Warren v. Harvey

• Decision Date: 01 May 1980
• Docket Number: D,No. 1017,1017
• Citation: 632 F.2d 925
• Parties: William J. WARREN, Petitioner-Appellant, v. Henry M. HARVEY, Acting Director, Whiting Forensic Institute, Middletown, Connecticut, Respondent-Appellee. ocket 80-2034.
• Court: U.S. Court of Appeals — Second Circuit

Page 925

632 F.2d 925

William J. WARREN, Petitioner-Appellant, v. Henry M. HARVEY, Acting Director, Whiting Forensic Institute, Middletown, Connecticut, Respondent-Appellee.

No. 1017, Docket 80-2034.

United States Court of Appeals Second Circuit.

Argued April 7, 1980.

Decided May 1, 1980.

Stephen Wizner, New Haven, Conn. (Dennis E. Curtis, Renee D. Chotiner, Alice Bussiere, and Steven Salky, Legal Services Organization, New Haven, Conn., on the brief), for petitioner-appellant.

Linda K. Lager, Asst. State's Atty., New Haven, Conn., for respondent-appellee.

Before FRIENDLY, FEINBERG and TIMBERS, Circuit Judges.

TIMBERS, Circuit Judge:

Appellant Warren, who is confined involuntarily at Whiting Forensic Institute a Connecticut state mental institution after having been tried by a jury for first degree murder and having been found not guilty by reason of insanity, filed a petition for a writ of habeas corpus in the District of Connecticut challenging the constitutionality of his confinement. The instant appeal is from a judgment entered on an opinion by M. Joseph Blumenfeld, District Judge, denying that petition. 472 F.Supp. 1061. For reasons other than those relied upon by the district court, we affirm.

I.

On July 5, 1971 appellant was arrested for fatally shooting his neighbor. In November of that year he was indicted for first degree murder. Following lengthy pretrial proceedings, which included a psychiatric examination and competency hearing, appellant was brought to trial in early 1974 before Judge Saden and a jury in the Superior Court for New Haven County. On February 27, 1974 the jury returned a verdict of not guilty by reason of insanity. ¹

After his acquittal, appellant was ordered confined temporarily at the Connecticut Valley Hospital, in accordance with Conn.Gen.Stat. § 53a-47(a) (Rev.1958, Supp.1975), so that a determination could be made whether he was "mentally ill to the extent that his release would constitute a danger to himself or others." ² An initial commitment hearing was held in the Superior Court before Judge Saden in May 1974. At this hearing, evidence was presented that appellant was being administered a major anti-psychotic drug, mellaril. The effect of this drug was to reduce the patient's anger and hostility and give him "a more realistic grasp on reality". According to testimony by Dr. Patrick Lee a unit chief at the Connecticut Valley Hospital and the only witness at the hearing appellant had improved significantly as a result of taking this medication and showed a marked decrease in his tendency for violence. It was Dr. Lee's opinion that, while taking this medication, appellant was "not a danger to himself or others in or outside the hospital".

Dr. Lee, however, emphasized that appellant's continuing use of the medication was of critical importance. He testified that appellant's condition would revert back to its previous state marked by hostility, failure to get along with others, and outbursts of rage if he were to stop taking the medication. Citing recent studies by the Veterans Administration which showed that almost half of the readmissions to its hospitals were due to the failure of patients to continue taking such medication after their release, Dr. Lee concluded that appellant's "release at this time would constitute a danger to himself or others." Dr. Lee further testified that in his view appellant would benefit from a further period of hospitalization.

At the conclusion of this hearing, Judge Saden found that appellant was mentally ill to the extent that his release would constitute a danger to himself or others. In support of this finding, the court stated that appellant's "condition is not eliminated by medication; it is only controlled .... (M)edication does not affect the cause, only the symptoms." The court held that "(t)here is a strong possibility that the defendant, if released, might not continue use of the anti-psychotic medication without which he is a danger to himself or others." The court on May 24, 1974 therefore ordered that appellant be confined at the Connecticut Valley Hospital. ³

Appellant appealed to the Connecticut Supreme Court from this commitment order, challenging both the sufficiency of the evidence presented at the commitment hearing and the constitutionality of the "preponderance of the evidence" standard applied at the hearing pursuant to § 53a-47(a)(4). The Connecticut Supreme Court rejected appellant's contention that the state should have been required to prove his dangerousness by more than a mere preponderance of the evidence, as the state is required to do in order to confine persons in ordinary civil commitment proceedings. State v. Warren, supra, 169 Conn. at 215, 363 A.2d at 96. Citing "significant differences between the civil commitment situation and the commitment of an accused found not guilty because of insanity," id., the court upheld the constitutionality of the less stringent standard applied in this case. The court further held that the evidence at appellant's hearing was sufficient to satisfy this standard of proof. Id. at 213, 363 A.2d at 94-95.

In December 1974 a second hearing this time regarding appellant's right to be released from confinement pursuant to § 53a-47(c) ⁴ was held in the Superior Court before Judge Saden. Dr. Lee and Dr. Burkhard Voelkening, a psychiatrist at the Connecticut Valley Hospital, testified on the basis of reports submitted to the court stating that appellant was taking anti-psychotic tranquilizing medication and exhibited no symptoms of overt psychosis or thought disorder. Both reports concluded that, if appellant continued to take his medication and received outpatient psychiatric care, his release would not constitute a danger.

At this hearing, however, Dr. Lee testified that, because appellant's medication treated only his symptoms and not his underlying mental illness, he would become psychotic in about six weeks if he were to cease taking the medication. Dr. Lee further testified that one of the reasons appellant presently was not dangerous was because he was taking medication in the structured, supervised setting of the mental hospital. According to Dr. Lee, appellant needed "the control setting of a staff handling him"; outside the hospital and without such controls, in Dr. Lee's opinion, the chances were forty to fifty percent that appellant would stop taking the medication and would revert back to his psychotic, potentially violent state.

Dr. Voelkening was in substantial accord with Dr. Lee's analysis. He attributed appellant's improved condition to the medication and the structured hospital setting where appellant was living; outside the hospital even if he were getting psychiatric treatment and medication on an outpatient basis appellant might still become dangerous if faced with stress and frustration; and appellant's homosexuality or future involvement with alcohol were cited as possible sources of such stress. Dr. Voelkening concluded that "(g)iven the right combination of circumstances of stress and frustration, and not taking medication and having no structure," appellant could become dangerous again.

Judge Saden held on December 19, 1974, after the second hearing, that appellant was not entitled to be released from confinement. He found that the state had proven by a preponderance of the evidence that appellant remained mentally ill to the extent that his release would constitute a danger to himself or others.

Ten months later, a second release hearing was held in the Superior Court before Judge Irving Levine. Dr. Mehadin Arafeh, Superintendent of the Connecticut Valley Hospital, Dr. Michael Sheard, Associate Professor of Psychiatry at Yale University, Dr. Voelkening, and Dr. Lee each submitted reports and testified at the hearing. The substance of their reports and testimony was that appellant was then taking anti-psychotic medication and at the time was free from overt psychosis. Appellant's improvement was attributed both to the medication and the stable, secure hospital environment. Outside the controlled hospital setting, there was an increased risk that stress and anxiety would cause appellant to stop taking his medication. ⁵ In such event, appellant was likely to exhibit violent behavior as he had in the past.

After this second release hearing, Judge Levine on November 4, 1975 held that the state again had established by a preponderance of the evidence that appellant was mentally ill to the extent that his release would constitute a danger to himself or others. The court accordingly ordered that appellant's confinement be continued.

In December 1975 appellant was transferred from the Connecticut Valley Hospital to Whiting Forensic Institute, where he is presently confined.

In May 1977 he petitioned the district court for a writ of habeas corpus, claiming that his confinement violated due process because an unconstitutional standard of proof was adhered to by the state courts at each of the three hearings. The district court held ⁶ that the Connecticut statute governing appellant's commitment, § 53a-47, was constitutional on its face, concluding that the more stringent standard of proof required for involuntary civil commitment proceedings by the Supreme Court in Addington v. Texas, 441 U.S. 418 (1979), was not required for the commitment of insanity acquittees.

The district court, however, also held that the evidence presented at the hearings was not sufficient to support a finding that appellant constituted a danger to himself or others. The district court found that the state courts, by relying on a presumption of continuing dangerousness stemming from appellant's criminal act, in effect had shifted the burden of proof on the issue of dangerousness to appellant. Such a shift, according to the district court, violated the Connecticut statutory requirement that the state bear the burden of proving appellant's dangerousness by a...