*1 502 Stаtes, 370 Fields United v. severance. 1967); (4th 836, United F.2d 838 Cir. (2d 259, Kahn, 263 v. 366 F.2d States denied, 948,
Cir.),
S.Ct.
87
cert.
385 U.S.
(1967);
324,
Unit
v. United 379 U.S. (1964); United 13 L.Ed.2d 115, S.Ct. (7th 729, Soto, 256 F.2d
States v. 1958). cited The authorities Cir.
appellants apply do facts to the involve situ case each because incriminating evidence ations where appellant against was inadmissible against was admitted They a co-defendant.15 right a denial of each involved in to the
to cross-examine witnesses as usually criminating evidence, which was right
a confession. No such denial here with cross-examination existed
respect tes rebuttal Government’s
timony concerning the routes. bus accordingly that substan- We conclude shown, prejudice not been
tial discre- did not abuse his
the trial failing grant separate trials
tion appel- and that record entire fair received trial.
lants
Affirmed.
UNITED STATES of America
v. Appellant. McNEIL,
Charles
No. 24263. Appeals,
United States Court of District Columbia Circuit.
Argued 18, June 28, 1970. Aug.
Decided Kelly, 1966) ; States, F.2d Bruton v. United States 391 U.S. United (2d 1965); (1968) ; Barton 88 S.Ct. 758-759 Cir. L.Ed.2d (5th States, States, F.2d Flores United United 1959); (5th 1967); Schaffer v. United Cir. United Cir. States 1955). (5th Bozza, (2d Cir. Cir. 215-218 221 F.2d *2 review, adequate appellate
work for de- cisions as the one before us must such by findings accompanied and be facts Tatem United conclusions of law. See v. States, 230, 232, U.S.App.D.C. Hough (1960); United F.2d States, More- 461-462 argument over, appeared upon oral Bowman, Allen Wash- Barbara Mrs. that did not have before the below C., appellant. ington, D. for parties, it all of the evidence which the Atty., Terry, U. A. Asst. S. Mr. John least, present consider time Flannery, whom Mr. Thomas A. with to its decision. relevant Atty., response was on U. S. motion, appellee. Edwin A. for Mr. is this case do not believe We Williams, Atty., entered also Asst. U. S. reversal;1 apt summary but an one for appellee. appearance for an neither do we believe adequate permit is state of record Judge, BAZELON, Chief Before appellate proper under the stand review ROBB, Circuit MacKINNON and Accordingly, deny appellant’s ards. we Judges. summary reversal, but vacate motion for judgment the case below and remand PER CURIAM: taking of for District Court hearing, de- Court, after District parties as the such additional evidence Hospital’s appli- nied Elizabeths Saint introduce, may fur fit to and such see grant appellant cation conditional proceedings appropriate. ther be unexplicated order. The an proceedings on At of the the conclusion appellant’s is us on motion case before should file remand, the District Court summary reversal. for findings law of fact and conclusions elementary jurisdic applicable It is stand accordance that, provide a frame- in order to tion ards. Bolton 130 U.S. See No, for the of tak McNeil was tried offense THE Sir. think WITNESS: ing improved partially child minor he indecent liberties recover- guilty by ed, say. of in was reason found not I would sanity. beеn at Elizabeths un- He has St. THE he is still of COURT: But just Hospital years two since his over sound mind? condition trial and seeks release on THE He is still suffer- now WITNESS: ingest he, alcoholic, ing from from refrain the same illness? daily ing report to a clinic THE That he was ac- alcohol and COURT: quitted Anta on? for the administration antabuse. drug Yes, buse is a to become THE that causes one WITNESS : sir. Also, if he Evidence at if he released: ill drinks were alcohol. hearing danger- believe below was to effect that don’t he would drinking ous, refrained “unlikely” if he would adhere to the condi- alcohol propensity stipulated. his admitted tions such crimes manifest itself. subjected diagnosis, public Whether What is his Q should way, hazards in a Doctor? obvious inherent re Unspecified large A deviation. lease at such conditions is one sexual questions for of the vital the trial court. prognosis hearing psychiatrist THE At testified: WITNESS: you being opin- diagnosis him THE ever rid of his COURT: Do have an poor. acting prognosis for not ion [as?] to whether he has recovered antisocially very sanity? good, if he doesn’t ingest Yes, alcohol. THE sir. WITNESS: THE And he has recover- COURT: ed it? hearing important (1968); course of Lake App.D.C. understanding the issues 264, 364 an Cameron, 124 Hough case, substantial banc); I have set out below (en F.2d 657 portions transcript. supra. remand On United psy qualified *3 I. admissible, chologist competent and U.S.App. States, 113 United Jenkins v. 61-year-old appellant here banc). (era F.2d 637 D.C. acquitted March, in was man who trier of the not mean This does charge insanity by tak- of reason of of a by opinion. As we such facts is bound ing child. indecent with a minor liberties weight Jenkins, to be “The in stated given any immediately committed to Saint He was in expert opinion admitted Hospital for exam- further Elizabeths exclusively by for judge is the evidence May and, in committed ination jury.” at the period hospital indefinite to the for an was at 646. Here Initially confined treatment.1 applied. riile and the same trier of facts Pavilion, maximum se- John Howard interpreted as ex remarks could be His hospital, curity was de- unit at the he only opinion to the pressing as his shortly patient” and scribed as a “model testimony. weight psychologist’s to a thereafter less restric- transferred testimony into admitted Since that was During therapy tive service.2 intensive recognized obviously evidence the court there, im- continued to his condition legal psychologist in the sense that the prove ; episodes except “intermittent for competent testify. was drinking,”3 “continued in what exemplary remanded. pattern.” and In Vacated was an behavior July hospital of recommеnding first consid- Judge (concur- BAZELON, Chief ered him for conditional ring) : administering to him a release. After battery tests, psychological agree it conclud- I record would that the ordering ap- at justify summarily ed release was not warranted our however, did, hospital release, time. The pellant’s accord- conditional appellant ingly join transfer another ward of the court participated “therapeutic where he in a insofar as it remands this case community program taking and a of in- kind of further District Court for the patient therapy findings group tense every meets proper fact which evidence and for day.” “behavior, cannot, week His once how- conclusions law. regard- again, ever, exemplary. join was He did all that in the court’s silence expected. ing below, hearing was He entered into various the conduct of the therapies, any problems, upon never caused and the issues that arise will except my episodes view, responsibility for intermittent mand. of alco- our Accordingly, appel- justice hol intoxication.” for the administration of urged by hospital accept lant was courts of this constrains us to circuit therapy,” pri- fully which “antabuse marily consists address ourselves more these taking drug hearing matters. Since the in the Dis- —antabuse— prevent thirty minutes, “which tends to trict alcohol intoxi- Court lasted making understanding person cation ill virtue of and since a full Appellant Elizabeths the hear- in fact resided Saint trist from Saint continuously ing Elizabeths December below. since of hospital when he was committed to the Murkofsky, psychiatrist on the hos- Dr. examination of his men- hearing pital staff, testified at tal condition his arrest. widely Eliz- available Saint alcohol “is grounds. grounds regarding appellant’s progress 2. Statements abeths on the community.” you know, open are, are taken from uncontradicted psychologist psychia- of the clinical appellant release on condi- denied At antabuse.” who takes while findings fact or conclu- hearing, tions. No on anta- he had been time of the filed. of law sions were ever months. buse several Early the decision “because him not to recommend or about whether II. very thorny,” was for conditional * * * second before District appellant “presented to was only thirty Court lasted minutes.5 6Al- grand presentation, senior rounds though brief, Appel- it was confused. They con- staff of forensic services.” produced testify lant witnesses two difficulties cluded McNeil’s that Mr. on his first Dr. behalf. The was John drink- law stemmed Maher, psychologist J. on the a сlinical drink, ing: didn’t McNeil “if Mr. staff of Saint Elizabeths. Dr. Maher unlikely that his antisocial behavior *4 battery psycho- had administered a of Believing itself.” would manifest ever logical appellant tests in June overcome, the problem could this again 1970; February in in addi- hospital began plan a for his to fashion tion, he was also familiar with the re- plan to this conditional release. Crucial sults of earlier series of ad- tests whereby was a it could be as- mechanism by appellant ministered to someone else appellant tak- continue sured that would appears in 1968. It substance ing Initially, appellant was to antabuse. testimony, sought of Dr. Maher’s as he hospital remain at the but was to obtain present it, was that his re- during period, employment; outside garding appellant’s pri- rested condition “give hospital would [antabuse] marily upon Rorsсhach inkblot tests that him him swallow it.” When watch Dr. Maher had administered. community, appellant returned to the appellant had “a number or exhibited arrange hospital “to have a com- rather responses” crass sexual munity physician ad- based clinic [or] blots, chiefly genitalia. This, female minister it to him and watch him take perhaps along appellant’s with other it.” responses by to the tests administered Having plan appellant’s devised a Maher,® Dr. to the latter indicated release, hospital conditional notified appellant pre- at that time too much was the District and the Court United States occupied “with his own sexual ade- Attorney. Attorney The United States quacy.” again the tests were When release; oppose chose not but after 1970, however, administered in re- these hearing, a brief the District de- Court longer sponses evidence; al- were no appellant nied release on conditions.4 though type Dr. found Maher still “a appellant’s motion, On the court held a response there,” sexual hearing; on he did not second at the conclusion hearing, again inappropriate: the District Court once consider it it was “a what, explained any,
4. The witness at first and he never Murkofsky, psychia- was Dr. Charles his extent conclusions were based on the trist who from Saint Elizabeths also testi- other tests. hearing. Although fied at the second hardly itself, present, reporter This was the first hear- ing appear basis for Dr. Maher never commitment. does not to have been tran- explained preoccupation proceedings related how this scribed and no record of these appellant’s presently to other elements оf mental before us. state, or it could to what extent have transcript hearing occupies 5. The expected been his behavior. to influence only twenty-eight double-spaced pages of testimony This lacuna have typescript. that, been due to the fact Dr. Maher testified, disappear- Transcript Although preoccupation 6. See 10-11. Dr. had began by appellant’s appellant Maher ed to describe was time that tested sponses hospital to the other tests he ad- which the had time at ministered, interrupted was recommended him for conditional release. testing again summer response, late last female nurturing kind genitalia responses things were breasts, these female of this kind.” making he no effort there and was presentation of his testi- Maher’s Dr. hide them. seriously hampered mony, however, was Also, thеse, as well as there were intrusions: constant the trial court’s also— you is the test The Court: What you gave him, The Court: When looked at get test? the Rorschach test, you any idea Rorschach did psy- It The is a standard Witness: genitalia? represented female chological ink blot test. very I am familiar with The Court: think The Court: You still it. you? sick, don’t anybody happen How does trying feelings As am No. sexual in the Rorschach Witness: testing say, there on the test? type no of re- evidence of this was The Witness: cards themselves although sponse, type there was pictures anything. are response sexual there. But it The Court: know. nurturing response, a breasts, things kind of female ambigu- They Witness: that kind.
ous— anything in *5 The Court: Is there The I I Court: seen them. have test that Rorschach indicate would figure they can’t out what are either. person a normal female breasts? Yes, The Witness: there is. responses The Court: What are to the Rorschach test? anything The Court: there Is no, The Witness: 1969— the Rorschach test that will lead a recall, there were I four—as four— person normal to determine that there responses explicitly which were organ was a female involved? genitalia. lated to female Yes, The Witness: Your Honor. they The Court: What are ? I don’t The Court: There is? know what are. What were the The Witness: Yes. Female breast responses from the Rorschach test? good, plus response. is a What were the four? nothing The Court: There is about a female breast in the Rorschach test. you telling The Court: Are me from You Psychologist are a Clinical and you the cards showed him in the Ror- you telling me that as a re- schach test he said that it was a wom- looking sult of spots at these ink there genitalia? an’s is a female breast in there? Yеs, The Witness: sir. That was The I say Witness: didn’t there was again in 1968 and in 1969. a female breast there. I said it is not The you Court: Don’t think he is abnormal to see a female breast. mentally sick, a little then, picks if he The Court: There isn’t? something out from a Rorschach test you like that? Do think that is The nor- Witness: Female breast you mal? pick Can standard, analysis out a woman’s statistical has been genitalia in the Rorschach frequent test? shown to response be a people normal good, plus and it a is * * * response. The Witness: I did regard not finish in person The Court: A normal looks Rorschach test which indicated at Rorschach test and sees a female original that both testing in right? breast, every Certainly. normal The Not Court: The Witness: person, to do it is not abnormal but I think Dr. Ma- The Witness: what people Many it. normal do it. saying you her was that if show a Step down. That’s all. The Court: large рeople— stimulus to a number of [Transcript, pages talking The Court: You are now 14-15.] asking you about stimulus. I am
Immediately thereafter, appellant show the Rorschach cards— witness, called his second Dr. Charles The Witness: O.K. Murkofsky, psychiatrist on the staff They spots, The Court: are ink The trial court of promptly Elizabeths. Saint they? aren’t point: to the same returned Yes, The sir. Witness: Murkofsky, you Q state Dr. anything in The Court: Is there your occupation, rec- name for the there that shows a stimulus? ord, please? many The There are stim- Witness: My Murkof- A name Dr. Charles ulus. [sic] sky— anything The Is Court: there agree you The Court: Do spots those that shows a stimulus ink Psychologist result Clinical genitalia? as to female a normal of person Rorschach test that Honor, Your Witness: de- gets the idea that there is some pends person’s on what is in the head organ female there? looking who is at thеm. agree Witness: would that— person’s If a Court: head is you The Court: INo. didn’t ask looking it and he concludes there that. something that, like isn’t there you Are familiar with the Ror- something wrong him? schach test? *6 Yes, The Witness: sir. acquitted The Court: The man was indecent liberties a fe- taking with The Court: As I am. male, because he was insane. Now you going Are tell me that a nor- you give testing you are him. And person looking mal at that Rorschach him the Rorschach test he still going anything test is find resem- organ. sees a female bling organ? a female nothing you? That means Honor, The Witness: Your Oh, yes, The sir. It Witness: way say I can answer is to that some something means to me. people normal will and some won’t. The Court: What does it mean? The Court: You don’t know then. The Witness: It makes me think psychiatrist you You don’t that— Right know. ? The Court:—he is sound? your The I Witness: can’t answer question. [Transcript 21]. Moreover, appears from the tran- good. pretty The Court: That disregard that, script banc of an en You question. can’t answer the court,8 decision oí this [Transcript, at The trial court 15-16]. weight give that he no determined subject:
continued to return to psychologist’s because May incompetent psychologists The Witness: he I elaborate an believed regarding answer, testify mental Your Honor? an individual’s (en bane). 8. Jenkins v. United you go to did Murkofsky Where The Court: Shortly Dr. after condition. ? place: school took sworn, the was University of Roch- The occupation Witness: your is what? Q Doctor, ester. Psychiatrist. [sic]: The Court Minnesota? The Court: [appellant's counsel] By Rochester, York. New The Witness: you Q do? do What good school. It is a Hospital The Court: Elizabeths I work St. A part the forensic— say. going I The Witness: agree you it that I take The Court: me convince You can’t Thе Court: Psy- psychiatrist that a Clinical charged as a you man with have a give competent chologist medical type of crime— insanity? testimony as to a man’s going him. to release I am not agree. I would The Witness: Judge [Appellant’s counsel]: agree you don’t Then The Court: [-]— your any else [sic] is all. The Court: That brothers. just [Appellant’s Let me counsel]: [Appellant’s Court counsel]: question. one more ask doctor that, agrees Appeals Hon- Your going I am not to re- The Court: or. lease him. doesn’t make The Court: That Judge [Appellant’s counsel]: Appeals difference, the Court of what you going [-], to re- when are says. me. convince That doesn’t may him, I lease ask ? Well, [Appellant’s Your counsel]: I The Court: never Honor, opinion con- does Jenkins him. you proposing in its a man— vince By [appellant’s counsel] think a Clinical Thе Court: don’t Q Doctor, prognosis Psychologist any competency what recovery? this man’s total tell me a man’s mental condition what Appeals says is. The Court of he does. Prognosis? The Court: [Transcript 16-17]. [Appellant’s Yes. counsel]: Finally, proceedings as fol- closed say prog- Witness: would lows: nosis— you Court: How do know The Court: —is bad. *7 drink,
won't
if I release him?
prognosis
The
The
Witness:
because,
Well,
Your
The Witness:
diagnosis
being
him ever
rid of his
Honor,
plan
to as-
we have
devised
[unspecified
poor.
sexual
is
deviation]
sure that he takes antabuse.
acting
prognosis
The
for not
anti-
socially
very
The
good,
Court: How?
is
if he
in-
doesn’t
gest alcohol.
plan
The Witness: We
to watch
Honor,
[Appellant’s
him.
: Your
counsel]
statutory
are
dual
standards
The
How?
Court:
one—
Well,
The
him
Witness:
we watch
up
Take it
to
Court
Court:
give
hospital.
while
is in
he
We
going
Appеals.
I
to
of
am not
release
it to him and watch him
it.
swallow
him.
plan
arrange,
Our
would be to
when
gets
Very well,
and if he
[Appellant’s
the community,
counsel]:
community
have a
empha-
based clinic
Honor.
like
Your
I would
[or]
physician
thing:
administer
is
to him
This man
size one other
already
watch him
years
take it.
He has
served
old.
meaningful
minimum,
record,
of
if he had
no
review
more than
pos
merits of the trial court’s decision is
been convicted.
neither
sible. The record contains
ings
find
serving
is not
time.
He
Court:
of
of fact nor
law.8a
conclusions
is
Elizabeths.
He
at St.
adequate
Appellant
op
denied
Hon-
[Appellant’s
Your
counsel]:
portunity to
basis for
make
factual
or,
he
make that
I
not sure would
am
An en
claims clear
record.9
on
clearly.
so
distinction
disreg
banc decision of this court was
could
am
That
be.
If
Court:
Finally,
at the conclusion
arded.10
the
Appeals
wrong,
can turn
Court
hearing,
the trial court announced
loose,
If
turn him
him loose.
unwillingness
statutory
its
to follow the
nothing
it.
there
I can do
about
Congress
scheme which
created for
going
turn these
But I am not
per
the treatment and release of those
people
of this
loose that are convicted
acquitted
sons
have been
of criminal
who
type of a crime.
charges by
insanity.11
reason
We
[Appellant’s
Your Hon-
counsel]:
remain
cannot
silent
the face of such
or,
just turning
him loose.
a record.12
closely supervised
He
would be
empha
repeatedly
First. We have
every day.
take this antabuse
looking
proceedings
sized that
toward
Motion de-
The Court: All right.
patients
Eliza
Saint
nied.
strictly
Hospital
“not
beths
adver
well,
Very
[Appellant’s
sary
places
counsel]:
proceedings.”13
This fact
uniquе
upon
responsibility
Your Honor.
the court
mar
see
all
the relevant evidence is
[Transcript 25-28].
decision,14 and
al
towards
shalled
dispositions
con
short
total
ternative
III.
adequately explored.15 In
finement are
colleagues
agree
my
fully
government
present case,
did not
justify
our
record would not
suggestion
ap
oppose
hospital’s
ordering appellant’s
summarily
condi
release,
pellant
afforded conditional
tional
But
the basis
release.
government attorney’s participa
and the
custody
seeking release
8a. Where one
pp.
11. See
511-512 infra.
confinement,
find
the failure to file
ings
is far
of law
of fact and conclusions
Columbia
courts of the District of
“The
technicality. Without
more
a mere
than
with en-
themselves
not content
should
appellate
findings,
review
these
forcing
which the
minimum standards
imрossible.
In con
merits will often be
They
requires.
should also
Constitution
eventually pre
sequence,
if the
respect
example
set for the Nation an
pe
vails
will have
needless
suffered
rights
citizens.”
Jones v. Unit-
for the
makes
while the case
riod of confinement
States,
U.S.App.D.C. 284,
ed
way
remanded
its
this court
(en banc)
(plurality
F.2d
opinion).
light
findings
In-
conclusions.
U.S.App.
*8
United
Williams v.
132
(1969),
251,
U.S.App.D.C.
Cameron,
can
714
it
D.C.
407 F.2d
13.
124
Lake
hardly
(en
657,
here
268,
(1966)
court
said that
the trial
264,
364 F.2d
661
requirement.
as
And
banc),
this
was unaware of
and cases cited id. n. 10.
long
Judge
Judge Tamm, a District
court,
U.S.App.D.C.
Jacobs,
coming
experience
14.
Dixon
138
before
589,
U.S.App.D.C.
319,
20,
Clark,
596
20
n.
427 F.2d
131
326
said in Davis v.
n.
;
(No.
10, 1970)
(1968),
23,378, April
1356,
379,
Bolton
381,
F.2d
1358
404
64,
1,
findings
12 n.
395
requirement
conclu
and
(1967) ;
Lake v.
654 n. 64
was
if the
sions
not onerous
matter
“is
supra
Cameron,
13.
note
in
manner
dealt
in
conscientious
passing on the merits.”
Cameron,
13 at 268-
15. Lake v.
.
pp.
9. See
509-510 infra.
F.2d at 661-662
pp. 509,
10. See
510 infra.
Finаlly,
at
the answer.22
was minimal.16
cut off
below
tion
again in
hearing,
certainly
Accordingly,
of the
had
close
the trial court
the mid
duty
terrupted appellant’s
in
witness
right
perhaps
had
and
answer,
questions
a few
testimony
an
asked
any
it
dle of
found
which
insure that
ruling
immediately
subjected
itself,
made its
and
convincing
was
less than
taking
sought
of evid
to end the
rigorous
and
cross-examination.
Had
this,
ence.23
deserve comm
it would
done
regrettably,
ap
But
endation.17
v. United
Second.
In Jenkins
pears
more interested
that the court was
eliciting
providing
them.
answers than
(en
banc),
whose
the same
witnesses,18
regularly interrupted the
It
review instructed
action we now
quest
its own and counsel’s
answered
jury:
sought
ions,19
an
and even
to block
competent
psychologist
is not
A
contrary
appeared
swers that
to its own
give
a medical
as to a mental
interrupted
еvident views.20 It
cross-
you
Therefore,
or
will
disease
defect.
appellant’s
examination
witness
first
effect
not consider
evidence to the
point
to return to a
covered several
suffering
that the defendant
was
before,
times
and when the desired an
a mental disease or a mental defect on
forthcoming,
were still not
swers
according
10, 1959,
June
to the testi-
witness was dismissed forthwith. Nei
mony given by
psychologists.24
appellant’s
ther
nor
counsel
counsel for
We
reversed
for a new
remanded
given
government
opportu
holding
trial,
inter alia that the “critical
nity to state whether he
further
desired
respect
admissibility
factor
[of
Appellant’s
examination.21
second wit
psychologist]
aof
is the ac-
answering
question
ness was
his first
experience
tual
witness
interrupted,
when the court
asked a
probable probative
oрin-
value of his
question
own,
immediately
of its
concurring
separate
ion.”
opin-
16. I intend
this statement no criticism
say
prog-
Tlie
Witness:
government
My
whatsoever of
counsel.
nosis—
point
only that,
government
since the
'The Court:
Is bad.
oppose
had decided not
Transcript
the motion for
16, 21, 27.
release,
the trial
court had believed
Compare Transcript
(“The
20.
Court:
rigorous
necessary
cross-examination to be
nothing
There is
about a female
breast
justifiably
it could have
conducted the
test.”)
Transcript
the Rorschah
15:
itself,
leaving
examination
rather
than
you agree
The Court: Do
with the
matter
to counsel.
Psychologist
Clinical
result
per-
of the Rorschach test that a normal
not,
17.
course, suggest
I do
gets
son
the idea that
there is
fe-
some
procedure
proper
would be
in a criminal
organ
male
there?
case, or
jury.
in a case tried before a
See
agree
The Witness:
I would
that—
Green,
U.S.App.
States
United
you
Court: No.
didn’t ask
17, 1970).
(June
75, 429 F.2d
D.C.
that.
Transcript
See,
27, quoted
g., Transcript
See also
16, 21,
18.
e.
note 19
supra.
27, quoted
pages
supra.
506-509
Transcript
14-15, quoted
21.
pp.
in text at
your
Doctor,
occupation
Q19.
is what?
supra.
506-507
Psychiatrist.
The Court:
Transcript
15, quoted
p.
text
n
supra.
The Court: What does it mean?
The Witness:
It makes me think
Transcript
25-27, quoted
pp.
in text at
that—
supra.
508-509
Layton,
Cf. Gomez v.
The Court: He is sound ? .
U.S.App.D.C. 289, 291,
*9
129
394 F.2d
(1968).
766
Doctor,
prognosis
Q
what
is the
U.S.App.D.C.
306,
24. 113
at
307 F.2d at
recovery?
this man’s
643.
Prognosis?
The Court:
[Appellant’s
:
counsel] Yes.
309,
25.
Id. at
gH
Judge (now
Justice)
ion,
so,
Chief
Circuit
to do
he should have
himself
removed
Burger noted that
from the case.
Congress
Third.
has
a com-
enacted
issue is not now
never was
[t]he
dealing
prehensive
statutory
scheme
psychologist’s testimony
whether a
involuntary
with the
treatment and con-
litigation
admissible
where “san-
Broadly
mentally
finement of the
stated,
ity”
testimony
is in issue.
has
Such
ill.29
and,
mentally
who is
one
ill
be-
long been admissible in the form of
likely
illness,
cause of
mental
to in-
psychological
analysis
tests and the
jure
may
himself or
ordered
be
others
explanation
by
of such tests
to undertake a course of treatment for
psychologist.
such
No one doubts that
nothing
his
If
short of hos-
matter is admissible
26
illness.30
pital
protect
patient
confinement will
Nevertheless,
the trial
mid-
public
injury,
or the
from serious
dle
this case announced may be
as
If confine-
ordered
well.31
difference,
any
that “That doesn’t make
ordered,
patient
ment is
conditionally
un-
must be
says.
Appeals
what the Court of
That
if either he re-
released
doesn’t
me.”
“I
think
convince
don’t
27
or, although
covers his mental health
Psychologist
any
a Clinical
has
com- maining mentally
longer
ill, he is no
like-
petency to tell me what a
mental
man’s
ly
injure
persons
himself or other
if
condition is.”
28
given his freedom.32
if uncondi-
Even
warranted,
tional release
would
be
not
majority’s
I am dubious about the
con- patient
is entitled to conditional release
may
just quoted
clusion that the remarks
if alternatives less restrictive than total
fairly
interpreted
“expressing
be
as
may
confinement
fashioned
weight
[the
as to the
court’s]
adequately protect
patient
or
psychologist’s
is,
testimony”
—that
public
from serious
injury.33
indicating
judgment
as
a considered
professional qualifications
possible exception
With a
of this
not here
particular
psychologist
principles
applica-
clinical
these
were such
pertinent,34
commitments,
ble to all
divest
sub-
labelled
weight.
stantial
or
It seems
to me
thоse that occur
clear
“civil”35
acquittal
that refusal
believe
“a
of crime
reason of insan-
Clinical
Psychologist
Any
eligi-
person
any competency”
to tes-
so committed is
ity.36
tify
pertinent
nothing
on the
ble for
conditional
issues
conditions
may
less
give
than a
position
adequate
be fashioned
continuation of the
that will
rejected
we
pub-
Jenkins.
assurance that the
duty
was under
thereby
lic
will not
follow our decision
suffer serious in-
jury.
however
disagreed
much he
have
District Court,
If
unwilling
merely
it.
accept
reject
he was
or
bound
unable
or
310,
Harris,
(emphasis
supra
26.
Id.
14,
at
32.
F.2d
v.
307
at
Bolton
note
130
added).
U.S.App.D.C.
11, 12,
at
654;
Jacobs, supra
see Dixon v.
note 14.
Transcript
quoted
page
27.
in text at
Harris,
supra
33. Bolton v.
note
supra.
513
presently
tion; and,
patient
suf
is
persons
if the
who have been
jury.43 For those
illness,
fering
provisions
a mental
what effect
the
under
committed
likely
upon the
Mentally
Act44
that
illness is
have
111
Hospitalization of the
patient’s
The court
persons
“civilly
behavior.49
committed”
future
—so-called
against
necessary
facts
judicial
must
then measure these
once
—no
action is
statutory
compulsory
for
statu
the
standard
hospital
that
the
determines
the
any re
tory
treatment50
to determine
if
have been
for
release
standards
so,
regard,
hospital
If
straint
is warranted.
persons
whatsoever
met.45 In
possible
acquittal
examine
criminal
the court must next
of
ized
upon
may
insanity
placed
the
charges by
be
stand
conditions
that
reason of
release,
patient’s
to which
position.
In such
the extent
different
somewhat
may
expected
Congress,
to al
the
those
be
insure
conditions
cases
order
might
integrity
hospital’s
harm that otherwise
leviate
the
determina
patient’s
result from the
unmodified beh
patient’s
meets
tion that
the
condition
release,
If a combination of conditions
statutory
avior.51
the
standard for
may
the
preceded
be
that would reduce
provided
found
must
dangerous
likelihood of
judicial
behavior below
the
determination
commitment,
required
the
statutory
standard
standards
release have
patient’s
Harris,47
court should order the
re
been met.46 In Bolton v.
we
upon
lease
those conditions.52
upheld
expressly
distinction between
patients committed
these two classes of
responsi-
is,
The trial court
hospital.48
findings
making
up-
ble for
of fact
on which the ultimate determination
proceed
role
the court
such
patient’s eligibility
ings
for release
complex
will
ais
and difficult
It
one.
findings, however,
rest.
in-
determine,
These
must
must
first
a matter
variably
fact,
made on the basis of the
patient’s present
“be
mental condi
”Ways,’
supra
accompany-
Har-
Address Delivered at
43. See
notes 29-33
Sesquicentennial
ing
vard Law School
Cele-
text.
bration, September 22, 1967.
(1967).
44. 21 D.C.Code
501-591
§§
U.S.App.D.C. 1,
F.2d 642
47. 130
395
(1967).
45. 21 D.C.Code 546
§
(1967).
301(e) (1967).
point
46. 24 D.C.Code
§
48.
Id. at
F.2d at 653.
395
requirement
of this
is that
the standards
Jacobs,
49. Seе Dixon
138
v.
justifying release are matters of
law.
319, 325
427 F.2d
17
n.
n.
is,
patient
That
is entitled to release if
(No.
April
1970) ;
23,378,
Cross v.
longer “mentally
if,
he is no
ill” or
al-
Harris, supra note 46.
though
“mentally ill,”
he remains
he is
longer
likely
no
injure
because of
may
illness
Compulsory
treatment
if
ordered
persons
himself or other
if released.
“mentally
and,
an individual is
ill
because
Although
patient’s present
injure
mental con-
illness,
likely
is
himself
prov-
dition
a matter of fact within
persons
or
liberty.”
other
allowed to remain at
experts,
ince of the
whether
mental
545(b)
§
D.C.Code
condition
“mental
within the
is a
illness”
If no “other alternative course of treat
statutory definition, 21
protect
D.C.Code
adequately
§
will
ment”
(1967),
Similarly,
a matter
public
of law.
al-
harm,
and the
pitalization
from serious
hos
though
patient’s expected
Id.;
future be-
be ordered.
Lake
havior,
likely
Cameron,
and the
to result
U.S.App.D.C. 264,
harm
behavior,
lane).
from that
are matters for ex-
{en
stand
pert psychiatric opinion,
simply
whether
the converse
ards for release are
magnitude
compulsory
harm
war-
is of sufficient
the standards for
treatment
commitment,
the KJceli-
rant
and whether
§
or commitment. See
D.C.Code
supra
(1967)
Harris,
;
hood
warrant
of that harm is sufficient to
note 47.
Bolton v.
commitment,
again
law.
matters of
Cameron, supra note 50.
51. See Lake v.
Harris,
See Cross
301(e)
(1967) ;
See 24 D.C.Code §
1099-1101
Harris, supra
46;
“Psychiatry
Dershowitz,
Bolton
(1969) ;
Cross
Legal
note 47.
Both
‘A Knife that Cuts
Process:
nity
particular
observation
case before the
for examination and
in
53
record
consistency
charged
patient,
the internal
court.”
That
testimony,
perhaps
superintend-
experts’
duty
own
important
with the
*12
legal
ing
application
even
the witness
hospital’s
of the
their demeanor on
thе
Similarly,
particular
stand.56
the ex-
the
even where
standards
for
to
pert
testimony
uncontradicted,
patient
it
not
the court
mean that
does
might
imagine
may
opinions
possible
a situation
for un-
be
to
substitute
own
its
expert
testimony
contradicted
with re-
experts’ opportunity
ex-
in
for
which the
gard
spe-
to
matters
the
within
limited,
patient
factual
was so
amination of the
competence
psychiatrists
cialized
of
and
experience
or
such eases so
their
with
psychologists.54
minimal,
trial court would be
that
the
justified
rejecting
in
in
their
It is
the
often
case
the
with
behavioral
remedy
case,
opinions
qualified
toto.
usual
In
a
the
sciences that
such
ex-
of
perts
presumably
regard
would
order further
be to
will differ with
to the men-
appoint
patient,
tal
of the
expected
or
examination
or to
condition
future behaviоr
experts
qualified
patient.55
other
to examine the
cases,
an individual
In such
patient
testify
their conclu-
the trial
and
as to
court as trier of fact must ulti-
mately
complete
sions.
any
In no event
re-
would
resolve
relevant
in
conflicts
jection
expert testimony justify
expert
of the
testimony.
the
Such resolution
ordering
patient’s
may properly
return to the hos-
upon
be based
matters be-
pital
Instead,
period.
for an
hand,
fore
indefinite
the court in the
case
such
require
it would
experience
the court to order the
experts
relative
of the
patient’s
opinions
release:
for since
conflict,
commitment
whose
opportu-
their
opposed
application
by
Harris,
supra
release was
46,
53. Cross v.
note
135 U.S.
.
hospital because,
App.D.C.
264,
of his
case. To sciences,
perts trained behavioral diagnosis of mental diseases predicting their effects defects and upon even if human behavior. But BAKALIS, BAKALIS & NICKIE JAMES were, justify this fact not deci- would INC., Rush, Appellant, Gold t/a opinions. The on the basis those sion v. recently Supreme reiterated Court has Joy SIMONSON, Tyson and R. James G. “elementary” requirement of due Wycoff, Constituting J. Al Bernard process maker’s сon- that “the decision Beverage coholic of the Control Board * * * solely on clusion must rest District of Columbia. legal rules and evidence adduced hearing.” on the basis Decision BROTHERS, INC., Gold BAKALIS t/a Rush, Appellant, personal opinions, no the trial court’s deny founded, matter how well litigant v. right right, as well as Joy R. et al. SIMONSON impartial to cross-examination and to an 23157, Nos. 23468. decision maker.60 Appeals, United Court of States short, judi- requiring point District of Columbia Circuit. supervision patients cial of the release of 26, on Brief Jan. Submitted 1970. hospitalized acquittal crime 4, Aug. Decided 1970. insanity protect reason is to by insuring public and the statutory standards for release are not by allowing
subverted the ultimate de- according
termination be made
individual, subjective standards judicial supervision,
hospital This staff.
however, trial court does entitle the Harris, 46, (1967) ;
57.
§
See
D.C.Code
Bolton
supra,
F.2d at 1099-1101.
note 47.
Goldberg
Kelly, supra
note 59.
60.
Douglas
U.S.App.
v. United
cross-examined,
judge,
cannot be
D.C.
fairly
expected
could
no
weigh
own testi-
effect his
Goldberg
Kelly,
what
is in
397 U.S.
against
wit-
mony
of other