Petition for Rehearing En Banc Denied December 2, 1960.
Circuit Judges Edgerton and Bazelon would grant the petition.
WILBUR K. MILLER, Circuit Judge.
On November 15, 1958, when Arthur Jones committed the crimes involved in
This incident of the housebreaking case, with which we are otherwise not now concerned, is important in the consideration of this appeal, because the psychiatric examination then conducted was the basis of Dr. Ryan's testimony, at the trial of the present case, that Jones was sane when he committed the crimes of November 15, 1958.
Two days after Dr. Ryan had certified that Jones was sane and mentally competent to stand trial, viz., in the evening of November 15, while he was being escorted from the patients' dining area to his ward in the hospital, Jones produced a previously concealed blade razor, viciously attacked the attendant in whose custody he was, wounded him severely, and forced him to surrender his keys, with the aid of which Jones escaped from the hospital. He was recaptured a few days afterward.
For these offenses he was indicted December 15, 1958, in three counts: (1) assault with a dangerous weapon; (2) stealing the keys; (3) escaping from lawful custody. At arraignment December 19, Jones appeared without counsel, pleaded not guilty, and announced "My defense will be insanity." His counsel, employed thereafter, filed January 26, 1959, in the proceeding based on the new three-count indictment, a motion for commitment to St. Elizabeths Hospital for 60 days for an examination to determine his mental competence to stand trial; and on February 6, 1959, it was so ordered. Under date of April 7, 1959, the Superintendent of St. Elizabeths certified to the court as follows:
On April 23, 1959, Jones was tried before Judge F. Dickinson Letts for the offenses charged in the three-count indictment of the previous December 15, a jury having been waived. The facts concerning the escape from custody were stipulated and the cutting of the attendant and the theft of the keys were quickly proved and not denied. True to the appellant's own prediction, the only defense was a plea that he was insane on November 15, 1958, when the three crimminal acts were committed. In support of that defense, Jones introduced Dr. Mauris M. Platkin, a psychiatrist from St. Elizabeths who had observed him during the period from his commitment on February 13, 1959,
Later in his testimony Dr. Platkin elaborated on this in the following colloquy:
The foregoing, if it was competent,
As a result of these examinations Dr. Ryan formed an opinion of Jones's mental condition which he reported to the court on November 13, 1958, in the housebreaking case. Testifying in this case, he said:
Drs. Platkin and Ryan were the only witnesses as to the appellant's mental state on November 15, 1958. As will hereinafter appear, each testified in some detail; but the foregoing excerpts from their testimony will suffice to show they expressed diametrically opposite opinions concerning the appellant's mental condition on the day of the crimes. Judge Letts was convinced by the testimony of Dr. Ryan and found Jones guilty as charged. He appeals.
Jones was represented in this court by able counsel appointed by us, who state the points on appeal as follows:
1. With respect to their first point, counsel rely heavily on the Winn and Calloway cases.
It is true that in the Winn case this court concluded "that the `complete and thorough' type of examination required for a proper determination of the issue of responsibility was never made because it had not been ordered * * *." It did not appear, however, that the examination actually conducted was an adequate inquiry into Winn's mental state at the time of his crime; and, in the absence of such information, the court concluded the examination was no more than had been ordered, and so reversed.
Obviously, however, we could not and would not have so concluded, had it appeared that the examination actually made was adequate to permit the formation of an opinion as to Winn's mental condition as of the time of the crime, regardless of the fact it had not been expressly ordered. To have done so would have been to exalt form over substance by attributing significance to the order for the examination, instead of to the examination itself.
Here, as in the Winn case, the commitment order was only for the purpose of determining mental competence
We will not attribute to Dr. Platkin, who was shown to be a reputable psychiatrist, a willingness to testify that Jones had a crime-causing mental disease on November 15, 1958, without having made an examination which he considered adequate for the purpose. Had it been otherwise, certainly Dr. Platkin's opinion would have been limited to mental competence to stand trial, and he would have refused to give an opinion as to the appellant's mental state on the previous November 15, on the ground that he had not examined him sufficiently to form such an opinion.
As the 60-day examination which began February 13, 1959, was considered by Dr. Platkin to be adequate as the basis for the expression of his expert opinion concerning appellant's mental condition on November 15, 1958, we regard it as immaterial that it was ordered only for the purpose of determining mental competence to stand trial. A defendant who relies on insanity as a defense cannot complain on appeal that the court did not expressly order a determination of mental responsibility at the time of crime but only directed an examination as to mental competence to stand trial, if the examination actually conducted was sufficiently thorough and intensive to enable an expert to express an opinion as to defendant's mental condition at the time of the crime.
The Winn and Calloway cases are not to be read as requiring reversal of a case in which insanity was interposed as a defense merely because the order of commitment to a mental hospital was not sufficiently broad, when, as here, the mental examination actually conducted was sufficiently broad, intensive and thorough to be adequate for all purposes. It is not to be presumed or concluded that an inquiry concerning a defendant's mental state at the time of his crime was not conducted, merely because it was not ordered, if the record shows it actually was conducted.
For the reasons stated, we reject the first point advanced as a reason for reversal.
2. We agree with the appellant's contention expressed in his second point on appeal: that the testimony of Dr. Platkin to the effect that the appellant's crimes of November 15, 1958, were the product of a mental disease from which he was then suffering, was sufficient evidence of insanity as of that time to cast upon the Government the burden of proving beyond a reasonable doubt that Jones was then sane. Davis v. United States, 1897, 165 U.S. 373, 17 S.Ct. 360, 41 L.Ed. 750.
We are constrained to point out, however, that appellant's second point is a refutation of his first point or is at least inconsistent with it. For, if the examination ordered to determine mental competence was not sufficiently thorough and extensive to warrant the examiner in expressing an opinion as to the appellant's sanity on the previous November 15, then Dr. Platkin's testimony was founded on an inadequate examination and should have been rejected as incompetent.
3. We turn to a discussion of appellant's third point on appeal: that the
The examination conducted by Dr. Ryan was indeed ordered to determine whether Jones was mentally competent to stand trial in the earlier housebreaking case, just as the examination conducted by Dr. Platkin was ordered to determine his competence to stand trial in the present case. Their inquiries seem to have been substantially similar in character; and, as far as the nature of the examinations is concerned, both were considered by the men who made them as justifying the expression of an opinion concerning appellant's mental condition on November 15, even though both were ordered merely to determine mental competence to stand trial. The appellant cannot logically contend that Dr. Platkin's opinion was founded on an adequate examination, but that Dr. Ryan's was not.
There was a decided difference, however, in this: Dr. Platkin's testimony that Jones had a mental disease on November 15 was based on an examination which began nearly three months thereafter; but Dr. Ryan's conclusion that Jones was of sound mind on November 15 was based on an examination which began in October, 1958, and continued to the very day of the crimes — November 15. Although, as we have said, Dr. Ryan's certificate in the housebreaking case spoke only of November 13, we think his testimony in this case shows he continued his observation through November 15 and was speaking of that day as well.
The fact that Dr. Platkin's opinion that Jones had a mental disease on November 15 which caused the crimes was grounded on an examination which began nearly three months thereafter, while Dr. Ryan's opinion of sanity on November 15 arose from an examination which included that day, and the further fact that Dr. Platkin was examining and observing 600 patients while Dr. Ryan had to deal with only 40, may well have influenced the trial judge in making his decision that sanity had been established.
Moreover, although Dr. Platkin unqualifiedly said on direct examination by appellant's counsel that in his opinion the mental disease which he discerned as of the previous November 15 produced the crimes, he admitted under cross-examination that he could not determine whether the appellant's acts in attacking the attendant and escaping from the hospital were caused by a "deep-seated anxiety" which he characterized as a mental disease, or by an anxiety to escape from custody and avoid the trial for housebreaking which had become imminent because of Dr. Ryan's certificate two days earlier. Hence Dr. Platkin's unequivocal statement that there was a causal connection between the deep-seated anxiety which he diagnosed as a mental disease and the crimes which Jones committed loses its significance.
We think the record sufficiently supports the decision of Judge Letts. As we said in Daniels v. Souders,
BAZELON, Circuit Judge (dissenting).
Appellant was indicted in another case, on July 29, 1958, for breaking and entering a grocery store. In that case the District Court, on October 13, 1958, ordered his commitment to District General Hospital for a thirty-day mental examination limited in scope to a determination of his mental competency to stand trial. On November 13, 1958, Dr. James A. Ryan, one of six Assistant Chief Psychiatrists of the Hospital, rendered an examination report responsive to the limited inquiry described in the court's order: "Psychiatric examination reveals Mr. Jones to be sane, competent, and capable of participating in his own defense."
The attack upon a hospital attendant — which is the subject of the present indictment — took place on November 15, 1958, two days after the submission of Dr. Ryan's report. In connection with this indictment, the District Court also ordered a mental examination on February 6, 1959, and again for the limited purpose of determining appellant's competency to stand trial. This time, however, the appellant was sent to St. Elizabeths Hospital. Its Superintendent reported, on April 7, 1959, that appellant "is mentally competent to understand the proceedings against him and to properly assist in his own defense."
The present case, involving the assault on the hospital attendant, was tried in April 1959. The breaking and entering case was tried in June 1959. The defense of insanity was raised in each case. Dr. Ryan testified at both trials that he
Jones was convicted in both cases and appealed them. Before hearing in the appeal from the breaking and entering conviction (Appeal No. 15327), the Government moved to remand the case solely on the authority of Winn v. United States, 1959, 106 U.S.App.D.C. 133, 270 F.2d 326; and Calloway v. United States, 1959, 106 U.S.App.D.C. 141, 270 F.2d 334,
The Government has not made a similar request for remand in the present appeal notwithstanding its concession here that "the testimony in both cases of Dr. Ryan encompasses the same period of examination and the same diagnosis." It reasons that the examination in the present case was had two days before the alleged crime and "nothing would be stronger for the purposes of any case than a virtually concurrent examination by a doctor specializing in psychiatry."
The short answer to this contention, however, is that the time at which the examination is conducted is not the sole element which determines its adequacy for the issue at hand.
I do not quarrel with the majority's holding that Winn and Calloway do not require reversal where it appears that, notwithstanding the fact that the District Court orders an examination limited to trial competency, a more extensive
Dr. Ryan testified in the present case that he saw Jones for "approximately 45 minutes on October 15th * * * and again for about 40 minutes approximately two weeks after this time"; that on three or four other occasions he had "relatively brief contacts with him * *"; and that he "perhaps * * * had more brief contacts." Dr. Ryan's testimony in the breaking and entering case (Appeal No. 15327) reveals that no psychological tests were conducted and no effort was made to obtain essential behavioral information from various institutions to which Jones had been committed, such as, the National Training School, Chillicothe Reformatory, Lorton Reformatory, and District of Columbia Jail. Nor were his Army medical records sought. No members of his family or former employers were interviewed although he advised Dr. Ryan that such persons were available in this area. Dr. Ryan sought to explain these omissions on the ground that:
And later, when he was asked if he "would say that [his] examination of Mr. Jones was not superficial?" he replied:
Thus it plainly appears that the examination actually conducted could not bring to light the matters which we carefully described in Carter v. United States, 1957, 102 U.S.App.D.C. 227, 252 F.2d 608, as essential for a proper consideration of the issue of responsibility. The need for such information is not obviated by the fact that Dr. Ryan, in the course of his rounds through the hospital wards, had the opportunity for fleeting glimpses of Jones up to the day of the alleged assault on November 15.
Jones also argues that, since Dr. Platkin testified that Jones was mentally ill at the time of the alleged offense, the Government had the burden of establishing beyond a reasonable doubt that he
Accordingly, I dissent from the court's action affirming the judgment below.
"Q. Doctor, assuming that a person suffered from some type of anxiety and was incarcerated into a jail and then was put into a hospital, and further assuming that patient knew or was given knowledge he was about to be released from the hospital to go back to the jail to stand trial, and assume that he waited until an opportune moment in a hallway after having heard a door click, and assuming he had a razor hidden on his body, assume he threatened the guard, struck him with the razor, threw him down and said he would kill the guard, got the keys from the guard and left by the elevator, using the right key to open the door to the elevator. With those assumed facts, Doctor, would you say the act was a safety valve of physical safety or a safety valve action coming from this neurotic condition he had?
"A. I would tend to think that under the circumstances the need or the urge to cause such an injury was designed to relieve him of a certain degree of deep-seated anxiety.
"Q. Now, that is the injury. Now, make the assumption he was attempting and did succeed in getting outside of this institution; would you say the desire to leave, knowing he was going back to the jail, would arise from his anxiety, the deep-seated anxiety or from his anxiety to get away from the authorities?
"A. Certainly the elements of just plain escape appear to be there and I don't know whether it would be possible for me or anybody else to disassociate just where this neurotic anxiety ended and the anxiety connected with the immediate predicament began. I don't know whether I can say precisely where the line exists between these two types of feelings."