Before WILBUR K. MILLER, Chief Judge, and EDGERTON, PRETTYMAN, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN, and BURGER, Circuit Judges, sitting in banc.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT 1961.CDC.24
We reversed appellant's former conviction of first degree murder. Blocker v. United States, 107 U.S.App.D.C. 63, 274 F.2d 572. He now appeals from another conviction and sentence of death for the same crime. There was substantial evidence that he was, and substantial evidence that he was not, insane at the time of the offense.
In 1895 the Supreme Court ruled that "if the whole evidence, including that supplied by the presumption of sanity, does not exclude beyond reasonable doubt the hypothesis of insanity, of which some proof is adduced, the accused is entitled to an acquittal . . .." Davis v. United States, 160 U.S. 469, 488, 16S. Ct. 353, 358, 40 L. Ed. 499. That case has been law for 65 years. In the last 10 years we have applied it many times.
In 1951 we said: "the function of the trial court in regard to the issue of sanity is to determine whether that issue is brought into the case by evidence. If it is, then it should be submitted to the jury with instructions that if the jury has a reasonable doubt of the defendant's sanity, there must be an acquittal." Tatum v. United States, 88 U.S.App.D.C. 386, 390, 190 F.2d 612, 616.
In 1954 we said: "Whenever there is 'some evidence' that the accused suffered from a diseased or defective mental condition at the time the unlawful act was committed, the trial court . . . should in some way convey to the jury the sense and substance of the following: . . . Unless you believe beyond a reasonable doubt either that he was not suffering from a diseased or defective mental condition, or that the act was not the product of such abnormality, you must find the accused not guilty by reason of insanity. . . ." Durham v. United States, 94 U.S.App.D.C. 228, 241, 214 F.2d 862, 875, 45 A.L.R.2d 1430.
In 1956 we said: "There was evidence . . . that the accused was of unsound mind when the robberies occurred. The prosecution therefore was under the necessity of establishing to the satisfaction of the jury beyond a reasonable doubt that the robberies were not the result of Douglas' insanity. . . . Restating the matter within the rule prevailing in this jurisdiction since Durham v. United States, . . . in order to justify a conviction the proof, considered with the presumption of sanity, must exclude beyond a reasonable doubt the hypothesis that the conduct indicted was the product of a diseased mind." Douglas v. United States, 99 U.S.App.D.C. 232, 235, 239 F.2d 52, 55.
In 1957 we said: "when the defendant introduces some evidence to raise the issue of insanity, his sanity at the time of the offense becomes an element of the crime, which, like all other elements of the crime, must be proved by the Government beyond a reasonable doubt." Wright v. United States, 102 U.S.App.D.C. 36, 39, 250 F.2d 4, 7.
Again we said in 1957: "When the issue of insanity is properly raised by evidence, as it was in this case, the burden is on the Government to prove * * beyond a reasonable doubt either (1) that the accused had no mental disease or defect or (2) that, although the accused was defective or diseased, his act was not the product of the affliction." Carter v. United States, 102 U.S.App.D.C. 227, 233, 234, 252 F.2d 608, 614, 615.
We said this again in 1959. Hopkins v. United States, 107 U.S.App.D.C. 126, 128, 275 F.2d 155, 157.
On January 21, 1960, we said: "the law in all federal jurisdictions, under a Supreme Court ruling, is and has been for more than half a century that, when a defendant in a criminal case introduces enough evidence of insanity to overcome the presumption of sanity, a burden thereupon falls upon the Government to establish sanity beyond a reasonable doubt." Isaac v. United States, 109 U.S.App.D.C. 34, 284 F.2d 168, 170.
Although these many cases made it uncommonly plain that the burden of proof on the issue of Blocker's insanity was on the government, the prosecutor asked the court to place the burden on the defendant. His Proposed Instruction No. VI said: "In order for you to find the defendant not guilty by reason of insanity, you must find: (1) that at the time of the(offenses) the defendant was suffering from some mental disease or defect; AND (2) that the (acts) in question . . . was (were) the product of such mental disease or defect. . . . In order for you to acquit on the ground of insanity, you must find both these elements present. It is not sufficient for you to find merely that the defendant was suffering from a diseased or defective mental condition when he committed the offense. You must further find that the act was the product of the mental abnormality." *fn1
After thus contradicting the law, the proposed instruction contradicted itself. It said: "However, if there is some evidence of mental disorder, the burden is on the Government to prove beyond a resonable doubt that at the time in question the defendant was of sound mind. . . . If you should find all the elements of the offense have been proved, but you have a reasonable doubt as to both his mental condition and the causal relation of such mental condition to the offense charged, then you would find the defendant not guilty by reason of insanity."
The net result of the proposed instruction was confusion. The burden was on the defendant; the burden was on the government.
The court granted the proposed instruction "in substance". It first charged the jury in accordance with the law; then in contravention of the law; and finally, once more in accordance with the law:
(1) "Basically, there is a presumption that all people are sane. . . . But, when there is some evidence of a mental disorder, as here in this case, then the presumption of sanity of the individual, Comer Blocker, vanishes from the case. And the burden is upon the Government to prove beyond a reasonable doubt that at the time in question, April 5th, 1957, the defendant, Comer Blocker, was of sound mind, or if he suffered from a mental disease or defect, at the time of the offense, that is, the killing of Frances Hall, that the act was not caused by the mental disease or defect, just as the burden is on the Government to prove beyond a reasonable doubt all of the other essential elements . . . that is, malice, premeditation, deliberation, the same burden is on the Government to prove the sanity of Comer Blocker on April 5th, 1957, or that if he was suffering from a mental illness on that date, that it was not the causal effect (sic) of the killing of Frances Hall. . . ."
Assuming "causal effect" was meant for "effective cause", the foregoing part of the court's instruction is correct. It places the burden of proof where the law places it, squarely on the government.
But the court went on to give a contrary instruction:
(2) "Now, a person is relieved of the responsibility for a crime by reason of insanity, where it is found, first, that he was suffering from a mental defect or a mental disease at the time of the offense, and, second, that his act was the product of that mental defect or disease. . . . Now, you are instructed that if you find that the defendant, Comer Blocker, committed the act complained of, that is, the shooting of Frances B.Hall on April 5th, 1957, while he was suffering from a mental disease or defect, then you must consider the second requirement spoken of before you may find him not guilty by reason of insanity. . . . Turning then to the shooting . . . if your answer to the first requirement is yes, the defendant, Comer Blocker, was suffering from a mental disease or defect, and if you find that the defendant, Comer Blocker, did in fact commit such acts, then you must find that it resulted from or was produced by the unsoundness, or by the mental illness . . .. Now, if you find that then you may find the defendant, Comer Blocker, not guilty by reason of insanity." (Emphasis added.)
This part of the instruction is plainly erroneous. The words "where it is found", "you must find" and "if you find" informed the jury that the burden of convincing them - which is the burden of proof - was on the defendant.
Finally, the court went on to place the burden, as it had at first, on the government:
(3) "And if you should find the Government has proved all of the elements of either first or second-degree murder but you have a reasonable doubt as to whether the offense was the result of a mental disease or defect existing in the defendant at the time he committed the offense, then you must find the defendant not guilty by reason of insanity. If, however, you should find that the Government has proven either first or second-degree murder, and has also proved beyond a reasonable doubt either that the defendant was of sound mind at the time of the offense, or that the act was not caused by any mental disease or defect from which the defendant may have been suffering on that date, that is, April 5th, 1957, . . . you may find the defendant guilty of such offense. Now, ladies and gentlemen, it should be crystal clear to you that when some evidence is introduced to you the presumption of sanity disappears and the responsibility from that point on is on the Government. It is not a responsibility which is on the defendant to prove any mental illness or that the mental illness was the causal effect [effective cause?] or was the motivating force behind the act in question. Those are responsibilities for the Government."
We have considered the erroneous instruction, which we have numbered (2), in its context. We have placed it where the District Judge placed it, between the two correct instructions which we have numbered (1) and (3). We have endeavored to omit nothing that might be thought to have any tendency to reduce the effect of the erroneous instruction. Perhaps the jurors were more likely to act on the correct instructions than on the incorrect one. But we cannot be certain that any juror did so. We think it unlikely that every juror did so. We think it not unlikely that some jurors voted to convict Blocker because (a) they could not decide whether his act was or was not the product of mental illness and (b) the judge had told them they "must find" the act was produced by mental illness if they were to acquit him on the ground of insanity. We see no reason to assume the jury found that Blocker had no mental disease or defect, or found that no such abnormality produced the act.
As we said on January 21, 1960, regarding the charge to the jury in the Isaac case, supra: "The statements to the effect that in order to render a verdict of not guilty by reason of insanity the jury . . . must find that the accused suffered from a mental disease and that his acts were the product of the disease, were erroneous. Those statements ignored the burden which was on the prosecution under the Davis case. It is true that the court correctly stated to the jury several times that the burden of proof was on the Government to establish beyond a reasonable doubt that the accused was not suffering from a mental disease or that the acts were not the product of a mental disease. The two conflicting views of the law, the erroneous and the correct, as to the burden of proof were repeated several times in this charge. We cannot speculate that the correct statements obliterated in the minds of the jurors the repeated erroneous statements. We recognize that the problems posed by the burden-of-proof rule in respect to the defense of insanity are somewhat difficult, but the rule of law is plain and absolutely certain. It should be made plain and certain to juries in such cases." 109 U.S.App.D.C. at page 37, 284 F.2d at page 171.
Wright v. United States, 102 U.S.App.D.C. 36, 43, 250 F.2d 4, 11, and Carter v. United States, 102 U.S.App.D.C. 227, 233, 252 F.2d 608, 614, are to similar effect.
Because this is a capital case, it is especially important to avoid the confusion which the court's self-contradictory instructions may have created in the minds of at least some of the members of the jury.
We think the authorities we have cited make it clear that the conviction must be reversed and the case remanded to the District Court for further proceedings consistent with this opinion.
Appellant's court-appointed counsel has expressed deep concern that certain practices in the administration of the rule of criminal responsibility which this court adopted in 1954 endanger its broadened purposes. In dealing with these matters in a number of previous cases, we have expressed similar concern. We think the present case does not present a useful context for further discussion of these matters.
PRETTYMAN, BAZELON, FAHY, WASHINGTON, and DANAHER, Circuit Judges, concur in this opinion.
Reversed and remanded. IN AGREEMENT
BURGER, Circuit Judge (concurring in the result only).
In my view we should reverse on the grounds urged by appellant's very able brief with respect to the mechanical and restrictive aspects of the "disease-defectproduct"1 test for determining criminal responsibility. This would require that we modify the standard of criminal responsibility adopted by us in 19542 from the New Hampshire rule of 1869.3
Since its adoption in 1954, the "disease-product" test has been both acclaimed4 and criticized; it has been called "vague," "confusing," "ambiguous," "misleading," and it has been condemned as taking the fact determination away from jurors and transferring it to esperts.5 Curiously it has even been attacked as "novel" by critics who overlooked its 1869 origins, and as "radical" by some who seemingly are unwilling to allow the same scope to medical testimony in a criminal case as we have allowed historically in civil cases, such as will contests where mental capacity is at issue.
As I see it, our Durham opinion was a wrong step but in the right direction; its direction was correct because, like Smith v. United States, 1929, 59 App.D.C. 144, 36 F.2d 548, 70 A.L.R. 654, it sought to open the jury's inquiry to include the expanding knowledge of the human mind and personality. The precise step - the "disease-product" test - is, however, subject to many valid criticisms which we must face. Among other things it tends to treat unsupported and dubious psychiatric theory as scientific knowledge. It is an example of exercising judicial power beyond judicial comprehension in an area where not even relative certainties are established. From ancient times the development of the law was always on the basic idea that man should be held criminally responsible for his voluntary acts resulting from the exercise of his will. While we have said this was our "basic postulate,"6 our "disease-product" instruction to the jury totally ignores will or choice. It is obvious, of course, that under a jury system the standard or "test" or "rule" of criminal responsibility is only what is given to the jury as an instruction. What we say in our opinions but withhold from the jury is meaningless except as it discloses the gap between the law as stated by this court and the law as applied by the jury. I Fallacies of Our Present
Criminal Responsibility Standard
I agree with appellant's attack on the mechanical and restrictive "labeling" aspect of the "disease-product" test and I believe that we cannot escape from the dilemma created by that rule except by adopting some other alternative. Of necessity the whole of my reasons must be set forth at some length, since what I propose is that the entire background of this problem be reexamined and that the "disease-product" jury instruction be abandoned. We have devoted literally hundreds of pages in numerous opinions in our effort to explain and interpret what that rule means; not surprisingly it will require some space to review this history, to demonstrate the defects of the rule and to set forth possible alternatives.
Appellant's counsel has not made a direct attack on Durham, but rather couches his attack in terms of the manner in which the prosecution "used" and the court applied it. Without reaching the alleged errors in the charge on burden of proof, which were persuasive to the majority, I am satisfied that the District Judge applied our rule literally and scrupulously in allowing experts to express conclusory opinions in the same terms as the ultimate jury question. Our rule permits, and indeed rests upon the premise that psychiatrists may do precisely that.
Appellant's cogent attack on the "disease-product" concept is best stated in the terms of his own very able brief. First he attacks the "disease" aspect of the rule and argues that in Blocker's trial
"the issue of insanity was for all purposes tried and decided solely on the catch-phrase 'mental disease,' with the result that appellant was effectively denied a jury trial on that vital issue."
Second, he attacks the "product" aspect in these terms:
"What happened in appellant's trial was a classic case of usurpation of the jury function by expert witnesses, and it should be promptly corrected. Permitting the sort of questioning and testimony that was indulged in below undermines the whole purpose behind the promulgation of the Durham rule, for it tends to narrow the scope of psychiatric testimony on the accused person's mental condition. Furthermore, it is especially dangerous to permit psychiatric testimony in terms that the jury is likely to regard as conclusive on the question of criminal responsibility, for psychiatrists have no competence whatsoever to offer opinions on that ultimate question." (Emphasis added.)
The Term "Disease" Is Inadequate
The rule we adopted in 1954 is based on the premise that the critical threshold issue is whether the defendant has a "mental disease or defect." Our opinion did not define these terms except to say that the former is a "condition which is considered capable of either improving or deteriorating" while the latter was fixed and subject neither to improvement nor deterioration. This merely distinguishes "disease" from "defect" without defining either term. Not being judicially defined, these terms mean in any given case whatever the expert witnesses say they mean. We know also that psychiatrists are in disagreement on what is a "mental disease," and even whether there exists such a definable and classifiable condition. So distinguished an authority as Dr. Philip Q. Roche, author of The Criminal Mind, which received the Isaac Ray Award from the American Psychiatric Association, said as recently as 1958:
"I will say there is neither such a thing as 'insanity' nor such a thing as 'mental disease.' These terms do not identify entities having separate existence in themselves. . . . 'Mental illness,' a medical term, borrowed from the mechanistic concepts of classical physical disease, refers to an altered internal status of the individual vis-a-vis his external world as interpreted by others. In a way the term is a misnomer, since the mental illness7 is not actually something limited to a place called the 'mind,' but rather it is a changed interrelationship of the individual with his fellow creatures. . . . To the psychiatrist the mental illness can have a meaning only in the sense of what in the future will be done to or with the patient to ...