United States v. Eichberg

• Decision Date: 21 January 1971
• Docket Number: 22830.,No. 22829,22829
• Parties: UNITED STATES of America v. Daniel M. EICHBERG, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

439 F.2d 620 (1971)

UNITED STATES of America v. Daniel M. EICHBERG, Appellant.

Nos. 22829, 22830.

United States Court of Appeals, District of Columbia Circuit.

Argued February 27, 1970.

Decided January 21, 1971.

Mr. Lawrence E. Freedman, Alexandria, Va. (appointed by this Court) for appellant.

Mr. Edwin K. Hall, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee. Messrs. David G. Bress, U. S. Atty. at the time the record was filed, and Roger E. Zuckerman, Asst. U. S. Atty., also entered appearances for appellee.

Before BAZELON, Chief Judge, and WRIGHT and McGOWAN, Circuit Judges.

PER CURIAM:

This is an appeal from a criminal conviction, in which the principal defense was insanity. Appellant contends that the trial judge should have granted his motion of acquittal, because the government failed to prove responsibility beyond a reasonable doubt.¹

There may be a defendant so clearly and so seriously disabled that a jury would be compelled to doubt his responsibility, and this court would reverse a conviction on that ground.² But ordinarily, "in view of the complicated nature of the decision to be made — intertwining moral, legal, and medical judgments"³ the jury's verdict must stand. The expert evidence in this case presented a classic question for the jury on the issue of responsibility. Accordingly, the conviction must be

Affirmed.

BAZELON, Chief Judge (concurring):

I agree that under any test of insanity the evidence presented a jury question on that issue and not a case for a directed verdict of acquittal. I am troubled, however, by the weakness of the government's evidence, in view of the fact that the government has the burden of proving criminal responsibility beyond a reasonable doubt. I have resolved my doubts on that score by reexamining the function of the jury in evaluating evidence on the issue of responsibility. That analysis is set forth in this opinion, together with a suggested change in the jury instructions, which seems to be required by my analysis. Finally, I have outlined some related problems in this area, and suggested ways in which the instructions might be modified to deal with them.

I

In 1961 appellant, a registered pharmacist, was convicted for the first time of forging checks. After serving his sentence, he entered a course of psychiatric treatment with one Dr. Milton Layden.¹ While he was in treatment he committed the acts involved in this case.² Thus this is an unusual insanity case: expert testimony is available from a psychiatrist who examined the defendant at the time of the acts charged.

Dr. Layden testified that in 1965 appellant suffered greatly from inferiority feelings, for which he compensated by lying, bragging, and otherwise assuming a pose of superiority. According to Dr. Layden, appellant felt especially threatened by the fact that his wife had a steady income as a registered nurse, while his own income was erratic because of his difficulties in finding a job. Forging checks, according to the doctor, would have been a natural expression of appellant's anxiety; he would pretend to himself, as well as to others, that he was a rich man with a large bank account.

After some preliminary skirmishing, appellant was committed to St. Elizabeths Hospital for examination in March of 1968.³ The psychiatrists in that hospital are regularly asked to assess the past mental condition of a patient, and ordinarily they show no reluctance to do so.⁴ In this case, however, the official report to the court stated that there was no indication of present illness, and refused to comment on appellant's condition in 1965. The only Hospital psychiatrist to testify stated that in 1968 he found no indication of illness, but that the best source of information about appellant's condition in 1965 was the doctor who was treating him at that time. The government also presented the testimony of a clinical psychologist who had tested appellant in 1967.⁵ The psychologist stated that appellant had overwhelming needs for status and financial gain, and that he would be likely to act impulsively in a financial crisis, but that he was not suffering from a mental illness.

The record thus establishes that some sort of disturbance existed in 1965, although its gravity and nature are uncertain. In these circumstances, it might well seem that the government's evidence was too flimsy to sustain the burden of proving beyond a reasonable doubt that appellant was free of exculpatory mental illness. We have held, however, that almost any conflict in the expert testimony raises a question for the jury;⁶ and that in some cases the government can carry its burden merely by relying on the patent weakness of the evidence presented by the defendant.⁷ In recent years we have been increasingly reluctant to disturb the jury's resolution of the question of responsibility.⁸ These developments compel me to consider whether our practice is consistent with the rule that the government must prove criminal responsibility beyond a reasonable doubt.⁹ For if the government need produce no evidence, and if appellate courts are powerless to check the jury, then what does it mean to say that the government is held to a high standard of proof?

II

When this court first formulated its present test of criminal responsibility, an effort was made to treat responsibility like any other element of crime requiring proof by means of expert testimony. In Durham v. United States we held that a defendant was responsible if his act was not the "product of mental disease or mental defect."¹⁰ The role of the psychiatric expert was to testify about mental illness, and the role of the factfinder was to resolve conflicts in the testimony. If several psychiatrists stated without contradiction that the defendant was mentally ill and that his act was the product of his illness, a conviction was vulnerable to attack on the ground that the evidence was insufficient to establish responsibility beyond a reasonable doubt.

A number of convictions were reversed on that ground,¹¹ but the court was reluctant to overturn a jury's finding of responsibility in reliance on the weight of expert psychiatric testimony. At the root of this reluctance was the realization that there is more to a determination of responsibility than psychiatric conclusions, unanimous or not. The gravity of an impairment and its relevance to the acts charged are both questions of degree, which can only be resolved with reference to the community's sense of when it is just to hold a man responsible for his act.

Neither expert witnesses nor appellate courts reflect community values in the way that a jury does. Therefore, the court attempted to limit the interference by both experts and courts with the jury's determination of responsibility. "Mental disease" became a judicial term of art, whose presence or absence cannot be conclusively established by expert testimony alone.¹² Expert witnesses had long been urged to avoid testifying in conclusory terms;¹³ they were eventually prohibited from testifying in terms of "productivity," because that kind of testimony seemed particularly likely to involve matters properly left for the jury.¹⁴ And this court began regularly to defer to the jury's unique capacity for dealing with the question of responsibility. As we all agree:

There may be a defendant so clearly and so seriously disabled that a jury would be compelled to doubt his responsibility, and this court would reverse a conviction on that ground. But ordinarily, `in view of the complicated nature of the decision to be made — intertwining moral, legal, and medical judgments\' the jury\'s verdict must stand.¹⁵

One way to explain this approach would be to say frankly that it represents a retreat from the rule that the government must prove every element of a crime beyond a reasonable doubt. In Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), a sharply divided Supreme Court held that the Constitution does not require the government to prove criminal responsibility beyond a reasonable doubt. Although the Court had earlier held that, in the federal courts at least, the government must prove responsibility beyond a reasonable doubt,¹⁶ it might nevertheless be argued that this court has modified the rule to permit a finding of responsibility on the basis of a lesser quantum of proof.

This court has never admitted, however, that it was relaxing the standard of proof on the issue of responsibility.¹⁷ Furthermore, it is no longer clear that a lesser standard of proof would be constitutionally permissible. For the continuing vitality of Leland is open to serious question in light of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In Winship, the Court made it clear that the Constitution is the source of the rule that the government must prove every element of a crime beyond a reasonable doubt. 397 U.S. at 364, 90 S.Ct. at 1073. And when the defendant's criminal responsibility is at issue, it would seem to be an element of the offense, subject to the Winship rule.

An alternative explanation for our unusual deference to the jury on the issue of responsibility is to say that, for that issue alone, we have adopted the Second Circuit's approach to the rule of reasonable doubt. In the Second Circuit, a jury in a criminal case is instructed that the government must prove every element of the crime beyond a reasonable doubt. But the reviewing court tests the sufficiency of the evidence without regard to that requirement, holding only that the verdict must be supported by substantial evidence, as in a civil case.¹⁸ In light of Winship, the constitutionality of the Second Circuit approach is doubtful, since it leaves the reviewing court powerless to enforce the rule embodied in the jury instruction.¹⁹ To recite the rule of reasonable doubt without enforcing it "reduces...