Thomas W. Whalem v. United States

adjudication property rights be- appellant Carol Mohler tween Williams Wagner her former husband.

Wagner, 347-348, 535-536. is so ordered. WHALEM, Appellant,

Thomas W. America,

UNITED STATES Appellee.

No. 18067. Appeals States Court District of Columbia Circuit.

Argued Dec. April 23,

Decided Bazelon, Judge, Wright Chief

Fahy, Judges, Circuit dissented. (appointed Kharasch Mr. Robert N. ap- Washington, C., court), D.

pellant. Nebeker, Q. U. S. Asst.

Mr. Frank Ache- Atty., C. whom Messrs. David with son, Atty., Blackwell and Joel D. U. S. Attys., Frescoln, Asst. S. Max U. and appellee. brief, were on Judge, Chief Before Bazelon, Wil Judge,* Circuit Senior K. Miller, bur and Fahy, Washington, Danaher, Bast Wright McGowan, and ían,† Burger, sitting Judges, en banc. Circuit Judge, BASTIAN, Senior Circuit MILLER, Cir- K. Senior whom WILBUR Judge, DANAHER, BURGER and cuit join: Judges, McGOWAN, Circuit and argued to a was first When judges, appellant, con- division three attempt robbery to commit victed sufficiency rape, the evi- questioned, jury indentification, in- of his dence alleges prop- structions which he failed erly emphasize evidence favorable case, and into evidence introduction clothing his arrest. taken from him after the divi- was issued Before sponte ordered full sua sion the Court rehearing rehearing en banc. At en namely raised, banc two other issues were (1) evidence was sufficient whether there pertaining appellant’s lack record insanity sanity to the issue of raise though appellant refused himself so, and whether in of such evi- view raising by not dence the trial erréd insanity sponte issue sua structing thereon, appel- jury despite (2) contrary; lant’s wishes to the pro- whether erred ceeding holding hear- to trial without ing to determine hearing, appellant urges, now notwithstand- his lack of to two reports competent. he was ade hold that We quately identified and instruc respects. jury fair all tions to the * Sitting by authority Judge of 28 Circuit Bastían became Senior Cir † Judge amended Nov. cuit on March clothing properly judgment into admitted that the issue of appel taken evidence since it was from left out of the case.

lant after a arrest. valid Robinson question of deal with the We first whether, appellant’s prior view denied, cert. (1956) commitment to St. S.Ct. L.Ed.2d and D. from that institution Hospital, judge erred C. the trial General issues, turning remaining Before to the holding proceeding a without to trial necessary. background we some is believe hearing of com- on the issue ap- At the of the crimes in time argu- petency Appellant’s to stand trial. pellant from St. convalescent leave was essentially his 1956 here ment is Hospital, which he been had presumption of a commitment created continuing civilly his ar- in 1956. After committed incompetency as to stand question, rest for Gov- the crimes in the insanity, affirma- well as and therefore an reciting ernment, appellant’s prior com- hearing, determination, tive based aon mitment, successfully mental moved for a contrary, was establish the appellant and examination was committed any and further a District that in event pursuant to St. Elizabeths to D.C.Code hearing always required a after Court (a). hospital superinten- 24-301 § The pursuant mental to D.G. examination subsequently dent informed the court that report (a) Code 24-301 even when the § “mentally opinion appellant in his was competent the neither accused is competent to the of understand nature requests the accused nor the Government charges pending against the him and hearing. a such properly preparation assist in the his reports came from both back defense.” The court was also informed hospitals appellant to which was referred superintendent was, appellant ap- for a mental examination pellant (at report both then time right at was it—and 1963) March at time of the juncture get guid- explicit no we crime, suffering disease, from a mental therefore, is, ance from the statute. diagnosed schizophrenic reaction, cata- express prescrip- help of an type (in remission), tonic but that procedure tion in 301 as to the to be fol- products crimes were not of this disease. point lowed this that we to resolve have Appellant’s counsel then moved for argument though objec- that, appellant further mental examination and any reports tion of kind was made to the was D. sent to C. General which any request and no kind for reported “mentally appellant made, inquiry was com- trial court competent as to able to understand the letting mitted reversible error in against proceeding him and to able proceed judicial competency without a properly preparation assist in hearing. addition, defense.” the D. C. General 301(a) Section deals in with the terms although appellant noted that man- procedure receipt to be followed on the passive aggressive ifested a dis- character court, granting after the of a motion Q., order and a low I. his condition did not examination, a mental constitute disease defect. not com- that the accused is receipt After of these neither petent event, to stand trial. objected Government nor the defense statute states: hospitals’ they certifications nor did request hearing. proceeded shall be sufficient to “[S]ueh ap- without a on the issue authorize court commit pellant’s competency. At trial no order accused to a for the counsel, mentally was raised defense ill or the unless accused acting who given objects, event, under instructions Government by him court, as well as counsel’s own after without a 301(a) and § As between jury, determina- shall make (b), differ cannot substantial competency of see the accused tion language in the used to characterize ences trial.” the court authorized the course which Congress course, concerned there Of return to follow certifica reasonable the establishment incompetency, tion by com- proper for the detention basis competency, other. restoration might be who mitment an accused being present prescription readWe mentally ill. that, very clear to the whenever effect Congress provide mecha- next had incompe receives a certification yet steps It would to follow. nism tency or a restoration certification of certainly logical just as it been more have objection by and there is Congress helpful have more would Government, accused or the either the specifically with situation had dealt may, one forthwith court the following grant- where, here, an order hospital the commit accused to a mental ing examination, hospital a mental the and, other, immediately proceed is its accused submits the competent stat- to trial. Since the stand trial. with the completely point, we is silent on ute By its unbalanced discussion the light of must deal with the situation in Congress 301(a) alternatives could § surely Congress may intended, as be what conceivably thought to have attached very paragraph discerned from the next being consequences more horrendous to following is quoted This the one above. hospital to it committed than .a 301(b), deals the with § which being competent to did to be to certified having accused, the com- where once been Contrarily, incompetent to trial. it be taken mitted to stand could the trial, super- stand is found the later to have left out on alternative intendent of be restored implicit person assumption should competency. event, In such statute forced not be to stand says: going hospi- inquiry behind the competence, tal’s certify certification superintendent shall “[T]he though objection such fact clerk of court is made to certifi- * * * and such certification shall sought. inquiry cate and no This be sufficient to authorize the court to interpretation is, however, pretty latter adjudicating enter an order thereon Congress’ destroyed by well enactment him to be 301(b). § unless the accused or Govern- objects, event, ment Accordingly, in which we conclude that court, hearing jury, after without a Congress intended a certification of shall make a determination competency following 301(a) referral § competency of the accused to should be sufficient to authorize the stand trial.” proceed in its discretion to with the trial was, unless course, accused or the Government ob Congress This the statute adopted explicit jects, purpose in which of alter case a must be holding our in Gunther.1 competency.2 held to determine This States, U.S.App 1. Gunther v. United 94 in a mental examination results certificate competency. .D.C. 215 F.2d 493 See Coffman United 1961); States, (10th 212 Cir. 2. A similar conclusion has been reached 43 Formhals v. F.2d dealing other circuits (9th 1960); Krupnick Cir. problem procedure to be followed (8th 1959) ; Cir. 4244, which, under § like 301(a), express prescrip- F. and see Miller v. United contains no (D.C.N.D.Fla.1962). Supp. tion for the court to follow when Congress procedure ex the same which statement Gunther in the teeth of Con- handling gress’ pressly contrary. for use clear mandate to established incompetency certifications either holding judge may a trial competency, restoration to and we believe proceed hospi on to trial basis applicable equally the alterna competency tal’s certification when presented in this case.3 tive objection thereto, say is made we neither By effect, arguing, imply merely nor that he must do be so should an hospital’s objected accused’s cause is not cases, competency parties. to stand trial Unquestion all either of the ably an always whether or com pursue a trial free to made, petency ap inquiry certification has been whatever into the pellant precisely necessary. would have us do what accused’s he feels Congress has hospital’s said we should not do. He conclude re enacting port inadequate sponte request the 1955 amendments and sua Congress, statute, specifi as we read elaboration of the or order a cally hearing, overruled much indeed, of the Gunther cases there and Contee which, cases held that an ac basis of he knows what cused could not be ordered to trial accused, and can see about the he so, basis notwithstanding certification of accused’s the certification. superin to stand trial We hold that he hold is not bound to tendent of hearing the mental institution where competency on the issue of has accused been To compe examined.5 when an accused is certified be adopt argument appellant’s in case this tent and there no to such cert legislate judicially would be to the rein- ification.6 impossible Congress 440, ; not that (1956) 100 L.Ed. 835 Sanders 301(a) granting Allen, tended the App.D.C. 307, of a mo- § 100 F.2d 717 (which tion for quires (1938). mental examination re- We not do consider those cases prima showing controlling facie of consequent in this In those ease. cases incompetency) or compe there had been no certificate tency commitment to St. to be suf- and' the had issue not raised ficient, more, opera- without to call into until con the collateral attach provisions 301(b) dealing filed, tion the §of viction was and it was held competency. By required hearing with restoration of this was to determine the reasoning competency Here, hand, a certification of issue. on the have other we 301(a) competency after a § examination and com- a certificate of and a statute would, 301(b), requiring hearing mitment under § authorize which we read as go the court to in ahead the trial if the accused or ob the Government objection. Admittedly jects absence of to the certification. legislative history point, is unclear on this primary 6. The concern of dissent yet congres- the result accords with often, specifically be seems to this designs speed up procedures sional “to from the prejudicing “to the accused” and merely opinion forth sets judicial hearing avoid the burden of a superintendent er-plate” conclusionary, in a “boil- and determination unless the accused form and that such are S.Rep. the Government it.” desires No. per inadequate. respect, se allWith due Cong., (1955); 84th 1st Sess. 3 suggest position we overlooks this H.R.Rep. Cong., 84th No. 1st Sess. language re- of the statute that a port certification of the superintendent to an accused’s 4. Contee v. United competency au- “shall be sufficient” to 215 F.2d appropriate entry of thorize the order. question recognize say Judge 5. We that the cannot of com- We the District petence letting to stand trial has been held abused his discretion the trial corpus proceed report, to and reviewable both habeas the basis of such a certainly objection by under 28 2255. Sanders the absence § U.S. the defendant and 83 S.Ct. other circum- (1963); superintendent’s Bishop 10 L.Ed.2d 148 stances render suspect. opinion substantially In this S.Ct. desirability competency earlier hold, tion Since, before as we adjudicated incompetent be re- competency could matter of of a on the quired following receipt hospital’s trial. to stand ques competent is a the accused adjudi- prior case there was this discretion tion that lies within the imply incompetency. We do cation of judge is not ob when the commitment fact ques party, jected real either evi- to St. Elizabeths failure to us tion is whether before Indeed, dentiary of that the fact value. hearing in consti this case hold such to the be relevant commitment would tuted an abuse discretion. motion for § whether (a) determine Appellant’s examination on his com reliance earlier granted. Whether Elizabeths as a basis St. mitment mandatory prior makes out alone urging commitment such a that a showing prima entirely facie the clear distinction overlooks decide, 301(a) do we need incompetency nor trial and between to, examina- insanity.7 motions for since two such the circumstances granted highly significant, in this case. tion were case distinction is although appellant had been com Nothing case of this in the record had he been mitted at no time holding could our warrant incompetent found to stand trial. In by proceeding discretion abused his deed, competency to stand trial was hearing. to trial without a fact, not in 1956. As matter Accordingly, we sustain to be determined respect. in this to stand trial Elizabeths and both St. difficulty aspect of the final prior proceedings One D. C. General to the 301(b) ignored. While cannot involved here. clearly author- refers to the certification Consequently, Gunther, Contee and izing an order thereon enter “the court to Kelley8 inapplicable cases are in this adjudicating be com- to accused] [the cases, case. In each of we held that those sup- [emphasis petent to stand trial” judicial competency a determination of appears plied], no formal order required, based on a was in view However, since the of this record case. judicial finding, of an earlier after certifica- judge him the trial had before hearing, incompetency of the accused’s to and D. C. General tions of St. Kelley pointed stand trial. As we out in stand of to 267, v. United 95 acting certainly of on the basis he was (1954) : permitting the case those certifications therefore, of men- proceed. question, “[A] determination to tal whether, trial re- of this in the circumstances * * * quired when has case, there order was formal the absence of an earlier sufficiently prejudicial appellant determination to re- to of incompetency subsequent ju- vacating and no quire his our conviction. competency.” dicial determination of think a reversal on basis We [Emphasis supplied.] procedural would an of such a defect Similarly, emphasis case, in the Gunther of over unwarranted form sub- elevation prior placed deter- was on stance. There had been need to find restora- grounds, question on other 366 U.S. case there is no no- rev’d of lack of (1961). S.Ct. L.Ed.2d 84 tice to the defendant and his counsel acceptance or of their of it U.S.App. Kelley objection, appear nor there any 267, 221 to F.2d 822 such other circumstances. D.C. Stewart 159, 161, appellant’s incompetency, rely mination fendant’s affirmative refusal present ground, before certifications this the automatic commitment judge, 24-301(d) procedures neither an trial of D.C.Code § request Overholser, for apply. Lynch certifications nor a would not made, finally, reference and neither 82 S.Ct. 8 L.Ed.2d dependence appellant’s incom- nor petency appears record. We major One of the foundations that, of the are law is the structure the criminal was harm- to enter a formal order failure responsibility, concept law and the strongly suggest error, although less other clear that whose acts would future orders be entered crime wise be criminal has committed no to record the fact District cases age incapacity at all if because due Judge report and that considered the responsible or condition he is mental not parties. There is available to acts. If those he does know what not suggestion District in this that the case doing or he is cannot control conduct his Judge ignored not act- or was product are the his acts of a proceeding it in Nor to trial. defect, morally disease or he is blameless of either there indication a lack criminally responsible. and not opportunity notice certifications judgment society and the law object to them. respect any given is tested in case posture Thus the as we turn inquiry sanity into the of the accused. sanity words, legal to the is that issue other definition defense, insanity to assist in a criminal case codifica is a compe- society is whether or not judgment tion of the moral may plead defendant respects tent responsibility; refuse man’s criminal sanity though eyes there facts and if man is insane in the defense; support society available to law, eyes he is blameless in the so, judge whether subject error punishment commits and is not raising insanity sua criminal courts.9 instructing sponte jury thereon courtroom confrontations (assuming, course, that the trial society the between the individual and support knows the facts which could uphold must this structural insanity plea). by refusing foundation the con allow view, In our defendant obviously irrespon mentally viction of an keep the issue of out of defendant, sible suffi when there is altogether. may, the if he He cient to a defendant’s mental wishes, responsibility crime, refuse to raise of in the issue at the time of the sanity, case, not, proper but he part in a must that become case. issue of the injecting prevent judge the court it. We from Just as the must the insist that corpus as much as held this proved in Overholser v. delicti be before a defend Lynch, U.S.App.D.C. 288 F.2d convicted, ant who has confessed aspect judge and that of our hold so too must forestall the convic Supreme was not eyes disturbed tion of who in law is However, acquit mentally responsible Court. the event not for his other insanity following tal reason of de- that, criminal wise acts. believe We then legal 9. “The and moral of the traditions of a mental disease or defect as those require who, herein, world western those that terms are used moral blame shall attach, their own free will evil and with intent not and hence will not be there rea), (sometimes responsibility.” mens called commit criminal Durham v. law, acts which shall he violate the criminally responsible 862, 876, acts. those 45 A.L.R..2d 1430 Our traditions also that where product such acts stem from and are the judge Judge, justice, BAZELON, with whom pursuit Chief trial Judge, impose WRIGHT, an Circuit to J. SKELLY have the discretion must (dissenting). a defendant concurs unwanted defense proof consequent additional burden Appellant for sexual as- was convicted prosecutor. So, our on the Government robbery. had been ad- He sault and was a case there query is whether civilly judged com- of unsound mind required factors combination Hospital to mitted St. Elizabeths inject insanity judge trial to following years old, “an he when was 13 existed, for, his if failure such factors year woman old act homicide and consti so is an abuse discretion who, attempted him to incite he said had tutes error.10 sexually.” the Mental At time cating Accordingly, There was other cross-examination been trial, defense counsel informed the court none were details erly grounds judge, gated jecting pellant convictions are affirmed. there that both he and stances it should did Government was There Affirmed. insanity not abuse his discretion time of committed to St. advised a defense of indicating was, in a bench no the issue of were not available where the attack took In the instant be raised. mental disease any insanity given. conclude that testimony by appellant on issue should there defense insanity familiar with course, trying brought out conference, lack insanity his client Under testimony, being Near the Elizabeths, counsel11 issue to he had instructions request by show not productivity). these (the both into the case. agreed quite defect, previously end error, place. At be raised. since one indi circum but raised prop ne ap in ment Whalem with Mental amination from time to time. The Health Superintendent examined and sound mind quiry occurred still on discharged On the After products suffering “mentally competent Type Schizophrenic Reaction, Catatonic leged against September 28, 1962, [T]hat court, he By preparation nature obtained convalescent Commission found day offenses diagnosis, was (In indictment seven months later letter he is him and to assist without elaboration pursuant St. from the of this mental of this suffering on or about Remission), placed Deficiency.” from mental found dated March * * * now, and was an order ^[*] leave. report, herein, to D.C.Code § charges pending * * Hospital’s from convalescent but Whalem had to understand defense. for mental alleged crimes properly in him “of Whalem while he was the Govern- illness.1 5, 1963, committing disease, Psychosis February informed Hospital roll * * its leave al 24- un- ex- patients notation “condi-

civil with the jail, improved” WASHINGTON, tion and transferred Judge, Circuit did custody the United States Marshal. participate opinion in this but re- right The ordered further mental of his a serves file a statement Hospital on date. examination at D. C. views a later General objected rigid 11. Defense 10. No standard counsel had to the exists to control' the testimony grounds deciding on the it were District it Court whether require insanity probably admitted he would have raise to be insanity issue. submitted. As a matter within the sound Court, discretion of the District did The not mention mental de question must be a ficiency, resolved on case a a condition which was factor case basis. in the 1956 civil commitment. urging that, circumstances, counsel’s be an abuse of defense because it would alleged judge or crimes occurred while Whalem discretion not to take one leave, aponte.3 these courses sua was on Eliza convalescent “St. the other position is beths in no to render reading concur in of the statute. I impartial is [on the rejects view, ap properly The court reported, D. with sue].” C. General also lawyers parently held some elaboration, out “men that Whalem was respecting judges,4 hospital reports tally competent as under to be able to binding upon trial are proceedings against stand the him and to error, my opinion, court. Its lies properly prepara able assist in the its determination that discretion tion of his defense.” not here abused. brought thereupon Whalem I think the must exercise trial trial. Defense counsel did not raise the require his discretion to elaboration issue of his record here, where, rec consideration, discloses no cur ord is because a uninformative quiry or determination of the issue. sory report ma filed.5 As the has been II jority recognize, determination com “ * ** majority opinion The construes D.C. petency requires a pro Code 24-301 to establish a uniform § psychiatric judgment clinical but also cedure for com determination of knowledge judgment based Upon receiving petency. psychiatric proceedings pecul criminal is adjudicate report, judge may iarly competence within incompetent competent, accused or as the judge.”6 then, Necessarily, it recommends. Or he order information who must have the hearing, or to elabo conclusion relevant to A naked decision. report. Upon rate its to the “properly that an can assist accused report, grant request the court must preparation and under of his defense And, or elaboration. charge certain pending stand the nature 2. proceed- also noted Whalem “unable to understand the pas- “does exhibit ings against manifestations properly him to assist sive-aggressive defense”), character disorder preparation with a of may hos- low mistakenly normal or borderline intellectual en- pital believe authorities I.Q. dowment. He achieved a they maximum are allowed (intellectual quotient) eighty-four Report of the Com- decide the issue. * * my opinion *. this character mittee of the Judicial Conference disorder does not constitute mental District Columbia Problems Con- disease or defect." Mental Examination of the nected with Cases, Accused in Criminal Before Trial right 3. Whatever a defendant’s to waive 36-42 hereinafter cited insanity defense, he cannot waive Report. competency, Seidner v. Unit U.S.App.D.C. 214, ed 260 F. ; may (1958) 2d 732 raised Gunther United court, Government, 243, 246, or defense coun 4244. sel, 24-301; “[Competency] D.C.Code the intellectual denotes capacity and emotional the accused to g., Heath, 4. E. States D.D.C. perform the functions which are essen 126-63, hearing January Crim.No. accuracy tial fairness and (“The hospital says compe he is * * * ques proceeding. criminal * * * competent”); tent he is Unit tion whether ill Wider, ed States v. D.D.C.Crim.No.849 specific functions ness has disabled the of * * * (“ psychiatrist I am not a personality policy in which sound * * * psychiatrists say and these justice require administration of criminal before the accused * * * mentally competent ”). that he subjected employs adversary proceedings charge 5. Since the District Court a on the against of form for order examination him.” memoran Government’s phrased legal p. Pouncey in terms of of dum United No. competency (i. e., whether the defendant 18565. sary against provides no inde basis for because it assumed that him” views judgment.7 “ade pendent The of medical would authorities Bbe quately test their re the accused was covered written needs to know how port.” ed, what, what mental char and for and examining psychiatrists acteristics congressional importance inquiry.8 He believed relevant assumption that information essential oppos there are needs know whether “adequately would be covered” views, diagnostic minority factors highlighted by resolved, how conflicts were and how parallel It statute. construction from the raw each examiner reasoned could would be if an accused intolerable “legal” psychiatric his data to conclus incompetent mere be committed as ions.9 basis of an unelaborated statement suggests conclusion, Although majority simply one ob because jected. are for on occasion Such commitments “circumstances” protections period, a indefinite without the elaboration of before pro conclusory approves of either commitment civil form of questions due that such circumstances cedures. Serious which assures light.10 process they I would not would arise if were rested never come to will ledge Congress purpose inquiry inf and thus on so narrow attribute accept hospital permit ormation.13 the trial court on faith alone. Committee conclusions report justifying Moreover, con reports of the 1955 amendments to gressional assumption provide an could assumption Code 24-301 reveal decision, intelligent basis meaningful judges receive would burdening hospital authorities through reports. information with attendance court. Such Congress’ possible concern was with dist required federal in other have been if burden medical resorces recently ricts,14 recommended and were every deci our strongest by a Confer terms Judicial It sion Gunther United States.11 this burden was unneces- circuit.15 reasoned ence Committee in this Thomas, Ineompeteney 7. See Hess & for a reasons denote statement Procedures, Results, and Trial: it- Stand well the conclusion conclusion as self, weight placed Problems, Psychiatry 119 Am.T. thus will bear study incompe legis- especially 715-16 in view it— tency Michigan: gloss placed history “[T]he to stand trial in lative physician nationally similar, courts fail use 18 U.S.C. majority appropriate statute, by applicable role. The States empty psychiatrists’ reports were District District Courts Western meaningless, accepted yet Missouri, note 14 infra. upon by they con acted the courts as Holloway supra; 11. Note con tained information which could be 1964. No. decided Nov. such, and, strued as evidence upon.” decided H.R.Rep.No.892, Cong., 1st Sess. 12. 84th Cong., S.Rep.No.1170, (1955); 84th examining psy- 8. It well be 1st Sess. 12 require legal assistance in de- chiatrists Foote, 13. A Comment on Pre-Trial See requirements termining compe- Defendants, Criminal Commitment tency, Report at 99-100. 108 U.Pa.L.Rev. 832 Report Oompare 9. at with id. at 36-38 Missouri, District The Western 118-24. Report at 127. notable Federal Prisoners Medical Center concluding, 10. In at note the stat- Missouri, perhaps Springfield, contemplates report, ute a short-form facility psychiatric resources federal comparable majority put seem to ail reli- their Elizabeths, is within to St. statutory ance on the use of the word District. “opinion.” I believe that word, commonly legal passim. used contexts Report, 822 opinion Superintendent finement, St. even if one is not. But any psychia reports empty other both state conclusions. judicial signifi is medical Hence

trist to render discretion is not keep cantly one.16 If more the statute can be read informed two than one. legal my psychiatric warning experts their within sounded respective competence, poor previous adjudication areas of of in sanity statutory other construction to read it makes the information before plainly wise. insufficient for the . determination of fitness to stand trial Whatever doubts exist as sufficiency conclusory reports as a Since I conclude that the record on determining competency basis for competency fatally deficient, it is un cases, clearly reports other necessary to consider whether the trial insufficient the circumstances However, acted it.20 the ma pro case. At ceedings, time of these criminal jority’s inference deci outstanding judi there was an sion on was in fact made is adjudication insanity, cial which could support. statutory without record Both subsequent judi not be altered without provisions majority discussed re cial action. There such action. quire judicial action order. No rea Insanity presumed to continue until given why requirement son is the same contrary shown,17 pre and this apply does not here. Unless the record sumption is relevant to an accused’s com makes clear that the matter has been petency Supreme The trial.18 considered,21 proper judicial I think ac strongly implied pre Court has that this tion should inferred in the absence sumption question of raises sufficient equally an order. A silent record is hearing.19 a full consistent with either a failure decide majority The notes that there are two issue, psy or a mistaken belief hospital reports in this case—one from binding.22 chiatric views are In view of St. Elizabeths and one from C.D. Gen possibilities, Hospital. these failure to point eral record’s seems to that two compe are sufficient to over reveal awareness prior come inferences con- from the tency issue cannot deemed harmless. States, 16. See v. Durham United 94 pleaded guilty U.S. He still under while App.D.C. 228, (1954); adjudication 214 insanity. ensuing F.2d 862 States, v. action, ap- Carter corpus United 102 habeas the court of 227, (1957). D.C. peals 252 F.2d 608 noted that was the court’s “Hit duty, having after called atten- States, 978, 17. Hurt 327 F.2d prisoner tion the fact at (8th 1964); 981 Cir. Kitchens v. United adjudged had bar and had insane (10th 272 F.2d 760 Cir. asylum, been an inmate of an insane 1959); Life Ins. Co. Va. v. Herr finding amake as to the mental condition mann, (Mun.Ct.App.D.C. 35 828 A.2d of the accused.” But that court held 1944). Overholser, Cf. Orencia v. 82 questioned that since the trial had U.S.App.D.C. 285, 287, F.2d 163 petitioner length, implied there was an (1947); Barry White, App. 765 finding competence. Supreme 64 F.2d 707 Court reversed and remanded. 18. Simmons v. United 253 F.2d reason, 20. For the same I do con (8th ; Ashley 1958) Cir. v. Pes majority’s suggestion sider the cor, (8th 1945). Cir. cases, judges some must refuse to Hudspeth, 19. In Frame v. allow waiver defense. Cf. Report 60 versing, 84 L.Ed. re S.Ct. at 85-92. (10th 1939), F.2d Cir. Kennedy Cooper & adjudicated in the defendant had been U.S.App.D.C. 142, sane and committed to a De escaped January cember 1935. He charged. supra. 1936 and committed crimes Note 4

823 or presenting a new trial.23 I think there must defense,”27 incompetency. some questions Ill impossible to render for counsel times be seems A the role of counsel word about oppor effective assistance appropriate. is no more bound Counsel experts psychiatric tunity to consult report. psychiatric than requisites of ex order understand duty de informed He has a meaning and and to assess the amination to de order tails the examination in so, reliability If he diagnosis.28 adequate accord termine whether request court such inform the professional medical standards.24 Whether not he needs such services. his own observa He should make known services, so the issue and to the tions to the court.25 important to the accused and “boiler-plate” In all where cases be decided default. it should not filed, request re an order are he should event, quiring their elaboration. BAZELON, Judge, Chief file a spread record before he should on the expression further of his views. information neces the court all available sary if And an informed decision.26 for Judge FAHY, (dissenting): Circuit he is court has not satisfied that previously Appellant had been ad- information, plenary he should seek civilly judged of unsound mind and com- hearing issue. mitted to St. easily responsibilities are These leave when the conduct convalescent appointed discharged, especially agree I tried he was occurred. great Judge number counsel. are “[T]here Chief Bazelon that these indigent relatively answer to the few circumstances defendants go competency to lawyers of his to trial familiar with criminal Hence, very followed deter- practice. often neces- it is least a more elaborate re- sary lawyers mination at appoint who understand- Elizabeths, port practice, also followed ably from-St. little about such know special determination. difficulties about less opin- 538, (1964) (concurring Reversal, 539 n. 4 remand for nune 23. rather than ion). pro proceedings, seems to be the tune remedy Supreme proper of the view supra. notes 7-9 26. See text at remedy rejection remand Court’s of the 402, Dusky in 403, v. United v. United 118 27. Jackson 4 L.Ed.2d 824 80 S.Ct. (1964) (sep F.2d held that because The Court opinion). arate Nickerson, Expert Technical retrospectively 28. “difficulties deter- Trial, 50 A.B.A.J. petitioner’s competency Witness mining availa For ago, discussion year than a we reverse more bility on a cost-free of these services judgment Appeals the Court Brennan, indigents, Law see conviction, basis to affirming judgment Defending Psychiatry Must Join in and Mentally and remand the case to the District Criminals, A.B.A.J. Ill for a new to ascertain Court petitioner’s Bazelon, (1963); The Re 242-43 present sponsibility the Accused —and peti- new stand and for a Psychiatrist, competent.” Am. Bull.N.Y.Beanch, tioner is found compare (Feb. 1962); Psych.Ass’n 28-35, Report 97-99. Act, recently Criminal Justice enacted 3006A(e). Kennedy Cooper Compare note 8 su See & pra.

Case Details

Case Name: Thomas W. Whalem v. United States

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

Date Published: Apr 23, 1965

Citation: 346 F.2d 812

Docket Number: 18067_1

Court Abbreviation: D.C. Cir.