Petition for Rehearing In Banc Denied May 14, 1957.
BAZELON, Circuit Judge.
In July and August 1952, Thomas Blunt, an 18-year old boy, was indicted for five robberies and a housebreaking and larceny, all committed in four weeks of June 1952. At his July 25th arraignment, the court ordered a psychiatric examination pursuant to 18 U.S.C. § 4244.
After serving more than two years, Blunt pro se filed a motion in December 1955 to vacate the sentences under 28 U.S.C. § 2255. He alleged that, since there had been no pretrial judicial determination of restored competency, his convictions were defective, citing Gunther v. United States, 1954, 94 U.S. App.D.C. 243, 215 F.2d 493. The motion was heard by the district judge who had tried and sentenced Blunt. He denied it without hearing. He also denied leave to appeal in forma pauperis. Blunt then moved in this court for leave to appeal in forma pauperis and for appointment of counsel.
Upon examination of the District Court docket entries and other investigation, the counsel we appointed to represent
On the basis of these newly discovered facts counsel immediately petitioned us for leave to prosecute Blunt's appeals from the judgments of conviction, and for an order directing preparation of the trial transcript at Government expense.
I. Jurisdictional Issues
A. Adequacy of Notice of Appeal.
Though the District Court declined to provide Blunt a transcript at Government expense, it endorsed his application, "Let the defendant file notice of appeal without prepayment of costs." Because Blunt did not within ten days thereafter file a paper formally denominated "notice of appeal," the Government now argues that we have no jurisdiction to entertain his appeals. But Blunt's timely application for leave to appeal in forma pauperis was, in the circumstances, an unequivocal notification of intention to appeal and therefore a "notice of appeal" sufficient to give this court jurisdiction under Rule 37(a), Fed.R.Crim.P. 18 U.S.C. Williams v. United States, 1951, 88 U.S.App.D.C. 212, 188 F.2d 41; Boykin v. Huff, 1941, 73 App.D.C. 378, 121 F.2d 865.
B. Timeliness of Pursuit of Appeals.
The rules allowed Blunt three days to file a statement that the stenographic transcript had been ordered from the reporter,
Blunt, a pauper, could not himself order a transcript. But with the filing of his notice he asked the District Court for a transcript at Government expense. He had no occasion to ask us for a transcript until the District Court had effectively denied his request. The District Court's denial of his request was not entered until November 2, 1953, when Blunt was already in jail and no longer had counsel.
Rule 49(c) of the Federal Rules of Criminal Procedure provides:
Concerning the similar provision in the Rules of Civil Procedure, the Supreme Court said in Hill v. Hawes, 1944, 320 U.S. 520, 523, 64 S.Ct. 334, 336, 88 L.Ed. 283.
Since no notice was sent to Blunt or to anyone on his behalf, the time to take the next step in his appeals did not begin to run until March 1956, when counsel we appointed acquired actual notice, from the District Court files, of the order of November 2, 1953. Lohman v. United States, 6 Cir., 1956, 237 F.2d 645, and cases there cited.
We need not consider whether actual notice of the order of November 2, 1953, would have dispensed with the requirement of formal notice of its entry on the docket,
But the order was not entered by the clerk until November 2, 1953, and it does not appear that the judge signed it earlier. The Government would have us assume that he signed it on October 30 when he stated what he would do. We see no basis for this assumption.
C. Excusability of Delay.
If we thought, as we do not, that Blunt's time to take further steps in pursuit of his appeals commenced to run on November 2, 1953, we would hold that the delay until March 1956 was the result of excusable neglect, and would therefore review the convictions.
From the day he was sentenced until March 9, 1956, Blunt was in prison and without counsel. Whether he knew he had been allowed to appeal is very doubtful. The judicial determination, still outstanding, that he was incompetent to stand trial, applies equally to every step involved in prosecuting an appeal. We must conclude that his neglect to do anything until we appointed new counsel was excusable. In the face of the very substantial questions
II. The Substantive Issues
The three taxicab drivers who were victims of the robberies, a jeweler who bought one of the stolen articles, and a policeman to whom Blunt orally confessed were the Government witnesses. Their testimony showed that the three robberies were committed in similar fashion: During the early morning hours, Blunt hired a taxicab and directed the driver to a desolate place; upon arrival, he offered a large bill in payment of the fare and, when the driver produced change, Blunt, by force or threats of force, took the driver's money and valuables and fled.
The defense was insanity. It was sought to be established by the following evidence:
(1) Blunt, the first defense witness, had reasonably clear recollection of events prior to his entry into the Army. He remembered that while in the Army he was hospitalized for leg and shoulder injuries and a slight brain concussion. He stated that he returned to the District of Columbia after a medical discharge in January 1952, and since his discharge had "blank[ed] out * * * [q]uite a few numbers of times." He said he remembered nothing about the crimes, the victims, the police lineup, the arraignment, or being sent to jail. He recalled being treated at St. Elizabeths by insulin shock. He stated that he felt rational at the time of trial.
(2) Blunt's mother gave an account of his odd behavior after his return from the Army.
(3) The defense called Dr. Amino Perretti, Assistant Chief Psychiatrist at the District of Columbia General Hospital, who testified that, pursuant to
(4) Dr. Epstein, a psychiatrist on the staff of St. Elizabeths Hospital, testified that he had found Blunt psychotic in a series of examinations beginning in December 1952, when Blunt was admitted to the hospital. Dr. Epstein said he was unable to form an opinion as to Blunt's mental condition in June 1952 when the alleged crimes were committed.
(5) The last defense witness, Dr. Gilbert, Chief Psychiatrist of the District of Columbia General Hospital, testified that, pursuant to court order, he had examined Blunt three times in August and September 1952. Like Dr. Perretti, he testified unequivocally that in his opinion Blunt had been psychotic and unable to distinguish right from wrong at the times of the offenses charged.
The Government introduced no rebuttal evidence. To discharge its burden of proving the accused's sanity, as required by Davis v. United States, 1895, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499, the Government apparently relied upon the circumstances of the alleged crimes as implying Blunt's capacity to plan and upon the testimony of one of the victims that Blunt had not acted unusually.
That the jury, despite the overwhelming weight of the evidence of insanity, failed to return a verdict of acquittal by reason of insanity is attributable, Blunt's counsel tells us, to a series of errors committed by the trial judge. We think the errors are plain and require reversal of the convictions.
A. Erroneous Characterization of the Evidence.
The trial judge conveyed to the jury highly improper characterizations of important evidence:
1. As to whether Blunt had "planned" his acts.
The Government's witnesses described Blunt's acts. If the jury wished to infer from his acts that they were planned, we could not disturb their inference. There was, however, no direct evidence that the acts were planned. Indeed, Dr. Gilbert testified that, in his opinion, Blunt's acts had not been planned. At most, therefore, whether the acts were planned was an issue to be determined by the jury.
The trial judge obviously believed that Blunt had planned his acts. Whether, within his power to comment on the evidence, it would have been proper for him to convey his belief to the jury is not the question here.
He put these questions to Dr. Perretti:
In his instructions to the jury, the judge said:
2. As to the basis of the psychiatric testimony.
As we have stated, Dr. Perretti testified that in his opinion, based upon his examinations during August and September 1952, Blunt was suffering from dementia praecox and could not distinguish between right and wrong, and that the condition had been in existence at least as far back as June 1, 1952, the date of the first act charged against him. Cross-examination left this testimony unshaken. When the prosecutor had finished, the judge commenced an interrogation of the witness that occupies seven pages of the transcript. By insistent questioning, the judge sought to establish, inter alia, that Dr. Perretti's testimony was entitled to little weight because not based on fact; e. g.:
If the judge succeeded in conveying to the jury his obvious conclusion that Dr. Perretti's medical opinion was "just a feeling" or, if an opinion, "not based on fact," the conclusion would be equally applicable to the similar testimony of Dr. Gilbert. That this was what the judge intended is shown by his instructions to the jury on this point:
As an expert witness, the psychiatrist is permitted to testify to his inferences from facts. His opinions are exactly what is sought. And these opinions may be based upon facts he has himself observed, or facts he has heard others relate,
The judge implied the contrary. His assertions were not within the judicial privilege to analyze and comment upon evidence. That privilege must "be exercised in conformity with the standards governing the judicial office." Quercia v. United States, 1933, 289 U.S. 466, 470, 53 S.Ct. 698, 699, 77 L.Ed. 1321; see also Billeci v. United States, 1950, 87 U.S.App.D.C. 274, 282-283, 184 F.2d 394, 402-404; and United States v. Brandt, 2 Cir., 1952, 196 F.2d 653, 655-656. The judge "may not assume the role of a witness. He may analyze and dissect the evidence, but he may not either distort it or add to it." What he says "`should * * * not * * * mislead'" and "`deductions and theories not warranted by the evidence should be studiously avoided.'" Quercia v. United States, supra, 289 U.S. at page 470, 53 S.Ct. at page 699, quoting Starr v. United States, 1894, 153 U.S. 614, 626, 14 S.Ct. 919, 38 L.Ed. 841. As the Supreme Court said in Quercia, 289 U.S. at page 471, 53 S.Ct. at page 700: "In the instant case, the trial judge did not analyze the evidence; he added to it, and he based his instruction upon his own addition."
When it is the judge who undertakes to supplement the evidence, the harm is even greater than when the prosecutor does it, for "the influence of the trial judge on the jury is necessarily and properly of great weight, and * * * his lightest word or intimation is received with deference, and may prove controlling." Starr v. United States, supra, 153 U.S. at page 626, 14 S.Ct. at page 923. Such conduct by the judge is a fatal "cut into the presumption of innocence to which defendants are entitled." United States v. Brandt, supra, 196 F.2d at page 656. Principles designed to protect this presumption "are not pious platitudes recited to placate the shades of venerated legal ancients. They are working rules of law binding upon the court." Billeci v. United States, 87 U.S.App.D.C. at page 283, 184 F.2d at page 403.
What the judge did here took on the aspect of advocacy.
See also Starr v. United States, supra, 153 U.S. at page 626, 14 S.Ct. at page 923. The constitutional guarantee of trial by jury limits the judge's role. "* * * [he] cannot be argumentative
The harm was not cured, as the Government suggests, by including in the charge the standard instruction that it was for the jury to find the facts and that they were not bound by his comments. "His definite and concrete assertion[s] of fact, which he had made with all the persuasiveness of judicial utterance, * * * [were] not withdrawn." Quercia v. United States, supra, 289 U.S. at page 472, 53 S.Ct. at page 700. "Such admonitions [as were given] may offset brief or minor departures from strict judicial impartiality, but cannot be considered sufficient here." United States v. Brandt, supra, 196 F.2d at page 656.
B. Erroneous Exclusion of Evidence.
In aid of its claim that Blunt was suffering in June from the disease the doctors diagnosed in August and September, the defense offered to prove that when he was brought before the United States Commissioner on June 30, 1952, two days after his arrest, that official recommended medical treatment. The judge ruled:
This ruling was erroneous. The same judge correctly stated the law, in another case, in admitting lay testimony that the accused was of sound mind. He said:
The judge's devaluation of the psychiatrists' testimony as based on examinations made too late makes his exclusion of the Commissioner's opinion, formed and expressed a few days after the acts charged, especially prejudicial.
Dr. Gilbert, responding to a question about the symptoms Blunt had displayed under examination, was interrupted by the court with the following comment:
The discretion of the trial judge to limit testimony for the purpose of avoiding prolixity and undue cumulation is undoubted. But, in the light of his instruction to the jury that the psychiatric opinions were not based on "actual observation or on actual facts," the judge's circumscription of the testimony was erroneous and prejudicial.
C. Comments Regarding "Release".
That one who commits a wrong by reason of insanity must be acquitted is so well-settled that no one questions it. When the defense of insanity has been properly invoked, the law requires proof beyond a reasonable doubt that the accused was same at the time of the offense charged. It will not countenance an appeal to a jury for a conviction upon the ground that, even if he was insane, he is the type of person who may be dangerous. Only the guilty are to be punished. For the merely dangerous, society provides other treatment. Pleas for the conviction of the dangerous may secure the conviction of the innocent.
The judge interrogated Dr. Perretti as follows:
In his interrogation of the other two psychiatrists, the judge also conveyed to the jury that "a complete recovery in dementia praecox cases is rare"; that the disease "is apt to recur even after a patient is discharged as sufficiently improved to be able to remain at large"; and "if it recurs the person might do some dangerous act before he is apprehended * * *."
The Government argues that it was proper thus to inform the jury because they "should have the benefit of the psychiatrists' complete diagnosis pertaining to the accused's mental disease." Evidence of mental condition at a given time is relevant to a determination of mental condition as of another time not unreasonably far removed. It may be proper to inquire into the probability, that, as of the time of the act charged, the accused's mental condition was the same as it was found to be somewhat earlier or somewhat later. But nothing justifies a judge in warning a jury that, if they acquit the accused, they will be releasing a dangerous man to prey upon society.
D. Erroneous Instruction.
When the jury had been out for several hours, the judge brought them back to inquire into their progress. After a report by the foreman that they were "still undecided," they retired for further deliberation and in about a half hour returned stating that they "cannot agree unanimously on a verdict and * * * further deliberation will not
The jury retired at 3:30 p. m. and at 4:10 p. m. agreed unanimously that the defendant was guilty as charged.
There were two issues in the case (1) whether Blunt did the acts charged; and (2) whether, if he did, he was then sane. It is unnecessary to consider which issue the judge meant to leave with the jury. Taking either issue away from the jury was fatal error.
Blunt has been in custody almost five years. He has served over three years of a sentence which we hold was, because of all the foregoing errors,
In Misc. 704, the judgments of conviction are reversed.
In Nos. 13294, 13295 and 13296, the appeals are dismissed as moot.
The Court might add that there is a "tendency in certain quarters nowadays to consider the welfare of the defendant, but we must not lose sight of the victims of crimes and not let them become the forgotten men of law enforcement."
"The judgment is vacated and the case is remanded to the District Court for a hearing on the sanity of the petitioner at the time of his trial."
As plainly erroneous are the trial judge's other two reasons: (1) that petitioner did not allege he was in fact mentally incompetent when tried; and (2) that a recent statutory amendment, presumably Public Law 313, Aug. 9, 1955, amending D.C.Code, § 24-301, abrogated the requirement for a judicial determination of restored competency.
The trial court's failure to make a judicial determination of restored competency before trial is the ground of the pending § 2255 appeals. In view of our disposition of the direct appeal from the convictions, we do not consider the question involved in the § 2255 appeals.
The cross examination of Drs. Perretti and Gilbert was, in this respect, typical. The inherent unfairness of the system was compounded by the judge. The examinations of Blunt by the two doctors occurred between two and three months after the acts charged. Whether that time lapse would be enough, in the light of the prosecution's attack on the psychiatrists, to persuade the jury that the psychiatric opinions should be rejected, is something we cannot know. For the court, however, to categorize the lapse of time as "considerable," is improper, for it implies the testimony is of little worth.
"The public interest requires that persons who have committed crimes be convicted of them. But the responsibility for producing the evidence which will persuade twelve jurors of guilt beyond a reasonable doubt is upon the prosecutor. It is a serious public responsibility, but it is upon the prosecutor and upon him alone. The judge has no part in that task. The prosecutor represents society in the prosecution. The attorney for the defense represents the accused. The judge is a disinterested and objective participant in the proceeding. `Prosecution and judgment are two quite separate functions in the administration of justice; they must not merge.' [Citing United States v. Marzano, 2 Cir., 1945, 149 F.2d 923, 926]"