United States v. Lavance Greene, United States of America v. Randolph Greene

(Title 22, D.C.Code) with felo- the local Joseph Washington, (ap- Forer, ny challenges He statute. appellants. pointed by Court), for placed re- burden on LaVance Greene Jones, Atty., Asst. U.S. Robert Alan garding We instructions. Jr., Titus, with whom Harold U.S. H. judgments (felo- affirm the Count Terry Atty., H. John Col- William ny murder), 9, 11, and 13 Counts Jr., lins, Attys., Asst. were (armed Greene), robbery, LaVance as to brief, appellee. Randolph 6 as Count Greene. ROBB, Before LEVENTHAL Cir remaining judgments We vacate GASCH,* Judges, and cuit OLIVER conviction as LaVance Greene. Judge United States District of Columbia. I. CHALLENGE THE JURY SELEC- TO Judge: GASCH, District TION SYSTEM Greene, Randolph Appellant while respect serving years first for armed of 20 With sentence sys namely, jury challenge, selection robbery, was, mother’s re- bank tem, permitted trial record quest, the funeral reflects to attend * pursuant 292(a). Sitting by designation § U.S.C. the ba- occasions, to conclude that judge, extended is reasonable on two It filing well pretrial motions was motions could sis these time within lawyers comprise who request de- known to the was made filed. No this motion re- to file motion to dismiss Failure to file a fense counsel Service. grounds citing jury motion as the selec- similar indictment because day until January 17, 1972, the case system filed the Johnson1 until filing untimely. untimely. challenge stamps day This trial. Appellate uninformed as to counsel acknowledges only six of Counsel defense first counsel for the when trial challenges possible peremptory respect any problem learned of in the were made counsel defense instant case. in the selection selecting process petit jury. He swearing filing this motion Counsel as to conceded he was uninformed Miss Sar- affidavit was composition petit jury, is to Defender ah Brown of the Public E. ages were, their say, their or what what Court, of trial The records the Service. persists, He how- economic status was. notice, may in- take of which this Court saying ever, jury in selection that the raising the motion dicate that a similar fairly young people system does not select points filed in United same States poor people. and Johnson, Case No. 1690-71. Criminal Jury and Act of Selection Service pressing motions these similar Counsel 90-274, 1968, re- Pub.L. March Robert in the Johnson ease were Mr. litigants quires right that shall have the Zwerling, Weinberg Matthew and Mr. by grand petit, jury, to trial both Defender of Public Service. also the selected at random from a cross-sec- fair these similar motions The date on which community the tion of district the compa- filed and documented with

were (Section wherein the convenes. It material was October rable 1861). prohibits Section 1862 exclusion for the motion the basis is clear that from service of citizen on the judge in the in- filed before the trial ground race, color, religion, sex, of na- Brown’s was known to Miss stant case origin, tional or economic Sec- status. October, early office as as the 28th provides plan tion 1863 that a be devised approved by the District 1867(a) Jury the the Judicial Council of the Selection Circuit and Section Judge the Chief the Act of Pub.L. 274 Court. and Service conformity Congress, et with the authorization the 90th 28 U.S.C. § paragraph seq., (b)(2), plan provides contained follows: City District utilized the Direc- this (a) cases, In criminal before tory rather than the voter No chal- list. begins, or with- dire examination voir lenge jurors was made selected days dis- the defendant seven after grand petit jury jury panel and the discovered, could covered or have randomly were from the selected grounds diligence, the exercise of City Directory in accordance with the earlier, therefor, the de- whichever is approved plan. Circuit may dismiss the in- fendant move to day trial, stay proceedings The motion, filed on the or dictment against ground conclusory contains certain statements him on the of substan- any adequate underlying comply provi- without factual tial failure to with the selecting poor data. Counsel contends title sions grand young petit jury. (Emphasis sup- and the are excluded from the jury plan. plied.) selection The record discloses alleged by 1. It the matters Public Defender is further noted that in the Johnson matter, case, Judge Bryant having B. Service William of the United considered in- did overrule to dismiss District Court did set the matter motion hearing having testimony after on taken dictment. (1st 1970), Federal all 2d 564 Cir. exclusion account no evidence of level and origin, color, religion, courts, both at the national race, sex, category 1862). ap- level, have held that (§ What circuit or economic status cognizable “young persons” not a pellants contend, their as we understand mir systematically argument, rolls that must be certain class is that since procedures. jury selection Manpower and the Bail rored Commission F.Supp. Guzman, 337 Agency applicant reflect a substan- United States v. list (S.D.N.Y.1972). said at persons The Court percentage of not listed tial page Directory City 146: selection process must deficient. age be similarity in The mere fact while it thesis v. Jury also clear that requirement section tistical there Southern Pacific Florida, Selection are propounded mirror of fairly representative As matter clear 90 L.Ed. 368 U.S. number of that there is community Act is that the the the Co., by appellants. jury pool community. Hoyt to obtain objections no intention 82 (1946)), constitutional (see decision of a Thiel v. cross- a sta First, it is law, 7 cannot, fine successfully attacked measuring arbitrarily any jury sarily drawing cases cited cept ^[******] In accordance with the system. constitute valid cognizable proposition the selection above, drawn itself, age group lines. legality of this court age group. system could be sufficient brackets categories long line of members of If jury cannot ac- strategic neces- selec- were, de- fact, if it The L.Ed.2d 118 effect, To v. the same States see United young people fact, are fewer that there Gargan, (W.D. F.Supp. Wis. proportions jury on exact the than the Gargan 1970). The case was affirmed young community persons in does the by the sub nom. United Seventh Circuit nonrepresenta jury not of itself amake (7th Gast, States Cir. v. 457 F.2d 141 Alabama, tive. Swain v. 1972). Judge Frank decision Kaufman’s L.Ed.2d Cohen, F.Supp. in v. United States (D. by 1967), the affirmed Md. emphasis It bears that there is no Fourth United States Circuit sub nom. purpose- claim in the case before us of a (4th v. Cir. F.2d DiTommaso, young ful persons, only exclusion of but 1968). In affirming, the Fourth Circuit system jury a claim that the selection said: under-representation. in results age represen- As to as a measure Jury The itself does Selection Act tation, we believe that members do not young people refer to as a Seri class. age arbitrarily brackets nec- drawn question young ous arises as to whether essarily categories for constitute valid people are an No cri identifiable class. legality measuring selec- the teria in are set forth Act the on the ba tion. sis of which the class described. 405 F.2d at 391. people Young by are characterized as many variables, varying effect, philosophies, To the same see States 1971). education, (5th earning pro- capacities, Kuhn, old Cir. F.2d as Judge pie, aged interesting Cof- people, any or It is to note middle or other concerning fin, group opinion the First who the which known and wrote ad supra, Butera, excep mitted in a subse- variables Circuit in exist. the With Camara, quent case, tion of Butera,2 F. “young rejected. explanation In Butera challenge ju- the was directed at The away by key system people likely prior in the ries drawn to be man were more Jury pursuing in a to be or effective date of or education service Selection hearing, hardship category.” was, Service Act of 1968. It after * * * rejected perpetrating attempt- in out of hand a ing any persons perpetrate punisha- under contention that 25 were offense grand penitentia- juries imprisonment underrepresented ble on * * ry, (Emphasis added.) Massachusetts. *. purpose- a claim In the absence of rescuing prisoner a federal crime of problems exclusion, ful we see serious 752(a). is defined 18 U.S.C. § legal on statistical under- claim based argues appellant the term representation sub-class “any 22-2401 “in- offense” in Section middle-aged, young, middle-in- felonies created local cludes college graduates, come, laborers, manual the national felonies infinitum, on, so ad as to all Contending created U.S.Code.” lawyers identify may matters that some rescuing prisoner “is exclusive- having bearing jury’s as on the action. ly ap- crime”, a national counsel for thought We have it useful to discuss pellant conclusion there reaches problems by appellant’s presented thesis is no statute which creates the offense even of the lack of time- though, view alleged support in the third count. ly objection, we do not decide mat- expressed of this thesis doubt ter on the merits. Congress leg- “parochial penal intended alleged underrepresen As islation”, such the District Colum- persons tation of lower economic applied implement- statute, bia to be showing group, no whatsoever has been ing creating statutes “national crimes”. attempted intentional dele show favoring It is said “a construction such persons. By referring tion of such unnecessary implementation produce will part sampling, random on the efforts harsh results” in that discriminatory, persons to establish that statisticians degree penalty for first mur- Manpower rolls, Commission der will be more in the District severe among Agency lists, Bail clients of of Columbia elsewhere under than Neighborhood Legal Services, are statute. underrepresented, simply counsel has question presented demonstrated one reason that for or oth one of is persons er likely congressional Congress these more are move did intent: in general popu than other of plain “any members tend the words offense” to lation, supplied but no indi evidence is include a Title offense in 18 committed cating exclusionary practices. That the District of think Columbia? We prohibits. Congress what Act Exclusion of did so intend. The Federal day Thiel, sy/pra, laborers was suffi Criminal Code in Title embodied 18 and cient Here, to invalidate the conviction. the District of Columbia Criminal Code compa the Court is confronted with no of Title 22 were both enacted Con gress rable togeth situation. and to exist were intended States, er. Johnson v. 225 U.S. United II. 405, 748, 56 L.Ed. 1142 they We believe further were in THE FELONY MURDER other, tended to mesh each and CONVICTION they past. have been so construed The third count indict Thus a Co violation of District of ment on which La Greene con Vance held of lumbia Code been to be an has victed is drawn under 22 D.C.Code § against States; fense the United and an (1967) charges 2401 him with first good alleges indictment a con degree perpe murder committed while spiracy under the federal com statute to trating rescuing the crime of a federal against mit an offense the United States (cid:127) prisoner. pertinent part, In 22 D.C. by violating the Columbia District Code 2401 reads follows: § as App.D. Cella, United Code. 37 being Whoever, denied, memory of sound C. 423 223 cert. U.S. (con- (1912) discretion, purposely, another kills S.Ct. L.Ed. coverage spiracy Colum to violate the District of felony of the federal mur- law); shop Fletcher prosecution v. Unit der bia bucket statute. Whether (con brought App.D.C. (1914) States, 42 jurisdiction ed in this under wrongfully spiracy a woman of to accuse brought D.C.Code or whether it is under perjury); unchastity applicable and to commit section of the United App.D.C. States, 54 Arnstein United solely States Code is matter confided denied, 296 F. cert. discretion the United States (1924) Attorney. L.Ed. 867 bring (conspiracy stock into stolen Congress was not limited in the Columbia); see Beard specification degree first States, App.D.C. felony murder to the felonies set forth denied, cert. Code, pertinent the Federal (conspiracy (1936) L.Ed. special murder within maritime laws); gambling Lee v. violate D.C. cf. jurisdiction territorial the United App.D.C. States, 147, 112 F. Certainly see 18 U.S.C. § (1940); Monroe v. United 2d 46 objec there would be no constitutional F.2d 49 degree felony tion to a trial for first (conspiracy bribery). to commit in, say, Virginia, if that com short, long understood and monwealth in defined that offense reciprocal are the two codes held purposeful clude homicides that were operation. their (though falling premeditat short adopt appellant’s construction To ed) and were committed in the course result, one lead to an anomalous would felony escape from custo lawful conceivably Congress could have including dy, homicides, perhaps by during intended. If one killed standers, felony in the course of the robbery of a street course escaping from a Federal marshal. Con bank, prosecuted of a be front he could gress, legislating for the District of D.C.Code, murder under Columbia, powers had all the of the Vir during robbery in a but if course ginia legislature legislate concerning killing occurred, robber bank occurring homicides within the territori prosecuted mur- could Virginia, go al limits be could under a con- der the D.C.Code. Such yond the Federal maritime code. rejected. struction must be argument that our charge Counsel also attacks “produce construction will discriminato- in Count 3 for the reason that the trial ry, harsh results” is answered John- court did not on all ele instruct the supra. son v. As the Su- Particularly, says ments. he that the preme (225 418, Court said at U.S. S. jury trial court did tell the not that 752): nothing certainly Ct. at “There is required prove, was to punishing anomalous in crime of among things, other that LaVance jurisdic- differently murder in different memory Greene was of sound and discre legis- application It tions. is but the of allegation tion. It is well settled that no lation to conditions.” indictment, in is argues

Appellant language nor does the 2401 of also that he Section equal protection require denied Title 22 of the was of the D.C.Code that laws allegation indictment because that breadth District of include felony memory statute; the defendant was of sound and Columbia that is say, alleges States,3 to he discretion. that it is broader v. United than Jones “Appellant argues point adversely his cede the by them indictment was was decided They in defective it did not this court in Hill v. United States. contain phrase ‘being memory request and reexamination of that case sound discre- tion’, statutory which is in later definition of cases in which it has been We cited. degree candidly not have the matter and are first murder. con- reexamined Counsel 301(j), amended, 276, 398, U.S.App.D.C. Section evidence. as provides: 913, 1260, denied, cert. U.S. Coleman 8 L.Ed.2d 406 See also Insanity not in shall be a defense 210, States, 111 v. United proceeding in criminal the United denied, 813, 555, U.S. F.2d cert. Court the District rehearing L.Ed.2d Superior or in the Court Columbia denied, 369 7 L. Columbia, of the District of unless the Coleman, In the de Ed.2d pro- attorney or in accused his such degree fendant was convicted of first ceeding, at the time accused enters the in murder. attacked Counsel guilty plea of or fifteen within it did dictment for the reason that days thereafter time such later statutory allegation contain the that the good may per- as the court cause memory defendant was of sound and dis mit, files with the court and serves recognized cretion. He that such con a. upon prosecuting attorney written rejected by specifically tention had been rely on notice of his intention to such (Hill this Hill v. United person defense. No an of- accused of case, States) App.D.C. 400-402.4 ground acquitted fense shall be Green, he insane at the time of its In United States v. insanity, App.D.C. 222, commission unless his re- gardless issue, who raises af- footnote we affirmed we held in what firmatively prepon- supra. Coleman, established Hill and (Emphasis derance the evidence. instructing The trial court in supplied.) (Tr. on the elements of 985) clearly explicit- set forth them presents ques- post This ease no ex facto ly. ample There is the record evi- tion, provision as the became effective support jury’s'finding dence to February 1971, prior Septem- guilty. ber date of the homicide

this case. III. Appellant’s first attack INSANITY AS A DEFENSE question applies statute in productivity. Appellant 207(6) insanity and not He attacks Section wrong clearly the District Reform this for the reason Columbia Court Act and Criminal is addressed to the defense Procedure Act of P. insanity, 91-358, which, jurisdiction, L. óf in this which added a new sentence charged 301(j), end the time of at the of 24 the offense so § indictment, place unitary concept upon as this burden a defendant asserting required proof as defense productivity.5 preponderance this defense persuaded discretion, change ruling. as the va- mind and essential The statu tory lidity then ex- definition of the indictment.’ view is the common-law definition given by pressed, unimpaired by any holding Blackstone Coke. intervening jurisdiction years, Judge by this must be in court over it was held Cox light quoted phrase that we Guiteau’s also in of the fact Case considered treating felony-murder.” merely responsibly Cole- means are here of ‘a sane mind’. U.S.App.D.C. case, supra, States, The Hill man 111 at in v. others. United followed allegation 213, required An F.2d 295 of in an U.S.App.D.C. 283-284, indictment.” 111 in the time trial was The rule effect at of 296 F.2d at 405. States, 94 U.S. Durham v. United that of “There, 228, pointed App.D.C. out, 862 the District U.S.App.D. v. 114 of Columbia McDonald United had taken the common law of Maryland (1962), 120, 1801, has which in C. F.2d 847 and since followed it. had superseded The since definition in the found Code U.S.App.D.C. 1, law, Brawner, in F.2d 1903 was and it that of common case, necessary, was ‘not in view charge the accused sound er) argues prose- crimes Appellant that the those are next —whether in In cuted the United States its face. District unconstitutional Act is upon for the District of in in Court Columbia or our decision United reliance Superior Thompson, Court District of States denied, Columbia. cert. L.Ed.2d 467 S.Ct. put side, We continue to one as we (1972), appellant demonstrate seeks Brawner, provi- in did whether those a different standard that since appli- sions were intended to can have insanity concerning defense prosecution to a cation the District 207(6) of the provided Court Section of a of Title Court violation 18 of applicable in other Act than is Reform Code, States which is United intended jurisdictions, the Act throughout for enforcement the Federal equal protection. amounts a denial of enacting system. local criminal Thompson concerned The case was singular the exercise statutes its standards, each enunciated Con two responsibility legislate constitutional pending gress, applicable each to bond Congress District, need not hew appeal. decided that insofar D. We path defining to the same it elects the stand offenses are concerned C.Code applica- criminal offenses bility, pursuant nationwide Reform Act ard enunciated in the Court legislative to its Federal applicable specifically to the Dis viewed, powers. Thus we find no incon- apply, of Columbia and that trict should sistency applying whatever in to a D.C. by Congress in the standard enunciated tried in offense—albeit Code concerned, are as federal sofar offenses District Court—a standard of apply to should those offenses. proof different from that of a Federal example, tried, offense the Dis- unique The District of Columbia Court for trict District of Southern system. our constitutional See District Indeed, it New York. would be more Carter, Columbia 409 U.S. standard, anomalous one at least of a L.Ed.2d 613 This nature, ap- or crucial substantive unique accounts for the situation in plied when jurisdiction a D.C.Code offense is tried over criminal viola- Superior in the and another when Court tion of District of Columbia Code is same tried in the offense is District concurrently Superior in the vested both 207(6) Court. Section obviates this Columbia, Court of the single providing that rule of statutory pursuant court established apply offenses, to all re- shall I, Article see Palmore v. United gardless of the tribunal before which 411 U.S. 93 36 L.Ed.2d accept appel- they are cannot tried. (Apr. 24, 1973), We in the suggestion lant’s a deni- works States District Court for District of equal protection al of the laws. Columbia, a constitutional court estab- under lished Article III the Constitu- Appellant also contends that Section tion. 207(6) of Reform Act Court process. amounts to a due denial We provision of the Court Reform equally find this contention without making provisions relating Act to the merit. insanity applicable defense of to offens- es committed in Supreme the District of Colum- Leland v. Ore clearly bia, application gon, counts L. charging degree felony first Oregon murder in Ed. 1302 sustained violation D.C.Code 2401—count 2 § statute which defendant as (felony serting perpe- committed while aas defense to trating robbery) (felony and count 3 that defense reasonable doubt. perpetrating Here, committed Congress, while in its exclusive constitu rescuing the crime prison- legislate of authority a federal tional for the to Dis Columbia,6 Judge Fahy, required of that a

trict 7has sonable doubt. his con asserting curring opinion Ragsdale insanity defendant a as de Overhol prove by ser, U.S.App.D.C. 308, prepon fense such defense a 281 F.2d 943 (1960), Congress expressed derance of evidence. was doubt about whether dangerous potentially concerned that of confinement in a mental institution can nothing successfully predicated upon pleaded may fenders who insani be be what ty might again finding jury’s than a of as a defense be more reasonable released receiving concerning to commit offenses without ad doubt a defendant’s mental equate psychiatric Harris, condition.8 In Bolton v. U. treatment. To estab S.App.D.C. insanity prior (1968), 1, lish of the defense to the 395 F.2d 642 this recognized Act, consequences required only Court Reform it of was insanity that one “some evidence” situation that of be this by insanity Thereafter, guilty shown.7 found reason it incumbent of upon government given hearing prove beyond promptly should be to a aft a following reasonable er his commitment a doubt either that verdict defend by suffering guilty insanity. ant was not reason It was from a mental or, decision, legislative history were, disease or defect this if he reflects,9 product criminal act was not the Court Reform Act mo Congress insanity specify mental illness. tivated to is an affirmative defense and one difficulty which arose and which asserting prove by prepon must a recognized by this Court in a num- derance the evidence. ber of decisions was one mandatori- ly by provisions appellant proposi committed under Reliance of Ti- Winship, tle seq., thatjn Sections 301 et re has, Code could be 25 L.Ed.2d 368 committed to a mental in- effect, Oregon, simply stitution government overruled Leland v. because the prove swpra, misplaced. had sanity Winship failed In re did a rea- I, (1961)] 6. Art. Sec. Clause de- allows ways” escape fendants “to have it both —to States, Davis v. United S. hospi- a both conviction and commitment (1895) ; Ct. 40 L.Ed. 499 Durham v. tal. U.S.App.D.C. 228, 214 F. “The this result intol- Committee considers (1954) ; 2d 862 McDonald v. United safety public protects erable. It neither 312 F.2d 847 provides ac- for a nor treatment defendant (en banc). grounds insanity. quitted of a crime on by society 8. “It objected means no clear that can fact “The Bolton deprive person liberty by continue to a law, existing that under a doubt reasonable attributing jury’s mandatory to a sanity doubt his about men- a as hospitalization served as basis for condition, tal acquittal recovery. which led to his until To meet mandatory commitment, any objection safety, protect public all evil and to propensities may thought criminal changed existing he law the Committee has have, keep and to him in require confinement be- a that at defendant’s U.S.App.D.C. cause of by preponder- them.” affirmatively be established 281 F.2d at 950. ance evidence. ruling Harris, “This “Once a is established [Bolton v. defendant’s U.S. App.D.C. 1, preponderance permits by (1968)] he is 395 F.2d 642 the evidence and dangerous criminals, psycho acquitted charge, particularly no need there is paths, acquittals post-trial hearing required Bolton. win criminal of serious charges grounds raising (d) therefore, insanity by amended has been Subsection sanity mandatory provide mere reasonable doubt to their for the commitment hospital escape hearing then to until commitment because such without defendant in certified unable to their such time as he is either acquittal following hospital preponderance re- the court to be and found recovery revolving evidence. The result is a covered or establishes which, (Em- Burger filing appropriate door plained as now Chief motion. Justice ex after phasis supplied.) rejecting H.R.Rep. 91-907, 91st such an in Ov No. outcome O’Beirne, Cong., erholser v. [112 1st Sess. 74

1155 purposely meaning not involve as a defense. Win- killed. As to the of ship proof purposely, involved of facts —-“the occur- see Collazo v. United U.S.App.D.C. 241, 246, 573, rence of an event” —while deals 90 F.2d 196 proof pro- 578, denied, of with “mental condition and cert. 343 U.S. pensity.” v. States James 96 L.Ed. 1364 See also (January 8, Coleman, Brown, Jones, Green, supra. F.2d 606 478 at 609 In 1973). .determining required Oregon It the of Leland elements whether juvenile proved beyond a be is modified In offense a or overruled re Win- previously given ship, reasonable doubt. This had consideration should be Lego case, Twomey, been made clear in the Gault the more recent of 387 case U.S. 87 404 S.Ct. 18 L.Ed.2d 527 L.Ed.2d (1967), Appeals but Court of of in which Court held that process New York had affirmed a con- decision was consistent with due to de sistent with the New York that a termine voluntariness of a confes juvenile preponderance could be found “involved” sion a of the evidence preponderance by proof beyond of the evidence. Since rather than a reason Here, sanity “involvement” authorized substantial able since is not doubt. deprivation liberty by confinement, felony of one of the elements of Supreme sup- sanity may interposed To reversed. but lack of port conclusion, ap- defense, Congress may propriety counsel for the with pellant required relies on v. Eich- enunciate the standard of berg, U.S.App.D.C. asserting party F.2d this affirmative (1971). There, defense, e., proof preponderance conviction of for- i. uttering gery and situation, The affirmed. of the evidence. That per curiam decision held that “ordinari- at least unless and until Leland is over ly, complicated ‘in view of the nature of ruled. intertwining decision to be made — scope Winship and reach moral, legal, judgments’- and medical confronting one of the case was issues jury’s verdict must stand.” 142 U.S. Second Circuit United States v. App.D.C. at 439 F.2d at 621. In a Braver, (2d 1971). F.2d Cir.

separate concurring opinion, Chief There, appellant challenged Judge citing Bazelon, Winship, re su- In regarding court’s instructions the de- pra, questioned vitality the continued entrapment. judge fense of The trial noted, however, Leland: It Judge had followed the rationale Supreme opinion Winship Court’s cit- Learned Hand Sher- approval ed group with prior deci- man, (2d 1952), Cir. sions, including Oregon. Leland v. which it that on the issue of was stated inducement the defense has the burden. essential elements of charge affirming explain- felony the conviction murder do in ing understanding Winship, sanity. clude If that were the case, page Second at Braver Government Circuit would be placing produce proving establishing held that burden of evidence inducement on the defendant does not part a reasonable doubt as of its case, process. constitute a denial direct of due “The before the defendant intro protects testimony, duced Due an iota Process Clause accused and that against except upon proof not and conviction be- never has been the law. The el yond every applicable ements doubt fact reasonable necessary the crime attempted Count 3 are to constitute that a being charged.” perpetrated during he is and that course of that action the deceased was 359, 364, Cited in Hansford v. United charged State, Phillips in murder as Count 3 have been

In Nev. proved. denied, our (1970), Davis confirms P.2d cert. 403 U.S. effect sanity earlier that is not an 29 L.Ed.2d 719 observation (1971), Supreme offense, of the oth- the Court Nevada essential element argument rejected required the that In re erwise Davis the Win- would have changes concept prosecution proved sanity ship that one have be- the assert ing yond insanity part defense of doubt as of its the affirmative reasonable by merely prove insanity preponderance case, must direct the whereas Court left one that evidence. the issue as does not arise in the there case unless is some evidence an is element of the Whether insanity, typically de- which calls on prov- crime of which must be pre- fendant to make some affirmative question en the state is a that has impor- sentation. Of even more critical Insanity been well-settled. is an af- Supreme that the tance is fact the proposition which the de- firmative part of doctrine as enunciated the Davis prepon- fendant must establish authority supervisory feder- over the Gallegos proof. State, derance of clearly al reflected courts. The Court 84 Nev. P.2d compelled no issue that constitutional Appellant in error when is he asserts Congress, part of decision. as the Since Winship, In that re . . . recent- authority over Dis- its constitutional the ly changes decided, concept. that Columbia, the trict of has established P.2d rule which the trial was followed It is noted that two of the Justices recognize case, the instant we Supreme Court voted to review Congress the has acted within that the case. 403 S.Ct. 2260. authority bounds of its constitutional seventy-five years For Davis v. Unit- preponderance and the rule af- for an States, ed due not a denial of firmative defense (1895), recognized L.Ed. 499 has been process Again, say we law. authority the federal courts as for the Oregon the context an of Leland as proposition that when evidence of insan- binding precedent, un- authoritative and ity present the consideration of less overruled the modified or Su- jury upon it is incumbent preme Court. prosecution beyond to establish a reason- able doubt the defendant was re- IV. sponsible criminally Here, for his acts.11 charge murder, not com- BIFURCATION mon murder, law and accordingly, no premeditation, deliberation, a number eases this Court required. killing recognized desirability malice is If the was bifur purposely, e., cating i. intentionally, portion of a done criminal dur- ing the course the commission as a defense. of a concerns felony, recognized attempted or the that a consid commission of a Court has felony, degree essential ac- elements of erable of discretion must be evidence, 11. “If including crime, (which thing) sup- whole is the same whether plied by presumption unlawfully, sanity, deliberately, wilfully, and of he does not beyond exclude hypoth- aforethought reasonable de doubt the life malice took insanity, esis of of which some crime of murder involves is ad- ceased. As the duced, distinguish capacity acquittal accused is entitled to an between sufficient right specific charged. legal interpretation guilt wrong offense His proved every Guilty charged cannot be said to is that have verdict of reasonable doubt —his will be and his from all the evidence acts can- believed joined not be perpetrating yond held to have accused doubt reasonable charged upon responsible, jury, guilty, and was therefore all —if evidence, criminally, have a Davis v. United reasonable doubt his acts.” wheth- legally capable er 488, 16 he committing at 358. 160 U.S. at making sep- its de- court should be alert to the need for trial court corded pro- arate trials whenever the accused In Holmes v. this issue. termination present poses re- defense gardless we set of whether defense counsel initially request initial or an makes an fundamental rule: forth the showing sufficient of need.” discre- has a broad The court Ordinarily, considering bifurcation, the defense where but tion in putting procedure, on the government is confined to the prescribing merits also in proof, charge to its failure to order and submission form of the regarded an jury, bifurcation is as abuse questions admissi- stage, discretion. See Parman v. United bility of evidence each States, U.S.App.D.C. 188, jury 399 F.2d impaneling of a second even stage ap- denied, cert. if 393 U.S. to hear the second (1968). However, necessary prejudice. 21 L.Ed.2d 126 pears to eliminate recognized have we as United States case, particu- of this On facts Bennett, v. larly Randolph did not since Greene F.2d 872 that an entire defense interpose of insani- wish defense intermingling prejudiced by may be appears ty, rul- it trial court’s insanity trial the defense with the de ing to bifurcate the case had a substan- case, on the fense merits. In- Bennett’s Additionally, permitted tial basis. government testimony psychi of the Randolph defense to call Greene as a very good atrist that Bennett had a rec stage trial witness the second ollection of the that he re events and subjecting him without to cross-exami- minutely happened prior called what nation on the merits. prejudicial. the offense was It deemed showing any There no here that ev- is obvious that bifurcation would have jury idence which counsel wished the preferable course Bennett’s consider on behalf of Greene LaVance case. It is also obvious that a serious prior either excluded to the time the question was raised under 18 U.S.C. § jury case was submitted to the on the 4244 ny. the admission of testimo such stage indictment or at the bifurcated heldWe reversal was insanity where was the sole issue. Un- for that and other reasons. circumstances, der these no we see basis Here, no abuse of discretion has been reversing the determination of the Additionally, way shown. the obvious regarding trial court or his decision as instructing avoid confusion in an abuse of discretion. proof required standard the terposing insanity of one in- defense, namely, Most of our eases in which the issue by preponderance evidence, of bifurcation has been is to raised are cases judge in which the trial bifurcate the defense. refused to bi- furcate. In footnote 2 in United States Grimes, 421 F. V. (1969), Judge McGowan, speak- 2d 1119 ing PREMEDITATED MURDER OF A Court, for the considered five cases FEDERAL OFFICER in which we sustained the discretion of judge denying the trial Appellant bifurcation. question raises a any There is no intimation in of these procedure whether the followed under cases would have been error to the 1970 amendments grant bifurcation, nor has it been con- rightly applied were trial under tended in of our (count cases that to do so 1), premedi U.S.C. 1114 §

would have been an abuse of discretion. tated murder of a federal officer. In States, general Contee v. United 133 U.S. provides Federal rule that once App.D.C. 261, 250 appropriate defendant has adduced “ * * * (1969), we said: concerning evidence de imposed fense, fel- secutive to sentence the burden ony robbery. prove doubt murder and armed reasonable Blockburger dis not have such mental defendant did guilty of hav him 76 L.Ed. in order to ease ing (1932), the Davis set forth the control- committed such offense. Court ling 469, 16 S.Ct. rule: question A 40 L.Ed. Each of the offenses re- created rule, the Davis arises as to whether quires different element. applicable to all other federal which was applicable that, rule is where courts, inapplicable to the district act same transaction constitutes for the pro- statutory violation of two distinct Columbia, by District of virtue visions, applied the test to deter- D.C.Code, 1970 amendment to the when mine whether are there two offenses engaged that court in the trial only provision one, is whether each charging violation a feder indictment requires proof of a which .fact statute, e., al murder i. 18 U.S.C. § other does not. question issues, com raises serious Here, charge felony pare Thompson, v. murder United States 147 U. (Count 3) every S.App.D.C. includes essential fact 452 F.2d 1333 charge. element of denied, rescue cert. For reasons set forth in do United

31 L.Ed.2d States We Benn, U.S.App.D.C. 180, necessary F.2d think to decide issue in (D.C. however, case, Cir. as amended March this the con because of 8, 1973), we conclude felony has current un there sentences merger been a felony D.C.Code, between the al- accordingly, der the and we leged part as justice in think the interest of to fol Count 3 and practice that a consecutive sentence low the set forth Hooper12 improper cases, rescue is and line of and will vacate that therefore judgment the conviction of the res- on Count 1. discern We charged prejudice government cue offense in count 5 in- no this dictment ruling should be vacated. course obviates need for on case an issue that be de should truly cided it is where material to VII. controversy.

ARMED ROBBERY CONVICTIONS VI. robbery LaVance four Greene’s armed convictions, as a result which he was A RESCUE OF FEDERAL PRIS- given a concurrent of 15 sentence ONER IN OF VIOLATION years life, adequate followed instruc- 572(a) 18 U.S.C. § tions the court on the essential ele- Appellant attacks the conviction ments of these predi- offenses and are under this section Title on upon appearing cated clear evidence same basis as his attack on Count 1 they record and since are of- local (premeditated murder of a Federal offi fenses, the defense of con- cer). The trial court sentenced de Congress trolled consecutively recent act of fendant LaVance Greene under this count. previous- reference been has made ly. robbery The armed counts af- imposed by are

The sentence the trial court for the con- firmed. offense was rescue U.S.App.D. Hooper, (9th

12. 1971), F.2d denied, 1205-1206 cert. Cir. (1970) ; C. 432 F.2d 604 L. Bobbitt, Ed.2d 667 (1971) ; Fishbein, States v. way tion to his shall VIII. brother: “Which go?” we Further vol- evidence to the ESCAPE Randolph untariness of the act was that Greene followed after LaVance Greene. Randolph pris Greene, the analysis, jury prop- In the final was Lewisburg Penitentiary oner from who erly adequately instructed as to the Washing permission received to come to escape clearly essential elements of guard ton under to attend his father’s there was evidence on the of which basis challenges funeral, his conviction of es justified finding Ran- cape under section 751 of Title Unit dolph guilty beyond Greene a reasonable affirmatively He ed States Code. stated doubt. open Court that he did not wish appellant Greene, As to LaVance interpose have his counsel the defense of judgments on counts challenges 5 are vacat- insanity. conviction, He ed, judgments 3, 7, 9, 11, however, grounds. counts separate on two judgment and 13 are affirmed. The First, permitted Randolph Greene is affirmed. prior show thát he had on a occasion at tempted escape from confinement. It So ordered. long recognized that one’s mo tive, design, may by' or intent be shown ON APPELLANT’S SUGGESTION prior reference to criminal conduct not FOR REHEARING EN BANC charged in the indictment. See Drew BAZELON, Judge, Before Chief and WRIGHT, McGOWAN, TAMM, LEV- (1964), F.2d 85 and United States ENTHAL, MaeKINNON, ROBINSON, Bobbitt, 146 WILKEY, Judges, ROBB and Circuit (1971). Randolph Greene’s other sitting en banc. objection go is that he was coerced to with his brother who was armed and di ORDER go rected to leave him to church and Appellant petition up filed a re- the street. He states that his act in hearing leaving en banc. On consideration voluntary the church was not thereof, it support is and in of that relies on the tes timony of one witness who said there by en Ordered banc that the Court nothing do, else he could and anoth suggestion rehearing en banc de- says er “My say:’ witness who he him heard Judges nied, majority a of the Circuit man, God, not this.” Evidence to regular who are active service contrary, govern relied on having (Rule voted favor of it accepted by and jury, ment shows Procedure). Appellate Federal Rules that when one of the marshals seated Randolph questioned near Judges Greene him Circuit J. SKELLY WRIGHT concerning identity ROBINSON, of the man who and W. SPOTTSWOOD grant came III, rehearing into church in the middle of would en banc. services, casket, went to the aft and making sign er spoke STATEMENT OF JUDGE CIRCUIT cross to Randolph HE LEVENTHAL TO WHY HAS Greene’s mother AS before leav ing REHEAR- answered, NOT VOTED TO GRANT church. He I don’t know; I’ve ING EN BANC. never seen him before. That man was the defendant LaVance

Greene. Judge: When directed to LEVENTHAL, leave the Circuit church, thing Randolph the first told Judge prepared an Chief Bazelon has was, out, LaVance Greene “Look there’s why to would exhaustive statement as he another one of them outside.” Further grant rehearing The issues en banc. voluntary participation evidence of simple, be and can this case are escape Randolph argued ques- ways. case Greene’s both Whether (federal) Code, banc, however, Criminal

should be pends en de- heard due appraisal rul- on an basic other. involves a on the It also ings. challenge process recent fundamental issue whether amendment The to appellant requiring to was entitled to have a defendant Greene to the D.C.Code prove prepon- insanity the Government his his defense Judge a reasonable doubt. quite right Bazelon derance the evidence.1 saying poses disarming mar- For several federal process. substantial ever, orderly of due How- issue shooting shals, and then one them resolution that issue is escape, La he assisted his brother appellate furthered if this intermediate Greene was two U.S. Vance convicted applies Supreme direct -premeditated Code offenses— precedent, Oregon, Leland v. assisting officer,2 a feder- and 96 L.Ed. 1302 prisoner escape; con- al he was also leaving way open appel- victed of five D.C.Code offenses— Supreme apply lant Court to murder,4 counts of armed and four precedent, obtain reconsideration of that robbery.5 rejected plea vitality. assessment its current being after instructed in ac- question toAs the other broad recently cordance with the enacted D.C. equal protection, emphasized it should be provision requiring a defendant Code not, panel opinion repeat that the does plea “preponderance establish not, prosecution hold that a for U.S.Code of the evidence.” governed by crimes will be the new D.C. all of affirms provision shifting Code the burden convictions, and vacates all the defendant issue.1 A brief sum- his U.S.Code convictions. rulings panel Whether are some of the holdings, my mary of the court’s correct, they discerned others thereon, I more views which will address relatively arguable,2 narrow, are fully below, are as follows: do not en now warrant banc considera- The court that the I. holds D.C.Code tion. felony applies U.S. murder statute (Court’s opinion at felonies. Code OF STATEMENT CHIEF JUDGE 1150, 1151.) BAZELON TO WHY HE WOULD AS GRANT my EN REHEARING BANC.. In view: sup- A. The reasons do not court’s interpretation BAZELON, Judge: Chief port of the D.C. large part In ques- this case involves felony statute, and Code murder arising interplay tions out of the be- strong there are reasons for limit- (local) tween the District of ing Columbia to local offenses. statute Code, hand, Criminal one and the (Pp. 1161-1164.) problem 1. This case does not involve the of criminal of a offenses terms concomitant Thompson, U.S.App. violate, of, intent or violation criminal D.C. (or F.2d 1333 I at least of another of the Federal laws state grave difficulty would have Government). with an assertion legislature prose- require, could in a 91-358, 207(6), amending 1. P.L. 24 D.C. § code, cution under the national criminal (j) (1973). § Code deny important one Federal district court must protections granted to defendants other (1970). § U.S.C. Federal district courts. 752(a) (1970). § 18 U.S.C. panel assuming applica- 2. The holds that considerations, including ble the fairness of 4. 22 D.C.Code § 2401 process, permit due a State to shift showing defendant the burden of 5. 22 D.C.Code Three of §§ offense, robbery trial for a State the same considera- the four armed convictions were applicable (here taking guns marshals; tions are when the State from the the fourth Columbia) happens taking escape. define its was a car in effort felony murder The B. court was to con- If the D.C.Code B. application applies federal offens- sider the the D.C. provision equal protection. proof es, burden of statute to federal it is a denial no offenses if there 1164-1165.) even were (Pp. present Code offenses case decision in United This court’s C. applies “any since the statute requires Canty6 vacation proceeding in criminal the United felony murder D.C. for the Dis- States District Court gener- irrespective of the conviction Columbia,” in- trict which must felony application D.C. al clude the federal offenses. 1166-1165.) (Pp. provision. murder (Pp. 1170-1174.) recognizes expressly The court II. IV. The court finds that the D.C. premeditated murder that the federal proof govern- burden of Code statute im- conviction, sentence for which ing may constitutionally pleas concurrently posed sentence with the applied (Court’s to local offenses. felony murder convic- D.C.Code 1152-1156.) opinion at tion, constitutional raises serious issue, this serious question. To avoid my In view: convic- homicide vacates applied A. Even offenses, to local if it Hooper doctrine.7 under the D.C. burden of 1157-1158.) (Court’s opinion at equal would be a denial of protection. 1173-1174.) (Pp. federal conviction It also vacates assisting escape because, as the for underlying felony stat- B. burden felony mur- process. (Pp. ute is a denial of due merges conviction, the felo- into der 1174-1180.) 1158.) (Court’s opinion ny murder. I my view: felony Appellant convicted of Hooper an A. The use court’s killing a murder under the D.C.Code for improper appellate dis- exercise assisting deputy marshal a federal while 1166-1167.) (Pp. cretion. prisoner escape in violation of the U. manifestly improper to B. It S.Code. merge underlying felony awith applies provision to homicides committed (Pp. conviction. “any punishable in the course offense 1168-1169.) imprisonment penitentiary.” .in the The court that it need III. concludes “any of- The court that the words finds pro- not decide whether the D.C.Code intended federal fense” were to include governing vision the burden of offenses, and so con- that apply insanity plea on an can to feder- equal protec- is not a denial of strued al offenses since it has vacated both It also tion. to consider United fails appellant’s U.S.Code convictions. Canty,8 requires vaca- States (Court’s opinion 1153.) at appellant’s felony murder tion of local my view: irrespective applicabili- conviction ty of the constitutionality of the D.C.Code all of The has not vacated A. court felony murder statute. offenses, federal because it has affirmed D.C.Code A. ANALYSIS STATUTORY murder conviction for a homicide passage of Co in commission of Until District that occurred (P. Reorganization 1170.) Act of lumbia Court offense. (1972). U.S.App.D.C. 103, 8. 469 F.2d 114 F.2d Hooper, United States v. 1901,12 Code, in D.C., which was enacted 1970,9 in committed all felonies ground provision its homicide federal, tried in the and were both local prohibit juries capital did Act not allow The 1970 federal district court.10 punishment The system “comparable in murder cases. Unit created a court Code, apart which was en ed Criminal States, separate and those in the 1909,13 juries permit system].”11 did to nul acted from court the [federal lify capital punishment. Johnson Supreme has stated that And Court claimed was intended system U.S.Code was established the local court origi modify only to since the handle criminal cases order “[to] D.C.Code, at the time applicable nal still in force under statutes are provided alone,” and, of Johnson’s case there District of Columbia Congress] jurisdic “so far fore, [of as [future] in this acts a defendant tried may vary any pro disadvantaged from or conflict with more . is “no code, they any vision contained this are than other citizen of the 50 contemplates more, concludes that the two codes were code. plain sider this critical Reorganization Act, supplied). Thus, crime.” U.S. tems, States who Nevertheless, this court fails to con- 36 L.Ed.2d 342 each Palmore United the Court administering two tried for a history separate 93 S.Ct. and Reorganization (1973) (emphasis contrary of the Court strictly has made it separate 1681, consistent local Pal- sys Act rate certainly 418-419, lumbia,” jected supplied). Court concluded: torial Codes] have effect as Code, recognized repealing any portion provisions operation, can exist and therewith.” argument As a enacting “[h]aving subsequent for the District together.” general principle, [the expediency because U.S. ^[1901] definite statutes this act “Congress (emphasis and Court re of Co terri sepa and in at separation important generally effect intended “mesh with each necessarily purpose. and following other.” had its It rests on the three special spheres codes had main assertions. operation provisions accommo- says:. First, it spheres. such dated to 225 U.S. at “The Federal Criminal Code embodied in Title 18 and the District of Colum- Thus, strongly Johnson undercuts this bia Code of Title 22.were both enacted court’s conclusion that the two codes by Congress and were intended to ex- were intended to On the mesh. con- together. ist Johnson v. United trary, long it indicates that before Pal- 225 U.S. 405 [32 more, inception indeed since the (1912).” (Court’s opin- 1142] L.Ed. codes, they two sep- have been viewed as 1150.) ion at independent arate instruments. The court’s claim that the two codes ignores This holding, the Johnson were together,” intended to “exist simply lifts two words—“exist to- Johnson, its citation to the case from gether” decision, and cites —from taken, which those plainly words were is wholly them out of context. misleading since Johnson stands for the The court’s second assertion is: proposition “sepa- that the two codes are rate instruments” that are not intended “We believe further that [the two to mesh with each other. Johnson in- were codes] intended mesh challenge original volved a other, they each and have been so 91-358, 9. P.L. (Ch. 854) 84 Stat. 473. 12. 31 Stat. 1321-1337. 10. (Ch. 321) § D.C.Code 13. 35 Stat. H.R.Rep.No.91-907, Cong., 91st 2nd Sess. 14. 31 Stat. 1436 at § infirmity. potential constitutional past. no [Citations in the construed felony 1150.) Application D.C.Code opinion (Court’s omitted.]” offenses, provision murder to U.S.Code solely upon early The court relies some equal hand, a serious on the other raises in this eases Circuit which held that protection problem that will be discussed conspiracy charge federal statute could below.18 conspiracies to violate D.C.Code as Finally, the court asserts: conspiracies well as to violate the feder- implies al code.15 It adopt because this “To construction apply result, one section has held to been across one lead to an anomalous would codes, Congress generally conceivably the two Congress intend- not could felony them to ed mesh. D.C.Code have intended. If one [committed provision, however, murder during killing] has the course rob- of a seventy years, effect over bery bank, and the in front street case, court cites no nor have prosecuted felony I been able mur- he could be any case, to find during in which it has been D.C.Code, der under but if applied ato robbery federal offense. the course of a a bank a killing occurred, that robber could Moreover, application of the federal felony prosecuted murder under be conspiracy filled local statute to offenses (Court’s opinion at the D.C.Code.” conspiracies important vio need: 1151.) provisions the D.C.Cdde late the gone unpunished, claiming have I would otherwise it assume is Reorganiza prior the Court fel- because anomalous to hold the D.C. would be ony Act of the D.C.Code lacked applicable rob- murder statute all general conspiracy except No such la section. committed in D.C. bank beries respect however, Congress, cuna ever existed with has made robberies. has applicable of the two codes.17 homicide sections federal in D.C. crime — Indeed, appellant every under jurisdiction was convicted com- well as other —to felony provision, any the local murder both mit a homicide in the course premeditated robbery.19 nothing anom- bank There is killing. statute, hand, for the punishing, same on the one alous about (and any purely homi- local robberies Finally, application federal con- their cides that occur in the course of spiracy statute to local offenses raises and, commission) D.C.Code, under equal protection no serious issues since hand, punishing on the other those rob- solely punishment the result is allow that are of nation- beries homicides conspire who the D.C. for those to violate U.S.Code, even if al concern under the Congress effect, a lo- Code. enacted place they all District of Co- take placed conspiracy it in cal statute and lumbia. Congress the federal code. Since punished conspiracies in- contrary, court’s such differ- On ently provision terpretation of under other the D.C. there is exclusively op. applicable to the District of Colum- 15. See cases cited court’s at 1150-1151. bia.”). The rationale of these cases the U.S. conspiracy applies Code who to those 91-358, D.C.Code codified § 16. P.L. conspire “any against to commit offense 105a. States,” that a violation of were murder statute “against District, 17. If the D.C.Code not a crime offenses, homicides local those against limited but United States.” United coverage explicit falling Cella, within the App.D.C. 423, (1911), quoting prosecuted thereunder, all Columbia, Metropolitan could Code v. District R. Co. occurring be in could D.C. (1889). homicides other 132 U.S. 10 33 L.Ed. 231 prosecuted under the D.C.Code. P.L.No.91-358, But § 172 codified cf. (“For purposes U.S.C. of this § 1363 section IB See 18. infra. chapter, laws United references to the of the 2113(e) (1970). Congress § Acts States or do not include laws 19. 18 U.S.C. statute, appellant’s, judged the leads an under harsher to namely Congress result: bail anomalous D.C.Code statute standards punish anyone applies intended to homicides that occur which to “convicted of robbery any in the of a more commit- course bank se- criminal offense verely . in D.C. than the remainder of ted the District of Columbia country. felony, Congress.”24 The of an Act of D.C. murder violation statute, applicable provision intended the court this which holds We held that robberies, apply to federal bank carries a convicted D.C. man- to to those datory eligibili- parole Thus, court’s deci- life sentence with Code offenses. ty only twenty years,20 spirit, if after whereas sion in this ease violates robbery holding, Thompson. felony bank statute’s not the provision murder carries sentence of years imprisonment,21

ten to life EQUAL B. PROTECTION parole eligibility after one third of felony Reading murder stat- served, D.C. sentence is in no but case raises a se- years.22 felonies ute to include U.S. fifteen protection equal issue that rious sum, In the court’s three assertions simply In the fails to confront.25 court simply support do not its conclusion. Congress pun- view, intended court’s Indeed, justi- least the first third marshal ish who a federal someone kills appear way. fications cut other assisting (or escaping another while Moreover, ignores opinion our un- escape) in the District of Columbia Thompson, United States v. statute, felony der the murder D.C.Code App.D.C. (1971). 452 F.2d murder and as under the federal well as There, appellant had been convicted of statutes, every escape whereas other two jurisdic- U.S.Code violations this jurisdiction Congress punish intended to tion, seeking pending release solely exactly appeal. argued under the same conduct petition He that his governed statutes, release should be neither two federal the feder- al bail statute.23 urged felony applicable murder has (1973). 20. 22 lenge. hypothetical § constructed single Virginia legislature court, enacted a 2113(e) (1970). 21. 18 § U.S.C. felony gravamen ap- statute. The murder U.S.C. (1970). § hand, pellant’s claim, on is that Con- the other gress adequate justification for enact- lacks (1970). § U.S.C. felony statutes, ting one two murder different 1325(c), 1331(2) (1973) D.C.Code §§ special D.O., maritime and one for the (emphasis supplied). jurisdictions. and territorial 25. The persuaded does equal Although consider I am different court’s protection argument, agree appellant, analysis, raised I do with its conclusion felony particular equal effect protection the D.C.Code claim is with murder this equal protection statute is a denial of and terri out merit. federal maritime because applies high during “any jurisdiction homicides committed to “the torial is limited offense,” felony seas,” “forts,” aircraft,” whereas the U.S.Code etc. “U.S. 18 U.S.C. mur- provision, applicable der special Congress in “the For has mari- these areas § jurisdiction” time and territorial set of substantive criminal enacted skeletal is limited rape, provisions, arson, four limited therefore a felonies — burglary robbery. rejects however, Congress D.C., The court For statute. argument, apparently relying upon offenses deal has enacted broad code of follow- ing analysis: (1) Virginia problems, complex could enact a fel- with a more set of criminal ony applies murder statute that to all wider-reach homi- and therefore also enacted cides, including during ing felony Accordingly, those committed there fed- murder statute. offense; (2) Congress, legislating protection. eral equal Cole no denial Columbia, powers District of has the same man v. United Virginia (3) legislature; Compare therefore, McDonald, valid. States v. syllogism J„ (Bazelon, This indicates that the court C. mis- protection equal dissenting). understands chal-

H65 solely result, Congress for those who commit their provision.26 has crimes aAs jurisdiction.29 twenty mandatory in this imposed sentence of a con- years same D.C. for the to life in imposed a sen- it has to which duct as v. CANTY C. STATES UNITED years” “any ranging term from

tence felony Even if D.C. murder stat- years life fifteen a maximum validly offenses, may ute federal include jurisdiction.27 every other Canty, our in United decision supra, Thompson, held that we In 152 469 114 F.2d Congress ignores, “discrimina- when establishes re- which affecting tory quires classifications dismissal D.C.Code respect felony federal Canty, with residents” murder In conviction.30 requires crimes, equal protection robbery that the defendant committed a bank actually justification must offered “the while been armed. He could have (em- convincing.” charged violating F.2d at 1341 with section “d” of phasis original). does (bank this court robbery Yet federal rob- bank statute legislative suggest bery colorable armed),31 a not even a while which carries greatly imposing justification twenty-five dis- year maximum sentence. parate charged conduct.28 Instead, simple same sentences with he apparently simple robbery fact —one bank under only reason statute,32 year court —is twenty eludes the which a carries apply to conduct sentence, the D.C.Code maximum and assault with a already under deadly made criminal weapon D.C.Code,33 under sentences to increase year the U.S.Code is which carries a ten maximum. (1970) (fel- 2113(e) Compare county twenty year imposed 26. § 18 U.S.C. it sentence. ony provision pp. committed homicides murder See also 1173-1174 infra. robberies). during bank relying sharply Supreme Court, 29. A divided D.C.Code, 27. for fel- sentence Under “separate sovereigns,” doctrine of imprison- twenty years ony to life murder impose greater held sen that a state could same homi- ment. 22 2404. The § Congress pro tence than for conduct that U.S.Code, cide, charged would if under code, prose scribed the federal and that degree premeditated (1) mur- be: first either cution sequent does bar sub under U.S.Code years der, fifteen carries a sentence of which prosecution. Illinois, state Bartkus v. 4202; (2) life, second §§ 18 U.S.C. 676, 3 L.Ed.2d U.S. punishable by any murder, degree (1959) ; Abbate v. United years imprisonment, life term of U.S.C. (1959). L.Ed.2d 79 S.Ct. parole eligibility third after one with § explicitly recognized However, have we any than no case more sentence but separate sovereigns no “has doctrine years, 4202; (3) volun- § fifteen tary 18 U.S.C. application here, the [federal] since manslaughter, which carries maximum both Code have and the District Columbia years, with of ten § sentence U.S.C. sovereign fed been enacted same —the parole eligibility after one third of sen- Canty, government.” eral p. See n. 4202. & 45 § tence. U.S.C. (1972) cases 128-129 n. 20 infra. Florida, cited Waller v. therein. also 25 L.Ed.2d argu- To extent the court relies municipal (prosecution ordi Virginia legislature under in- ment could prosecution subsequent under nance bar- to clude federal offenses municipality are since statute, Congress state statute state them therefore can include sovereign). statute, same see note in the misplaced. Congress supra, If its reliance is pro- equal Canty largely was informed penalize applica- of nationwide is to bility a crime dis- to those tection considerations similar severely jurisdiction than more although supra, did IB cussed in section every strong justifi- state, other it needs a ground. explicitly rest on that analagous Thompson-, supra. sit- cation. legisla- respect Virginia uation (1970). 2113(d) 31. 18 U.S.C. § robbery punished would be if it ten ture year every county in the state sentence in 2113(a) § 18 U.S.C. repre- which, incidentally, was not save one— legislature in the in that 33. 22 sented state D.C.Code § —and by going sum, Thompson Canty outside the federal bank and of which —all robbery statute, charging part require and felony dismissal of the D.C.Code government under the D.C.Code,the Moreover, conviction. murder it does so potential gratuitously able to increase the appellant defendant’s since was also years. maximum sentence premeditated from 25 to 30 convicted of murder under We vacated the D.C.Code assault convic- the federal homicide statute for holding government tion, pro- killing, that the is same and the sentences on the “venturing hibited from outside the fed- and federal D.C. murder convictions scheme,” thereby imposed concurrently. eral and “circum- were In the face vent[ing carefully hierarchy this, why crafted all its] one must wonder this penalties.” pursued 469 F.2d at 128. the course it did. I think glean light parts we can some from V present case, appellant was In the opinion. and ofVI charged premeditated count with one code, murder under the federal which JI years mandatory sentence of 15 carries a part V, the court concludes that it life, felony mur- and also one count of appellant’s discretion to vacate D.C.Code, under the carries a der premeditated federal conviction murder mandatory years sentence to life. Hooper Hooper under the doctrine.36 statute, like the federal homicide judicially appellate created doctrine of robbery Canty, federal bank statute allowing discretion vacation of a convic carefully varying subdivided to cover de- raising governed tion “an issue not grees offense; of the same it includes controlling precedent,” when the sen degrees murder, types two two imposed tence on it concurrent awith manslaughter, attempted and murder on sentence a valid conviction. 432 F.2d manslaughter, and and each crime car- at 606. In casé, the sentence on the penalty. Hence, ries a different premeditated federal murder conviction only go reason for the was concurrent with the sentence on the “carefully outside this crafted federal felony conviction, murder D.C. scheme,” charge under D.C. court found that the federal conviction Code, appellant’s was to increase mini- 37 part VI, “raises serious issues.” years.34 mum five sentence at least court holds that it is to vacate Canty prohibits this.35 assisting the federal conviction for

escape underlying because it was the felony felony of the D.C. murder con appellant’s The court affirms D.C. viction, merges and therefore into it. felony murder conviction Code without Thus, by affirming the D.C.Code grave felo- (1) equal protec- discussion ny conviction, murder Reorganiza- court believes problem, (2) tion appel- it is able vacate Act, both of (3) Supreme deci- Court’s lant’s federal This affirm- convictions. Patmore, sion our decisions killing hand, if marshals. On other Indeed, sentence could have by- escape in the an course of the felon by considerably kills than five been increased more stander, a someone co-felon or else not covered years might be second since what otherwise provision, a federal homicide that homicide degree manslaughter murder or under the U.S. degree felony fall within the mur- murder un- would D.C.Code Code could be first supra. der the See note 27 D.C.Code. der statute. provision If Hooper, U.S.App. 36. United validly offenses, includes it must 432 F.2d 604 applied cov- to homicides not otherwise violat- ered in order to avoid U.S.Code Thomp- 37. The cites States v. ing Canty. example, if in For the course son, 452 F.2d 1333 marshal, escape kills a federal an a felon thereby indicating is- the serious coverage killing not come within the would pp. equal protection matters. sues are provision felony murder the D.C.Code covering 1172-1173 a federal there is since infra. reversals; and, notwithstanding, in order to avoid if I think anee abuse, ultimately use, of wholesale reversals are re- if not an unwise quired, will suffer we burden the federal to vacate discretion many time-consuming the ri- conviction, retrials. borders assisting simple again appears merge fact—which to the federal diculous escape felony elude the court—is that when the the local consti- into conviction tutionality' general appli- of a of statute murder conviction. justice question, into cation called and expeditious require an resolu- fairness PREMEDI- THE FEDERAL A. tion. MURDER TATED Hooperizing appellant’s federal mur- CONVICTION perhaps der conviction can be viewed as conviction Appellant this attacked misguided, strong, indicative aof albeit the D.C. claiming application of judicial commitment restraint. That requires a defendant statute —which restraint, however, same is not evi- pre- plea of his establish parts opinion. denced in other of federal ponderance the evidence—to of Appellant challenged grand also and jurisdiction is a in this tried offenses petit juries, claiming part equal protection ev- because denial of ery “young people” inadequately repre- were prosecution federal other jury sented in violation sanity beyond reasonable must Although selection statute.39 the court Acknowledging power of doubt.38 denies claim it because not this was fed- argument, the court vacates this timely pro- court, raised the trial it reason for the murder conviction eral expound “young ceeds to view that its Hooper serves given in better “[i]t persons” cog- should be considered a general administra- interest group composition, jury nizable and justice its re- if limits the court concludes: of those determination sources thought must be decid- questions and cases that We have it useful to dis- light ed, especially ever-mount- presented by problems cuss ap- ing other this and though, docket that besets thesis even view the lack Hoop- pellate timely objection, 432 F.2d at 606. courts.” dowe not decide however, states, that a conviction (Court’s er this on matter the merits. raising opinion 1150.) issue should be vacat- difficult present public “no interest ed when The court reached out for this issue need is furthered” resolution admittedly “inadequate record,” triggered the The issue that issue. despite controlling and lack Hooper in this use of the doctrine case precedent jurisdiction in this and a deci- proof burden is whether the D.C. holding “youth” sion of a Sister Circuit applied can to federal offens- statute cognizable to be a class selec- That is bound to recur fre- es. issue tion as a matter of law.40 constitutional By postponing resolution, quently. Thus, allowing Hooper, contrary thereby application and on an clearly governing it, issue that burden of statute before D.C. court, energies court devoted its “time in our federal we to trials district research, justice efficiency. opinion writing, inci- both undercut appropriate many dent of an will be secured determination Since convictions governed statute, by controlling issue not questionable under there precedent.” strong upholding F.2d at 606. will be incentive (1st Butera, 420 F.2d 564 Davis 1970). Cir. 40 L.Ed. seq. (1970). et 39. 28 U.S.C. §§ categories,

B. THE FEDERAL cides were divided ASSISTING into two ESCAPE manslaughter, CONVICTION murder and with murder requiring showing Any of “malice.” imposed the sentence for this Since homicide committed in the course federal conviction was consecutive to the felony was considered murder because for the sentence con- implied malice could be from the com- viction, Hooper- unable felony.43 mission of the When homi- deciding it in ize order to avoid the con- cides were further subdivided statute stitutionality the D.C. burden degree degree murder, into first second governing insanity manslaughter,44 murder and the doctrine applies to federal The court offenses. preserved, murder was and the find, however, does the D.C. underlying felony provid- was viewed as “charge felony murder assist- [while ing “premeditation” the and “delibera- ing escape] every an includes essential degree tion” otherwise for first assisting fact element of the es- [federal murder, malice, as well as where cape] charge,” concludes, therefore, necessary.45 “merger there has been a between felony alleged part felony the the felony Given this rationale for murder,” and vacates federal assist- doctrine, credulity murder it strains ing escape (Court’s opinion conviction. underlying merges felony hold that 1158.) felony into the murder.46 The statute government The pointed proscribing underlying felony itself out in —rob- petition rehearing41 its bery, for example designed pro- for this —is merger predicated wholly wholly on a tect erro- different societal interest understanding neous felony felony from statute, mur- murder which is der protect against doctrine.42 law, At common intended to homi- homicide.47 41. accompany The pe- during rape, arson, did not Homicides committed rehearing suggestion tition for burglary robbery felony awith re- are murders hearing en purpose banc. even when committed “without so Hence, killings might to do.” these other generally 42. See MacDonald, Arent & any homicide, including wise be level of in Felony Doctrine, Murder 20 Corn.L.Q. 288 voluntary manslaughter, possibly or even (1935). killing. non-criminal See Coleman United 43. See id. at States, 288-292. U.S.App.D.C. 210, 295 F.2d (1961). 559-561 & 565-566 The “absolute generally Keedy, History of the Penn liability” felony limits of the murder D.C. sylvania Creating Degrees Statute of Mur yet judicially statute have not as deter der, (1949) ; 97 U.Pa.L.Rev. 759 Wechsler U.S.App. mined. Fuller v. United Michael, & cide, A Rationale of the Law of Homi D.C. Com 37 Colum.L.Rev. 703-07 pare People Stamp, Cal.App.3d 203, felony require Different Cal.Rptr. murder statutes with American Law varying degrees ranging Institute, 201.2, volition from in- Model Penal § Code (although premeditated) tentional #9, homi- tentative draft comment 4 to 201.2. § liability any cide to absolute homicide traditionally merger place 46. A takes when occurring during “dangerous” certain fel- greater offense contains all of the ele MacDonald, supra onies. See Arent & note 42 protects ments of-—and the same interest as— 293-305; Michael, supra Wechsler & note example, the lesser offense. For merges an assault 44 at 713-717. deadly weapon, into assault with a felony example, The D.C. murder statute for deadly weapon merges and an assault with a requires that a homicide committed robbery. into armed See United States v. any felony except rape, arson, course of bur- Johnson, 475 F.2d 1297 glary robbery, “purposeful” e., or “in- [i. (1973) ; Benn, U.S.App. United States v. tentional” —Collazo v. United 90 U.S. (1952)] (1972, 476 F.2d as amended App.D.C. 241, 8, 1973). Mar. See also note 47 infra. degree Thus, for it to be first murder. with- felony doctrine, slay- protected by out murder these When interest under- ings, premeditated, likely lying felony protected if not would be sec- is not distinct from that degree murder, perhaps voluntary homicide, felony ond or man- the doctrine of mur- slaughter. inapplicable. Otherwise, voluntary der is all underlying felony judicial el- essential to show that is an well-settled doc- felony required the oppo- because trine murder to do the ement of might namely, be second site of what it has done: it the homicide to va- without degree felony cate the murder or D.C.Code murder convic- manslaughter.48 manslaughter tion, application Clearly, nor second and decide if neither degree merges proof appel- other burden of D'.C. murder statute assisting prison- robbery proper. felony lant’s federal offenses was like er to The court’s failure to adhere to estab- escape.49 legal undoubtedly analysis lished accounts doctrine was no means This single inconsequential. failure to cite a Even if the the court’s D.C.Code felony proof suggesting provision properly burden of case that a applied underlying felony offenses, In- and the merge.50 explains why deed, has af- course taken the court increased underlying his minimum more than sentence firmed both And, three if the burden of countless years.52 cases.51 applied could not be to his federal offenses, appellant is entitled to a new deciding short, whether to avoid phase of his burden of under a more favorable convictions53 ap- governing plea can be burden of proof.54 plied offenses, court af- to U.S.Code felony The court’s appellant’s mur- D.C.Code tortured course was firms only prejudicial appellant, conviction, der his it was and vacates U.S.Code also following premeditated of no In the and for murder avail. section I convictions far, assisting escape. will show that tried even if the court Thus I have had See, g., felony States, 51. e. Fuller murders because v. United 132 homicides would U.S.App.D.C. 264, precedes (1968) always ; But the homicide. F.2d 1199 assault 407 States, Calloway protects U.S.App.D.C. assault, inter- United the same 130 since ; completed merges (1968) homicide, F.2d 1006 into 399 Coleman v. est as the States, MacDonald, supra U.S.App.D.C. 210, 111 United 295 See Arent & homicide. (1962) ; States, F.2d 555 Carter v. 42 298-99. note U.S.App.D.C. 40, (1955) ; 96 F.2d degree manslaughter 48. murder and Second U.S.App.D.C. States, Wheeler v. 363, degree first included offenses of are lesser (1947). F.2d 225 States, felony Fuller v. United murder. U.S.App.D.C. 1199, 1229 felony 52. The D.O. murder conviction carries (en banc) . years greater minimum a sentence that is five minimum than the sentence on the federal U.S.App. Butler, 49. United States v. See premeditated conviction, murder see n. 27 462 F.2d 1195 where de D.C. supra. assisting escape federal convic- felony degree was indicted for first fendant month, tion, court, vacated carried during a murder housebreaking, for homicide committed Thus, appellant’s minimum sentence. sen- housebreaking. He and years tence was increased three and four (as degree of second murder was convicted months. felony murder) offense lesser included housebreaking, given consecu provision governing If the D.C.Code convictions, which tive for these two sentences pleas proof insanity on could not burden See also v. United we Jackson sustained. offenses, appellant apply to U.S.Code 313 F.2d insanity phase a retrial entitled to on the Oklahoma, generally, Williams v. p. all his convictions. See 1170-1171 infra. L.Ed.2d 516 kidnapping, during (1959) (murder committed appellant acquitted reason If had been separate offenses, kidnapping, are and may charge, he on murder federal separately). be sentenced probably Eliza have been sent to Saint would govern- petition rehearing, arm for treatment even his In its beths if robbery affirmed. See able to ed were ment also indicates that it has “been convictions reported cases have held Kent v. United find no felony merger murder occurs between the felony.” underlying and its steps taking A. FELONY MURDER each of the D.C.CODE correct required A far, WHILE COMMITTING it was still so discussed proof FEDERAL OFFENSE D.C. burden decide whether apply to federal offenses. could statute The court affirms D.C. felony

Code conviction ground proof the D.C. burden of Ill applied statute can be to local offenses. ap- III, upholds the the court In Part felony underlying proof plication burden conviction, however, was offenses, also statute to D.C.Code assisting prisoner offense federal escape; put “to to one side decides proof without of this federal of provi- questions those whether [the of] fense, murder conviction nec appli- to or can have sions were intended essarily Thus, it clear fails.55 prosecution in the District to a cation appellant this U.S.Code offense had (Court’s federal Court of [a offense].” burden under the D.C. statute to this, 1153.) opinion It is able to do sanity by preponderance appel- believes, has vacated because it evidence.56 federal convictions. lant’s EQUAL B. BASIC PRINCIPLES OF Notwithstanding vacations, these I be- PROTECTION required to consider lieve the court was Even without federal convictions burden of stat- whether the D.C. it, before the court was to con apply to offenses ute could burden of sider whether the D.C. first, it has because wit- two reasons: apply statute could to U.S.Code offenses. unwittingly tingly approved the stat- Appellant argued first application offense to a federal ute’s plain applies “any terms criminal affirming appellant’s felony murder proceeding Court,” in the District which committed in for a homicide conviction obviously the of includes offense; of and sec- the course a federal offenses;57 govern point, on this the ond, proof if the D.C. burden of because agreed.58 Second, ment he claimed ap- constitutionally statute cannot legislative such a classification is either offenses, plied to federal the whole stat- ap underinclusive59 not because it does including' application its to D.C. ute, ply ju to federal crimes tried in other offenses, risdictions, Code fails. or overinclusive60 it because Williams, applies 55. See United v. 150 U.S. 59. An under inclusive classification App.D.C. 122, (1972). only part similarly group 463 F.2d 958 to a of a who are Yeager, situated. See Rinaldi v. 384 U.S. Although question the 56. has never con 1497, (1966) 305, 16 L.Ed.2d 86 S.Ct. 577 sidered, ac it seems that a defendant clear (unsuccessful appellants must reimburse state underly quitted by the reason of transcripts, appellants whereas successful ing cannot also be convicted of not) ; Oklahoma, need v. Skinner 316 U.S. felony provides underlying the since 1110, 535, (1942) 62 S.Ct. 86 L.Ed. 1655 the mental state and intent otherwise needed (sterilization larceny, for those who commit supra. degree p. for first murder. See 1168 embezzlement). but not for those who commit proof governing generally, tenBroek, 57. The statute the burden of See Tussman & general an amendment to the D.C.Code Equal Laws, Protection of the Calif.L.Rev. 37 provision defense, (1949) ; Note, Developments 341, 348-50 proceeding applicable “in in the Equal Protection, criminal Harv.L.Rev. 82 Law — District 1065, (1969). United States District Court 1084-86 Superior or in the of Court of Columbia applies 60. An over inclusive not classification ” . . 24 D.C. of Columbia . only similarly situated, to those but also to (emphasis supplied). (j) (1973) § Code similarly are situated. See others who not 58, 65, & See also notes 67 infra. 214, Korematsu v. United U.S. (j) (all persons (1944) stretch- “[S]eetion 58. would have to be 89 L.Ed. S.Ct. breaking point lineage Japanese be held confined due fear of ed far to to only ; Carrington Rash, applicable espionage sabotage) to local offenses.” v. burden misunderstanding tried well be able to process.62 of course it statute lant sen tion statute applicability offenses, because court’s does denial In the face analysis. By acknowledges not in the District pass decision limited to federal and that for apply proof equal Congress, however, applies would be a violation different enact a burden to exclusively protection. statute local offenses,61 claiming of basic “put offenses to federal either statute. Columbia, appel- to burden of Congress is overinclusive challenge, one side” equal protec- to D.C.Code reason, evidences has cho- the D.C. offenses And of due unless might proof pect between two statutory to local tion to federal offenses is proof duty.” fenses, equal protection. failing tion an old Court has ed Either we By to language65 of that issue, challenge failing statute to “make a to consider the overinclusive one”; or we offenses is not willing to classification.64 Obviously, every the court forces us to can read statute, held, to unacceptable can hold that address new could be apply “is Limiting “this,” legislative this court has decid- ignore law, the D.C. no only contrary to not not rejected part of our equal equal protec- alternatives. to local the statute its a denial to enforce burden history,66 Supreme existing applica- protec- choose if as- of- question “put 13 L.Ed.2d side” the of whether one 380 U.S. pro- ap- (all applied embezzlers, armed forces since members of Texas). generally, pellant, himself, voting in See had embezzlement convic- from no hibited tenBroek, Instead, recognized supra at note 59 351- tions. Tussman & apply embezzlers, 52; Note, supra and there- note 59 1086-87. statute did equal protection it was a be- denial fore cause p. see 61. But 1173-1174 infra. slightest have basis “[w]e pp. inferring larceny 1174-1180 line between [the infra. any significance in eu- embezzlement] has Reese, 92 63. United States inheritability genics, criminal nor that See Kunz v. New L.Ed. 563 legal distinctions which traits follows neat York, 95 L.Ed. 71 S.Ct. 340 U.S. law has between those two marked Secretary State, Aptheker ; (1951) offenses.” 316 U.S. at 500, 515, 12 L.Ed.2d 84 S.Ct. 378 U.S. Robel, ; (1964) governing The amendment 258, 262, L.Ed.2d 508 insanity pleas does not burden of just might said that as well have applies. The sec- offenses it indicate which apply federal offenses the D.C. statute does ap- however, explicitly amends, it that “put jurisdiction, to one side” in this plies “any proceeding” in in District the applies question to the statute of whether the Superior no I know of as well as the Court. jurisdictions, in other offenses federal statutory principle that would construction thereby that contention frustrate a us limit the amendment to different allow to this inclusive. While the statute under by sec- than set of offenses that covered suggestion the stat- ridiculous because seems specifi- Indeed, the tion that it amends. cally court apply plainly offenses to federal ute does not por- amending relies on the fact that equally jurisdictions, ridiculous it is in other (j) in- is to be read as an tion of section 301 application ignore to offenses federal its to tegrated part Appel- section. whole plain- jurisdiction, since the statute in this amending lant section —since claimed ly apply 59 See notes 58 & to them. does “insanity” required speaks him in terms of it — supra, and 65 & 66 infra. insanity, prove and not that product Durham a thereof. See crime was Oklahoma, Compare 316 U.S. Skinner v. 64. U.S.App.D.C. 214 94 (1942). L.Ed. 1655 62 S.Ct. rejects argu- (1954). this F.2d 862 sterilization allowed at issue there The statute begins, be- as it did the statute ment because or more had committed two a felon who “Insanity amendment, shall fore involving “amounting moral to felonies crimes defense,” reason, the and for a turpitude turpitude.” in- of moral Crimes applies both the amendment concludes larceny, alia, cluded, but not embezzle- inter (Court’s insanity defense. elements of the have held Court could ment. The original). op. 1152) (emphasis in repeatedly com- those who can sterilize state Bell, larcenies, compare Buck v. mit page (1927), 66 on 1172. 66. note See L.Ed. 1000 long imposition leads but also to the of two treatment found not term those guilty insanity; by first, different burdens issue reason of sanity67 by prove preponderance of- had when federal and local a joined they mentally are in federal fenses district evidence that were ill and dangerous court.68 at the time commitment.71 Congress feared that Bolton would allow holding hand, On the other “dangerous criminals, psy particularly may apply to U.S.Code offenses chopaths acquittals to win of serious jurisdiction requires tried in this tous charges grounds insanity criminal by “justification find that offered” by raising a mere doubt as to reasonable Congress limiting application escape hospital their and then to in the offenses tried government commitment because the “actually convincing.”69 Thompson, su prove insanity following unable to their justification pra, F.2d 1341. by acquittal preponderance offered70 was in our decision Bolton v. reasoning evidence.”-72 This on a rests Harris, U.S.App.D.C. misapprehension insanity about how (1968), gov defense where held administered in we that the this jurisdiction.73 Even if were a reason automatically ernment could not commit rights require “compelling Moreover, stitutional Congress in- has made it clear that Shapiro Thompson, terest.” the whole of 24 § D.C.Code 301 is intended (1969) (right apply L.Ed.2d 600 to federal tried in offenses the District travel). 301(h) (1973). Columbia. § supra H.R.Rep.No.91-907, 70. See H.R.Rep.No.91-907, note 66 at 66. Cong., See 91st 2nd 73-74. Sess. 73-75 The reason for amendment was this court’s decision in Bolton acquittal 71. in We indicated Bolton that Harris, 395 F.2d 642 obviously insanity reason of an im- applies acquitted to those portant subsequent consideration in a commit- reason on federal as well as local hearing “may ment because it tend to show jurisdiction. pp. offenses 1172- requirements [that defendant] meet[s] 1174 infra. commitment, namely, danger- illness (emphasis orig- ousness.” 395 F.2d at 651 government offenses, 67. On federal would inal) . prove sanity beyond have to a reasonable doubt, offenses, whereas on local the defend- H.R.Rep.No.91-907, supra 72. note 66 at prove insanity by pre- ant would have to quoted op., p. at court’s n. ponderance government of the evidence. The respects. First, argued This is so two even its brief that “[s]uch result can- reasonably when have been intended Con- sanity beyond doubt, gress.” Compare Brown, reasonable there were United States v. very pleas few successful cases government objected plea. (federal where applicable bail statute to D.C. of- compiled court). Data ney’s the United States Attor fenses tried federal district Office the District Columbia indi 502(3) 68. See 11 D.C.Code § years preceding cate that in the seven Indeed, affecting burden of there were a classification the in amendment total may by require acquittals insanity compelling legis defense a of 23 reason of con justification. cases, just year. “convincing justifi or lative The tested three a The over Thompson, test data not cation” was enunciated do indicate which crimes were pending charged cases, possible where the interest appeal, in these it is not at issue bail hence clearly which is not of to determine whether constitutional these were “serious of magnitude. however, Commentators, suggest See Harris v. United fenses.” 404 insanity acquittals (1971) 92 L.Ed.2d won in 25 are not serious (Douglas, cases, Justice). insanity particularly Circuit The trials. See Chern de appears Mentally fense, Schaffer, hand, Defending on the other off Ill: to be & con stitutionally required. Quicksand, Ethical See State v. Stras Amer.Crim.L.Rev. ; burg, (1910) (1972). 60 Wash. 110 P. 1020 510-11 23& n. State, appears acquitted Second, Sinclair 161 Miss. 132 So. 581 it that no one by insanity (1931) ; Brawner, released at a reason of has been cf. U.S.App.D.C. 1, hearing F.2d Bolton pital unless Elizabeths 985-986 Saint Hos- respect (1972). On with the other Discriminations to con- recommended release. fore, justification, concern, however, inadequate is no let it is there alone a able convincing singling one, justification dis out the a classification Dis a ju Columbia, applying tinguishing and other and a differ between D.C. trict statutory- ent burden of on federal there is a offenses. risdictions. procedure, applicable to both local and present Thus, the court case— offenses, permits post-trial federal failing by equal protec- to consider by guilty found not confinement those by tion issue the D.C. burden of raised insanity.74 such reason of No statute to choose in statute —has forced us applies to federal offenses tried other wholly subsequent un- cases between two jurisdictions, found where accused acceptable choices. guilty by insanity is reason may, course, com released.'75 He be IV pursuant commit mitted to a state civil finally The court affirms long statute,76 permits ment but no state felony murder D.C.Code conviction robbery convictions, the state term civil commitment unless his D.C.Code all of application by of the a rested mental least establishes illness provision placing D.C.Code burden preponderance .the of the There evidence.77 requires hearing such a antecedent to commit- hand, patients there have been denied release ment, at must find that which time despite by Hospital a recommenda “by person or de- reason of mental disease favoring- release. In United States Cf. person fect, dangerous to himself is or Ecker, U.S.App.D.C. 223, others,” property 4238(f). or § Commit- past people (1973). year, In the hospital a federal would continue ment to eligible hearings. peo were for Bolton Five “civilly person may be committed until pursuant Hospital, ple, on the recommendation of the facility.” a State law to State to unconditionally: had been were released one Thus, 4238(h). a See note if degree § charged burglary; one infra. with second applicable post-acquittal generally robbery; a one with assault with dead with likely enacted, appears offenses ly weapon; possessing dis one with hearing require a commitment tributing substance; will a one controlled by required Bolton. rooming similar to the one pay his a with failure to bill at legislation have Past efforts enact similar people, Another six also the recom house. Cong. conditionally See S. 3689 Hospital, unsuccessful. of the were mendation 4, 1966) (for (Aug. commitment charged Rec. one had been with second released: degree burglary; by insanity acquittal of fed- reason of sodomy; after one with with one pre- prove “by offense, government a must simple eral assault; a one with assault person ponderance evidence, deadly weapon; with unauthorized use one mentally ill, . . . his release carrying danger and that vehicle; a and one with danger or hospitalized, would constitute a to himself weapon. other were ous others.”). provided data and conclusions were [These Pavillion, by the Howard Saint staff at John procedures and standards commitment Civil By them, Hospital. citing I do Elizabeths vary among greatly Brakel the states. See S. my approval ad intend to indicate Mentally Rock, Disabled and the & R. in this defense ministration of (1971). Law 34-98 Brawner, jurisdiction. See United States v. states, civil commitment is con In most therefore, proceeding, sidered “civil” (opinion Bazelon, J.).] C. prove government ill mental part 301(d) As 74. 24 § preponderance of the evidence. ness Act, Congress amended also the Court Reform Dershowitz, A Preventive Confinement: change 301(d) the Bolton rule section Suggested Framework for Constitutional Anal acquitted placing the burden on defendant ysis, 1277, 1295-1301 51 Tex.L.Rev. pre- prove reason of recently however, court, held that This longer ponderance is no that he of the evidence requires process due mentally dangerous ill he can before dangerousness illness and mental released. civilly person can a be reasonable doubt before Ballay, 12081, pend- currently bill, In Re 157 committed. H.R. 75. is a There (1973). 59, In Re See also F.2d 648 ing the Judi- 482 on before the House Committee ; (Ct.App.Fla.1965) Pickles, provide postacquittal 603 ciary, 170 So.2d com- which would N.J.Eq. 161, Perry, A.2d guilty 43 137 Ex Parte reason not mitment for those found (1945). any insanity bill 885 federal offense. of of 1174 application, requiring a defendant to establish his insani- on the defendant prove insanity ty preponderance is a denial of due ev- his defense a process. Appellant In that relies on Re Win holds burden idence. It ship, 358, 1068, proof equal L. a denial of statute is neither 397 U.S. S.Ct. process.

protection Ed.2d held which that nor due “pro[ve] beyond rea must EQUAL every A. PROTECTION . . . fact nec sonable doubt essary crime,” to constitute summarily concludes that The court sanity claims such In re that is a fact. proof application a burden of jecting contention, this court ad different standard for offenses arguments, reasons, vances several offenses not from for federal is that cases, examine in which I shall some de equal protection denial because “[i]n however, First, helpful tail. it enacting local criminal statutes [for place question proper in its histori Congress Columbia], need District cal context. path elects in de- hew to the same fining criminal offenses nationwide 1895, writing In Justice Harlan 1153.) (Court’s opinion applicability.” at Supreme unanimous Court reversed resting upon Rather than this sort of murder conviction because ipse dixit, equal pro- to me that it seems court had instructed the that “the requires tection consideration some proof burden of rests permit the reasons that would the same with the defendant.” Davis v. United legislature impose a burden of 469, 477, 353, 16 S.Ct. U.S. for the trial of crimes is dif- 354, 40 L.Ed. 499. found applied ferent from the one the trial sanity “essential fact” of federal crimes.78 murder, the crime of and that the bur- prosecution den “to show be- While I am troubled yond a reasonable doubt the Congress existence fails to conclude that is barred every necessary fact to constitute enacting from different burden of charged.” 493, crime Id. at at offenses, I statute for D.C.Code 360. am even more concerned that question unworthy thinks of serious upheld 1952, the Court the consti The District of Colum- consideration. Oregon tutionality requir of an bia, seventy percent over ing defendant black,79 wholly disfranchised. Tradi- doubt, a reasonable Leland Or v. tionally, higher would call forth a egon, 790, 1002, 343 U.S. 72 S.Ct. 96 L. protection equal scrutiny.80 standard of 1302, Ed. and indicated that Davis was however, appears jurisdiction, In this holding, a constitutional “but it does not. the rule to followed in federal courts.” 797, Id. at 72 S.Ct. at Justices B. DUE PROCESS argu dissented, Black Frankfurter ing rejects that, by definition, The court also ar- a homicide with gument irrespective statute, They out is not noted murder. ly McDonald, 78. See United States v. of those arrested for serious offenses U.S. 95% App.D.C. 338, (1973) (Baselon, Metropolitan F.2d 513 518 black. are J., dissenting). Department Washington, D.C., Police . But see Coleman v. An C United Report, nual 334 F. Pt. II 34-57 (Congress may 2d 565-566 allow See, g., e. States v. Carolene Prod juries prohibit capital punishment in mur Co., ucts 304 U.S. 58 S.Ct. 82 L.Ed. special der cases in “the maritime and ter (1938) ; Reynolds Sims, U.S. jurisdiction,” permitting ritorial while not ; (1964) 84 S.Ct. L.Ed.2d 506 D.C.). them to do inso Harper Virginia Elec., Bd. of Dep’t Commerce, (1966) ; 79. See United States L.Ed.2d Gen- Population Lightfoot, eral Characteristics: Gomillion Summary, (1)-B1 (Jan. Pub. No. PC 5 L.Ed.2d 110 1972) Moreover, approximate-

H75 justifications nine duty court offers of estab- of State that “[t]his equation for its every which conclusion. lishing fact of establishing up of crime, and to a adds First: beyond a a satisfaction of it to the proof “Winship involved of facts —‘the differ- the decisive doubt is reasonable an insani- occurrence of event’ —while culpability criminal ence between ty proof of condi- with ‘mental deals 805, at liability.” 72 S.Ct. Id. civil propensity.’ v. ap- Leland, continued to we After Brown, U.S.App.D.C. 402, 478 [155 doubt” “beyond ply reasonable (Court’s (1973)].” F.2d jurisdiction.81 in this standard 1155.) opinion at Winship, in- which Finally, in in clearly contrary, sanity, On the Davis juvenile adjudication of volved indicates, always been a factual beyond went delinquency,82 the Court question, nothing panel else. The it before the case context of the factual cases, cites no and I no there are believe to hold: cases, suggesting sanity, that unlike question, act about the not a doubt is factual issue. there remain Lest the reason- stature constitutional The court’s reliance on United States explicitly standard, hold we able-doubt misplaced. v. Brown When Brown re- protects the Due Clause that Process propensi- fers to “mental condition and against except conviction the accused ty,” explicitly “danger- describing proof doubt upon a reasonable ousness,” is, presumably, necessary every to constitute present fact status indicative future charged. he is with which the crime hand, Insanity, behavior.84 on the other (em- at 1073 397 U.S. inquiry involves sort of the same factual phasis supplied). premeditation, needed determine de- liberation, intent, all are of which holding intentionally Due to the broad clearly by Winship covered Winship, question deciding burden of whether the D.C. Second: process due violates Supreme opinion “The Court’s in Win- Winship Leland sub overrules. whether ship approval group cited with is, “sanity” 83—that is a silentio whether prior decisions, including Leland v. necessary the crime.” to constitute “fact Oregon.” 1155.) (Court’s opinion at a fact. Davis held that was such once, (as part did cite Leland Court Indeed, instructive is at least string Davis), of a citation included Winship setting holding out support proposition but Davis formulation Court returned hardly my can comfort brethren: necessary “every fact to constitute This to mention Expressions the crime.” court fails many opinions of this Winship’s plain adoption Davis long Court indicate that it has formulation. assumed criminal See, g., (jury e. (1968) McDonald v. re L.Ed.2d 491 ; (1962) quired F.2d proceeding). in state criminal U.S.App.D.C Adams v. United Winship, 83. Even before some commentators . 137, (1969) ; upon continuing vitality had cast doubt Carter, F.2d 200 Report Leland. President’s D.C. Crime Commission Supreme vigilant 82. The has been less Obviously, finding at the time procedural juvenile protecting rights nothing says about the crime committed s Compare Pennsyl than adults. McKeiver perpetrator’s “propensity.” vania, 403 U.S. 29 L.Ed. (jury acknowledges 2d trial not 85. The in this case holding. juvenile delinquency adjudication), Winship “intent” state comes within Louisiana, op. at 1155. Duncan Court’s charge beyond quotations are reasonable doubt is These the heart of the a ruling proof

constitutionally required. on the burden of 397 U.S. at Court’s precious They little at standard. leave S.Ct. Winship doubt that intended to include Immediately thereafter, the Court sanity holding.86 constitutional within its quotes approvingly from the Leland dis- sent: Third: duty is the of the Government [i]t to charge “The essential elements of the guilt beyond a establish . . . proof not do include reasonable This notion—basic doubt. sanity.” (Court’s opinion 1155/) at rightly in our law and of the one society require- boasts of a free proof —is applies The D.C. burden statute safeguard process

ment and a of due crimes, just felony to all murder. historic, procedural of law in the con- Thus, question before the court was process.” tent of “due 397 U.S. at sanity generally whether an element 1071, quoting 90 S.Ct. at Indeed, of criminal behavior. 802-803, (elipses at summary ap- court’s of the affirmance original). plication of the new burden Then, appellant’s robbery page, statute further to convictions down the the Win- ship say indicates Court had this to that was concerned with about Davis: particular the elements of a offense Davis murder conviction was re deciding constitutionality. the statute’s judge versed because the trial in jury structed the it was their appropriate Even if it was to decide duty to convict when the evidence was constitutionality of the statute equally regarding sanity balanced considering particular offense, of the accused. This Court said: “On especially poor murder was an selection. contrary, he is entitled to an ac statutory definition, Its unlike that of quittal specific charged crime crimes, requires perpetrator most upon if all the evidence there is rea memory be “of sound and discretion.” capable sonable doubt he whether The fails § 2401. committing in law of crime. . statutory consider this definition when deprived No man should be of his life constitutionality it discusses the ju under the of law forms unless applies burden of as it try able, rors upon who him are their felony murder. consciences, say the evidence however, opinion, Earlier its before them is sufficient ... rejected argument show a reasonable doubt the court’s failure to instruct every necessary existence of fact that “the must charged.” constitute the crime 397 U. memory and was er- [sound discretion]” 362-363, 1072, quot atS. 90 S.Ct. at suggested ror. The court that this ing part issue 484, 493, 160 U.S. at 16 S. against (elipses original). appellant Ct. “well-settled” be- constitutionalizing 86. The when there is Court’s reasons for crime reasonable doubt about “beyond guilt. 363-364, at his U.S. at reasonable doubt” standard also (emphasis supplied). demonstrate intention include holding: upon within de rationale person during prosecu- is that a who is unable accused a criminal fense rests time he commits tion has stake interests to control himself immense importance, possibility both not be because of the antisocial act should “condemned” may Holloway liberty upon “stigmatized.” that he v. United lose convic- certainty F.2d tion and because of the that he stigmatized (1945) ; 94 U.S. would eonviction. Durham (1954) Accordingly, society App.D.C. 228, ; good that values Brawner, every name and freedom of should States v. individual not condemn a man for commission of

H77 wrong direction, in the murder cuts have held that cases87 several cause Supreme Leland, and this memory need not and discretion sound Brawner, in court United States alleged in cases the indictment. be (1972) (en rely upon U.S.App.D.C. however, court, all the cited suggest. pros- banc), the When seem to App.D.C. 395 Hill v. United “premeditation holding prove and ecution must (D.C.Cir.1903), which, while doubt, beyond reasonable a memory deliberation” and discretion” “sound that jury indictment, to consider the and the is allowed alleged the need not be in mental ill- of the defendant’s evidence approval that the trial also noted with deciding government the jury they in whether ness judge that had instructed cogni- has on these its “beyond satisfied doubt all reasonable must find burden government factors, the is per- tive . that defendant . . was showing significant to on mental discretion,” make memory of sound and son setting Thus, in out intent. state and government “establish [ed] and that Leland, was care- sanity the facts in the Court beyond a reasonable fact judge had in- Thus, ful note the trial App.D.C. to that at 408. doubt.” jury had the prove the state structed the need whether beyond proving burden of a reasonable memory ain fel- “sound and discretion” hardly doubt: ony “well-set- murder case is tled.” deliberation, premeditation, malice Thus, to Win- even if we read were intent, . . . [and] ship sanity not include within during this evidence adduced argued holding, might it still be prove insanity shall be defendant’s sanity Congress to make once chooses regard considered ... statutory part definition —as ability premedi the defendant govern- murder —the deliberate, tate, purpose, act form prove this el- ment must existence willfully, maliciously. act U. beyond ement a reasonable doubt. 794-795, at 1005. S. at Fourth: why Brawner, explaining And charge Davis'], the “Here [unlike jury consider the should allowed to be felony murder, not law mur- common ques- evidence of mental illness pre- der, proof accordingly, no specific intent, refer- tion of we made meditation, deliberation, and malice is recently enacted ence to the effect of the (Court’s required.” opinion at governing the burden D.C. statute 1156.) proof insanity pleas: this between Davis While distinction burden that the [D.C. extent [T]o present true, and the case it is also ir- proof to a conviction leads statute] course, Davis, of has never relevant. degree the evi- murder when of first premeditated limited equipoise on issue of is in dence eases.89 insanity, an additional there would be Moreover, miscarriage justice evidence the court’s distinction if the be- premeditated tween as murder and not for consideration available were op. passing, however, cases this in cited court’s at 1151-1152. mention “[w]e upon to decide in this case we are called 88. The also court claims that “[i]n require affirma- whether matter does Green, States v. cases, in all since the tive F.2d 1313 in footnote we af- original.) (Emphasis made here.” Coleman, firmed what held in Sill we Carter, supra." (Court’s See, op. 1152.) g., e. Green did (rob nothing U.S.App.D.C. (1970) footnote F.2d sort.. “ said, weapon); bery deadly Green court no [i] t is means clear and assault with memory ‘sound and discretion’ Durham degree (housebreaking). requiring element first F.2d 862 proof.” continued, affirmative aggravated fact raising which is further doubt on the is- reasonable prove in- had to premeditation that the sue of and deliberation. defendant sanity. then, again, if Appellant even we were Once case was made to generally process precisely hold does suffer that due this “additional miscar riage although require prosecution justice,” doubt, might well here of it. a reasonable makes no mention His trial argued appellant due was denied was conducted now defunct under the process doctrine, prohibited because the Fisher90 jury in this case weighing considering totally the evi- barred from from the evidence of a bearing deciding condition dence of mental as defendant’s mental illness degree culpability. requisite whether the mental state for Indeed, miscarriage murder existed. Fifth: justice greater was even here since [sanity element “If an essential were the trial court bifurcated felony murder], the Government objection; thus, jury trial over his produce required would to evidence be wholly was appellant’s cut off from the evidence on establishing sanity beyond a reason- state, mental and was unable case, part of direct able doubt as to consider it even in informal sense an before the defendant introduced notification tolerated in this testimony, iota of and that not and is jurisdiction juries It is notorious that the law. never has been consider evidence of mental disorder to Davis in effect confirms obser- [this] degrees return verdicts for lesser Davis vation . . otherwise . compromise homicide as a between a prosecution required would have degree conviction of first murder and an sanity beyond proved a rea- have by acquittal insanity.93 reason of part of its direct sonable doubt as Appellant challenged the trial court’s 1155, (Court’s opinion case.” bifurcating action the trial over his 1156.) objection. simply This court that holds explicitly largely Davis bifurcation is within holds that the “discre- is court; tion” crime,” of the trial “fact cites no case essential to constitute the permitting objec- and that bifurcation over the view is not at all incon- “[t]his requirement importantly, sistent More with the” defense.94 government problem satisfy it does not not consider how this need is its burden by jury’s widely produces affected until the accused “some evi- known re- insanity.95 accept luctance plea, dence” of at 485- U.S. U.S.App.D.C. 90. Fisher here: “We would have to be ‘blind’ [a] 149 F.2d Court . . . [to] 28 aff’d 328 see what ‘[a]ll U.S. S.Ct. ” (1946). can others see and L.Ed. understand.’ 41, 44, Rumely, States v. 345 U.S. 73 S.Ct. Dougherty, 91. See United States v. U.S. 543, 545, (1953), quoting L.Ed. Child App.D.C. 76, 1130-1137 Case, 20, 37, Labor Tax (refusal give jury nullification instruction 66 L.Ed. 817 although jury prerogative not error has to dis regard legal requirements reaching verdict). op. 94. See cases cited at court’s 1157. Most (Bazelon, But J., see id. at 1138 C. dis of these cases hold is not error senting part) (jury should be instructed judge request the trial refuse a defense nullification). for bifurcation. degree manslaughter Second explained 95. The Davis the de- Court are lesser included offenses both fendant was to introduce some evi- premeditated murder. “presump- dence of because of the Fuller v. United justified general law, by tion which the 407 F.2d 1199 experience of mankind as well as con- 93. What Justices public safety, Taft indulges Frankfurter siderations in fa- appropriate have said in other sanity.” contexts vor of 160 U.S. at 16 governmental inducement and the crimi- Thus, the court at 357. 16 S.Ct. propensity the defendant. completely nal misstates present ease indicated, Supreme Braver court and the Davis. reaffirmed,96 subsequently Sixth: prosecution proves propensi- if the determining Leland whether “In fails, entrapment ty, irre- defense Oregon overruled modified or governmental showing spective of a Winship, should consideration Re Thus, inducement. inducement obvious- Lego given recent case the more negates ly since no element of crime Twomey, notwithstanding proved the crime can be L.Ed.2d 618 showing. Propensity, on the oth- such a it was consistent Court held hand, directly in- er on criminal bears the volun- process determine due tent; propensity proved, proof if prepon- confession of a tariness propensity, of the crime fails. On than rather of the evidence derance noted, and Braver as this fails doubt.” reasonble mention, has the burden 1155.) (Court’s opinion at proof beyond a reasonable doubt.97 apply terms, plain not does Winship, Eighth: in test- the burden of to State, Phillips “In v. ing confession. Nev. [86 of a the voluntariness 671,] Supreme Lego of 475 P.2d the Court Thus, question in was whether the argument rejected apply Winship, Nevada the that In to not whether to extend Winship changes concept Re the it [of extend decided to The Court it. asserting hearing that one the affirm- Leland] voluntariness “a because prove nothing ative defense of to do must whatever has jury insanity by preponderance reliability of the ev- improving of the with (Court’s opinion 1156.) idence.” at at at verdicts.” 404 U.S. insanity defense, the other The holding supreme This naked of a state great hand, with “the deal to do has a court, unsupported by any analysis or reliability jury verdicts.” weight reasoning, does not lend much to the court’s For what conclusion. Seventh: worth, however, opinion the ex- Nevada Braver, F. v. 450 “[In plicitly rests on rule the “well-settled” 2d the Second Circuit] 799 “insanity affirmative prov- placing the burden held that proposition.” jurisdiction, In this we entrap- ing part of an inducement [as repeatedly have held that ment on the defendant does defense] plea is more than an affirmative de- process.” due not constitute denial of fense, and that at times interest of 1155.) (Court’s opinion at justice requires prosecution the court or In the Circuit the defense of en- objection Second to raise the issue even over the trapment split into two elements: fact, of the defendant.99 the burden Nonetheless, concluded, at “a verdict Sherman, 97. See United States v. returned, guilty properly (2nd if (L. [cannot] be 1952) Hand, J.). Cir. entertain a reasonable doubt Gallegos Nevada, 98. See v. 84 Nev. to the existence of a fact which is essential P.2d 656 guilt, namely, capacity law Lynch, U.S.App. 99. See accused to commit 488, crime.” Id. at th[e] Overholser (1961) (en banc) S.Ct. D.C. (“insanity strictly is not an affirmative de Russell, 96. United States v. 411 U.S. fense and can be raised either the court 1637, 1645, prosecution”) ; L.Ed.2d Whalem (1973) (“jury finding predisposition as to 346 F.2d 812 entrapment”). (1965) (en . . . banc). fatal to claim of provides Thus, propositions, question cases, ar- guments prove marshalled fail that the defendant must his insan- court “regardless ity Winship support does the issue.” its conclusion that who raises require the Supreme The court also notes that the sanity beyond On a reasonable doubt. denied the Nevada Court certiorari exception, contrary, almost without ease, dissent- two Justices opposite they support precisely con- ing.100 itself, Supreme how- clusion. ever, repeated times countless no with it a denial certiorari “carries support case, nor of the decision in that V opinion sup- views this case are critical issues Pennsylvania,

porting Agoston it.” justice the fair administration —for 844-845, L.Ed. prosecution101 the de- as well as J.j. (opinion Frankfurter, Moreover, they fense. are central Ninth: functioning proper of the new relation- system “[S]anity ship the federal criminal between is not one of the elements recently system. created murder but lack of

may interposed importance as a defense.” mat- Because of of these (Court’s opinion 1155.) setting ters, necessary in forth it was Throughout opinion my opinion seems show that views suggest that because we discuss ignored controlling prece- question of responsibility criminal under misstated,103 dent,102 misrepresented104 “insanity defense,” the rubric of the authorities, misapplied105 several sanity is not an element the crime. understand and a failure to manifested hollow, say least, It would equal protection an- principles of basic us to look at the label attached to the alysis murder doc- and question Winship at deciding issue in if my hope expecta- triné.107 It was apply. approach meant Such an rea- court would offer a require would allow the state a de- fully response ventilating all of soned prove fendant his “alibi defense” Regrettably, re- these issues. preponderance of the evidence. Com- Judge sponse an admission from pare Stump Bennett, 398 F.2d 111 “argu- (8th 1968) (en the issues are Leventhal banc) (violation Cir. process require due en too to merit defendant able” “narrow” but defense). alibi banc consideration. 100. 403 U.S. 29 L.Ed.2d 104. See Johnson v. United discussed Douglas Justices p. supra, op. ; Black and at 1149 1162-1163 court’s at grant voted to certiorari. Brown, p. discussed op. 1175- at supra, and court’s at 1154-1155. pp. supra, 101. See 1167-1169 and court’s op. at 1158. Hooper, 105. See United States discussed p. 1158; supra, op. at 1166-1167 and court’s at Canty, See United States v. discussed Benn, note 46 United States v. supra, discussed pp. supra; at 1165-1166 United States v. op. court’s at Thompson, p. supra. discussed at supra, 106. See 1170-1174 & n. 25 and court’s 103. See Green, United States v. discussed op. 1151, 1153. at op. 1152; note and court’s Davis v. supra, discussed op. pp. 1178-1179 supra, 1167-1169 court’s op. and court’s at 1156. at 1158.

Case Details

Case Name: United States v. Lavance Greene, United States of America v. Randolph Greene

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

Date Published: Feb 1, 1974

Citation: 489 F.2d 1145

Docket Number: 72-1130, 72-1272

Court Abbreviation: D.C. Cir.