Henderson v. United States, 18249.

• Decision Date: 15 April 1966
• Docket Number: No. 18249.,18249.
• Citation: 360 F.2d 514,123 US App. DC 380
• Parties: Nathaniel B. HENDERSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

123 US App. DC 380, 360 F.2d 514 (1966)

Nathaniel B. HENDERSON, Appellant, v. UNITED STATES of America, Appellee.

No. 18249.

United States Court of Appeals District of Columbia Circuit.

Argued June 2, 1965.

Decided April 15, 1966.

Mr. Morton M. Winston, Washington, D. C., with whom Mr. Albert J. Beveridge, III, Washington, D. C. (both appointed by this court), was on the brief, for appellant.

Mr. John R. Kramer, Asst. U. S. Atty. at time of argument, with whom Messrs. David C. Acheson, U. S. Atty. at time brief was filed, and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.

Before BAZELON, Chief Judge, and FAHY and LEVENTHAL, Circuit Judges.

ORDER filed December 27, 1965

PER CURIAM.

On consideration of appellant's motion for leave to withdraw his appeal, in part, or in the alternative for leave to withdraw his appeal in whole, and no opposition having been filed thereto, it is

Ordered by the court that appellant's motion for leave to withdraw his appeal in whole is granted.

PER CURIAM.

In view of Chief Judge Bazelon's opinion we have written this short memorandum to explain our action in granting appellant's motion to withdraw his appeal. We do not feel it necessary to present our views on the various matters discussed by the Chief Judge. The motion came to us through counsel from an appellant adjudged competent to stand trial in a ruling not challenged before this court. There was a psychiatric report — not conclusive, by any means — finding him competent to make determinations affecting his appeal.

At the trial the Government contended that assuming appellant had been suffering from a mental illness the actions for which he was tried were not the product thereof. There was psychiatric testimony to that effect. Apparently the jury came to that conclusion. His counsel advised us that the sole contention they were pressing was that the court erred in failing to direct a verdict for defendant. This honored appellant's determination that it was not in his interest to obtain a reversal for the purpose of a new trial.

The prison authorities did not find that he required treatment in a mental institution. He anticipates release upon service of his sentence in the not distant future, and will even be eligible for parole this spring. The case was argued June 2, 1965. On December 7, 1965, he asked dismissal of the appeal, reporting that he had been making good progress in his prison adjustment, including correspondence courses, and concluding for additional reasons that further maintenance of the appeal was not in his interest.

The case is marginal. We are aware as is appellant that he may need continuing psychiatric assistance, but we did not believe under the circumstances that the interest of justice required further proceedings against his will. Accordingly, on December 27, 1965, we entered an order granting appellant's motion to dismiss the appeal.

BAZELON, Chief Judge (concurring).

My brethren view the issues underlying the appellant's request to withdraw this appeal as "marginal."¹ Because I find them most difficult and troubling I feel they require discussion.

On the one hand, the record is replete with evidence that appellant suffers from a serious mental disorder, which casts substantial doubt on his competence to abandon this appeal. It also reveals serious inadequacies in the trial of the issue of criminal responsibility, which cast substantial doubt on the validity of the conviction appealed. I do not refer to inadequacies in the sense of mistakes of trial court or counsel, but rather to the shortcomings in the system presently governing the administration of the insanity defense. On the other hand, appellant will soon be eligible for parole, and does not wish to impede its consideration by the pendency of this appeal.

At trial his defense was that he did not commit the robbery and that, even if he did, it was the product of a mental disease. The jury found against him² and he brought this appeal alleging that the trial judge erred (1) in denying his motion for a directed verdict on the issue of criminal responsibility; and (2) in denying his request to submit to the jury the issue whether he committed the act charged before introducing evidence on responsibility.

The pre-trial and trial record disclose undisputed evidence of serious mental illness. Shortly after appeallant's indictment on February 5, 1963, the trial court committed him to Saint Elizabeths Hospital for a ninety-day mental examination to determine his condition at the time of the offense and his competence to stand trial. The Hospital reported:

As a result of our examinations and observation, it is our opinion that Nathaniel B. Henderson is mentally competent for trial, although he is suffering from a mental disease, Schizophrenic Reaction, Chronic Undifferentiated Type. It is also our opinion that he was suffering from this mental illness on or about the date of the alleged robbery * * *.

At trial, appellant called two Saint Elizabeths psychiatrists, Drs. Dabney and Owens. Dr. Dabney testified that, on the basis of his observation of appellant twice a week for ninety days and letters he received from appellant every day, it was his conclusion that appellant was suffering from "schizophrenic reaction, chronic undifferentiated type," and that the alleged act was definitely a product thereof. He described the symptoms in detail, further stating on cross-examination that appellant could not distinguish between right and wrong and would have committed the alleged robbery even if a policeman had been at his elbow. Dr. Owens, who examined appellant only once, testified that appellant was suffering from a mental illness symptomized by impaired judgment, marked depression, preoccupation with suicidal thoughts, one suicidal gesture during hospitalization, and "thinking that was approaching paranoid ideas." The Government presented no countervailing psychiatric testimony.

The post-trial record casts still more doubt on appellant's competence to abandon his appeal. After taking this appeal, appellant instructed his counsel not to urge any issue of insanity. Because counsel was "unable to determine whether appellant's direction * * * was materially or principally motivated by a mental condition (schizophrenia) and by a desire to punish himself," he moved this court on February 25, 1964, to consider appellant's mental capacity to waive the insanity issues. He submitted with his motion an affidavit from Dr. Dabney stating, on the basis of his pre-trial observations, that appellant's "present insistence not to appeal on the basis of mental illness * * * is a reflection of the features of his mental disorder, with which he still seems to be suffering." This court then requested Dr. Lanham, Director of the Legal Psychiatric Service, to examine appellant. He reported:

It is my opinion that Henderson continues to suffer from a Schizophrenic reaction, chronic undifferentiated type, although as is characteristic in that illness, many of his more blatant and more bizarre symptoms are now in remission. It is further my opinion that his direction to his counsel to abandon the issue of insanity on appeal is materially motivated by his impaired mental condition.

Not infrequently, persons who have had a psychotic break wish to deny that they are in any way mentally ill, when their acute symptoms are in remission. I believe this is true in Henderson\'s case. Furthermore, he manifests many distinctly paranoid trends. * * *

In addition, even though he denies his mental illness, he recently got into the prison hospital and refused to leave until he could see the prison doctor and get tranquilizing medication. Thus, while appealing for medical and psychiatric help on the one hand, he rejects the possibility of obtaining it on the other. This kind of dualism is not infrequently encountered in schizophrenic persons who must be hospitalized against their protestations, while at the same time attracting attention to themselves as mentally disturbed. I believe that his judgment and reality testing are quite impaired. * * * There is no question that the end result of his behavior is self-defeating, unrealistic, and self-punitive. Emphasis supplied.

This report of serious mental illness required a full and scrupulous inquiry into appellant's competence to abandon the issue of insanity which was pressed so hard at trial. We therefore remanded to the District Court for such a hearing, "in order that the record before this court may be supplemented." To insure the fullest inquiry, we specifically empowered the District Court: "to order additional mental examinations of appellant; to receive from counsel suggested questions of fact for consideration in the course of any mental examinations of appellant and for determination by special findings of facts by the court; to hold evidentiary hearings; * * * to make additional findings of fact, and conclusions of law. * * *"³ On remand the District Court ordered appellant examined at D. C. General Hospital. On December 8, 1964, the Hospital reported, without explanation or clarification, that "the defendant understands the possible arguments that might be made in his appeal, as well as the consequences of rejecting any one of them," and that "the defendant is of sound mind, able to stand trial and to assist counsel in his defense."⁴ But while appellant was still in the Hospital, and before the District Court acted finally on our remand, appellant indicated that he had again changed his mind and again wished to raise issues of insanity on appeal. Accordingly no further inquiry was pursued to resolve appellant's competence to abandon those issues. The hearing contemplated by our order of remand was not held, the contemplated supplemental record not developed.⁵ Because of appellant's change of heart, in April 1965 we dismissed as moot counsel's motion for a determination of appellant's...