United States v. Brown

• Decision Date: 08 January 1973
• Docket Number: No. 24646.,24646.
• Citation: 478 F.2d 606
• Parties: UNITED STATES of America v. James J. BROWN, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

478 F.2d 606 (1973)

UNITED STATES of America v. James J. BROWN, Appellant.

No. 24646.

United States Court of Appeals, District of Columbia Circuit.

Argued November 8, 1971.

Decided January 8, 1973.

Rehearing Denied April 5, 1973.

Mr. Jon P. Axelrod, Washington, D. C., with whom Mr. Norman Lefstein, Washington, D. C., was on the brief, for appellant. Mrs. Barbara A. Bowman and Karen E. Moore, Washington, D. C., also entered appearance for appellant.

Mr. David G. Larimer, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, John A. Terry and William H. Collins, Jr., Asst. U. S. Attys., were on the brief, for appellee.

Before DANAHER, Senior Circuit Judge, and WRIGHT and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge:

Appellant was indicted on 8 counts of robbery, 11 of assault with a deadly weapon, and one count each of rape and carrying a pistol without a license. At a trial in 1969, without a jury, by Judge William B. Jones, he was acquitted by reason of insanity. Following that acquittal, appellant was given a hearing, pursuant to 24 D.C.Code § 301(d), as construed in Bolton v. Harris, 130 U.S. App.D.C. 1, 395 F.2d 642 (1968), to determine whether he was mentally ill and ought to be retained in custody in a mental hospital.¹ He demanded a jury. The District Judge instructed the jury that the issue of mental illness vel non was to be determined by a preponderance of the evidence.² The jury found appellant was mentally ill, and Judge Jones ordered appellant committed to St. Elizabeths Hospital until released in accordance with 24 D.C.Code § 301(e). This appeal followed.

That preponderance standard was the one set forth in the Bolton opinion as applicable to this post-acquittal commitment proceeding.³ Appellant claims: (1) In view of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), Due Process requires the reasonable doubt standard of proof in an involuntary civil commitment proceeding. (2) Equal Protection requires that proceedings to maintain detention of persons who have been acquitted of criminal charges by reason of insanity be governed by the same standard of proof as applies in proceedings for civil commitment of other mentally ill people who are thought to be dangerous. We find no error in the trial court's instructions and we affirm.

As to the standard of proof in an involuntary civil commitment proceeding, the pertinent statute provides that the court may order hospitalization or other treatment "if the court or jury finds that the person is mentally ill and, because of that illness, is likely to injure himself or other persons if allowed to remain at liberty. . . ." D.C.Code § 21-545. That provision, and its predecessor, have been construed to require a showing by the party seeking civil commitment "by a preponderance of the evidence." Lynch v. Overholser, 369 U.S. 705, 711, 714, 82 S.Ct. 1063, 1069, 8 L. Ed.2d 211 (1962); In re Alexander, 125 U.S.App.D.C. 352, 372 F.2d 925 (1967); Bolton v. Harris, 130 U.S.App.D.C. 1, 10, 395 F.2d 642, 652 (1966).

The claim that a reasonable-doubt standard is constitutionally requisite is based on In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Winship involved a juvenile delinquency proceeding brought under a New York statute defining delinquency as acts which, if done by an adult, would constitute a crime.

Notwithstanding that juvenile court proceedings are styled "civil" by New York, as by most other states, the Court held that the elements of due process would not be substantially different from those pertaining to the criminal process, because in either case, the risks connected with being wrong would be much the same; a substantial and involuntary deprivation of liberty combined with the odium of a stigma upon one's good name.⁴ Justice Harlan's concurring opinion expatiated on the reasons for a higher standard of proof in criminal (and delinquency) cases than in civil cases, why the nature of the issues makes a difference in terms of requisite burden of proof.⁵

We acknowledge that a substantial contention can be made that the elements of detention and "stigma" involved in involuntary commitment to a mental hospital by civil process, and the nature of the issues of mental illness and likelihood of dangerousness to self or others, requires that these issues be proved by a standard greater than the "bare" preponderance of evidence standard applicable in an ordinary civil action between two private persons.⁶ However, it may be that where the issue involved is not the occurrence of an event, but the individual's mental condition and propensity ("dangerousness"), society may fairly appreciate that if it is to combine realism with humanity and fairness it might sensibly adopt a standard like "clear and convincing evidence"⁷ — requiring more certitude than bare "preponderance of evidence" but not quite as much as "beyond a reasonable doubt."

In Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966), the Court held that banishment by a deportation order could not permissibly be accomplished with the same "preponderance" standard as is applicable to negligence cases, but the Court did not require the same standard of proof as a criminal proceeding and instead fashioned the intermediate standard of "clear, unequivocal, and convincing evidence." 385 U.S. at 285, 87 S.Ct. 483. As the Court noted, this standard has been applied in civil cases involving allegations of particular significance.⁸ See also New York Times Co. v. Sullivan, 376 U.S. 254, 285-286, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), where the Court held that "convincing clarity" is the constitutional standard requisite for a finding of malice justifying damages for a statement defaming a public official in regard to his official conduct.

We entered an order suspending consideration of this case pending determination by the Supreme Court of cases that would, we thought, have resolved the constitutional requirement for civil commitment. The Supreme Court's ultimate disposition left that issue unresolved. Murel v. Baltimore City Criminal Court, 407 U.S. 355, 92 S.Ct. 2091, 32 L.Ed.2d 791 (1972). Reverting to the case before us, we now conclude that it is not necessary to determine that constitutional issue. Even assuming that a standard of persuasion higher than "preponderance" is mandated for involuntary civil commitment proceedings, it is not necessarily applicable as to the issue of commitment of a person who has successfully claimed the defense of insanity in a criminal proceeding. In Lynch v. Overholser, supra, Justice Harlan's opinion, after noting the "elaborate procedural precautions included in the civil commitment provisions" pointed out that these did not necessarily apply to the person who successfully presses an insanity defense to a criminal proceeding. See 369 U.S. 705 at 715, 82 S. Ct. 1063 at 1069:

The criminal defendant who chooses to claim that he was mentally irresponsible when his offense was committed is in quite a different position. It is true that he may avoid the ordinary criminal penalty merely by submitting enough evidence of an abnormal mental condition to raise a reasonable doubt of his responsibility at the time of committing the offense. Congress might have thought, however, that having successfully claimed insanity to avoid punishment, the accused should then bear the burden of proving that he is no longer subject to the same mental abnormality which produced his criminal acts. Alternatively, Congress might have considered it appropriate to provide compulsory commitment for those who successively invoke an insanity defense in order to discourage false pleas of insanity. We need go no further here than to say that such differentiating considerations are pertinent to ascertaining the intended reach of this statutory provision.

Persons acquitted by reason of insanity have been determined to have been guilty, beyond a reasonable doubt of acts that impaired the safety of the community.⁹ They are in a different position, at least for some purposes, from persons who have not committed any such acts but are sought to be civilly committed solely because of dangers and propensities arising from mental condition. So much was acknowledged in Bolton v. Harris as a justification for commitment of the insanity-acquitted without the predicate required for civil commitment, without either a hearing or determination of present mental condition, for the period required in order to make a determination of present condition.¹⁰

Bolton also held that the difference between the two groups did not warrant continued holding of the insanity-acquitted without a judicial hearing. The soundness of this is undisputed, and indeed, as was noted in United States v. Brawner, 471 F.2d at 996, 997 was incorporated by Congress into the 1970 legislation (cited in note 3). Bolton further held that the procedures culminating in the judicial determination, after hearing, on continued detention vel non should be substantially similar to those in proceedings, under 21 D.C.Code § 545(b), for civil commitment of the dangerous mentally ill. No question arises as to this ruling, and the insanity-acquitted person has substantially all the procedural protection of 21 D.C.Code § 545, including provisions for examinations, notice, counsel, cross-examination, and jury trial.

What appellant seeks is a decision that changes the Bolton ruling that on the issue of detention the burden is on the Government to prove present mental illness by a preponderance of the evidence. Appellant seeks that change on the ground that the Bolton opinion erroneously assumed that this was the standard for civil commitment. If there was such an erroneous assumption it was offset by another erroneous assumption that the standard on burden of proof must be the same for both groups.

There is justification...