Washington v. United States

• Citation: 390 F.2d 444
• Decision Date: 13 December 1967
• Docket Number: No. 20232.,20232.
• Parties: Thomas H. WASHINGTON, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

390 F.2d 444 (1967)

Thomas H. WASHINGTON, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 20232.

United States Court of Appeals District of Columbia Circuit.

Argued November 25, 1967.

Decided December 13, 1967.

Mr. Frank U. Fletcher, Washington, D. C. (appointed by this court) for appellant.

Mr. Edward T. Miller, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Joel D. Blackwell, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, FAHY^* and ROBINSON, Circuit Judges.

BAZELON, Chief Judge:

Appellant was convicted by a jury of rape, robbery, and assault with a deadly weapon. His major defense was insanity. On appeal, he contends that the trial judge should have entered a judgment of acquittal by reason of insanity.

I

This court has always been reluctant to order such judgments of acquittal.¹ Our reluctance is rooted in the nature of the jury's role in insanity cases. In the early eighteenth century, the test for criminal responsibility was whether the accused "does not know what he is doing, no more than * * * a wild beast."² Under this test, the jury did not need to hear and evaluate a complex body of evidence. Presumably the jury and the witnesses knew a wild beast when they saw one. Later, English courts began to focus on whether the accused could distinguish between right and wrong. They also began to hear medical testimony.³ The landmark M'Naghten case⁴ made both these trends a standard part of English and American law. Under M'Naghten, the test for insanity was whether the accused was "laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of what he was doing, or if he did know it, that he did not know he was doing what was wrong."⁵ The use of the term "disease of the mind" was significant since it firmly established the relevance of medical testimony. The jury now had a broader role — to evaluate medical testimony in light of the right-wrong criterion. Soon, however, doctors began to complain that the right-wrong test permitted too narrow an inquiry into the accused's mental condition, that it precluded doctors from presenting important medical data.⁶ In Durham v. United States,⁷ we announced a new test for insanity: "An accused is not criminally responsible if his unlawful act was the product of a mental disease or defect."⁸ We intended to widen the range of expert testimony in order to enable the jury "to consider all information advanced by relevant scientific disciplines."⁹

This purpose was not fully achieved, largely because many people thought Durham was only an attempt to identify a clearly defined category of persons — those classified as mentally ill by the medical profession — and excuse them from criminal responsibility. In fact, the medical profession has no such clearly defined category, and the classifications it has developed for purposes of treatment, commitment, etc., may be inappropriate for assessing responsibility in criminal cases. Since these classifications were familiar, however, many psychiatrists understandably used them in court despite their unsuitability. And some psychiatrists, perhaps unwittingly, permitted their own notions about blame to determine whether the term mental illness should be limited to psychoses, should include serious behavior disorders, or should include virtually all mental abnormalities. To ensure that the views of the experts would not bind the fact-finder, we decided to give mental illness a legal definition independent of its medical meaning. We announced in McDonald v. United States that mental illness "includes any abnormal condition of the mind which substantially affects mental or emotional processes and which substantially impairs behavior control."¹⁰ We recognized that there may be many reasons why a person's ability to control is impaired. His mental or emotional processes may have been adversely affected by his genetic structure, his physical condition, his family, educational or cultural backgrounds.¹¹ Thus we called upon the jury to "consider testimony concerning the development, adaptation and functioning of these processes and controls."¹²

In insanity cases today, the jury must be prepared to hear evidence concerning diverse aspects of defendant's life and then to make difficult judgments regarding the impairment of behavioral processes and controls. By their very nature these judgments cannot be precise. Thus, within the confines of the Durham-McDonald standard, the jury must be allowed a wide latitude in its task. A judgment of acquittal by reason of insanity is appropriate only when a jury verdict of guilty would clearly violate the law or the facts.

We cannot say that this was the situation in Washington's case. The district court did not err in its refusal to enter a judgment of acquittal by reason of insanity.

II

We all agree that this court's limited role in supervising the verdict does not imply an equally limited role in supervising the evidence which is put before the jury. To the contrary, the jury's wide latitude in deciding the issue of responsibility requires that trial judges and appellate judges ensure that the jury base its decision on the behavioral data which are relevant to a determination of blameworthiness.¹³ We disagree, however, on the quality of the data in this case. Judge Robinson and I are deeply troubled by the persistent use of labels and by the paucity of meaningful information presented to the jury. Experience with the administration of the insanity defense has revealed that, despite the earnest efforts of witnesses, counsel and judges, these defects are a recurring problem. We will therefore describe them in detail in this section. Judge Fahy will state his views on this matter in a separate concurring opinion.

The testimony of the defense psychiatrist, Dr. Adland, was based solely on a one hour and fifteen minute interview with defendant. Dr. Adland did not administer electroencephalogram, neurological, or physical tests, and did not have the benefit of reports of the tests given at Saint Elizabeths Hospital. He requested permission to see them, but permission was denied.

Since the defendant was at Saint Elizabeths Hospital for two months, the two Government psychiatrists had an opportunity for more prolonged observation. Yet both Dr. Owens and Dr. Hamman testified that they had seen Washington for approximately the same amount of time as Dr. Adland. Of course, they did have the benefit of the testing and observations performed by others at the Hospital. As Dr. Owens explained:

When a patient is under constant observation, the examinations that were conducted in St. Elizabeth\'s by the psychiatrists, laboratory studies, psychological examinations, social service, interviews with relatives, all of this was part of the basis of my opinion that I rendered and the examination which I conducted at the medical staff conference on November 16, 1965. * * * By constant observation I mean 24 hours a day, and reports are submitted to the physicians as to their behavior, actions or activity while on the ward.

Unfortunately, except for brief references to a Rorschach test, none of this information was presented to the jury. The Government psychiatrists claimed to have based their conclusions on these studies, but they told the jury only the conclusions without any explanation of the studies themselves, what facts the studies uncovered, and why these facts led to the conclusions.

There was other available information, as well, which the jury was not told about. When Washington was twelve or thirteen, he was committed to Cedar Knolls, the District of Columbia School for Children. Apparently the records of that institution contained a lengthy history of Washington's childhood. At first, defense counsel moved them into evidence, but later he withdrew that request, perhaps because he thought it would be tactically unwise to make the jury read such a long report. Whatever the reason, the jury was forced to make its decision without any historical background on the defendant.

The omission of significant underlying information was one defect in the testimony. Another was that the jury was often subjected to a confusing mass of abstract philosophical discussion and fruitless disputation between lawyer and witness about legal and psychiatric labels and jargon. Dr. Hamman's entire testimony on direct examination was that Washington did not have a "passive-aggressive personality," did not suffer from any "personality trait disturbance," did not have "an irresistible impulse," was "not mentally ill," and was not "abnormal from the standpoint of psychiatric illness." A substantial part of Dr. Owens' testimony was similar. He was familiar with the defendant, had participated in a staff conference at which the defendant was discussed, and had formed an opinion about him.

Q. All right. And what was that opinion?

A. It was my opinion that he did not have a mental disease or mental defect. * * *

He testified also that the defendant did not have "an irresistible impulse" to rape, did not have a "passive-aggressive personality," and that in any event someone with a "passive-aggressive personality" was not necessarily "mentally ill."

Even if these labels had meaning for the witnesses,¹⁴ the testimony was useless unless that meaning was communicated to the jury. Explanation was attempted but it was often more confusing than clarifying. Dr. Owens explained that a "passive-aggressive personality"

is a type of personality that an individual has, that is, everybody has some-type of personality. We all have a type of personality. I mean no one has no personality. We have some type. Well, you may say schizoid personality, or compulsive personality, but speaking of the one that you ask, such as the passive aggressive personality, these are broken down into two different categories.

One is passive

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