Petition for Rehearing In Banc Denied November 22, 1957.
BAZELON, Circuit Judge.
Appellant, having waived jury trial, was convicted on May 4, 1956, of assault with a deadly weapon, on an indictment returned in November 1949 for a shooting on September 26, 1949. It was his fifth trial and third conviction for that offense. The case is here for the third time.
His first conviction was reversed when the Government confessed error. The second and third trials resulted in mistrials. The conviction resulting from his fourth trial was reversed by this court, sitting in banc, because the trial court had denied appellant's motion for an adjudication of his competency to stand trial, as required by Perry v. United States, 1952, 90 U.S.App.D.C. 186, 195 F.2d 37. Between his first and second trials appellant was adjudicated incompetent and committed to St. Elizabeths Hospital. He was again adjudicated incompetent and committed to the hospital between his third and fourth trials and between his fourth and fifth trials. On his first conviction in February 1950, which was on three counts, appellant was sentenced to two to seven years on counts 1 and 2 and one year on count 3, all concurrent. The second conviction in December 1953 brought a sentence of three to nine years. The present sentence is one to three years. He has already been confined for a total of about seven years in the course of this long prosecution — about six years in
The principal defense at the trial under review was insanity. Appellant claimed that his mental illness had started long before 1949 and that the crime was a product of the illness. The Government's theory was that appellant had not been mentally ill at the time of the crime, but had developed "prison psychosis" as a result of subsequent confinement.
The grounds of this appeal are (1) that Williams was denied the speedy trial required by the Sixth Amendment
Whether long delay of prosecution requires dismissal of an indictment even if there is no showing that the delay prejudiced the accused need not be determined here.
The Supreme Court said in Beavers v. Haubert, 1905, 198 U.S. 77, 87, 25 S.Ct. 573, 576, 49 L.Ed. 950:
To hold that delay occasioned by the accused's mental incompetence to stand trial always requires dismissal of his indictment would be to ignore the "rights of public justice." On the other hand, to resume the prosecution of the accused after long delay may in some circumstances violate his rights beyond the requirements of public justice. To sustain its right to try the accused seven years after the crime, the Government must show two things, in my view: (1) that there was no more delay than is reasonably attributable to the ordinary processes of justice, and (2) that the accused suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay. My colleagues do not reach the question whether the Government must make the
The Nature of the Delay
Undeniably the bulk of the seven-year delay in bringing appellant to the trial which resulted in his present conviction was a direct or indirect consequence of his mental incompetency. The accused's incompetency necessarily slows the judicial process. Such delay is inevitable. By the Government's construction of the facts, however, appellant's mental illness had not existed at the time of the crime or even at the time of the first trial, but was brought on by the pressure of imprisonment some time after his first conviction. If the judicial process could and should have been completed before appellant became ill, his eventual illness will not excuse a long-delayed prosecution.
Appellant's 1950 conviction was reversed on the Government's admission that it could not sustain it "because of the total lack of any instruction on the elements of the offense charged." The prosecution's recognition of its duty to confess error when error is clear is commendable. But the prosecution's confession came only after the lapse of more than two years. Except for this, there is no reason to believe that, if appellant was not ill at the time of the offense, a second trial could not have been completed before he became ill. Exactly when appellant's illness began, by the Government's theory, is not clear. The prison authorities noticed bizarre behavior on appellant's part some time in 1950, but it was not until June 28, 1951, that the Government filed the lunacy petition which led to appellant's incompetency adjudication on July 2, 1951. Instead of speedily admitting the invalidity of the first conviction and bringing appellant on for a second trial without delay, the Government postponed as long as possible the necessity of confessing error. It first contested the sufficiency of appellant's notice of appeal. Appellant had handed his notice of appeal to the deputy marshal for transmittal to the clerk of the District Court. The deputy marshal held the notice for five days before filing it, so that it reached the court on the eleventh day after sentence. On the ensuing issue of whether there was an effective notice of appeal, the Government contended in the negative until on February 23, 1951, we held the notice effective. Williams v. United States, 1951, 88 U.S.App.D.C. 212, 188 F.2d 41. When the time came for the Government to file its brief in the appeal, in which it would have had to take a position on the validity of the conviction, it moved instead that the appeal be held in abeyance pending restoration of appellant's competency, appellant having been declared incompetent just the previous month. It was not until April 17, 1952, after appellant was discharged from St. Elizabeths Hospital to the jail and moved for release on bail, that the Government made its confession of error. In the circumstances of this case, I cannot hold that there was no more delay than was reasonably incident to the ordinary processes of justice.
Prejudicial Effect of Delay
Whether or not the Government unreasonably extended the delay, we are agreed that the delay in this case was beyond the ordinary and that the extraordinary delay resulted in serious prejudice to appellant.
When prosecution is delayed because of the accused's mental incapacity to stand trial, the difficulty of determining
The preparation of the psychiatric evidence which is required to prove an individual's mental condition at some past date is a very difficult task.
Indigent defendants of questionable mental capacity are obviously in no position to conduct these inquiries and whatever others may prove necessary. Their court-appointed attorneys are given no funds for the purpose. If the relevant facts are to be presented to the court, therefore, it must ordinarily be as a result of inquiries instituted by the Government. If, because the Government fails to sustain its proper burden, a case is left to be decided on less than the best possible psychiatric evidence, the inadequacy of the evidence is not a point in favor of the prosecution.
In the case at bar, the Government not only failed to take any steps to ascertain the facts which would determine appellant's mental condition as it bore upon guilt or innocence, but resisted every defense attempt to produce those facts. The first psychiatrists to examine Williams after the date of the crime were Drs. Perretti and Gilbert whose reports led the Government to institute the lunacy proceeding on June 28, 1951. At the hearing on July 2, 1951, Williams' counsel sought to obtain from Dr. Gilbert a statement of opinion as to what Williams' condition had been in September of 1949. But the Government objected that the lunacy inquest was designed to determine only Williams' state of mind "as he comes before this Court, and I don't think counsel ought to inquire into whether or not he was insane at the time he committed a crime." The objection was sustained. A similar objection prevented the defense from eliciting Dr. Perretti's opinion. At the second lunacy inquest, on April 28, 1953, the Government again objected when the defense sought to question Dr. Perretti about Williams' September 1949 mental condition, but the court allowed the question over the objection. The witness replied that because of Williams' "confusion," "it is impossible at this time to estimate the duration of this illness." When Williams was brought to trial for the third time, the doctors' testimony about his 1949 mental condition was concededly relevant. But too much time had already passed for the testimony to be useful. Dr. Perretti was unavailable and Dr. Gilbert had very little recollection of his early examinations of the defendant. He testified only to what had been recorded in his files about those examinations and he said the purpose of the examinations had been "to determine * * * was he sick enough to be in a hospital, or was he well enough to remain in jail."
Clutching for some way of establishing the insanity defense at that third trial, Williams' counsel filed motions for (1) appointment of psychiatrists to conduct new examinations to determine his condition at the time of the crime; (2) leave to employ psychiatrists of his own choice at the expense of the Government; and (3) leave to take the deposition of Dr. Perretti who had examined Williams "in 1950 and 1951 at various times but is, at the present time, incapacitated in the hospital." On the Government's opposition the second and third motions were denied and the first motion was at first denied but then granted in severely limited form. The court ordered that Drs. Robert H. Groh and John C. Cavanaugh examine Williams at the jail "at any time on January 31 or February 1st, 1953, in order to determine his mental condition as of September 26, 1949, and that upon completion of said examinations Doctors Groh and Cavanaugh shall report to the Court on Monday, February 2, 1953." The doctors
Although the Government knew that Williams' guilt or innocence would turn on the issue of his 1949 sanity and although it was informed by at least one of the St. Elizabeths doctors that the determination of his 1949 condition would require reliable data about his background,
That the evidence produced by a proper and adequate investigation of the facts relating to the accused's mental condition at the time of the crime may prove that he was not mentally responsible will not, we assume, influence the Government in its pursuit of the facts — and, of course, it should not. Under our criminal jurisprudence, mentally responsible law breakers are sent to prison; those who are not mentally responsible are sent to hospitals. To that end the District Code makes possible a verdict of not guilty by reason of insanity, and directs that under such a verdict the defendant is to be confined in a hospital for the mentally ill until it is determined that he "has recovered his sanity * * * [and] will not in the reasonable future be dangerous to himself or others." D.C.Code, § 24-301(c), (d) and (e), as amended by the act of August 9, 1955, 69 Stat. 609, ch. 673, § 1. Two policies underly the distinction in treatment between the responsible and the non-responsible: (1) It is both wrong and foolish to punish where there is no blame and where punishment cannot correct.
In the light of the foregoing, we hold that appellant was denied a speedy trial. We reverse the conviction and remand the case to the District Court for dismissal of the indictment.
Appellant also contends that his conviction should be reversed because the evidence overwhelmingly establishes insanity at the time of the crime. Since the conviction is reversed on a different ground, we do not reach this contention. We may note, however, that if a judgment of acquittal by reason of insanity were entered, appellant would be committed to a mental hospital under D.C. Code, § 24-301, supra, until it should be determined that he would not "in the reasonable future be dangerous to himself or others." Considering the pattern of violence characterizing appellant's behavior since his adolescence and the Government's justifiable concern with his criminal recidivism, commitment of the appellant to a mental hospital might well have been the wisest and most desirable disposition of this case. In his three previous commitments to St. Elizabeths Hospital, appellant received medical treatment only to the extent necessary to restore the cognitive powers thought to be required for trial competency. If he were committed under D.C.Code, § 24-301 after acquittal by reason of insanity, he would presumably receive more therapy than in any of his previous commitments. Release from such commitment, requiring a determination of safety, would provide some assurance that, as a result of the therapy administered to him, he would not be likely in the reasonable future to pursue his former violent course. The present disposition of the case sets the appellant free some months before he might go free if he completed the sentence we hold to be invalid. It is open to the Government, however, to proceed for a civil commitment under D.C.Code, § 21-326, if it considers that, with Williams at large in his present state, "the rights of persons and of property will be jeopardized or the preservation of public peace imperiled and the commission of crime rendered probable."
Reversed and remanded with instructions to dismiss the indictment.
FAHY, Circuit Judge (separately concurring).
I am in general agreement with the analysis of the case made in Judge Bazelon's opinion and concur in reversal with directions to dismiss the indictment on the ground that appellant did not have the speedy trial to which he was entitled under the Sixth Amendment. The delays which preceded the last trial were substantial and seriously
The suggestion that the appropriate authorities consider proceedings looking toward a civil commitment under D.C. Code, § 21-326 holds promise of a disposition of the problem conducive to the interest of the public as well as of appellant.
See, in this connection, the dissenting opinion of Chief Judge Biggs in United States ex rel. Smith v. Baldi, supra note 4.