471 F.2d 969 (D.C. Cir. 1972), 22714, United States v. Brawner

Docket Nº:22714.
Citation:471 F.2d 969
Party Name:UNITED STATES of America v. Archie W. BRAWNER, Appellant.
Case Date:June 23, 1972
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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471 F.2d 969 (D.C. Cir. 1972)



Archie W. BRAWNER, Appellant.

No. 22714.

United States Court of Appeals, District of Columbia Circuit.

June 23, 1972

Argued En Banc April 12, 1972.

Rehearing Denied Aug. 21, 1972.

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[Copyrighted Material Omitted] Page 971

Syllabus by the Court [*]

This appeal, from a judgment following a jury conviction for second degree murder, concerns the defense of insanity. The court sets forth a new standard for the insanity defense. It remands to the District Court to consider whether, in view of the doctrine, the judgment appealed from should be retained or a new trial awarded. These are the principal features of the decision:

1. The court adopts as the criterion of insanity, for all trials beginning after today, the rule stated in § 4.01(1) of the Model Penal Code of the American Law Institute. That rule, which has been adopted in essence by the other Federal circuit courts of appeals, states: "A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law." The rule of Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862 (1954), which excused an unlawful act if it was the product of a mental disease or defect, will no longer be in effect.

2. The court retains the definition of mental disease or defect adopted in McDonald v. United States, 114 U.S.App. D.C. 120, 312 F.2d 847 (en banc, 1962): "A mental disease or defect includes any abnormal condition of the mind which

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substantially affects mental or emotional processes and substantially affects behavior controls." (Pp. 983-984).

3. The introduction or proffer of past criminal and antisocial actions is not admissible as evidence of mental disease unless accompanied by expert testimony, supported by a showing of the concordance of a responsible segment of professional opinion, that the particular characteristics of these actions constitute convincing evidence of an underlying mental disease. (Pp. 992-994).

4. The court retains its approach of permitting a broad presentation to the jury concerning the condition of defendant's mind and its consequences (p. 994 ff). The rules will be applied so as to prevent the experts from exercising undue dominance over the jury, whose decision is not confined to medical elements. (p. 982). Both jury and experts will be instructed concerning their respective roles, in accordance with the instruction presented in Washington v. United States, 129 U.S.App.D.C. 29, 390 F.2d 444 (1967). While the expert may testify as to the existence or not of mental disease, and causal relationship between such disease and the defendant's capacity to control, and appreciate the wrongfulness of, his conduct, he will be required to present the basis underlying his conclusions. (Pp. 982-983; 1006-1007).

5. The court has carefully considered, but rejected, the suggestion that the jury should be instructed to acquit whenever it concludes that there have been substantial impairments in mental or emotional processes and behavior controls such that the defendant cannot justly be held responsible. (Pp. 987-989).

6. The court has also reconsidered an inter-related doctrine concerning the possibility of a defense, based on mental condition, that is not, like insanity, a complete exoneration, but negatives the specific mental element of certain crimes or degrees of crime. Trials beginning after today will no longer be controlled by Fisher v. United States, 80 U.S. App.D.C. 96, 149 F.2d 28 (1946). Even when there is no defense of insanity, expert testimony of abnormal mental condition will be admissible when it bears on the existence of a specific mental element necessary for a crime, as in the issue of premeditation in first degree murder, provided the judge determines that the testimony is grounded in sufficient scientific support, and would aid the jury in reaching a decision on the ultimate issues. (Pp. 998-1002).

Mr. Richard J. Flynn, Washington, D. C. (appointed by this court), with whom Mr. Richard G. Clemens, Washington, D. C., was on the brief, for appellant.

Mr. John D. Aldock, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and John A. Terry, Earl J. Silbert, Oscar Altshuler, Daniel J. Bernstein, Asst. U. S. Attys., and Miss Beatrice Rosenberg, Atty., Dept. of Justice, were on the brief, for appellee.

Mr. William H. Dempsey, Jr., Washington, D. C. (appointed by the court), as amicus curiae.

Messrs. Peter Barton Hutt, James H. Heller and Ralph J. Temple, Washington, D. C., filed a brief on behalf of The American Civil Liberties Union Fund of the National Capital Area as amicus curiae.

Messrs. Allan Ashman and John Shullenberger filed a brief on behalf of National Legal Aid and Defender Assn. as amicus curiae.

Messrs. Joseph P. Busch, Jr., Harry Wood, Eugene D. Tavris, and Arnold T. Guminski, Los Angeles, Cal., filed a brief on behalf of the National District Attorneys Assn. as amicus curiae.

Miss Marilyn Cohen, Washington, D. C., filed a brief on behalf of Public Defender Service and The Georgetown Legal Intern Project as amici curiae.

Mr. Warren E. Magee, Washington, D. C., filed a brief on behalf of American Psychiatric Assn. as amicus curiae.

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Professor David L. Chambers, III, filed a brief as amicus curiae.

Messrs. Bruce L. Montgomery and Michael N. Sohn, Washington, D. C., filed a brief on behalf of the American Psychological Assn., as amicus curiae. Mr. James F. Fitzpatrick, Washington, D. C., also entered an appearance for the American Psychological Assn.

Mr. Paul A. Lenzini, Washington, D. C., filed a brief on behalf of the Bar Assn. of the District of Columbia, as amicus curiae.


Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB, and WILKEY, Circuit Judges, sitting en banc.

LEVENTHAL, Circuit Judge:

The principal issues raised on this appeal from a conviction for second degree murder and carrying a dangerous weapon relate to appellant's defense of insanity. After the case was argued to a division of the court, the court sua sponte ordered rehearing en banc. We identified our intention to reconsider the appropriate standard for the insanity defense, authorized counsel to file supplemental briefs, invited the Public Defenders' Service "to submit an additional brief on behalf of the appellant, " and appointed William H. Dempsey, Jr., Esq., as amicus curiae, without instruction as to result or theory, "to research the authorities on the issue of criminal responsibility, " to advise the court thereon and to present oral argument. We advised a number of organizations of our action, and invited briefs amicus curiae. Subsequently we directed the Clerk to notify all concerned of questions the court requested be discussed (Appendix A).

In the course of our reconsideration of the rule governing the insanity defense, we have studied the opinions of other courts, particularly but not exclusively the opinions of the other Federal circuits, and the views of the many scholars who have thoughtfully pondered the underlying issues. Our file includes presentations of counsel, both Government lawyers and counsel appointed to represent defendant, and submissions of those who have responded to the invitation to comment as amicus curiae on a considerable number of inter-related matters.

We have stretched our canvas wide; and the focal point of the landscape before us is the formulation of the American Law Institute. The ALI's primary provision is stated thus in its Model Penal Code, see § 4.01(1).

Section 4.01 Mental Disease or Defect Excluding Responsibility.

(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of the law.

We have decided to adopt the ALI rule as the doctrine excluding responsibility for mental disease or defect, for application prospectively to trials begun after this date.

The interest of justice that has called us to this labor bids us set forth comments in which we review the matters we concluded were of primary consequence-though we cannot practicably retraverse all the ground covered in our reflection. These comments also contain features of the rule in which we, like other courts, have recorded our adjustments of the rule and understandings concerning its application that are stated as part of the adoption of the rule, to improve its capacity to further its underlying objectives. We highlight, as most notable of these, our decision to retain the definition of "mental illness or defect" that we evolved in our 1962 McDonald 1 opinion en banc. Others are prompted by the submissions which raised,

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as points of objection to the ALI rule, matters that we think can be fairly taken into account by clarifying comments. For the assistance of the reader we insert at this point a Table of Contents identifying the topics discussed in this opinion.


A. The Trial Record ..................................................... 974

B. Prior Developments of the Insanity Defense in this Jurisdiction ...... 975

C. Insanity Rule in Other Circuits ...................................... 978

D. Comments Concerning Reason for Adoption of ALI Rule and Scope of Rule

as Adopted by This Court ........................................... 981

1. Need to depart from "productivity" formulation and undue dominance

by experts ......................................................... 981

2. Retention of McDonald definition of "mental disease or defect" .......

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