flagrant make a of that .conference was a abuse of judicial power.4 Except probably fact the issue was moot 5 practical perhaps as a matter when order was entered and is diagnostic process 2. The internal is not 4. The Court’s order was tantamount ato dissimilar to the institutional decisions writ of mandamus since it commanded by agencies rendered administrative the District to direct consistently have withstood Constitutional to conduct a medical staff conference. E.g., Morgan, attack. United States v. “The traditional use the writ in aid 409, 999, appellate jurisdiction 313 U.S. 61 S.Ct. 85 L.Ed.2d both common at (1941) Morgan ; States, 1429 v. United law and in the federal courts has been 1, 773, 304 U.S. 58 82 L.Ed. 1129 S.Ct. to confine an court inferior lawful (1938) States, ; Morgan prescribed jurisdiction v. United 298 exercise cf. * * 468, 481, 906, Evaporated U.S. 56 S.Ct. 80 L.Ed. Roche v. Milk (1936). Morgan Ass’n, 21, 26, 938, 941, 1288 In the cases 319 U.S. 63 S.Ct. Supreme (1943). by insulated the administra 87 L.Ed. 1185 The issuance process appellate against tive from indiscreet visitations court of mandamus unfriendly eye. principle the Morgan of the a District Court is erroneous in the ab- applies any allegation cases with added force sence of substantial of a usurpation flagrant power. here since staff conference is not or abuse of any hearing adjudicatory Compare States, sense a of an Will v. United 389 U.S. Larche, 10, 90, 269, nature. See also Hannah v. 363 n. 88 S.Ct. 19 L.Ed.2d 305 1502, 420, (1967), Schlagenhauf Holder, U.S. 4 L.Ed.2d 80 S.Ct. 1307 with v. 379 (1960). 104, (1964). 85 U.S. S.Ct. 234 “The writ of mandamus is not to be used when clear, 3. It seems and indeed there have ‘the most that could be claimed express been contentions to the con- ruling district courts have erred in trary, holding of a medical ” jurisdiction.’ on matters within their at conference St. Hos- 112, 239, quoting Id. at 85 S.Ct. at Parr entirely pital discretion lies within the States, v. United 351 U.S. 76 hospital Superintendent and that 912, S.Ct. 100 L.Ed. 1377 the need for such a tradi- conference has “(T)he fact this case involves a criminal tionally been determined on a case prosecution contextual relevance” reports basis. “Of 570 made case some which further militates use courts of the Columbia District States, of mandamus. Will v. respect January 1, since 1968 supra, 100, 10, 389 U.S. at n. 88 at S.Ct. persons committed under 24 D.C.Code equal importance n. 10. 276 Of is that reports 301, made 300 were after a staff by way courts will not interfere of man- approximately 270 were except merely damus to enforce minis- (Sup- a staff conference.” made without required by per- terial acts law to be plemental Eliza- Memorandum supra. See formed. 3 note Curiae, 6; Hospital, Amicus beths accord, 4). July 30, Superintendent 5. id. n. On 1968 of St. Elizabeths fulfilled his

711 legally now,6 court, bane, I en moot would move this to vacate and set 17, order of aside the October

All of out of desire the orders entered this case arise Petitioner’s present at to have his counsel Medical Conference and .Staff California, 263, heavily S.Ct. relies on Gilbert v. 388 U.S. 18 Wade, L.Ed.2d and United States v. U.S. S.Ct. clear, however, right- It is that those decisions and other totally Noting inapposite. re to-confrontation cases that “the quirements process frequently type proceeding vary due with the Supreme Court, Larche, involved” Hannah right 1502, 1513 (1960), 80 S.Ct. concludedthat the to confrontation did investigations Rights apply not conducted the Civil Commission. Hannah, inAs here Medical Conference Staff investigative purely fact-finding. adjudicate. It not does anyone’s does not hold trials or determine criminal civil or lia- bility. indict, punish, It does not issue orders. does Nor impose any legal sanctions. It does determinations make * * * depriving life, anyone property. liberty, In short (it) does not and take cannot action which will affirmative rights. legal affect purpose an individual’s of its existence * * is to find facts *. to be Cl] ^[*] t investigates any, ^[*] other ^[*] governmental agencies reports ^{[*] [*]} leaving ^[*] affirmative ^[*] where there must be ^[*] n ^[*] action, if there ^[*] action de novo. 441, 452,

Id. at (Emphasis supplied.) S.Ct. at legal There is equating basis for a Medical Conference Staff to a “confrontation” either in the traditional sense the mean- within ing of apply only prosecutive Wade-Gilbert. Those cases to critical stages. requiring diagnostic process vice of a sensitive to be con- though adversary ducted as it were an matter seems too obvious to need thing process by any- discussion. The value of that is undermined exchange views; integrity which inhibits the free process privacy imperative. lawyer presence makes of a for the patient obviously expres- a staff conference would inhibit the free exchange normally sion and of ideas occurs. The check which on the processes by .Superintendent which reaches his power conclusion is the to cross examine him. legal inquiry investigation method of unsuited to medical diagnostic to be procedures conducted. Medical should not be inhibited procedural-“due process.” non-medical notions of Indeed it is far sympathetic more relationship existing consonant between patient Doctor and inquiry that the medical be divested as much as possible adversary encourage approach an character. should Our cooperation partisanship; emphasis attitude of rather than must be on pursuit objective, the common inquiry, for an uninhibited uncluttered by the techniques devices the courtroom. statutory duty under 24 D.C.Code Elizabeths October (b) (1967) when he filed a certificate at 10:30 A.M. held medical staff con- advising compe- the Defendant was recorded ference audio tape. Supplemental tent to stand trial. Memorandum that, pursuant Curiae, Hospital, 6. We have been informed Amicus St. order, to this Court’s most recent St. at 2.

Case Details

Case Name: Rudolph N. Thornton v. Honorable Howard F. Corcoran

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

Date Published: Jan 3, 1969

Citation: 407 F.2d 695

Docket Number: 21974

Court Abbreviation: D.C. Cir.