*1 coverage holding for, judgment adopting point- incurred its debts as we distinguished. out, ed case can insureds. concerning The discussion the exclusion- re-emphasize, for To the mere ary cited, however, ap- clause Surety as tuitous existence of National proval. Float-Away’s comprehensive liability in rehearing petition The is denied. proper con surer should not distort a struing policy applied of Dance’s

Float-Away. Though list intra Donnybrooks

mural insurance is con

stantly growing,1 cannot shrink we duty particular poli

our to construe the

cy confronting Surety us. National is a

party suit, should this but this alone Float-Away’s

not detract from claim. As to Fireman’s Indemni Fund POPE, Appellant, Duane Earl ty Co., Ga.App. Co. v. Mosaic Tile Georgia Court S.E.2d America, UNITED STATES Appeals was confronted with a case Appellee. injured employee that involved an No. 18272. opinion named does not in insured. Appeals United States Court injured employee dicate that if the employed by Eighth Circuit. party, a third who is an Feb. 1967. omnibus insured different from the one court, involved in the action before the Rehearing Denied March 1967. holding similar result. would Georgia While did def not restrict party inition of “insured” to the seek ing coverage, adopt did not it also suggested approach

all-inclusive appellee. unambiguous

A definition light circumstances, may of some hazy

become and unclear when additional

factors cast their shadows.2 We are

convincedthat would the definition which

apparently coverage exclude when the

employee injured of a named insured is coverage employee

also denies if an

Universal, insured, omnibus different

is involved.

Finally noting the rationale of Gulf Corp.,

Insurance Co. Mack Warehouse

E.D.Pa.1962, F.Supp. we were ing If we do other- the law suit. were to Maryland Casualty Co.,

1. Hamilton wise, company an insurance would be appearance handicapped pressing supporting its companies of insurance on both sides of is an omni- named insured’s claim that he longer unique the case is no or unusual poli- bus insured under another insurer’s phenomenon. Facing reality and be cy. ing well aware the ultimate benefici decision, constrained, employee aries of our we 2. The existence exclusion however, our to construe these contractual clause does not alter decision agreements unnecessary Company controlling. Mosaic Tile is not without diversions conjectures concerning par- in- tactics of The same definition “insured” motivating ties and the factors volved. initiat-

7H D.C., F.Supp. 234. also See VOGEL, Judge,

Before Chief and VAN OOSTERHOUT, MATTHES, BLACK- LAY, MUN, GIBSON, MEHAFFY, sitting Judges, Circuit en banc. Judge. BLACKMUN, Circuit *3 appeal concedes The defense on Friday, shortly noon on June before Pope, 4, 1965, Duane Earl armed when gun, State with a the Farmers robbed Big Nebraska, Springs, a federal- at Bank ly and, institution, $1,598, insured robbery, killed shot and the course of that seriously employees three of the bank wounded a fourth. on

A 6-count was returned indictment charging Pope June 22 with violations robbery statute, the bank U.S.C. (e). 2113(a), (b), (d), and He entered § plea guilty. of not The trial consumed most of the month of November deliberating days the After for two counts. convicted on all six counts, which verdict on the last three charged killing respective bank per- employees, directed, 2113(e) as § mits, punished that the defendant be Judge imposed Pelt concur- death. Van years, rent sentences and 25 counts, respectively, on the first three and a each of the sentence death on stayed exe- last three counts. This court ap- pending cution of death sentences peal. no conflict The evidence. There Many them were basic facts. Ad- Judicial the defense’s

conceded just prior trial. mission filed offense, Duane, time graduated years age. He had was 22 Sunday preceding McPherson the College, at Mc- school a denominational eight Pherson, He one of Kansas. was parents. He of farm children born high elementary school attended Roxbury. normal life led the He ordinary boy. student a farm He was disciplinary problem perhaps less of a very average boy. ac- than the He Rudolph Wallace M. and Robert B. extracur- athletic and tive both the Crosby, Lincoln, Neb., appellant. for high He programs school. of his ricular for engaged Richling, Atty., in football and basketball L. Theodore U. S. Neb., years baseball Omaha, appellee. track and four and in evening, band, glee dark, the few participated after he drove He three. Big Springs, pres- around the rode club, miles dramatics. He was chorus and there, He mem- bank and returned. class. was a ident of his senior years. council for two ber of the student morning, placed early He aróse the next captain of the team He basketball gun case, and drove as in his brief co-captain of the football team Big Springs. way to far as on the Brule year. senior the’highway he turned off (cid:127)There high encouraged by of Brule which south checked back road Duane was robbery. . go college. faculty en- While He he used after school nearby automobile’s this road he McPherson. He received removed rolled at parr plates. license student loan assistance there college ticipated program. At in a work Springs, Big Duane then drove *4 average e he student a fine was an and He Farmers went Bank. the Statu placed pro- on athlete. He was noticing time, passed slowly scholastic it a second emerge bation times but at was able to approach He that customers were there. year co- from it. his last he was "again shortly a. m. ed it after eleven captain of the football team and was were inside. employees This time defensive end named all-conference parked by bank, his He took brief opposing members of teams. containing Ruger af and the inquired silencer, He fixed and entered. to at There the effect that evidence president, college Kjeldgaard, shop his of Andreas father’s work and at the development Mr. laboratory a loan. about land he worked silencers designed Kjeldgaard guns; the bank did told him that he and that constructed ' devices; went not make of that kind but at least a loan two these that on. get May telephone the num purchased to find to a book he a revolver might silencers; to which bér another area bank he affixed.one around the that he make the came tested it in his bam loan. Duane father’s employees’ effective; and end of into the found it not that on the counter to be area, gun, May 27, payment pur- told Mr. drew and with a down he out money Kjéldgaard Huger put pistol; chased a .22 automatic to bank’s Kjeld coupling gun Employee Franklin he this welded a so that brief case. nephew it; gaard, 25-year-old a silencer could be attached to They something coupling president, uncle. he his described this came to assist as instructor; money cash drawer else to his father and an removed from and plate put in the brief a it he made a breast under counter and out employee Lois tractor blade. case. then ordered Duane money get to, out of the Ann Hothan Wednesday, 2, following On his June brought vault, out vault. She entered the graduation, Duane was at home. His placed bills, them and some one dollar parents upstairs were there. He went employee, in the A fourth brief case. dropped and a rifle out the and window sitting Hendrickson, a table at Glen was outside, picked up, put then it went and happening. while all this was already it in his 1939 Buick. He had persons placed Ruger four Duane all and the then ordered silencer All com- to lie on down. automobile. He from the floor face borrowed $50 Kjeldgaard plied. father, parents his He elder told his he shot the was going of the head. work, rear to look for the back and at Oklahoma and unjammed it departed. gun jammed. and He north 30 miles He drove some Salina, Kansas, registered three in then shot other each where he again or head. neck his back and own name at a The next motel. morning Kjeldgaard lose con- Franklin did he rented a 1965 Chevrolet Agency eventually and hear to see Hertz sciousness. He was able drove Ogallala, register- Nebraska, place. other three died what took where he ed in his own at a That at the scene. name motel. building, Frank- After left the himself in. Duane He decided to take ad- burglar morning

lin alarm. vice. able On of June 11 sound he City, Missouri, Franklin at the flew survived testified Kansas check- into trial. ed a hotel under a false name. He telephoned president the McPherson Pope When left the drove he bank City police. then the Kansas highway the main then took the teachers, At the trial staff and class- running back He road south of Brule. high college mates of his school and his high speed. He un- traveled southeast at years employers and businessmen and Ruger from the screwed silencer Roxbury and McPherson testified that it out the car. window threw experience Duane’s conduct their on, car, out, got stopped Farther he exemplary. high superintend- His school gun con- threw the into field. He any problem ent could not recall of disci- traveling fast, bump hit tinued pline respect with behavior to Duane. punctured gas purchased his tank. He Roxbury employer His considered him gas plug attempted at Wauneta and college “the best man I ever hired”. His rag. the hole The station attend- coopera- football coach described him accept expired ant refused credit giving tive him least “the trouble card or his off check and drove anybody I. had”. His harvest giving after later false address. He employer said did his work “better purchased gas put *5 and li- cash the anyone than His else”. home town bank- plate cense back on car. He the eventual- er, from money, whom he had borrowed ly registered reached Salina the and at described his attention to his credit re- same in his ob- motel own name. He sponsibilities. buildings The McPherson tained his bed 1939 Buick. He went to grounds superintendent, and under whom got up, but at m. the two a. he returned Pope during collegeyears, had worked his Hertz, rented automobile to and then said he was “the best of of them”. parents’ drove his own Buick to his home. go He Except did not into the house but left parking tickets and one $150, together note, mail violation, with a in the minor traffic is no there evi- box. The note his Pope advised father dence that Duane had ever been returning difficulty he he had the borrow- with law enforcement au- $50 deposit thorities. ed and asked that other he the bank $100 defendant’s account. points ap- The defense’s seven basic on peal confessions; (1) (2) concern: two He went aban- Wichita where he examination; psychiatric a court-ordered bought the doned Buick. He bus ticket (3) jury, and, spe- the selection the Enid, Oklahoma, proceeded to by and then cifically, (a) sys- Nebraska the selection persons City, by plane bus to to El Oklahoma tem, (b) exclusion Paso, by Diego and bus to where San scruples against capital punishment, and placed money he June and arrived 6. He (c) inquire the court’s refusal to as to gun carrying

and in a another he was political religious beliefs; (4) and storage Tiajuana, locker and went mitigation limitation of as evidence fight. Mexico. He attended He a bull rehabilitation; (5) in- a refused Diego returned to San into checked jury’s authority struction as to the a hotel under a name. June false On impose penalty; (6) the death a re- bought 7 he a used car’ under another finding fused instouction of not purchasing name. While the car sawhe guilty hospitalization would result in un- newspaper Big Springs and read cured; (7) til instructions as to robbery. His car took' broke down. He responsibility. Vegas gambled a bus to Las he where Thursday night, himself I. The amused until confessions. Two written con- were, newspaper Pope fessions from June when read taken Duane at a. message City by. president from Kansas of Mc- and were offered College prosecution appealing Pherson to him turn in' evidence. and received claimed, If, trial motivation. written that the defense claims denying prejudicial statements errors as to error contain factual committed motive, defense, through suppress statements this testi- its motion to these mony by Pope psy- admitting himself and his and in them. chiatrists, possessed opportunity, and An to the content of initial word as it, explain away availed itself of alleged these appropriate. It fair is is statements signifi- Thus, any errors. think, great say, we bulk of fades cance the statements consider- is of no real confessions’ recitals ably prompts why one to wonder their significance, proof so far as necessary felt or ad- introduction was concerned, is for the was other- material Nevertheless, visable. we examine the proved prosecution wise conced- taking facts as to con- two ed the defense’s Judicial Admission fessions. and is not contested. pages. The first of six City police confession one Pope called the Kansas matter, It contains narrative city his hotel room mid-after- Pope’s driving Big Springs, Friday, noon on June 11. He said robbery, shootings, disposal his he understood he was wanted for weapon. proba- None of robbery Big Springs wish- thehe tively unique gave in the record. give up. ed name himself He of his hotel room. and the number of his is one of The second confession nine- police his When arrived the door to pages teen and is much more detailed entered, open. room was The officers too, it, than the first. contains While themselves, Pope seated, found identified great material amount of factual arrest, tcld ask- he was under proved, re- otherwise does embrace ed him to ately He so and “immedi- stand. did purpose citals as to It men- motive. put hands turned around and making Pope’s tions the silencer “to re- up on the He was wall the room”. gun. duce noise I when fired” *6 As searched handcuffed. the hand- and thinking says Pope about that “had been being placed, ad- cuffs were the officers using gun robbery in a of the bank Pope not make vised that he did have to Big Springs, at It Nebraska”. further any statement; right had a to that he states, “My plan was to rob the bank counsel; say anything that if and he did everyone and then kill the bank so against Pope it be him. re- could used they identify me would not be alive to plied, “I stuff”. He know about that Pope’s the robber”. It tells ar- City police was then Kansas taken to the Big Springs rival at late after- to to FBI. station turned over be closed, noon of June 3 the bank was after police. He was never booked day “so I did not that rob bank planned I had do”. It recites that to agents Two FBI came immedi- employees he shot the “as I had four ately They headquarters. to identified planned they do sure were killed states, brief themselves. The defense they identify so not that would be alive agreed “It defendant was that me as the bank robber”. and warned about the Fifth Amendment that, right apparent It is from the he consult a friend therefore that had a making side, any attorney or an state- defense could be before the confessions really Agent expressions Special critical as to ment”. Harman testified planning killing Pope for that had surrendered and reasons that said he for All he was wanted contained the second statement. because had read he bank; robbery Big Springs rest is And even as contested. possibly areas, if he understood these critical we must that he asked Duane Pope persons bear in mind three had been killed that took the that stand acknowledged robbery; Pope psychiatrists and that that that testified. did; Pope explained Pope psychiatrists if he asked responsible realized and that he these he directly they person for rob- that what felt about that bery given penalty; day, Saturday, could be the death The next June Har- did; agent again man that Duane said he that he was and another interviewed willing Pope county asked he to make whether was the sheriff’s office at statement; jail. Pope a and said he was. He he did not was advised that any statement; have to make he FBI the room the were two time him; against did it be used could agents City and two Kansas detectives. friend, that he see could a relative or Agent reduced interview to Harman attorney talking before them. This writing. room locked. Dur- was not writing by interview also reduced to ing persons opened interview Agent Harman. This statement second cigarettes Pope door. was offered preliminary of June 12 also makes the request coffee and his water was for agents, recitals about identification of the honored. possible against any use him in- Agent Harman testified that when gave, right formation he to consult June statement 11 was written attorney making a friend or an before Pope explained showed it statement, right court-appoint- a to a agent’s statement, it was his and not the attorney charge, ed free of and the ab- they together read and out it promises. sence of threats or The rob- put loud. At one time Duane his face bery, shootings, departure in his hands. One correction was or- bank, disposal and the of the silencer by Pope. dered He it and each initialed gun again Pope are all described. page. paragraph He wrote a final corrections, called for a number of initial- reciting, his own hand “I have read the them, closing paragraph, ed added page six above statement and is true signed. During agent this interview the my knowledge belief”, to the best of brought gun went out and back a signed. acknowledges The statement Pope interrupted identified. also voluntarily it was made to identified agents the two agents; FBI that he had been advised lunch. statement; he would not have to make aware, course, We are of the ever against could used statement tightening being promulgated standards court; him in consult that he could respect use of confessions attorney making friend or before state- particularly trial. We are ment; if he could afford aware of the reversal of a conviction attorney, provided one would be Illinois, Escobedo v. State him cost free of to him. *7 1758,12 (1964), 84 S.Ct. L.Ed.2d Pope a United was then taken before where a was after statement obtained States commissioner who testified that general inquiry investiga- had ceased and appeared the defendant to be “alert and particular tion had focused sus- Pope calm”. The commissioner advised pect custody, suspect and where the right preliminary a he had to a was denied access to his and existent hearing no ref- and to counsel but made available counsel had not been warn- providing erence to free of counsel right keep ed of his to silent. We are charge; compelled he could not be also aware of the reversal of convictions testify; did it if could Arizona, in Miranda v. State of against charge be used him. The then companion cases, two 467- 384 U.S. pending only robbery. was for bank 1602,16 (1966), 86 S.Ct. L.Ed.2d When the commissioner asked the United setting requirements out current for the attorney States for his recommendation evidentiary use confessions. And we bond, Pope’s pres- as to a he was told in may are aware of what be a trend to- people ence three were killed dur- ward the elimination of all written con- ing robbery. $100,- Bond set was fessions in criminal trials. pending 000. The matter was continued Pope’s trial, however, copy the arrival of a Duane took certified place complaint 1965; November the verdict was warrant. not make a oc vised Duane he need thus The trial returned December right counsel, statement, Mir that he had a before Escobedo but curred after now, used could be everyone Es statement knows As anda. against Sixth, an retrospective him. was adult Duane Miranda not cobedo and are college graduate application. v. State in their Johnson intelligence. person 733-735, of subnormal Sev- Jersey, of New enth, slightest (1966). intimation there 1772, 16 L.Ed.2d 882 police pressure abuse undue applies where Each FBI. or the begins an decision trial after the ap Accordingly, nounced. finding Escobedo court’s that both con- plicable are not. We here but Miranda is voluntarily given thus fessions were primarily with de therefore prival concerned Indeed, ample support in the record. failure than of counsel rather little, anything, record contains provide it. support finding would of involuntari- particular ness. under Even Miranda’s Pope It is at once obvious that “heavy govern- imposed burden” on the facts fall far the extreme facts short of knowing ment and in- demonstrate that, Es- as in of Escobedo. is true telligent waiver, p. U.S., 475 of 384 cobedo, inquiry upon Duane had focused S.Ct. could be said to burden Pope but, Escobedo, Pope contrast readily have been met here.1 We opportunity to had not been refused an satisfied, however, that the strict but consult with there was counsel and lesser standards Escobedo and Johnson right keep his absence advice as to Zerbst, 458, 464, silent. clearly 82 L.Ed. 1461 were Pope voluntarily gave up in himself met. response college president’s broad- his We therefore hold that the record appeal telephone cast conversation. adequately supports court’s con Pope’s the trial He was not a surrender. forced question City clusion that the Vegas statements traveled from Las Kansas voluntarily Pope given by were Duane purpose for this initiative. and on his own properly after he had been advised of City police He called the Kansas rights. his Their in evi introduction them of Sec- advised ond, his whereabouts. being dence at the not error. upon trial was See his concedes that Golliher v. United police arrested and handcuffed the ad- 1966). rights. Third, 598-599 Cir. him his vised basic his statement at time of this arrest psychiatric II. The ex- court-ordered demonstrated an of these awareness Pope. amination rights. Fourth, agents, at the the FBI promptly When defense counsel were being to them time turned over appointed by the federal court Nebras- City police, Duane Kansas advised they ka moved for continuance rights. acknowledged of his He to them arraignment. granted This motion was killings during arraignment awareness of July. Pope place took *8 guilty pleaded robbery responsible person counts of and that the to all six the indictment. Fifth, given penalty. the could death commissioner, day arraignment prior to of the United States On de- statement, taking subpoenas ad- fense moved for the the second issuance proper person police remain element who a con “Confessions a calls the to offer given any Any desires law enforcement. statement other statement he fession or any freely voluntarily com without to make. Volunteered statements by pelling is, course, Amend admissi Fifth influences kind not barred * * * admissibility no not affect in evidence. There ment and their ble 'by stop person holding today.” requirement police Miranda that ed our Arizona, p. police supra, of 384 who station State of U. enters a states crime, S., p. or a of 86 to confess to a that he wishes Fed.R.Crim.P., 17(b), pursuant loans, ability to Rule or that he didn’t have the psychiatrists psychologist. up, to two to do sufficient to build it work supporting re- affidavit defendant’s but he did want Melinda to when came possession money would be ex- cited thát these witnesses back have the testify pected defendant that the would allow him to feel that he could provide capacity 4, 1965, way “did June for her in the that he ' think, Now, was, to choose be- control his behavior wanted to. I This of action”. tween alternate courses a definite mechanism with the fact that subpoenas granted depth he motion was still feels the of love for expert issued, payment motivating wit- were Melinda was the factor for get money together.” the United ness fees to be made his desire to insanity was thus States. The defense first, exist, Error is claimed in the indicated. requiring court’s the defendant sub- respon- August government second, and, mit On 27 the to this at all “per- sively refusing permission for an order moved the court court’s for a tran- psychologists mitting psychiatrists script of the examination. The claim on plaintiff ex- to conduct primarily selected this issue centers Smith’s Dr. quoted testimony. as to his the defendant aminations of times material condition at all mental power The defense asserts that ex- opposed was This motion this action”. by ists in the court to order examina- defense; “at denied it the court tion; that, result, government psy- aas Pope During trial, present”. after chiatrists testified as to Duane’s motive and the had taken the stand crime, namely, for the that “he did it testimony Pope’s expert toas had offered Melinda”, by “relating for supposedly admissions condition, renew- motion was mental defendant; by” made granted. renewed was ed. When so testimony this is appellant “in essence that furnished that it be Defense motions killing did the because he want- govern- recording transcript Melinda”; money ed that such in- denied. The Thanksgiving ment examination were should, instead, ferences have been de- court recessed over the veloped in cross-examination of for the examina- weekend to allow time proceeding”; “not from a star chamber government recess, tion. After the that the Melinda was not evident motive One called as witnesses. examiners were testimony Pope’s; FBI or from Smith, them, testi- Blake Groves Dr. that, contrarily, whole of the defense fied: there “was based on the fact that developed 27th of on the was no “As this ostensible or rational motive guns May got crime, this interest but on an when he a motive based kill”; periods apparently unknowable, that he there were unconscious desire testify raised had been had and even when these one ordered during period immunity he had been under an so statute does shooting criminology counsel; studying presence court and in the of his . however, shooting people. people, only analogous procedure This that the is that usually changed 35, Fed.R.Civ.P., fact with the associated Rule robbery, part pre-existing appli- that this was a law and which has no robbery cases; to an the means cation to that that rule person Rules; counterpart committed who has no end which Criminal . gain robbery pro- financial bene- would that even under the 18 U.S.C. 4244 § competency one of the from it. This was cedure for fits determination of things trial, proscribes means I think was the stand the.statute *9 by subconsciously any that he felt use which in evidence of statement made money getting by the means the accused in the course of examina- was get ; from not that he could tion that the motivation elic- statement —borrow get government father, not his that could ited in the examination and

719 schizophrenic break- as the result of a confession constitute in the second one robbery ; was second- down that only established which evidence ary. offense; that “Neither for the rationale lips”, appellant’s and “both from the came government presented In rebuttal suggested by persons other who were Johnson, Pope knew while he Gerald who figures”; Pope authority and that was during the 1964 harvest season worked testify “by hearsay compelled at trial Big Nebraska, Springs, area. through of a the mouth hostile witness”. a Johnson that he had conversa- testified initially con- Pope person We that there is no note tion with and another while insufficiency they day sitting tention here as one were on a curb government’s psychiatric Big Springs; evidence if the that the conversation was testimony robbery We also note is admissible. of a bank there about the details position years that the defense that motive or seven when six before robbers suggested only by Pope $15000; second confession about stole that started by testimony, may by asking Smith’s if the bank Dr. the conversation completely accurate. The defense’s had ever been robbed. contention, principal course, is that thus, are, There intimations motive Pope absolutely no motive or reason apart from and Dr. confession second killing. robbing for Absence testimony. Smith’s motive is used the defense to substan- So far and we have been Pope as counsel tiate its that indeed in- claim was ascertain, is no federal criminally able there responsible. sane and thus note, precisely point suggests only in this area. that defense ex- however, corpus habeas case of that in the planation Pope’s action is that he was 1, (10 Early Tinsley, 286 F.2d 3 Cir. v. suffering schizophrenic from the reaction 830, 81 cert. denied U.S. S.Ct. 365 psychiatrist-wit- the defense indicated 717, 708, held that a 5 it was L.Ed.2d nesses. pre-arraignment psychiatric examination is, however, There some evidence of mo- a a state “did not work denial due testimony tivation in others. Kan- process or to self-incrimination”. amount City police sas detective Harlow testified See, also, Bernard, Fouquette during interrogation that on 11 June 860, 1952). 861 Pope said, “I done it I bécause was in suggests, true, It is debt” as the that the debt was “around prior adoption of 35 Civil Rule $1300”. Police detective Smith testified 1938, Supreme among Pope’s personal Court held that divided effects there pos photograph was that at common law a federal described Duane power case to agent sessed in a civil order that of his fiancee. FBI Har- physi plaintiff pre-trial Pope man to a submit testified that he stated money R. v. cal examination. Union Bots needed of his Pac. because substantial ford, 1000, debts, go farming 141 35 his desire to into U.S. get (1891).. his The result was other L.Ed. 734 desire to married. On the other diversity hand, wise in a case where author the defense introduced evidence izing state existed. Camden & total statute the defendant’s indebtedness Stetson, Ry. $900; prompt Suburban about (1900). .settling debts; 44 L.Ed. And S.Ct. the amount of adopted, rule, (cid:127)his the federal it was debts in June 1965 was since not' unusual him; upheld procedural-versus-sub it was been less than his only by although approach, de-, debts had been at other . stantive times. The Co., vote, & fensé v. Wilson contends these debts were not Sibbach bothering defendant; L.Ed. no U.S. S.Ct. that he had attack, against pressing money Schla need for constitutional as would 104, 114, bank; genhauf Holder, prompt him to rob a that his (1964). going reason for bank kill L.Ed.2d was to *10 720 recognize, too, pendent defense also examination of the defendant.

urges, When, however, it has been held that: this defense evidence stand, forth came from the witness cooperate A 1. defendant’s refusal insanity thereby progressed issue of be- statutorily psychiatric with a authorized yond suggested stage the indicated or him from examination does not disentitle present pri- in full force and as the asserting statutorily recognized special a mary issue of the case. one Whether guilty by insanity. plea of not reason of approach frames his in terms of waiver 10, Court, French v. District Colo. 153 or of fundamental fairness buttressed (1963). P.2d 384 268 appropriate protective instructions, with military 2. of a defendant’s Evidence Whitlow, supra, see State v. we fail to psychiatric a ex- refusal to submit perceive any constitutional violation amination is inadmissible. United States prejudicial error the trial what 89, Kemp, v. 13 U.S.C.M.A. C.M.R. Certainly, court did here. crim- (1962). inal is still a search truth permitted 3. is Where state subject, course, to constitutional psychiatric exam court order to have a guaranties. strange It would be situ- defendant, pres ination made of the ation, indeed, if, first, government expert in or ence of a would be defense compelled to be to afford the defense der, presence if coun ample psychiatric service and evidence at government expense and, second, if the may permitted, is not sel “consideration given feasibility permitting government is to have the burden of recording such devices as instruments proof, competency as it does with the psychiatric the like to be utilized at the case, issue in Davis v. United Whitlow, 3, 45 N.J. interview”. State 469, 486, 488, 353, 160 U.S. 763, (1965). Dzi A.2d See 775-776 yet L.Ed. 499 it is to be de- Corp., wanoski 26 F.R. Carriers Ocean opportunity nied the to have its own (D.Md.1960), Spencer, In D. re corresponding verifying examination, 753, 400, Cal.Rptr. 406 P.2d Cal.2d step perhaps most trust- 33, (1965). worthy attempting means of to meet that the absence of a statute state precisely burden. Yet what psychiatric power court order appropriate defense claims is here. to do examination the defendant and recognized While we have may so Amend- be violation of the Fifth expert opinion may always medical Olson, ment. State v. 274 Minn. government an essential on the side of a (1966). N.W.2d 69 competency issue, Dusky see authorities, But were these even we (8 Cir., 295 F.2d value, accept pro- them at face do not 1961), cert. denied 368 S.Ct. pres- vide facts of the the answer 536; 7 L.Ed.2d Kaufman v. Unit Insanity appeal. ent de- is the asserted ed Pope had fense here. himself taken the cert. denied stand and had as to his lack of testified certainly 16 L.Ed.2d 212 it is ad motivation, urge kill, his and other encouraged visable and to be as an im conceivably aspects of his behavior which portant factor in the ascertainment of pertinent de- were his defense. The Jersey phrased truth. The New court presented testimony fense had also Whitlow, supra, p. inwell State v. 770 of psycholo- psychiatrists one of its and its 210 A.2d: gist covering Duane their examination opinion as to his schizo- their “An accused who asserts lack of phrenic competency guilt insanity state and at the because of robbery. fully cooperates psychiatrists time of Until all this who place jury, engaged by pur- taken the trial before the him for examination grant- meticulously poses, answering questions put refrained from all ing government’s request including relating for an inde- him those *11 examined have the defendant ought ed leave to itself, allowed to be crime not by present experts to of its choice and comprehensive to a similar frustrate asserting further opinions in We by their evidence. by the

examination State testimony opin- was hold Smith’s against that Dr. He self-incrimination. the bar hearsay and was not ought ion evidence and the to advance not to be able properly received. rules for de- claim and then make of the claim.” termination applies to the addi have said What we government suggestion by Pope cooperate did with the subordinate tional and govern transcript own and as well with his of examiners that a only partially not or com- have been did stand mute ment’s should examination ply- supplied made it. See State Snyder, Neb. 146 N.W.2d passing We also observe that Dr. (1966); supra, p. Spencer, In re testimony us as not Smith’s here strikes P.2d; Cal.Rptr., p. 41 of 406 Whit of 46 being merely a recital of what said Cal.App., Superior Court, 54 Cal. field v. thus, is, was. third motive There Rptr. 505, (Cal.Dist.Ct.App.1966). by party hearsay presentation the doctor Instead, of that motive as a fact. what jury. Un- III. The selection opin- we have Dr. considered Smith’s here, Amendment der on Sixth attack examination, ion, from his as to drawn grounds, “impartial jury” (a) why Duane did what did. This is man, suggester, key system Nebraska compelled opinion, Pope’s not Smith’s petit jury selection; (b) the trial of self-incriminatory concession. upon per- dire of court’s voir exclusion objections having recognize Supreme sons conscientious Court (c) capital punishment, case, court’s in its Schmer- recent blood alcohol inquire upon into California, refusal voir dire to ber of v. State religious ju- 761, 765, political of beliefs 16 L.Ed.2d (1966), emphasized rors. the distinction taking sample between the of a blood system. suggester The A. subject’s consent, without under aspect immediate answer present, circumstances there “evi- compelled is that one defense attack dence of a testimonial or communicative point was neither conclude nature”, and that there were four votes timely appropriately raised nor But dissent. that was a case non- pre Although there were trial court. consent; totally it did concern ex- and, suppress evidence trial motions onerating by issue advanced the defense indicates, subsequent our discussion presented by testimony itself and having persons scru for non-exclusion personally the defendant of his own punishment, ples capital was there about examining experts. challenge array the entire no formal anything specifically of a motion the nature We therefore hold improper raising quash upon insanity, by selective an the issue of based submitting psychiatric psycho- process. Trial was set for November logic day occupied examiners, was on voir dire. examination The entire his own day, Only very presenting end of the after evidence as mental selected, incompetency jurors lips been and 4 de alternates examiners, excused for the and after was fendant and those the defense general objection orally night, purposes raised was a that issue all .2 jurors government grant- appropriately made Selection of the was last representation object suiting 2. “MR. undue RUDOLPH: We repre- groups choosing age jury panel dearth manner in that older young persons. proper This is es- cross it does allow for a sec- sentation psy- community. pecially prejudicial in this case as tion of The method of presented, choosing by places will be chiatric evidence reommendation undue emphasis length residence, on the re- day. proof (5) questionnaire resumed the next No offer of calling itself panel as to selection statutory and no made information as to the stated opportunity govern- qualifications, military service, afforded active being ment membership to refute voluntary the contentions now police in a fire or *12 department, advanced. public held, prior office jury This form service. as now em- circumstances, objec- Under these ployed, example is not dissimilar to the improper tion came too late and in an Report of the Judicial Con- manner. Frazier v. United ference 409, set Committee forth at 26 F.R.D. 497, 501-503, L.Ed. (6) April 507-508. A letter dated point. is conclusive on this 25, 1966, Rudolph, from the clerk to Mr. fully holding We would be warranted in transmitting defense counsel these items. that the issue is not before us. persons This letter recited that the listed Nevertheless, because the issue is stren- by suggesters automatically are not uously urged appeal, and because this accepted jurors; they as that are capital case, is a we comment on the-issue names; questionnaires source of that the leaving point before it. With the and, necessary, are examined additional below, nothing raised the record contains obtained; information is that “no devia- system jury petit about the Nebraska Pope tion made in [was] supply selection. The defense would this practice making our usual selection of by appellate lack attached to its exhibits jurors”; jurors and that the for the (1) brief. This material consists of: actually case were drawn in March January 1961 order entered the two prior letter, a date to the crime. The how- judges active federal for the District ever, following also contains the sentence: providing Nebraska for the selection ‘Suggesters’ persons “In we look for petit jurors for trials at Lincoln from possessed who themselves are of all the counties, prescribed by eleven area as qualifications necessary for excellent 1865(a). (2) U.S.C. The form letter § jurors who, service as but in addition suggesters. sent This let- clerk thereto, enjoy acquaintanceship a wider statutory requirements ter listed the persons residing respec- in their jury prescribed by service 28 U.S.C. § might tive communities than ex- 1861,and stated: pected average citizen.” people, “The need is for selected note, initially, question We regard race, color, sex, creed, that no without point. race is involved in politics, fair-minded, who are good integ- character, possess and who In Beatrice Foods Co. v. United rity, judgment, sound sense cert. responsibility. that This does not mean denied 373 U.S. only persons public recognition of wide pass upon L.Ed.2d we had occasion to high quali- estate are wanted. These suggester system the Nebraska far as so good citizenship ties of among are found grand jury. it related to the selection of a just as as unheralded prominent.” often There, however, specific pretrial among pre-pleading challenge even had been (3) spaces name, system form with for the ad- made A and evidence as to the occupation pro- person there, dress and of each been introduced. We observed (4) posed. may properly here, The form letter sent we observe that the prospect requesting comple- ground Clerk to the attack was not based on the that accompanying questionnaire. any particular tion person of an on was not young man, psychiatric evidence, my per- fact that the defendant is a and it being accepted young per- opinion young people fact that sonal that would be receptive group likely penalty more sons are more to order the death psychiatric people, you evidence. than older so that will have Overruled, my “THE and I don’t COURT: I notions about it. shall overrule the about believe the statement that is made motion.” punishment capital ness and toward qualified. But we also observed community attitude. Congress prescribed particular jury selection; method of meth lacking. totally proof But of all this largely rests in the sound discretion od skepti- Further, trial court’s share we officers under of the trial court and its accuracy defense cism about statutes; guidance pertinent testimony psychiatric statement as presumption there that at younger people. also note discharged officials their duties panel juror the wid- on the one least properly; when the engineering professor ow of a claims the of a fatal flaw in existence panel University contained process, selection it has the burden college possessed many persons de- who *13 overcoming presumption. that heldWe college one grees had attended who sponsor system that the in is not itself years. more invalidating factor, citing an Walker noted, of the burden have As we 383, (8 United F.2d Cir. this feature proof as to on defense is the 1937), 644, cert. denied 303 U.S. 58 S.Ct. jury That selection. its on of attack 642, 1103, pointed 82 L.Ed. and we out generalizations, by un is met burden sponsor’s that a recommendation was not proof, atti supported by specific the process sole feature of the selection groups toward age other of tudes in Nebraska. See Scales v. United testimony, and illness, psychiatric mental 203, 259,81 1469, 367 U.S. S.Ct. 6 L.Ed.2d punishment. capital (1961), affirming, point, on this 21, (4 1958); Cir. United States of much of suspect source the that We Hoffa, 20, (6 349 F.2d Cir. re- the in suspicion here lies the defense cert, granted issues, as to other quoted from the spective paragraphs L.Ed.2d suggesters from form letter clerk’s affirmed, 538 and April 25, clerk’s letter the (1966). 15 L.Ed.2d 538 counsel, Despite former’s defense character, “good persons of references We also noted in Beatrice that no claim judg- integrity, sound possess and who jury there made that was not responsibility”, we representative ment, community a sense in that eligible record, an group certainly on this been hold excluded in cannot its selection. present suggester The in defense argues, that defense attempts to differentiate assert- jury to- a biased” “may in system result ing groups that eliminated, namely, were people so described. very kind of ward the community academic of the Univer- di- other letter paragraph in The sity Nebraska, younger and more juror whom sponsor, rected people. argued transient “in that suggests. he insanity murder accepted a ease it is experienced urges upon attorneys us Rabinowitz per- that The defense older persons sons and who lived for say long banc). in community time one frank are less like- en. ly opinions accept insanity reading the several defense careful than younger persons persons us effective little affords in that case who have filed pres resolving localities”; lived in issues persons several assistance opinions university connected reveal ently with The move before us. more Brown, Judge court, often and are not with sharply well known the com- divided result, munity ; concurring persons although fully rep- should be ma venire; joins resented in bare longtime noting, p. dead 4-to-4 residents are community; jority not the to avoid a order whole “In declared, “having I am persons that, and that lock”, so views of older longtime just is decided”. what residents toward mental ill- not at all certain case, not, pivoted accept insanity; That as this one does precisely objectors subject and civil on the race issue conscientious should be and, rights, p. 37, question only by government’s of wheth- “the elimination peremptory challenges. list er method which the exercise of Much compiled impermissible argument resulted in seems to emanate Negroes”. Oberer, Jury Selection, exclusion of result was a Pen- Death Georgia system alty, Trial, published condemnation of the and Fair gov- specific Further, operation. April 6, Nation, republished its ernment conceded Comment, (1966). itself in Rabinowitz 71 Case and No. 4 inadequate. addition, lists supported were the defense unsuc- its Judges Bell, con- pretrial and Coleman Gewin cessful “Motion to restrict simply partially peremptory challenges curred be- the result the United States prosecution attorney’s challenges per- cause recommended new in voir dire of having trials. scruples against capital pun- sons studies, with ishment” the citation of two We, disagree- course, express do not Zeisel, namely, Insights Some Into the ment facts. The Rabinowitz its Operation (confiden- of Criminal Juries majority opinion there not hold that does draft, 1957, unpub- tial first November suggester system inadequate. per a Consequently, se lished), *14 Wilson, Capital in Belief regard we do not Rabino- Jury (ap- Punishment Performance authority witz as present in for a our conclusion parently unpublished). also The defense system, case that the Nebraska argues that, also to because its offer operation applied its and as to the selec- produce the authors of those studies for Pope’s jury, tion Duane violated either refused, cross-examination was the au- principles constitutional federal stat- or “findings”, purposes thors’ for already noted, utes. As has been the de- appeal, accepted. must be argument fense claim here centers a We think that this fol- does not all at system operates Nebraska to ex- Despite low. this case’s character and younger person, clude the member of notoriety, amount of not the record does university community, the more tran- great any indicate that there diffi- possessed individual, sient and the one culty consumption or of an inordinate capital punishment. of bias toward The selecting jury. amount of time greater last factor we discuss in detail 24(b), Fed.R.Crim.P., Under Rule each others, in the next subsection. The challenges possessed peremptory side us, said, seems as rest on the- we have plus for four one alternates in assumptions oretical considerations and panel. Consequently, panel contained proof. fail for lack of plus four alternates. Under objection capital B. Conscientious guidance experienced careful of an punishment. judge on dire voir trial judge final able trial the selection of the persons excused those ing scruples against confessed hav- who jury of 12 and com- two alternates was punishment capital pleted average length days. in two As affirmatively who when answered record, persons ex- we read the were you prevent asked whether this “would only these, cused cause. 10 were for Of imposing you penalty if the death against scruples conscientiously dismissed because felt that a verdict proper capital punishment. under the under the law and Others were asked you acquaintanceship, evidence as it”. The de- stand aside because of understood suggests general only bias, publicity, fense this those bias oth- leaves due or Few, capital punishment”;, all, er who “believe reasons. can persons likely using suspected that such to con- as an are a claim of bias more punishment, impose get impres- and to vict harsher excuse not serve. We they choice, they jury”. c|o under this was when have a sion that a “blue ribbon likely Fay People York, 2113(e), 18 U.S.C. and are less to See of State of § New Judge Prettyman feel, opinion 270, 287-289, 261, 267-268, U.S. (1947). 112 U.S. Turberville v. L.Ed. App.D.C. F.2d that, on the other also note 82 S.Ct. cert. denied among trial hand, those excused opinion of 813 and in the L.Ed.2d persons indicated a who court were three Puff, Judge Hincks United States capital tendency on insistence toward 171,180-186 (2 cert. evidence, apart punishment, from other 713, 98 L. denied admit a bank for defendant who would out, pointed in either Ed. It is well killing. accompanied by robbery Thus opinions, point or both of those that “The purposeful and successful ef we have fair at which an to a accused entitled persons judge to obtain fort community cross-section of the is when prejudiced not either were who put in the box from names are against capital punishment. This was a drawn”; panels the thesis are jurors who would fol for neutral search persons opposed capi who are not is not low the court’s instructions. punishment psychologically tal in attempt was demonstrated to us that against criminals, and clined thus are not ap that, defense unsuccessful recog judicially impartial, has not been assume, panel pears was left with ; “Being opposed capital nized that persons capital “believe those who punishment synonymous fa with position punishment”. voring “may it”; persons com demand, not for an im comes down pletely controlling without a conviction neutral, jury partial but which is way subject”; one or the other either something different, namely, quite persons if a to include prej persons who are which includes against capital scruples punishment, against and, also, possibly for— udiced — *15 ought it in those bias also include with capital punishment. penalty, yet favor this would the death argu- persuaded are also not We produce balanced, an im rather than exclusion of trial court’s ment partial jury. pro- persons improperly to these served something panel less duce a reasoning which We are in accord with the community. representative than holdings in and the in and Turberville might be said but narrow sense this States, 254 Manuel United See Puff. thing say same one could the same 272, 1918); (8 Orfield, Trial F. 274 Cir. very properly when a asks sense court Cases, 29 F.R. Jurors Federal Criminal per- persons step who are those aside 43, (1962).3 D. 71 acquainted sonally for the counsel nothing We find whatsoever Glasser read, prosecution, or who who cannot States, 60, 62 v. United 315 U.S. English language. cannot understand the 457, (1942), 86 Thiel v. South- L.Ed. 680 always panel that extent a little To 217, 984, Co., Pac. ern U.S. 328 66 S.Ct. community representative than less (1946), 90 L.Ed. Ballard v. and does not a whole. But this exclusion 261, States, 187, United 67 S.Ct. illegally produce jury or an un- an unfair (1946), compels or 91 L.Ed. representative which is not or one one contrary indicates a conclusion. impartial sense. Amendment the Sixth religious C. Political beliefs. (1956). 560, A.L.R.2d See 48 Among questions which the defense venire, arguments asked been to submit All the defense answered, refused, completely sweepingly relat- we and which were were ones 499, note, opposite (1898); Lee, however, 91 Iowa view State 119, (1894). prevails Iowa. South Dakota 60 N.W. 178, Garrington, 11 S.D. N.W. State v. ing affiliation, to church John Birch of the case to tried” [citations Society, public question omitted], attitudes.4 footnotes 775, Schaik, and Kiernan v. Van these, urges: As to the defense (3 1965), 781 Cir. where it was said that questions “The reason the were ask- generally “at least the visible ties which again ed case, related to the issues in the bind men to one side of a are clear- cause insanity capital punish- i. e. ly range appropriate within the limited appellant per- ment. The believed interrogation argu- on voir dire”. The sympathetic sons Society Birch to the John religious group ment then is that af- punitive than would more necessarily subjects proper filiations are general public, persons inquiry. belonged religions empha- who We ourselves two know at least Su willing size free would will be less preme religious Court in cases where accept testimony psychiatric quiry recognized approved: Ald philosophic based on a Freudian and ridge v. United 283 U.S. view Whether such determinism. (1931); 51 S.Ct. L.Ed. 1054 not, views are correct 'is the issue. Miles * * v. United * 103 U.S. challenges [Peremptory 309-311, (1881). 26 L.Ed. 481 prevent proper. such reasons are To But there can be no fixed rule as to obtaining appellant in- all this. Denominational affiliation or peremptory prevent formation is to group may membership possess indeed challenges.” significance sufficient to call for voir defense cites The Swain v. State given inquiry dire in a case. In another Alabama, 202, 218-221, 380 U.S. 85 S.Ct. may Yarborough not. See 824, 836, L.Ed.2d 759 cert. Mr. Justice on White’s comments there denied, peremptory use nature key quota L.Ed. 1487. The in the Swain challenge, including, phrase tion is the “in the context case to be tried”. frequently “It is no less exercised grounds normally thought irrelevant to matter, thus, appropriately is one legal proceedings action, or official fitted the discretion of the trial court. namely, race, religion, nationality, Circuit, Kiernan, supra, p. Third *16 occupation people or affiliations F.2d, 778 of 347 described this “a as * * * duty. summoned for which, however, wide discretion” ject is “sub is well known that these factors are to the essential demands of fairness”. widely explored during dire, the voir thing Much the same was said in United ** by prosecutor accused, both Napoleone, (3 350, States v. 349 F.2d 353 This 1965). Aldridge Court has held that the fairness States, Cir. In United * * by jury requires of trial supra, no less. p. U.S., p. 310 of 283 51 always Hence S.Ct., veniremen are not Court said that the judged solely as for individuals “had ques a broad discretion as to the purpose exercising peremptory tions to asked”. The issue comes challenges. challenged they Rather question down to a abuse discretion. light knowledge in Stephan coun- limited Co., v. Marlin Firearms them, may 819, sel has of include 1965), which cert. denied affiliations, group 959, their context in 1584, U.S. 86 S.Ct. 672. L.Ed.2d 4. Society? affiliation? “12. Do “25. Have “13. $ If you so, $ you what have a heard of the John Birch $ it? religious ^[*] church $ would person?” tive, try? Society “27. “26. Do you classify yourself is a liberal, your opinions you good feel or a middle-of-the-road influence on the John Birch as a conserva- public this coun- affairs again Fed.R.Crim.P., The defense then Certainly, 24(a), sustained. Rule Pope prove by its witness that contemplates offered more. required commitment institutional one see no abuse here. While We probably least medical treatment for at permis might say the trial court years there could seven “before its sively been a freer could have little being against hope reasonable secure group affiliations, inquiry cer into we schizophrenic another reaction”. nothing tainly approaching ascertain permission to The court also refused recog prejudicial the cases error. As subpoena produce a the defense nize, practical limitations there are Deputy July by letter written delay so, voir dire. If this were Attorney General United States possibil would and the frustration ensue Chairman of the Committee House ity increase. of abuse would stating “We on of Columbia the District specifically in- note the court’s penalty” favor the of the death abolition quiry of as to whether each venireman recommending comprehensive scruples capital punishment entertained study. religion, belief, “faith, attributable this, says defense, All error conscience, otherwise”, toas as well right of a violation of defendant’s scriptural references and ethical body. sentencing allocution before the eye eye for a and a “An an tooth 32(a), prescribed by sword and “Those who live Allocution Rule tooth” impor in- perish by These the sword”. shall Fed.R.Crim.P.5 Its nature and themselves, penetrated quiries, those are made evident the several tance defense, very opinions States, its areas United Green sought 301, 653, proffered questions, to search. 5 L.Ed.2d 670 U.S. 81 S.Ct. (1961) , and Hill v. United right present IV. The evidence 7 L.Ed.2d S.Ct. mitigation Dr. and rehabilitation. (1962) , although the those Court both expert McDonald, psychiatrist M. J. relief, post-conviction cases denied government, testified witness Machibroda 368 U.S. response cross-examination 489, 82 7 L.Ed.2d 473 type question, is in- of sickness “What (1962). We said ourselves that have here?”, had a schizoid volved system allocution in federal is a sub personality. could said that “he He also right to accord stantial and that “failure psychiatric benefit treatment”. perhaps it would entitle defendant question next would was “And what sentencing proceedings reversed treatment; I mean be the nature of that through appeal”. Moore v. United govern- accomplish ?” The what would it ( 822 8 Cir. objection this “as ment’s outside cert. denied issues of was sustained. this lawsuit” L.Ed.2d own ex- On the direct examination of its *17 pert, course, Modlin, difficulty, the Dr. the defense The of centers in Herbert C. language 2113(e) Duane medical of to the asked whether needed 18 U.S.C. § “Yes, answered, treatment. The doctor effect that defendant “shall the convicted say very definitely”. years, so, imprisoned or I When than would be not less ten attempted punished to this if the of the the continue death verdict government argu- inquiry, objection jury line of a shall so direct”. The obvious 32(a) imposing “Before the court 5. Rule the time of the trial read: sentence imposing opportunity court “Before the shall afford counsel an to sentence speak oppor- the shall afford the defendant tunity behalf of defendant personally to make a statement in own shall address the defendant any present and ask him if he to make a behalf to information wishes mitigation punishment”. to statement in his own behalf and of July mitigation any present amended it information As effective punishment”. reads: of that, ever, ment is inasmuch as it highly lies within such a “can be un- trial power jury impose the of satisfactory”; the the death that some states stat- sentence, jury’s the trial; task require two-stage involves more ute the now that guilt than mere determination of unitary poses since the trial fundamental innocence and it is entitled to in- problems, receive interpret do not the silence- “we mitigation formation as to Congress pre- rehabili- question of on this confining tation. cluding judge from the trial presentation first initially record is not note that this that, however, guilt”; issue would of it very kind of information. this devoid two-stage require trial unwise Modlin, Dr. Both Dr. McDonald and statute; every that the under case show, had testified our comments above always may to the trial work divided for of illness and of Duane’s need treat- advantage; best it is defendant's that thereby ment, and intimated at least of the trial leave this discretion possibility And of rehabilitation. court; is un- argument that if the defense feels it closing as- the defense its disadvantage unitary der a trial psychiatrists serted that two right “that said is- should move for the severance Duane medical treat- now needs guilt sentence; sues that § ment”. (e) constitutional; all the is that under question propriety But this dis- it was in court’s circumstances allowable extent allocutional informa- reject unsupported asser- cretion easy is tion under statute not an unitary de- tion trial would force the that largely question disappears one. The stand; fendant to and that take procedure when criminal takes tradi- its future, de- it is clear that where imposed punishment tional course two-stage trial, “it requests fendant judge’s from the than in the bench rather grant re- preferable would perhaps room. And it holds less quest”. significance provides statute when the penalty Judge Hays the extreme auto- stated that follows dissented. He enlightened matically, up- permissively, rather than efficient “the course guilt. will on determination issue The of the criminal law administration two-stage suggest possibility by requiring seems to best be served two-stage stage trial, trial”; “scarcely au- the first de- with there ascertaining thority" majority’s support voted to the routine of conclu- usual guilt second, and with the sion discre- innocence that this is be left to the guilt court; determined, devoted to rational conse- tion the trial quences. punishment requires determination of sentencing authority wide struggled The Second Circuit with this mitigating access to information of a problem Curry, in United States nature. (2 1966). F.2d Frady court problem held under all circum- also arose in U.S.App.D.C. stances trial did conducting banc), not abuse its unitary discretion denied 382 en cert. and, flatly, unitary trial that the 15 L.Ed.2d setting prejudice defendant, did not vote was resolved a 5-to-4 “particularly light of fact aside death sentences directions specifically requested he never entry life im two- of new sentences *18 stage Judge trial”. prisonment. Chief Lumbard concerned went The court was historically on to observe that no statute there is with of a District Columbia authority power degree which, upon the to direct a two- first conviction of stage 2113(e); trial murder, under that the the for death “unless § called Supreme upheld by Court im has statutes life of recommends unanimous vote they assumption Judge prisonment”. Fahy, speaking this kind under the that provide trial; unitary that, minority four, for a that how- of hold bare would colleagues dissent, joined by proper the in with that but the convictions were suggested wrongfully imposed particular emphasis as death sentences were two-stage statute He felt that the trial. erroneous instruction in- due to an history demon- were its relevant adequacy poll. there itself and of the Because single only sentencing trial be- that strate the traditional alternatives two having intended, possible to reconvene what was with was not cause it guilt penalty, judges that on and on jury, felt function four dual same those Congress’ a li- was not silence appropriate to direct solution was long- change judges “just this entry under as cense of life sentences language procedure conven- their circumstances”, established within pp. authorizing appel- outlined, 115-116 He then an ience. 28 U.S.C. § many F.2d, modify questions set aside late court to sug- procedure present brought judgment would it for review divided before gested folly proceedings of institution require “the utter further “or study system except just after careful may circum- such a under be be legislative by all its ramifications” v. United stances”. See Coleman 563, body. U.S.App.D.C. (1965). from these decisions It is evident McGowan, Judge procedural on Cir- of Columbia District Second and grounds, ourselves, in result reached concurred this as to is- find cuits we judges sue, developing the four and thus effected of the law. area majority. strange that, situation He felt several is somewhat two-stage giving would best resolved also federal statutes other nothing trial; capital punish- indicative that there was jury the choice between sentence, of a hostile attitude on toward this U.S.C. see 18 and a lesser ment part Congress; the court and that issue this §§ procedure prescribe was free to “as resolved and been may surfaced earlier pur- ago. best fitted to effectuate one due This sometime Congress Judge pose assumption this statute”. part of court and on the Wright unitary convictions voted reverse the trial counsel alike that the insufficiency He procedure. because of of evidence. the established felt, too, that the were defendants being by split Curry, Frady both adequate opportunity afforded to offer something courts, provide less us with mitigation two- evidence stage and that the Frady, of precedent. than assured procedure would resolve Curry course, statute. involves a local difficulty. but court’s discretion on the trial centers Judge strong K. and three Wilbur Miller with the leave of the issue takes suggestion upon future, others concurred in the affirmance re- that in the preferable convictions but dissented ting the set- quest, the two- course is pre- Frady Burger stage Judge He aside of death sentences. trial. justification emerging ques- imposing stated that there sents an list legis- majority’s statute or case law for the resolved tions best which seem imposition sentences; study, of the life after careful action lative power pardoning experimentation by judicial the court exercised the rather than necessarily doing; majority so personal that there was no inclination. based opinion except to the affirmance Dis- that the And are not convinced we upon convictions; was an reliance there trict of Circuit’s Columbia 2106, although indication that the motivation behind and use of U.S.C.A. § warranted, ingrained majority and, if appealing three of the “is an somewhat solution, appro- personal capital punish- antipathy providing a convenient priate ment”. or indicated. Judge Judge Burger, here, Lumbard who was one as Chief We note

dissenters, government separate opinion, Curry, filed also noted *19 introduced little or evidence relevant cise his discretion in this But we area. punishment (although disposed say to the defense as- are also not to surviving sponte serts that victim’s testi- trial court’s failure sua to order mony qualifies) two-stage as to his condition so and a for Duane trial was er- presentation that at no time ror or an abuse discretion. suggest penalty. evidence did it the death may two-stage It that the be trial can to this in the entire references appropriately developed to and made inquiries trial were the on voir court’s purpose serve a useful stat- under these dire; prosecution’s in its comment they may presently utes as exist. It opening jury’s obli- statement that the better solution is for the statutes gation penalty; to determine the assist- place punish- to be so as revised power Attorney’s ant United final com- States ment back in hands argument closing ments in initial judge traditionally rested. where jury, including, guilty, “If he is may be that ultimate answer you find, punishment so let fit the legislation authorizing ap- some narrow crime”; attorney’s re- United States pellate review of in these ex- sentences argu- very mark at the final end of the These, pri- however, treme cases. ment, “The details of this crime cer- legislative marily for the Con- matters tainly do not than the maxi- call less gress judiciary. and not for the penalty”; mum and the defense’s own “facing stake”, references “life is at We conclude on this record penalty”, “something the death “revenge” bad” and deprived all not was argument. closing in its opportunity present information as mitigation; rehabilitation and that sub Our situation is one was where there ap stantial evidence as to this was two-stage trial, request no formal for a propriately admitted; thát the trial began either before the trial at permit explora court’s refusal to further government’s close of the on the depth improper; tion in was not that the post-trial pointed motions. As we have unitary error; trial was not out, despite permit refusal to court’s nothing approaching deprival of con probe depth psy- the defense to process stitutional due has been demon chiatrist-witnesses’ comments about re- strated here. habilitation, evident, it was from their Pope’s prob- references to illness Our conclusion is fortified the Su- required hospitalization able time and preme very Court’s recent remarks in might treatment, that rehabilitation be Spencer Texas, U.S.-, v. State of possible or, penalty the extreme - (1967) L.Ed.2d imposed, commitment, by not some two-stage jury procedure. about trial means, indicated. The also There, Harlan, Mr. Justice author picture the full of the defendant’s back- principal opinion, said, “Two-part jury ground, prior behavior, and the like. jurisprudence; trials are rare in our insanity, And the defense of its all they compelled by have never been mitigative implications, wholly is in itself law, Court aas matter of constitutional and rehabilitative in nature. The procedure”. or even aas matter of federal appropriate not therefore was without an refused V. The instruction as to of information. measure jury’s authority impose the death penalty. requested find about

We ourselves where Sec- fol- This instruction majority language found very ond Circuit itself Cur- lows almost verbatim the ry. disposed say that, appearing opinion Gray’s are not de- We in Mr. Justice long spite accepted unitary con- trial in Winston v. two-stage cept, p. trial is not available 303 43 L.Ed. 456 say disposed (1899). at all. are not The court’s refusal is claimed judge may appropriately exer- to be error. *20 guilty, court, however, in- him not defendant did not whether The said, custody kept request. contrarily would be and if so struct long continue, custody how would your au- instructed that “You are or whether he would be entitled to punish thority punish or to not early or immediate freedom. aAs by imposing of defendant sentence fact, matter of the matter should death, I have tried to unlimited. is you even be discussed deter- question you that make it clear to mining insanity. sanity or of issue or of the defendant should whether You are to determine whether punished death has should not be guilty guilty the defendant is or not solely your by law been committed charged. Speculation pos- discretion.” sibility being custody, of its upon that the insists What defense place, duration, possibility or its language expanded have been should walking of his out courtroom a might jury knew it detailed so that man, free of such either both unlimitedly. range far and wide and possibilities exist, should not enter into your guilt carefully read the determination or inno- We have of charge entirety. While, plea cence under the court’s in its submitted.” might course, requested instruction justify position The defense would its given, properly we conclude have been primarily upon authority Lyles v. not error and that its omission was States, U.S.App.D.C. 22, United jury adequately as to advised 725, (1957), cert. denied 356 charge By of the ease. feature 961, 1067, 997, 78 S.Ct. 2 L.Ed.2d give, jury its did knew court States, and Pollard v. F.2d 81 open responsibility broad avenues (6 1960). We, however, Cir. find no judg for its discussional and decisional why error and should see reason we necessary ment. It is not that the depart long-established prin from the meticulously every spell fac out each ciple that, specific absence some jury may tor au consider. Its statutory provision, dispo a defendant’s thority “unlimited”. was stated jury’s sition is not a matter con That means without limit and could not Lyles cern. had to do a District directly simply expressed. more special plea Columbia statute and a States, 740, Andres v. United 333 U.S. insanity. guilty And reason 742-743, 880, L.Ed. order, Pollard in concerned an not a authority example addition, struction. the Sixth Cir against position. the defense intimation, cuit’s Pollard in its refusal VI. to instruct opinion case, supra, earlier same finding guilty that a of not results in hos p. F.2d, 211, 464 of 282 that 24 U.S.C. § pitalization until cured. The defense provision with its for certification to the claims that the know was entitled to Secretary possible confinement happen what would event Hospital, Saint Elizabeths is available to acquittal. Specifically, requested federal outside District defendants that, 211, instructions under 24 U.S.C. § Columbia, quar is not shared in other Secretary he would be certified to the ters. F. See Sauer United v. Health, may Welfare, Education and who 640, (9 2d Cir. cert. denied then order him confined to Eliza Saint 1405, 1 L.Ed.2d 77 S.Ct. Hospital beths in the District of Colum 1539; Currens, United States 290 F.2d bia, Attorney custody or to the (3 1961); 775-776 and 777 Cir. General until his health restored or Freeman, United States 357 F.2d arrangements suitable state are made. (2 1966); Pope 625 Cir. v. United court, instead, jury: instructed the (5 1962); 298 F.2d 509 Cir. Powers right have no into “[Y]ou to take v. United consideration, you 1962); Lynch Overholser, in event find should 369 U.S- 729-730, implica- 8 L.Ed.2d itself thus effected an *21 tion., opinion (1962) (dissenting Mr. same in in- The court did the its Roe, you said, Clark); Justice United States structions when it “Just as will (W.D.Mo. discharge your duty F.Supp. under the law cited; Att’y 1963), Op. you others and cases the evidence can assume that (1881); any 3689 and S. will to for Gen’l 211 S. do the as matters same Congress. may as- introduced the 89th their consideration”. not We apparent sume that all not this was exists, We, too, hope gap, that this if it jury. the system may in the soon ade- federal be any event, attempt not we need quately remedied. pass upon scope application of the § closing argu- its should note that We merely re- 211. hold that the court’s what to the the defense ment made hospitalization about fusal "to instruct appears a collateral refer- to be at least justice was not error not does custody Pope’s possible ence to best, require specifics, questionable at the acquittal: event of which the demanded. defense ‘ n T might your you de- if wonder Instructions as to the VII. defense about some liberations feel or think insanity. point As its final the custody you find concern about if his urges that the instructions trial court’s * * * you guilty. him I think not responsibility on criminal duty your you do can assume that if understandable, partially were were * * * jurors their as others will do inapplicable defendant, and were to this duty in connection with Duane.” charge partially on this useless. long Although aspect reproduce permission com- of the case is too further disposition entirety out set forth its ment about had been denied its we here argument, portion margin.6 speaks by critical final before criminally person stated, “In order “As heretofore defendant charged. responsible doing committing for the of a criminal admitted offenses act, time been sane at the he must have The sole issue in connection with VI, charge through sane at it. If he was not each of I he committed Counts act, inclusive, time committed the criminal whether or not he therefore held to be not under law he is the defendant was sane at time then insanity guilty by crim- reason of the commission of the acts and offenses charged. charge This such act. inal based on per- government does not hold “In order for the to estab- is because law criminally his conduct accountable for lish that the defendant was sane at son charged insane, person is since an insane time he committed the offense while capable forming separate count, intent essen- in each beyond it must establish each of a crime. a reasonable doubt and all tial to the commission following propositions, person who commits three the law a “Under (a) if the time to-wit: a criminal act is sane capacity “(1) mental That at the time of the commis- sufficient distinguish right wrong charged, reason to sion of offense defend- capacity (b) particular mental if he had ant had the reason as to the act and right distinguish wrong capacity between mental and reason to under- offense. nature character of the to such stand the (c) “(2) consequences That at the time of the commis- act and its was, charged, doing sion not occasioned of the offense the defend- of the act capacity impulse. ant had sufficient mental an uncontrollable or irresistible present case, nature char- to con- reason understand the “In the order consequences charged, acter thereof and the offenses vict the defendant proof upon govern- such offense. the burden of beyond “(3) That he did not commit of- ment establish a reasonable charged by reason of uncontrollable was sane at fense the defendant doubt impulse. he committed offenses irresistible the time person charged. acts from an uncontrollable is not called A The defendant impulse prove upon when he does an at that or irresistible that he was insane not because of a desire and intention act time. M’Naghten Objections impulse on the were made and irresistible for itself. rejected. ground should instructions should the Durham what are called embraced This, recog course, sides both elements, both or the Currens elements nizes, or, is not a new issue for this court below, lan- or alternative referred indeed, now, for most American tri guage proffered defense. Because, however, bunals. re sponsibility in the federal courts “is a argues one of The defense decision”, rule of continuing Wion v. for what it sees as reasons *22 325 F.2d 425 Cir. cert. judicial support rule which of 1354, 946, denied 377 U.S. 84 S.Ct. 12 emerged M’Naghten’s Case, Cl. 10 from 309; Freeman, L.Ed.2d United States v. Eng.Rep. (1843), 200, is 8 Fin. 718 & 606, (2 1966), 357 F.2d 614 Cir. it not is protects public; that the rule’s that inappropriate sitting that, banc, convict; we en purpose easier is to make it again. examine it once approval implicit is the under- its that standing applied in not be that it should fully lastWe the issue in considered given cases; capital that the instruction Feguer 214, States, v. United 302 F.2d requires to convict and sentence (8 1962), Cir. cert. denied 371 person psychiatrists for both to death a 872, 123, 110, U.S. 83 9 L.Ed.2d S.Ct. agree sick; irresistible sides is that capital observed, case. There as we we impulse as- not at all' Dusky refinement does had also done earlier in v. United person partially States, 1961), 743, (8 successful sist the who is 295 F.2d 759 Cir. desires; resisting 998, 625, cert. that denied 368 82 his sick U.S. S.Ct. 536, following: only per- 7 L.Ed.2d M’Naghten acquittal of “allows trial”; standing really capable sons not of court, others, nearly 1. This as all great placed consistently specif- must have that here heretofore has and ically emphasis “impulse”; and on the refused to follow the unembellished word committing, committing; or, conscious of the nature ing far as the acts This could be stated as his a violation of law. mitted the acts of mental and moral faculties as to render such a must make a determination wrongfulness fendant’s or, interested judgments conform his conduct to one as I indicated because er the defendant and reason between able to control words, self to commit the “ ‘Insane,’ “In person knowing in more between of the referring that he was unable to perverted of right either committing knowledge as such or the psychiatrists, commonplace language, in his ^[*] right the nature and is able the defendant same during used in this charged impulse incapable even where a to the mental things charged wrong, knowledge but is moved to ^[*] aware when he com- resist, it. wrong, the examination of deranged society’s that his acts were which he wrongfulness that rightfulness or I general. charge, the act he as ^[*] or prevent charge distinguish- you capacity distinguish distinguish concerned. to the de- or moral standards act he person incapable condition in other capacity are wheth- is not means do ^[*] him- you, You so so outlined to ing mission of the offenses within the mean- was not insane at the time of the com- was sane at time of the was not doubt dence adduced doubt ositions charged. failed to establish a reasonable doubt able you bered trol. government prove erning power between offenses completely destroyed and all “The burden cast “If reason of ^[*****] subject act should find the defendant not doubt, satisfy you beyond (1), (2) of the numbered is right mentally charged. government It does you.” wrong, or all of the then it has established test the defendant was sane and insanity. commission the time he committed the foregoing propositions does not and of his mind —has been so it, which I have but ill in wrong, (1), (2) If the yet sufficient require upon beyond (3) beyond that has are his will—the any degree require established government beyond foregoing prop- and knows that his the defendant the defendant a reasonable a reasonable to convince government actions are previously a reason- (3), the evi- offenses his beyond at the guilty num- each then gov- con- 734 defendant”; rights of de cial to the “product or mental of mental disease p. States, 413, Hotema v. United 186 U.S. standard, in New first fect” enunciated Pike, 895, 898, p. 1225 L.Ed. century ago, 46 Hampshire v. S.Ct. State said, (1902), (1870), adopted for the where Court 49 N.H. 399 charge “properly laid down the Unit whole Columbia in Durham District of regard responsibility U.S.App.D.C. law in States, 214 F.2d ed alleged vigorously men- defendant on account of (1954), con then so pp. Court, progeny. tal condition” and where numerous tested in Durham’s S.Ct., p. States, of 22 character- Voss v. United charge “undoubtedly (8 1958); Dusky ized correct” United Cir.. degree permitted if the 385, 394, excuse suf- grounds of the imbalance have been “must on other reversed ficiently great 824; Dusky the will to have controlled L.Ed.2d accused”; v. United supra, p. and Matheson F.2d. of 295 540, 543, Feguer, rejection in adhered to this 57 L.Ed. 631 the Court where

p. Carter v. United 243 of 302 F.2d. See *23 charge” used noted “exact in (8 1964), States, 728, Cir. 332 F.2d 729 See, again employed.7 Davis case was 79, 841, 85 cert. denied 379 U.S. also, States, 328 U.S. Fisher v. United 13 47. L.Ed.2d 463, 1318, 467, L.Ed. 1382 90 66 S.Ct. origin, history, application, Oregon, 2. The (1946), and Leland v. State M’Naghten been have 1002, and variations 790, 800-801, 96 343 U.S. 72 S.Ct. adequately and at in detail (1952), reviewed L.Ed. 1302 Court held where the example, as, length many places, in yet process re- federal did due States, pp. supra, 869- Durham United v. quire adopt im- a state to an irresistible F.2d, v. and United States legal 874 of 214 pulse sanity place test of in (3 Currens, 751, Cir. right 290 F.2d 763-767 wrong and test. 1961), (and Free United States v. now 4. familiar with This court has been (2 606, man, Cir. expressions the various on re They 1966)). and need no further by sponsibility illustrated by repetitive us. recital Currens, .M’Naghten, Pike, Durham and but, Jones, well, by N.H. 50 Supreme as State of the United Court 3. The (1871), State, embracing charges 81 Ala. and Parsons v. approved has States 577, (1887), more re impulse (per and the M’Naghten So. and irresistible States, F.2d cent Sauer United haps preferably in terms described cert, certainly denied 354 U.S. uncontrollable.acts) thus and and approach 1 L.Ed.2d 1539 disapproved 77 S.Ct. far has not U.S.App. responsibility. Blocker v. United problem of criminal p. (1961), 469, D.C. 288 F.2d 853 United Davis v. enlightening Judge Burger’s particularly 476-478, 40 L.Ed. result,. (and concurring opinion, now in (1895); 165 U. Davis U.S.App. States, 114 McDonald v. United 373, 378, 41 L.Ed. S.Ct.-;360, S. (1962),8 and D.C. F.2d 847 said -the Court that- where Freeman, supra). degree prejudi- United charge States v. such a “was in p. supra, Currens, observed, Biggs United States v. Judge evi- 7. Chief original of 290 F.2d. dently review of after judge record, Mathe- in the the trial Circuit, you with- charged, District of Columbia “If believe case also son years Durham, manifested shooting in after a few the direct result enlarging you insanity, offspring an pure “disease-product” disenchantment should ac- or test, chiefly revenge, you be- passion quit, should if diagnostic shifting language regards definitions cause of as this He convict”. disease, Blocker v. United mental see “very Dur- the essentials close to (sepa- States, supra, p. glosses”. 860 of 288 stripped of all ham formula conclusion, Sitting summary banc, now en we have .5. That and once again many opin reviewed the federal * “* * hesitate would [W]e ions, scholarly erudite, some most court the trial reverse a case where problem which concern this and we are insanity employed on instructions continually developing aware of the ap- has heretofore assertedly approaches different to it. We proved and henceforth we would endeavored, Appendix, in the to set here, where, loath, indeed, to reverse forth, them, as we see the other circuits’ instructions, has used the trial court announced attitudes as of the moment. theoretically based whether gone through As a full court we have M’Naghten set or on the test variation struggle experienced same decisional Code Penal forth the Modern Voss, respective panels our which sat proposed Law Insti- the American Dusky, Dusky, the first the second sug- tute or on that form revised Feguer, the other federal courts Currens, gested by the Third Circuit appeals cases we cite. still other lan- whether couched in still suspicion that, despite deep entertain a guage, charge appropriately em- legal, psychiatric, philo the welter of findings requires positive braces sophic theory verbiage, much of the namely, necessary elements, as to 3 legal problem basically semantic cognition, volition, defendant’s his engulfed words, practical and that a capacity to control his behavior. given (except, American knowledge, If will those 3 elements — possibly, upon ap the McDonald-Durham emphasized and choice —are proach), conclusion, will reach the same charge as constituents court’s essential along whether it be instructed traditional *24 legal sanity, of defendant’s we the M’Naghten impulse lines, and irresistible wording suspect the exact upon approaches or of Currens of the charge of test and the actual name the or Freeman or variations thereof. Per comparatively unimportant and are Judge haps, suggested as Brown may indul- well be little than an more dissent, talking quit “we should in terms gence ap- this semantics. We think McNaghten, Davis, Durham, Howard, of proach preserves to be it sound because Parsons, or the rest”. Carter v. United upon and of those elements builds M’Naghten impulse of irresistible and cert. denied 377 U.S. 84 S.Ct. days acceptable which are in these and See, Judge also, 12 L.Ed.2d 308. Griffin yet modernizes them in which a terms ease, B. Bell p. in dissent same the jury apply.” grasp can of and 325 F.2d. opinion Judge Burger) disability rate of a lack and the are sufficient to establish meaning of definition clear of a mental disease or defect as we have “product”. Dissenting term [emphasis members of sup- now defined those terms” pointed plied]. change that circuit out that unless This had the incidental prosecution carry giving meaning could enormous “prod- effect of some showing uct”, is, jury burden of there was no if believes substantially impair nexus whatsoever between the mental disease does not be- act, acquittal usually controls, state and re- havior it is free to find that dissenting appears “produce” sulted. This view the disease did not the act. finally prevailed, metamorphosis to have in McDon- and We thus see the in the p. ald, F.2d, us, Circuit, 851 of 312 it seems to District of Columbia from the emerged by way significant change rigidities disease-product there former of capacity of a definition of mental disease as mean- test to the standard of for con- ing, case, prescribed in the context of the criminal trol as McDonald. See “substantially also, intervening Campbell a disease which affects cases of processes U.S.App.D.C. or emotional mental and sub- v. United stantially * impairs Frigillana behavior controls. 307 F.2d 597 and * * U.S.App.D.C. 328, must determine lay itself, testimony, (1962). from all the and ex- F.2d 665 pert, degree whether and of nature long language quoted apparent, all evi- from our as relevant medical So Dusky, received, Feguer dif- we do is we see little the second dence functioning practical Supreme opinions of in the ference not read the holding Court here, Feguer, M’Naghten reaffirmed and irresistible standards approach present impulse permissible in those and the the law state Second, (District Columbia, responsibility. circuits Nowhere do Tenth) Third, perhaps the Ninth in the we detect such exclusiveness M’Naghten in approval. its abandoned The Third and Second Court’s rigid analyze Supreme earliest and most form and which cases Court Circuits cog- embracing way. Currens, pp. use now some formulation in the same 767-771 F.2d; Freeman, pp. nition volition. of 290 613-15 Judge does B. Bell F.2d. So Griffin again, hold and we stress States, su- in dissent in v. United Carter by repetition, that if trial court free pra, p. 704 of the consist- 325 F.2d. And ly appears to admits all evidence which many Dis- ent denial certiorari charge appropri relevant and if fortify of Columbia seems to trict cases ately requires positive embraces and con this conclusion. clusions as to the defendant’s Judge read Pelt’s in we Van capacity When cognition, volition, his case, present structions in the readily apparent, behavior, to control his these three appears as the knoioledge, elements will and choice concede, charge appropriately that the emphasized charge are as essential emphasizes properly sanity, embraces legal and critical constituents of requisite elements of usually charge stated and three regard we shall knowledge, Indeed, his legally repeat will and choice. And also we sufficient. most close Feguer, definition of “insane” follows p. what we said in 245 of at charge given ly very jury in F.2d, Dusky, p. and in the second pp. Davis F.2d, namely, each of trials. See 759 of 295 that we think p. of 165 approach pre of 160 U.S. 353 and sound because it U.S., have no upon 17 S.Ct. 360. We therefore serves and builds those elements difficulty holding no er M’Naghten that there is lack of control which charge dealing portion acceptable day, yet present ror *25 responsibility. in with criminal modernizes them terms which grasp intelligently apply. can and any event, convinced, after a In we are record, approach of entire careful review the think further that this We does, indeed, case defendant this is not a take of entire where account prejudiced whole; possibly could and that it have been man his mind as a charge given. Judge Hastie’s See to rele- enables consider all the Currens, p. symptomatology; in 776 of comment dissent in vant un- that it avoids compartmentalization 290 F.2d. intel- due ; recognizes appropriately lect it By way addendum, we of state that we gradations capacity; possibility of in involving expect judge, in a rigid classification; avoids too it responsibility, in his to free it embraces terms which possibly of relevant evi- admission dence, all comprehensible lay jury to a and which imaginative charge, in his to be adequately perform it its his- enable to give appropriate particular and and torical function criminal case. cognition, requirements stress to of us, charge, control, capacity rather Davis it seemed volition and The carefully in its when viewed and read than to content the bare bones with though entirety, Supreme charge, ut- it has Court’s traditional even recog- decisions, specifically by appellate approved terances its Davis been done, opinion past. we If this ef- nized these three elements which is pp. appropriate justice of 160 will be stress. See 484-485 and 488 fective fully sincerely U.S., However, dispensed it is defendant who disability defense, legal insanity are sufficient to estab- as his asserts we have responsible lish a mental disease or defect as accomplished it will be terms”). Also, those judicial day’s now defined participation in each ad- U.S.App.D.C. Heard v. knowledge United vance and contribution our specif- it 348 F.2d of the human mind. ically McDonald defined stated that join Judge Pelt, Van United see or defect” to mean “an “mental disease Pope, F.Supp. 234, (D. States v. abnormal condition of the mind which Neb.1966), expressing gratitude substantially impairs capacity control Crosby Robert B. and Wallace Ru-M. behavior”. dolph for their service as defense counsel First authoritative deci- Circuit. No appeal. on Here, this pro- as in all ceedings United sion. Amador Beltran v. court, they the district (1 represented 52-53 Cir. Duane well de- court, response votedly. defense con- to a length opinion of this longer M’Naghten tention that is no nature the issues raised attest responsibility, proper of criminal test this. We also commend counsel for the government said, pass do hot care to on “We for their prepara- meticulous However, record. tion broad on a bare presentation issue fairness in we commend to the district court’s atten- case which demanded the utmost care n Cur- tion cases such as States v. United avoidance sensationalism. ** * that, request rens Affirmed. trial, new if it determines the defendant right distinguish properly could between APPENDIX. wrong, further make nevertheless We believe following currently findings give be, may, so that we if need respective sets forth the approaches of consideration matter”. to this the several appeals federal courts of Law The American Circuit. Second the issue responsibility: of criminal em- proposal as alternative Institute District Columbia Circuit. Penal Code. of Model bodied in 4.01 its § rule, initially McDonald-Durham pro- Freeman, F.2d United States nounced for the Circuit in Durham v. 1966) (“A person States; U.S.App.D.C. 228, responsible criminal conduct (“It (1954) simply a result of mental conduct as time that an accused criminally respon- is not substantial he lacks defect disease sible if his product unlawful act was the wrong- appreciate capacity either to defect”), mental disease or mental but his conduct or to conform fulness as restrictedly clarified and modified en law”). requirements of conduct to the banc McDonald v. United A modification Third Circuit. U.S.App.D.C. 120, *26 847, 312 F.2d 851 proposal. Unit- Institute American Law (1962) (“What psychiatrists may con- 751, (3 Currens, 774 F.2d v. 290 ed States sider a ‘mental disease or defect’ for jury 1961) (“The must be satisfied Cir. purposes, clinical where their is concern pro- committing the time treatment, may may or not be same as defendant, a result as act the hibited mental jury’s disease or defect for the defect, substan- lacked or mental disease purpose determining respon- criminal capacity conduct to conform his tial sibility. Consequently, purpose for that is requirements of which he law should be told that a mental violated”). alleged any or disease defect includes abnormal Apparently substantially condition no recent of the mind Fourth Circuit. although affects there processes mental or emotional decision definitive wrong” substantially impairs “right and v. references Hall con- behavior * * * 26, (4 trols. States, 29-30 Cir. 295 F.2d must determine United itself, opinions Judge for 1961). testimony, lay from all Thomsen’s See expert, F.Supp. degree Hopkins, whether 169 the nature v. United States 738 (D.Md.1958),

187, F.2d, and United 241 188-191 that was doubtful whether Leister, F.Supp. 979, question open v. 235 980- “the an also States is one”. appears (D.Md.1964), observed, 652, pp. 981 there where 644-65 and ap- “[Bjecause required American Institute favor Law we are to follow M’Maghten’s proach in each would reach the rule of mean but Case does not any it, test. same conclusion under we are satisfied with or indorse it finality with absolute for all time M’Naght- Apparently a Circuit. Fifth * * * change come. If is to there States, en United variation. Howard v. be, higher judicial it must come from a banc), 274, (5 en 232 F.2d Cir. 1956 275 Congress”. authority, from But “ or ** * incapacity either from very in the recent case v. of Maxwell defect some mental or to dis- disease States, (9 United 368 F.2d Cir. 735 tinguish right wrong between 1966), the evidence “where respect act, inability or the insanity extremely meager”, Ninth refrain from such disease defect panel stated, express opin- Circuit “We wrong doing commission of the in the * * * proposal ion as to the A.L.I. *” * * act proposal, or variations of that nor do we States, 242 Kittrell v. 334 F.2d United disap- approval now indicate either States, (5 1964); Cir. Merrill v. United proval instruction, of the Davis followed 763, (5 1964); Bird 338 F.2d 766 Cir. Andersen Sauer”.. 775, sell v. 346 F.2d 781 United ap Tenth Circuit. Perhaps the broad cert, (5 1965), 963, denied 382 Cir. U.S. proach not dissimilar to our own. What 449,15 attempt An S.Ct. L.Ed.2d 366. ap essentially charge Davis is to establish a rule Circuit different proved States, 290 in Coffman v. United equally en failed in 1963 divided with an again (10 212, 1961), and F.2d Cir. States, 325 banc court. Carter United v. Judge speaking Chief Murrah for 697, Cir., F.2d cert. denied U.S. 946, v. 1353, in Wion 308. unanimous banc court 12 L.Ed.2d en (10 420, Cir. United M’Naghten ir- Sixth Circuit. 1963), 84 S.Ct. cert. denied 377 U.S. impulse. Pollard resistible Wion, Currens 12 L.Ed.2d (6 1960). 282 F.2d Cir. unwillingness rejected is of our “because Probably Seventh Circuit. is unconcerned concede that law M’Naghten approach. United States conduct, w’.th morals of one’s Cain, 1962), 298 F.2d cert. respon determining purposes denied sibility. proceed on the fundamental approved L.Ed.2d where court premise responsibility that moral respon person instruction that a' warp woof moral sanctions are “if he aware of what sible his acts * ** p. ”, F.2d. of 325 law doing capacity to he is and has the mental stated, p. 430, that when then wrong right choose between a capacity in is mental defendant’s of action”. But in United States course criminally sue, responsible for he is not Cooks, (7 Cir. “if, con at the time of such his conduct charge approved to con seems duct, or de of mental disease a result tain some A.L.I. overtones. fect, capacity either he lacked substantial Evidently, pres appreciate wrongfulness at the

Ninth Circuit. *27 M’Naghten to the time, im to conduct conform his irresistible conduct ent States, requirements is pulse. 237 United law. Andersen v. * * * 1956); they 118, (9 must Sauer then to told that Cir. be F.2d 640, (9 beyond States, doubt 642 be reasonable F.2d convinced v. United 241 940, 1957), 77 that at the accused committed 354 U.S. the time cert. denied Cir. capable, act, mentally 1539; 1405, he was the unlawful 1 Smith L.Ed.2d S.Ct. knowing doing, 725, (9 men States, Cir. of what 727 he 342 F.2d United tally knowing p. capable it was stated, of 1965). 642 court Sauer Black, wrong mentally capable v. Peo- of con Mr. Justice Williams and was * * * 241, ple York, of trolling defini of State New 337 U.S. conduct. 1337, 1079, insanity, illustrates in the in 93 L.Ed. of tion as embodied following inadequacy uni- of allocution Court structions of trial trial, says: tary Coffman, incorporated he all of the elements when See, also, “ Fitts v. of the A.L.I.Code”. * * * have Rules evidence of 1021, (10 States, trials been fashioned for Cir. cert. denied 379 U.S. narrowly confine the trial con- 569; Otney 682,13 v. Unit L.Ed.2d S.Ct. strictly test to relevant is evidence (10 ed Cir. charged. particular to the offense 1965); F. Gessner v. United part These rules rest on a neces- 1965). 2d consuming sity prevent to a time listing by accomplished Little would be confusing of issues. collateral approaches problem in here They designed prevent were also however, See, the various state courts. solely is- with the tribunals concerned the annotations at 45 A.L.R.2d guilt particular sue of of offense supplements Of thereto. being influenced to convict recently interest result unusual de- that offense evidence that reached court State Wisconsin éngaged habitually fendant Shoffner, 412, 143 N.W.2d 81 Wis.2d sentencing judge, other misconduct. A ' (1966). however, is not confined to narrow guilt. issue His fixed of task within Judge LAY, (concurring). Circuit statutory or constitutional limits is voicing very help hesitant One cannot type pun- determine the and extent enlarge upon the excellent reluctance guilt has ishment after issue of Judge opinion My Blackmun. concur- Highly been determined. relevant —if analysis rence in the and substance not essential —to his selection of an viewpoint reflected therein Court’s appropriate possession sentence full and How- firm conviction. possible of the fullest information con- briefly ever, compelled I feel to comment cerning and char- the defendant’s life upon This an issue that troubled me. concepts acteristics. in- And modern here- concerns denial to defendant dividualizing punishment made it in, right un- of allocution exercise necessary all the more a sen- Fed.R.Crim.P., 32(a) der Rule tencing judge oppor- denied an part: which reads in tunity pertinent to obtain information “ * * * imposing sentence- Before rigid requirement adherence to op- afford counsel an court shall properly of evidence restrictive rules portunity speak on behalf applicable the trial.” 337 U.S. at address, the de- and shall defendant 246-247, 69 1083. S.Ct. at personally fendant ask him if in his own wishes to make a statement right Historically traditionally present behalf and to information to sentence a criminal under convicted mitigation punishment.” power common law was the trial judge. Judge Thus, judg- perceptively at As Blackmun has so common law “no corporal punishment analyzed, in con- ment this rule has could be resulted stage against pronounced absence, flicting viewpoints two a man in his 32(a) capital and in all felonies it was trial.1 Rule allows essential appear opportunity cir- it should of record that facts and review all defendant was asked sentence cumstances “without strict evidential before “any anything say why procedural he had should not limitations” consider mitigation punish- pronounced.” Ball v. United information at ment.” S.Ct. -, 648,17 Spencer Texas, L.Ed.2d-(1967). See State *28 Berg- history appear, past It thus L.Ed. 377. See also Schwab would 525, 442, 447, capital punishment gren, 12 S.Ct. of in crimes 143 U.S. at federal However, First Con- law rule of L.Ed. 218. indicates common 32(a) gress incorporated provided: allocution in Rule of United now States application a has no in fed- whatsoever any persons person shall “That if jury’s eral of the death determination dockyard, any fort, arsenal, within Accordingly, of al- sentence. the denial any magazine place or dis- or in other opin- my case, locution in this in humble country, ex- of the sole trict under outgrowth ion, an historical from the jurisdiction United of clusive background concerning legislation of the States, of willful commit crime punishment for also willful murder. murder, person persons on an anachronistic reach-back Dark being convicted shall suffer thereof Ages.4 death.” incongruity This roots to has similar the trial 113. Under statute Stat. this other related criminal histories of our judge given in sen- discretion was Originally, England, person law. a tencing the defendant.2 charged felony de- with treason or a Congress was law First counsel, persons nied the aid of whereas adding 1897, qualification amended of accused misdemeanors were entitled of be “without that the verdict can early the full of counsel. assistance As capital punishment.” The amendment 1758, upon Blackstone commented: “For original years be- later statute 100 what of face assistance reason can that significant contemporaneous as a comes man, be denied to save of a life recognition so- civilized desired of yet prosecutions is allowed him improve ciety’s every their criminal petty trespass concern ?” 4 Blackstone 355. punishment.3 Alabama, laws See Powell of State 45, 60, 55, at 53 S.Ct. L.Ed. 158. of amendment The treatment the 1897 ago years 172 U.S. Blackstone’s Winston concern of 200 appropriately questions 43 L.Ed. demonstrates of al- the denial capital discretion that the has unlimited locution in our federal cases in grant imprisonment today. without perversion life even law It is “a being mitigating proportion” shown. circumstances all sense of in- this (carrying Benjamin Oardozo, par- 2. under statute 4. Allocution “Justice N. our mandatory sentence) agon said, bench, restrict death of moral ideals on the only generation ago: “that It was allowed so ed. “ * * * might century the court be identified ‘I defendant have faith that a party adjudged guilty; now, real from as the or less our descendants will par plead might upon system penal a chance to have look back of to he judgment; day don, surprise in arrest or move same and horror why say opportunity might an own fill our minds when told we are against given judgment century ago not be about a should crimes being example him; English under and that were visited law with punishment brought up death, for the animadversion in 1801 pun open hanged Tyburn denunciation 13 was and the child of at for the spoon. might larceny chapters others of a tend deter Dark ishment history Ball of similar offences.” these law. think of the commission We say shudder, 11 S. with a our at them 140 U.S. v. United 32(a) heights more selves that we Whereas Rule have risen to Ct. at 766. right recognizes mercy meaningful and of in that reason far removed from mitigation may judge “present information such enormities. future leniently judge punishment.” us less than we choose to ” s Calm, Confronting Inju ourselves.’ amendment, analysis see For (Little, tice, p. at & Brown Co. summary Andres Reed’s Mr. Justice 1966). at v. United L.Ed. 1055. n.

741 suggest this reservation I without go without equality unobserved should might appropriate for consid- being case The sounded. discordant voices exercise degree persuasion eration Executive weighted proof or clemency of re- power insanity extent laws required under criminal ducing last all5) sentences on the uncertainty the death judicial (and of it imprisonment. my See cannot, counts to life guilt three innocence 480, 487, Perovich, 47 balancing Biddle fac- opinion, present same of- 1161. The ends 71 L.Ed. tors as determination whether justice life would be served punishment life should be (cid:127)defendant’s recog- fully Pope. I sentence for Duane my hope fervent or death. clemency pow- nize is not within newly appointed Commission National yet judiciary, cir- er of the the overall procedures study our federal criminal cumstance need omis- this obvious and laws will review proce- legislation pro- humaneness of criminal laws appropriate will sion and speak. require dure tome remedy. vide 1227; Krash, CalX.Rev. circuits, Durham Rule 5. See rules in the various Appendix, Overholser, and Judicial supra. Administration In- The Of See also: sanity Psychia In Responsibility: Defense the District of Colum- Criminal A bia, 905; M’Naghten Cohen, Yale Viewpoint, 527; 70 L.J. trist’s traub, A.B.A.J. 48 Wein Legal Responsibility: Psychia Durham: A Discussion theOf Criminal Insanity Adopted By try Test Of It, As The Alone Cannot Determine A.B. 49 Courts, Board, 36; 1075; Federal Bernstein, J.A.G. Respon 3 Bull. A.J. sibility: Criminal Operational Determining Criteria Por Must The Bar Lead In Law Responsibility, Reform, 341; Criminal Diamond, 61 Col.L.Rev. 50 Prom A.B.A.J. 221; Gibbens, Homicide, M’Naghten Currens, And Beyond, Sane Insane And To 50 110; Katz, 189; Kuh, 49 J.Crim.L. Insanity Goldstein & Cal.L.Rev. Defense — Why “Insanity Reason, Abolish The An Effort Law To Combine And Defense” — 853; Remington 771; Ronee, Not? 72 McNaughten, Yale & Hel- 1102 Pa.L.Rev. stad, Leg- 93; In Psychiatry, Mental Element Crime—A Durham And 34 P.R.D. 644; Problem, Mueller, M’Naghten Irreplacea islative 1952 Wis.L.Rev. Remains Cavanagh, Psychiatrist The Looks At Recent In In ble: Events The Law Of Cath,UX.Rev. Decision, 25; 105; capacity, Pingarett, Durham 5 50 Geo.L.J. Doherty, Psychopath Concept & Walton And The of Mental Disease In Criminal MeNaghten 22; Rules, Insanity 229; 1954 Crim.L.Rev Tests, Law 332 ChiX.Rev. M’Naughten “Wrong” Morris, Halleck, Critique Psychiatric In The Of Current Rules, 435; Douglas, Legal Process, 16 Mod.L.Rev. Dur- In Roles The 1966 Wis. Meeting 379; Lawrence, Sanity: Psy ham Rule: A yers Por Law- Ground L.Rev. The 485; Psychiatrists, Legal And 41 Gap, la.L.Rev. Communicative chiatric — Sobeloff, Insanity 219; Campbell, The Law: And Criminal S.L.J. Ac Ohio Strict MeNaghten Durham, countability Approach To And Be- Prom To Re Criminal 793; Insanity yond, Bennett, 33; sponsibility, Insanity 41 A.B.A.J. As Ped.Prob. Perplexing (Lum Of Crim- Defense—A Problem A Defense: A Panel Discussion Gotlieb, 484; Justice, Wechster, bard, Hays, Weintraub, Biggs, La.L.Rev. inal Intention, Knowing M’Naugh And Kolb), 365; Moore, And The Nature F.R.D. 270; Quality Act, It?, Of An 19 Mod.L.Rev. L.Rev. ten Dead—Or Is 58; Raab, 3 Houston Hall, Re- And Mental Disease Criminal Dur Moralist Looks At The sponsibility M’Naghten Rules, Durham M’Naghten Versus And MinnX. ham — 327; Tenta- Ehrenzweig, Psychoanalysis Institutes And The American Law Of Rev. Psy- Draft, 212; Hall, Insanity Ind.L.J. tive Prob The Plea —Clues To The chiatry Responsibility, 65 Responsibility And In And Criminal Criminal lems Of Responsibility 761; Hall, And sanity Cell, L.J. L.J. Yale Law: In The Death Yale MeNaghten 425; Responsibility, Bazelon, Concept In Of The Defense Of 917; Rules, Snyder, Ap Is Palk, Sociological 5; Who A.B.A.J. Geo. L.J. M’Naghten Wrong And “Right-Wrong” Rule proach The In About To Test The 1; Brooklyn 331; Cares?, Procedure, Crim.L.Q. L.Rev. Who Criminal Cohen, Knowledge Right Responsibility “Right- Origins And Diamond, Criminal Platt & Of The Wrong, Mi- Wrong” Responsibility And Of Criminal Test Of Subsequent Development L.Rev. ami And Its Survey, 54 An Historical United States: