LYNCH v. OVERHOLSER

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Argument of Richard Arens

Chief Justice Earl Warren: Number 159, Frederick C. Lynch, Petitioner, versus Winfred Overholser, Superintendent of St. Elizabeths Hospital.

Mr. Shea.

Mr. Arens, I beg your pardon.

Mr. Richard Arens: Mr. Chief Justice, may it please the Court.

This case arises from the application of Section 301 of Title 24 of the D.C. Code.

The statutory provision in question provides for the mandatory commitment to a public mental hospital of all those, and I quote the statutory language, “acquitted solely on the ground that they were insane at the time of the commission of the act charged in the information or indictment.”

The petitioner, Coronel Lynch is an inmate of St. Elizabeths Hospital as a result of a commitment pursuant to the statutory provision.

Yet, the petitioner is not an ordinary beneficiary of an insanity acquittal, as these terms have been traditionally understood.

The petitioner is an inmate of St. Elizabeths Hospital as the result of an imposition upon him of an insanity defense which he resisted by every legal means at his disposal.

The petitioner in brief was compelled to submit to an insanity defense, the successful advancement of which was calculated to and did in fact result to his incarceration in a lunatic asylum.

Justice John M. Harlan: Did you represent him in the trial court, Mr. Shea?

Mr. Richard Arens: I'm Mr. Arens, if Your Honor please.

Justice John M. Harlan: Mr. Arens, I beg your pardon.

Mr. Richard Arens: No, Your Honor, I did not represent him in the municipal court.

Justice John M. Harlan: He had a lawyer, though.

Mr. Richard Arens: A lawyer was appointed to him at a later stage of the municipal court proceedings.

The facts of this case can very -- be very briefly summarized at an early stage of the municipal court proceedings.

The petitioner had no lawyer and may I say this, the petitioner who had never before been convicted of a criminal offense and who previously served honorably as a commissioned officer in the Armed Forces was charged with a violation of the Bad Check Law of the District of Columbia.This took place on November 6, 1959.

Specifically, the petitioner was charged with overdrawing his checking account by $100 and failing to make restitution within a period of five days.

And now, if it please the Court, he was arraigned before the municipal court and he lacked assistance of counsel at the time of his arraignment and it was at that time that a not guilty plea was entered for the petitioner by the court.

And it was at that time, if it please the Court, that petitioner was committed to the D.C. General Hospital Psychiatric Division for examination to determine his mental competency to stand trial pursuant to Section 301 of Title 24 D.C. Code.

Justice William J. Brennan: And this --

Justice Felix Frankfurter: Would you mind stating the detailed -- that led to that commitment?

Mr. Richard Arens: Your Honor, the record does not show what the precise basis of this commitment was.

I do not know.

I assume that some prima facie evidence of mental unsoundness had been presented to the municipal court.

The record does not show it.

Justice Felix Frankfurter: Is there any assumption or presumption to be entered through him?

Mr. Richard Arens: I believe we can --

Justice Felix Frankfurter: All I want to know is if the judge could do this out of hand just capriciously?

Mr. Richard Arens: No, Your Honor, I do not believe the municipal court judge acted capriciously in this case.I believe he acted in good faith, however, erroneously.

Justice Felix Frankfurter: Then he must have --

Mr. Richard Arens: I --

Justice Felix Frankfurter: -- had some basis for it.

Mr. Richard Arens: There is no doubt in my mind that his attention must have been called to the fact that the petitioner have had a previous history of mental hospitalization which of course is not denied.

Justice William J. Brennan: There was no transcript at all.

Mr. Richard Arens: There was no transcript, Mr. Justice Brennan.

Justice Potter Stewart: What's the -- statute provides so far as commitment for observation at the time of arraignment?

Mr. Richard Arens: Section 301 (a) of Title 24 of the D.C. Code provides that upon prima facie evidence of insanity or incompetency to stand trial or upon personal observation, the judge may order the commitment of an individual defendant charged with a crime by either an indictment or an information for a reasonable period of time.

Justice Felix Frankfurter: It must be assumed that the conditions of the section were satisfied.

Mr. Richard Arens: I believe it can be validly assumed these conditions were satisfied although as an act of due process of law, I would respectfully submit that assistance of counsel was necessary even at that early stage and that assistance of counsel was unavailable at that time to the petitioner, for what is clear was the petitioner's commitment for observation was not challenged essentially because petitioner lacked legal representation at that time.

Justice Potter Stewart: When he entered his plea of not guilty, did he have counsel?

Mr. Richard Arens: No, Your Honor, he did not.

And the record --

Justice Potter Stewart: Does the statute leave room for challenge of the judge's action?

Mr. Richard Arens: The statute specifically provides for an opportunity of challenging commitment to a mental hospital by habeas corpus.

I believe that's --

Justice Potter Stewart: Well, I'm talking now about this preliminary commitment for observation (Voice Overlap) --

Mr. Richard Arens: There is no --

Justice Potter Stewart: -- before an arraignment.

Mr. Richard Arens: There is no specific statement addressed to that particular point in the statute.

Justice Potter Stewart: Because the statute gives the judge power to do it, doesn't it?

Mr. Richard Arens: Upon prima facie evidence of mental insanity.

Justice Potter Stewart: And so far as -- upon observation.

Mr. Richard Arens: That is completely correct and may I say, if Your Honor please, there has been at least one case in which an individual charged with a minor traffic violation found herself in the psychiatric ward of a public hospital upon the basis of that particular statute.

Justice Potter Stewart: Are you saying this to shock us?

Does that seem shocking to you?

Mr. Richard Arens: I'm saying this essentially to illustrate the scope to which this particular statute has been subjected in the day-to-day operations of municipal wards.

Justice Potter Stewart: That's -- those are the terms of the statute, aren't they?

They're not confined to the nature or magnitude or gravity of the crime that the person is --

Mr. Richard Arens: No, Your Honor, they're not.

They're not.

Justice Potter Stewart: Charged at all.

They are directed to the person's condition not to the magnitude of the offense that (Voice Overlap) --

Mr. Richard Arens: That is completely correct, Your Honor.

Justice Potter Stewart: Yes.

Justice Felix Frankfurter: I want to know exactly what the proposition is that you're tendering to the Court.

Suppose a man is -- appears before -- been brought before a magistrate and he gives evidence of being a raving maniac, if one may assume that such evidence may overtly be made.

Does the judge -- must the judge stop then and there and appoint counsel and go through the proceedings of having the counsel raise the question or may he at once make arraignments for the transfer of that individual to St. Elizabeths?

Mr. Richard Arens: Under the statute as it stands at present there is no question but that the judge may at once make arrangements for the transfer of that particular individual to --

Justice Felix Frankfurter: And you say -- and do you -- is your submission that that is violative of the Due Process Clause?

Mr. Richard Arens: I believe that assistance of counsel should be available even at that stage although this is not the central part of the petitioner's case.

In fact, I do not rely upon --

Justice Felix Frankfurter: And you do not know -- we do not know on what valid or substantial or satisfying basis the commitment here was made.

He may not have been a raving maniac, if that term is still permissible in these days, but may have been a basis just as -- justified on.

Mr. Richard Arens: Yes, indeed, there may have been a basis, but not --

Justice Felix Frankfurter: That is not your main point.

Would you mind --

Mr. Richard Arens: No.

Justice Felix Frankfurter: -- stating exactly what it is you're tendering to the Court?

Mr. Richard Arens: Yes, Your Honor.

If I may be permitted to recount the subsequent history of the judicial proceedings --

Justice Felix Frankfurter: But I -- perhaps one could understand better what the significance of the facts are if you will tell us with reference to what are to be judged.

Mr. Richard Arens: Very well, Your Honor.

The major issue before this Court, as I see it, is this.

May the prosecution in a system of adversarial justice prevent a competent defendant from waiving any defense available to him and compel him to assert a defense of its choosing to his disadvantage.

Specifically and more narrowly applied to this case the issue may be stated as follows.

May the prosecution compel the defendant to present the insanity defense, the successful advancement of which ends in disaster because a person who successfully asserts insanity must be committed to a mental institution for an indefinite period.

And because commitment to a mental institution, I respectfully submit is one of the major depravations inflicted by our society insofar as loss of liberty to speak of no other considerations is concerned.

Justice Potter Stewart: But now why do you refer to that as a disaster?

It's a sad condition, but assuming that this person is mentally ill, why is it disastrous to send him to a mental institution to be cured?

Mr. Richard Arens: I would suggest the procedure by which we determine whether or not this particular person is mentally ill be a rationale and fair procedure.

And I respectfully submit that the procedure employed by the municipal court in this case was neither.

It permitted of no fair assumption that this particular individual was in fact mentally ill and was dangerous to himself or others as of the time of the adjudication.

This was no civil commitment proceeding in which by fair preponderance of evidence, it was established that the defendant was sick at that time and that he needed hospitalization.

What took place in this case, if it please the Court, is a proceeding in which the commitment of the individual petitioner was made possible under a standard of proof requiring the raising of nothing more than a reasonable doubt concerning his mental health.

Confinement --

Justice William J. Brennan: Isn't -- the point is that there's never yet been an affirmative determination that he is insane, whatever that means.

Mr. Richard Arens: Mr. Justice Brennan, I wish I could've stated it that succinctly.

That is precisely --

Justice Felix Frankfurter: Well, there must be --

Chief Justice Earl Warren: Now -- go ahead.

Justice Felix Frankfurter: There must be -- I probably was wrong to ask you to state your general proposition because there must be more to the facts than one rejection ceased of --

Mr. Richard Arens: Indeed, Your Honor.

Justice Felix Frankfurter: -- because all you've told us specify is that the record doesn't show what the basis was on which the magistrate did make the commitment.

Mr. Richard Arens: That is completely correct, Your Honor, and may I say it is not the original commitment which is the subject of attack in this Court.

It is the subsequent commitment to which I ask leave to address myself at this time.

For after his original commitment at the District of Columbia General Hospital, that hospital reported a --

Chief Justice Earl Warren: Could you start -- would you start again with those facts please, the procedural facts so we can have them all in mind?

Mr. Richard Arens: Yes, Your Honor, I should be delighted to do so.

The petitioner had been charged for the violation of the Bad Check Law of the District of Columbia.

This happened on November 6, 1959.

At that time, upon arraignment in municipal court, he was not assisted by counsel.

The court entered a not guilty plea for him and committed him to the D.C. General Hospital for observation to determine his competency to stand trial upon that charge.

Now, on December 4, 1959, that hospital reported to the court that petitioner was of unsound mind and mentally incompetent to participate in his own defense.

Some time elapsed after that, approximately three weeks, and the hospital then reported a change in the petitioner's mental condition.

It reported that petitioner had sufficiently recovered to be capable of participating in his own defense, but that he had been suffering from a mental disease at the time of the crimes charged in the information and that the crimes if any, were probably the products of said disease.

I say “probably,” if Your Honors please, because there was no statement of certainty within the diagnostic view propounded by the Government's psychiatrist as reflected in his letter to the municipal court reproduced on page 26 of the transcript of the record.

The psychiatrist informed the municipal court in that letter that petitioner was suffering from a manic depressive psychosis.

However, the causal relationship between that disease and the criminal act set forth in the indictment was described in less than categorically unqualified terms.

The illness declared the doctor, and I quote him, “would particularly affect his judgment in regard to financial matters so that the crime charged would be a product of this mental disease.”

Now, it was on the basis of this certification that petitioner was brought before the municipal court again on December 29 as competent to stand trial upon the charges then pending against him, and he was then represented by counsel appointed by the municipal court.

Petitioner thereupon, acting through counsel, insistently and consistently sought to affect the withdrawal of the not guilty plea which had been entered for him and enter a guilty plea in its stead.

This, he was not allowed to do.

A trial was held over the petitioner's objection, obviously, upon --

Justice Felix Frankfurter: May I -- may I interrupt?

Mr. Richard Arens: Yes (Inaudible)

Justice Felix Frankfurter: Suppose the plea -- of guilty has been accepted, what procedure would have followed?

Mr. Richard Arens: The defendant would've been subject to a maximum sentence of one year in the District of Columbia Penal System.

Justice John M. Harlan: Two years?

Mr. Richard Arens: Two years insofar as there were two crimes, yes.

Justice Felix Frankfurter: Would the issue of insanity at all come into play?

Mr. Richard Arens: The judge of course could have committed the individual defendant to a mental hospital under Section 301 if at the time of sentencing he had reason to believe that the individual defendant was incompetent to participate in the proceedings or appreciate the nature of the proceedings in which he was involved.

Justice Felix Frankfurter: But responsibilities for the crime to which he pled guilty was not conducible.

Mr. Richard Arens: Not as I see it, if Your Honor please.

At that stage, the defendant might have received a maximum of two years, one year each if consecutive sentences had been imposed or he could've been placed upon probation with provision for psychiatric out-patient treatment if the judge had considered that desirable.

Justice Potter Stewart: How about probation condition upon voluntary commitment to in-patient treatment, commitment to an institution?

Mr. Richard Arens: That could conceivably have taken place.

But the drastic difference between that procedure, Mr. Justice Stewart, and the procedure followed in this case is that the petitioner could have established his eligibility for release with the greatest of ease compared to the situation which he now find himself where his eligibility for release is dependent upon a showing by proof beyond all reasonable doubt under recent Court of Appeals decision that he is free of any abnormal mental condition and that he is not likely to engage in further check writing in the reasonably foreseeable future.

And I believe the consequences are very sharply different.

Justice Potter Stewart: Suppose nobody's completely free of every abnormal mental condition, what's that mean?

Mr. Richard Arens: The Court of Appeals has --

Justice Potter Stewart: That bothers me.

Mr. Richard Arens: The Court of Appeals has interpreted abnormal mental condition to cover apparently the length and depth of mental disorders listed in the American Psychiatric Association manual.

In a recent case, for example, the Court of Appeals declared that the mere fact that an individual suffered from a psychoneurosis, a condition which modern psychiatrists inform us is so widespread as to perhaps afflict 50-60% of the population if not more, is not eligible for release in St. Elizabeths if he cannot show that his psychoneurosis is not of such a nature as to prevent him from engaging in further check writing, the offense with which he was originally charged.

In other words, check writing proclivity stemming from a merely neurotic, as distinct from psychotic condition is sufficient to keep an individual at St. Elizabeths until such time as he's completely rid of it and the burden of establishing his eligibility for release is entirely upon him.

Justice Potter Stewart: Is this the statute as construed by the Court of Appeals?

Mr. Richard Arens: This is the criminal statute in sharp contrast to the civil commitment statute where release procedures are infinitely more liberal.

Chief Justice Earl Warren: Mr. Arens --

Justice William O. Douglas: Mr. Arens -- go ahead.

Chief Justice Earl Warren: Mr. Arens, I was going to ask you when court counsel was appointed then the defendant came into court and then asked permission to change his plea from not guilty to guilty, was it necessary for the court then to proceed with the trial or did the court have the power if it desired to do so, to direct that a civil proceeding be initiated to determine his sanity if the court believed that there was a question as to whether he actually was competent to proceed with the trial?

Mr. Richard Arens: No, Your Honor, there is no doubt in my mind at all that the municipal court had the power to dismiss the charges and recommend the initiation of civil commitment proceedings.

Chief Justice Earl Warren: Well, did it have to dismiss the charges?

Mr. Richard Arens: For civil commitment proceedings to be initiated the charges would have to be dismissed under the civil commitment statute of the District of Columbia.

Justice Potter Stewart: Why?

I don't get it.

Mr. Richard Arens: The District of Columbia statute, and I'm referring now to Title 21 of the D.C. Code, permits the initiation of civil commitment proceeding only in the absence of any criminal charges which --

Justice Potter Stewart: It could be any criminal charge pending against the person, is that it?

Mr. Richard Arens: That is the way I understand it --

Justice Potter Stewart: I see.

Mr. Richard Arens: Your Honor.

Chief Justice Earl Warren: There must be no criminal charge pending if a civil proceeding is to be conducted, is that correct?

Mr. Richard Arens: Let me put it this way, if Your Honor please.

I know of no case in which civil commitment proceedings have been initiated pursuant to Title 21 of the D.C. Code where criminal charges were still pending against the individual defendant.

Justice Felix Frankfurter: But if he doesn't do that, if the magistrate doesn't do that, he must accept a plea of guilty, although he had before him reliable indicia indicating mental disturbance at the time the crime was committed.

That's your position, is it not, under law?

Mr. Richard Arens: My position --

Justice Felix Frankfurter: I'm not questioning it.

I just want to know.

I'm in a state of confusion.

Mr. Richard Arens: This is part of my position.

I believe the individual defendant has a constitutional right to enter a guilty plea in order to avert the I'm -- involuntary imposition upon him of an insanity defense.

Justice Felix Frankfurter: Well, I didn't --

Mr. Richard Arens: It --

Justice Felix Frankfurter: I didn't -- I don't -- I'm not reaching the legal questions of my own legal thinking because I'm not yet clear what the situation is and therefore I'm much troubled here.

If a plea of guilty is offered, is tendered, the court must either accept it or out of hand dismiss the charge though he has no evidence that the man isn't guilty.

He must dismiss that out of hand in order to begin civil mental process, is that right?

Mr. Richard Arens: If civil commitment procedures are to be initiated, no criminal charges can be left pending.

Justice Felix Frankfurter: Therefore the alternative is to accept the plea of guilty, is that right?

Mr. Richard Arens: That is one alternative.

There's a further alternative, Mr. Justice Frankfurter.

The further alternative would be to put the Government to the proof.

Let them establish the commission of the particular offense, but prevent them from imposing an insanity defense, the successful assertion of which results in loss of liberty.

Justice Felix Frankfurter: That is the judge -- could the judge sua sponte have summoned or did he by chance, summoned the psychiatrist, take the witness stand, put him through a course of questioning.

Then conclude what he did conclude on the basis of the written report?

He could do that, could he?

Mr. Richard Arens: Could the judge summon a psychiatrist independently for the purpose of asserting an insanity defense?

Justice Felix Frankfurter: Yes.

Mr. Richard Arens: I respectfully submit that he could not.

Justice Felix Frankfurter: He could not?

Justice William J. Brennan: But he did, didn't he?

Mr. Richard Arens: It isn't clear, Your Honor, if it was the judge or the prosecution which did that and I believe the Government has conceded that we do not know.

Justice Felix Frankfurter: What?

I'm again -- I'm still more confused.

I thought you just said that the prosecution that there could be a trial of the issue of the claimed insanity making him irresponsible for the commission of the deed, is that right?

Mr. Richard Arens: No, Your Honor.

I did not say that.

I did say there was -- there were two alternatives.

One, the acceptance of the guilty plea or the dismissal of the charges in the initiation of civil commitment procedure --

Justice Felix Frankfurter: But you said there was a third.

Mr. Richard Arens: And the other possibility, if it please Your Honor, would be putting the Government to the proof in establishing the commission of the offense charged in the information.

Justice Felix Frankfurter: Then I must ask you this question.

Mr. Richard Arens: With this (Inaudible) -- I'm sorry.

Justice Felix Frankfurter: Suppose the Government had called this psychiatrist instead of having the municipal court judge act on the written report, suppose the Government said “Your Honor, I'd like to summon Dr. Jones”, and then put Dr. Jones who merely repeated verbatim what he had in his report.

Could the judge then act as he did?

Mr. Richard Arens: No, Your Honor, he could not.

I respectfully --

Justice Felix Frankfurter: Then what is the third alternative?

I don't understand it.

Mr. Richard Arens: The third alternative is putting the government to its proof without putting -- with the caveat that the defendant be permitted to manage his own trial strategy and that an involuntary insanity defense not be imposed against -- upon us.

Justice Potter Stewart: Of the Government's proof, if the witnesses for the Government showed the commission of the act of writing a check against its official funds but further showed that the act was done under such circumstances as to show incontrovertibly that the man was insane when he did it, now -- then what would the judge have to do?

Mr. Richard Arens: I respectfully submit that insofar as the defendant does not rely upon this testimony, this testimony cannot be used to affect his loss of liberty because it involves procedural irregularity striking at the heart of due process.

Justice Potter Stewart: Do you think a judge, a conscientious judge, could --

Justice Charles E. Whittaker: Is that to say that the court -- excuse me, excuse me, I think you were talking --

Justice Potter Stewart: Go ahead.

Justice Charles E. Whittaker: Is that to say that the court may sentence a person whom the evidence shows to have been of unsound mind at the time of the commission of the crime?

Mr. Richard Arens: My answer to this Mr. Justice Whittaker is two-fold.

The traditional common law view has been that an individual defendant has a right to enter a guilty plea and as the Iowa Supreme Court has put it, reasons other than that he is guilty may induce a defendant to enter a guilty plea and therein, he must be permitted to judge for himself.

My second answer if it please the Court, is simple.

Justice Felix Frankfurter: -- and does --

Mr. Richard Arens: The --

Justice Felix Frankfurter: -- your first answer carry with it that that's -- that that -- what you denominate the common law, the Iowa law is required by the due process clause?

Because we're not concerned here with what is common law or Iowa law.

We're concerned here in view of your submission that there was a deprivation of a constitutional right.

Mr. Richard Arens: That's completely correct, Your Honor.

Justice Felix Frankfurter: Pardon me?

Mr. Richard Arens: That is completely correct, Your Honor.

And I --

Justice Felix Frankfurter: And you say as a matter of constitutional due process that he may insist on -- for some -- what you call strategy and that is an ill sound to my ear but, the strategy is protected by the constitution.

This is a game that as a matter of due process he must be sent to jail although the Government is ready to prove whatever the adequacy of proof may be that in fact he was mentally irresponsible.

Mr. Richard Arens: My position if it please the Court, is that we cannot have an inversion of the roles of the prosecution and the defense.

Justice Felix Frankfurter: But those are words.

Mr. Richard Arens: In which the defendant has no notice as to what it is that he is called upon to defend himself against and which he does not know that the trial in which he is specifically charged with uttering a check with intent to defraud is about to be transformed into an inquiry into his mental health.

Justice Felix Frankfurter: Was there a claim here by assigned counsel that he wants to disprove the substantiality of the psychiatrist's claim or testimony on the court?

As I understood your argument thus far it is that absolutely, a man has a right to insist on a plea of guilty being taken and entertained no matter what the showing of mentally responsibility of the act for which he's being -- to which he pled guilty.

Mr. Richard Arens: There is an alternate proposition, Mr. Justice Frankfurter, and that is conceding the right to the court for purposes of argument to reject a guilty plea.

We cannot concede the right to the court to impose a defense against the will of the individual defendant particularly if the successful assertion of that defense comports loss of liberty without notice, without an opportunity to rebut the defense which is in fact no defense at all but a method of inflicting a very serious sanction and without assistance of counsel --

Justice Felix Frankfurter: The upshot of which is, he's rid of the charge of crime against him.

That is wiped out and he can now defend perhaps successfully that he's mentally unbalanced.

Those are the constitutional rights for which you claim.

Mr. Richard Arens: That is correct, Your Honor.

Justice Charles E. Whittaker: But Mr. Arens, are you arguing that the Government used this criminal leads as the substitute for or to debate the civil process for examining that?

Mr. Richard Arens: Yes, Your Honor.

I do make that argument and I make it consistently with the view expressed by Judge McGarraghy in the District Court in granting the petition for habeas corpus in sustaining the writs.

Judge McGarraghy declared, “I don't believe that the municipal court had a right to convert this proceeding into a civil commitment proceeding which is what it did.

Therefore, I don't think the municipal court had jurisdiction to commit the petitioner to St. Elizabeths.”

Justice John M. Harlan: Could I go back to something you said earlier?

I want to make sure I understand it.

I understood you to say that there is no civil commitment proceeding possible in the District of Columbia where there is a criminal charge pending against a man.

Mr. Richard Arens: That is my understanding and I hope I have not misinformed --

Justice John M. Harlan: Now, does that mean --

Mr. Richard Arens: -- the Court.

Justice John M. Harlan: Does that mean that in a case where a man has been convicted, no plea of insanity, no suggestion of insanity, he is committed to prison.

He then becomes insane in prison during the service of his sentence.

Is there no power of the warden to institute some kind of a proceeding to transfer him to an insane asylum?

Mr. Richard Arens: Yes, Mr. Justice Harlan, there is.

Section 302 of Title 24 of the District of Columbia Code makes it possible for any individual found guilty of crime while serving sentence to be transferred to a mental hospital.

Significantly however, if it please the Court, his confinement within that mental hospital would be limited to the term of his sentence and he would not be under the disadvantage that petitioner is in now.

Justice John M. Harlan: You mean the hospital would have to release him after the term of his sentence even though he continues to be insane?

Mr. Richard Arens: The hospital would have to release him, if Your Honor please, unless civil commitment proceedings were instituted and there would of course be no bar to the institution of civil commitment proceedings upon the expiration of the sentence.

Chief Justice Earl Warren: Mr. Arens, may I ask you this question.

When the court refused to accept the defendant's plea of guilty, was there any statement on his part that the reason he was not doing it was because he felt this man was more likely to be insane than guilty and that therefore he was offering the defense of not guilty by reason of insanity?

Mr. Richard Arens: That is substantially my understanding of what transpired.

Chief Justice Earl Warren: Is it in the record?

Mr. Richard Arens: No, Your Honor.

Chief Justice Earl Warren: Did interpose?

Did the judge interpose a plea of not guilty by reason of insanity?

Mr. Richard Arens: No, Your Honor, we have no transcript to the record in the municipal court.

Chief Justice Earl Warren: Well, wouldn't the minutes of the court show that?

Mr. Richard Arens: I have not been able to obtain any reliable information on the subject.

There is no doubt in my mind the municipal court judge acted with the best of humanitarian --

Chief Justice Earl Warren: I am not questioning that.

I'm not questioning that at all but I suppose the minutes of the court will show that the defense -- the defendant once pled not guilty and then that he offered to plead guilty and was denied that opportunity.

Mr. Richard Arens: That much is shown in it.

Chief Justice Earl Warren: It is shown.

Now --

Mr. Richard Arens: Yes, sir.

Chief Justice Earl Warren: -- is there anything in addition to that to show that the court itself interposed a plea of not guilty by reason of insanity for this defendant?

Mr. Richard Arens: Well, Your Honor.

No, there is nothing in the record.

The only thing that is plain is that the defense of insanity was asserted for the petitioner either by the Government or by the court.

No formal insanity plea is required under the rules prevailing in the circuit.

Chief Justice Earl Warren: Yes.

Mr. Richard Arens: And may I then say, reverting to the statement of facts that evidence was heard over the objection of the petitioner and this evidence included testimony by a government psychiatrist who testified substantially and afforded the hospital report which I have referred to.

As a pauper, the petitioner lacked opportunity of any independent psychiatric verification of the claims concerning as mental health which were propounded by the one psychiatrist who testified for the Government.

Accordingly, petitioner offered no expert evidence in rebuttal of the evidence of the insanity which had been thus presented.

Lack of facilities in municipal court for the procurement of qualified psychiatrist at Government expense has been repeatedly set forth below in briefs and has never been denied by the Government.

It cannot be asserted that petitioner's counsel requested independent psychiatric scrutiny but had he done so, it would have been a futile gesture.

At the conclusion of this trial, the Chief Judge --

Justice William J. Brennan: If they -- that he did not request it.

Mr. Richard Arens: There is no evidence --

Justice William J. Brennan: So far as --

Mr. Richard Arens: -- to indicate that he had requested it.

I merely say that had he requested it there, it would have been a futile gesture in the absence of any facilities on the part of the municipal court for rendering services of this kind.

Justice John M. Harlan: Mr. Arens, what would've been your position, your constitutional position, had there been a plea of insanity imposed here and the same procedure followed under the statute?

Mr. Richard Arens: I believe that a defendant has a right not to have any defense imposed upon him.

Justice John M. Harlan: No, no.

I meant supposing he had voluntarily entered a plea or his counsel had (Inaudible)-- a plea of in -- not guilty by reason of insanity.

Then the Court had held him not guilty by a reason of insanity and that then follow the procedure under the statute, would you have a case?

Mr. Richard Arens: Then, if Your Honor please, most, though not all of my procedural objections to what took place in municipal court would have been avoided.

Justice John M. Harlan: Well, would that have been a constitutional proceeding?

Mr. Richard Arens: I believe it would've been a constitutional proceeding up to a point.

The objection to the proceeding would then have come at a later stage significantly at the point where the commitment of the defendant was made without affording him an opportunity to show cause why commitment should be denied because of an improvement in his mental state and because of the fact that he was no longer ill or dangerous to himself or others.

Justice John M. Harlan: Is your -- your basic constitutional position as I understand it from your colloquy with Justice Brennan is that he was committed to St. Elizabeths without any determination of insanity.

Mr. Richard Arens: That's correct, Your Honor.

Justice John M. Harlan: Now, had there been a voluntary plea of not guilty by a reason of insanity and an acquittal by that reason, would that have amounted to a finding that he was insane?

Mr. Richard Arens: No, Your Honor, it would not because under Davis against United States decided by this Court, an acquittal by reason of insanity amounts to nothing more than a finding of a reasonable doubt.

Justice John M. Harlan: A reasonable doubt, exactly.

Mr. Richard Arens: And accordingly the commitment would still have been objectionable not for lack of a fair hearing and the imposition of an insanity defense without notice and without opportunity to rebut.

But for lack of affording the defendant an opportunity to show cause why commitment should be denied because notwithstanding any previously existing mental state, he was not as of the time of the adjudication --

Justice John M. Harlan: But what I am trying --

Mr. Richard Arens: -- was mentally ill.

Justice John M. Harlan: What I am trying to get at is the reach of your constitutional position.

Is it that even under the hypothetical case that I put that that would render the application of the statute unconstitutional?

Mr. Richard Arens: Yes, sir.

Justice John M. Harlan: Or, is your position limited to the situation where there has been no voluntary plea of insanity imposed and one simply entered by the court.

Mr. Richard Arens: Our position goes all the way, if Your Honor please.

Justice John M. Harlan: All --

Mr. Richard Arens: The statute which authorizes deprivation of human liberty without affording the target of the particular proceeding an opportunity to show cause why commitment should be denied strikes me as repugnant to the Due Process Clause is --

Justice Charles E. Whittaker: Mr. Arens, I'm not sure I understood you, but did you say that a plea of not guilty under the law of the District of Columbia embraces a defense of insanity?

Mr. Richard Arens: Yes, Your Honor, it does.

There is no requirement for a special plea of not guilty by reason of insanity.

Justice Charles E. Whittaker: Well then, a plea of not guilty here was in fact a plea of not guilty for any cause including insanity.

Mr. Richard Arens: Yes -- it could've been.

Justice Charles E. Whittaker: Now one more question please.

I understood you a while ago to say that the trial judge might have dismissed this proceeding.

How could he have done that in the absence of evidence showing illegal irresponsibility for the client?

Mr. Richard Arens: He could conceive they have dismissed the proceedings as a matter of individual discretion.

He could have stated that the individual defendant although guilty of the factual transaction lacked a particular intent to defraud and he might have avoided inquiry into his mental health under the criminal insanity law with consequences as far reaching as the ones which he faces in this case.

Justice John M. Harlan: I suppose -- I would think that you could've given the judge an easier route, if I understand the statute correctly, namely to accept his plea, send him to St. Elizabeths, alert the warden, the warden finds he's presently insane, he can transfer him to St. Elizabeths to the expiration of his sentence and then a civil commitment proceeding.

Mr. Richard Arens: There's no question --

Justice John M. Harlan: Could the court have done that?

Mr. Richard Arens: There's no question about that upon --

Justice John M. Harlan: Well, why do you have to go through this other (Voice Overlap) --

Mr. Richard Arens: If I understand Your Honor correctly, he certainly could've been given a determinate prison sentence.

The warden could've been alerted concerning his mental condition.

He could've been transferred pursuant to Section 302 to St. Elizabeths Hospital, although his confinement therein would have been restricted to the term of his sentence, or he could've been placed on probation with the requirement that he undergo psychiatric treatment on an out-patient basis which is a medical matter, may have been what was indicated for the petitioner was never afforded --

Justice John M. Harlan: Isn't that a much more direct way of reaching the problem that you're complaining about as going through the mechanics of dismissing a criminal proceeding that's --

Mr. Richard Arens: Yes --

Justice John M. Harlan: -- undismissable?

Mr. Richard Arens: Yes, Your Honor.

I believe this would probably have been preferable.

Chief Justice Earl Warren: Mr. Arens, may I ask you this question.

Is there not another alternative?

Could not the judge before he placed him on trial at the suggestion of the prosecution or the hospital or anybody else have dismissed this criminal case against him and then had a civil proceeding to determine his sanity without having to put him in jeopardy?

Mr. Richard Arens: Without any question at all, Mr. Justice Warren.

Chief Justice Earl Warren: And then after the civil proceeding was over, if he was found to be sane then they could've charged him again with the same crime, tried him, and convicted him.

Mr. Richard Arens: Precisely and may I say, if the Court -- if it please the Court, that dismissals of proceedings particularly on the municipal court level are a common place occurrence.

A first-offender almost invariably succeeds in having the charges against him dismissed if there is any showing at all that he has a job, that he has a residence, and that he is vouched for by citizens of some reputation.

It is amazing that in this case in which the Government asserts concern for the rights of this particular individual no dismissal of proceedings took place.

The individual was forced to trial and committed to St. Elizabeths until such time as he was certified by the hospital authorities has recovered from his mental illness and not likely to be dangerous to himself or others in the reasonable future.

And there was no finding by the municipal court as to the petitioner's then existing state of mind or social dangerousness.

Justice Potter Stewart: Who can initiate an involuntary commitment proceeding under the District of Columbia law?Can anybody or does it have to be a member of the --

Mr. Richard Arens: I can --

Justice Potter Stewart: -- his family or what?

Mr. Richard Arens: As a general matter of practice, members of the family take the initiative but I can vouch to the Court from the fact the government has on numerous occasions successfully initiated commitment proceedings including commitment proceedings in cases in which I have represented certain clients.

Justice Potter Stewart: What does the statute provide, do you happen to know, does it -- as to who can initiate the proceeding?

Mr. Richard Arens: The statute permits the Government to initiate, specifically permits the Government, the police to initiate civil commitment proceedings under certain circumstances.

And in one particular case, United States versus Haggard, Judge Youngdahl dismissed a murder charge pending against that defendant and then upon my recommendation signed a civil commitment order upon a petition which I had prepared.

The Government would've been in an identical position and could've done the same thing and in fact it has in similar cases.

But if I may sum the factual situation of this case up, neither the petitioner nor his counsel raised the issue of insanity, neither he nor his counsel introduced any evidence bearing on the issue of insanity and no motion or request was made in his behalf for a finding of not guilty by reason of insanity.

Every move toward that finding was resisted.

However, the presiding judge on the basis of the testimony of a government psychiatrist was not rebutted, found the petitioner not guilty on the ground of insanity and committed -- affected his commitment in the manner aforesaid.

Significantly, there was no finding petitioner's insanity as of the time of the adjudication nor was a hearing afforded the petitioner in which he might have shown cause why confinement was improper for practical legal or medical reasons thus (Inaudible)

Chief Justice Earl Warren: Did the Government -- did the Government offer this proof of insanity in its case in chief or in rebuttal?

Mr. Richard Arens: In the case in chief, if Your Honor please.

Justice Byron R. White: Well, I thought you (Inaudible) --

Mr. Richard Arens: If I understand --

Justice Byron R. White: I thought you told us earlier we don't know who.

Mr. Richard Arens: That is quite correct.

It was either the court or the Government but as I understand it, there was -- the petitioner never denied the writing of the bad checks and accordingly I do not think there was any conflict on that point.

There was certainly no conflict as to psychiatric testimony since petitioner had no psychiatrist available.

We do not know whether the psychiatrist was called by the Government or the court.

Justice Felix Frankfurter: Do I rightly infer that what the municipal court did was warrant it under the statute and that you read -- you reach the constitutionality of the statute, is that right?

Mr. Richard Arens: No, Your Honor.

I do not believe the statute authorized the involuntary imposition of the insanity defense.

I do not believe Congress contemplated a situation in which an individual who had not affirmatively --

Justice Felix Frankfurter: But that's construed by the Court of Appeals.

Mr. Richard Arens: As construed by the Court of Appeals, the action of the municipal court was warranted by the statute.

Justice Felix Frankfurter: And that means -- that means that in effect the Court of Appeals construed the statute to lay down as a rule of law that the duty of proving mental responsibility is an affirmative duty on the part of the prosecution.

That's what is implied.

Mr. Richard Arens: Yes, Your Honor.

Justice Felix Frankfurter: Do you think it's unconstitutional to make any such requirement that the prosecution has the duty of affirmatively proving mental capacity?

Mr. Richard Arens: I believe it is --

Justice Felix Frankfurter: I know this Court has said that it's not unconstitutional to do the reverse but I wonder if we've reached the point where it's unconstitutional to put the burden of proving mental responsibility upon the prosecution whether that violates due process.

Mr. Richard Arens: No Your Honor.

Having the re -- having the prosecution prove mental responsibility or lack of responsibility in no way violates due process.

Justice Felix Frankfurter: That's what he did here.

Mr. Richard Arens: Provided the prosecution does so in a procedure which can be denominated as fair and rational and provided the consequences of the particular defense are not as onerous and punitive as they turn out to be in the case at bar.

Justice Felix Frankfurter: In other words, it's unfair and irrational to put this extra burden on the prosecution instead of resting on the presumption it entered by the decision, part of presumption that is entered.

Mr. Richard Arens: I respectfully submit that it is unfair and irrational to do it under a standard of proof which permits the forfeiture of human liberty upon the basis of a doubt concerning mental health.

Justice Felix Frankfurter: Well you're not here because the record doesn't permit you to be here.

In this Court, there is no record on which to base it.

That in fact the proof was lacking in those -- essential that what we call due process.

This case isn't here, but there is no basis for finding that the prosecution didn't maintain its responsibility of proving that mental responsibility.

Mr. Richard Arens: May I --

Justice Felix Frankfurter: You are here on the assumption and the inevitable influence that the prosecution undertook that burden, that it established it, that the judgment warranted in finding it -- what it established and that it violates due process to put this extra burden on the prosecution.

Mr. Richard Arens: May I address myself to the points so cogently raised by Mr. Justice Frankfurter as follows.

Suppose that in a criminal -- in a particular case in which commitment is involved, the -- a jury trial was held and suppose that a psychiatrist provides evidence infinitely more persuasive and unequivocal in the evidence provided in this case as to the mental illness of the defendant and the causal relationship of that mental illness were the crime charged.

And suppose the judge thereupon charges the jury that commitment to a mental hospital, and let us assume this is a civil commitment proceeding, is possible upon the showing of nothing more than reasonable doubt concerning his mental health.

Will this Court uphold loss of human liberty under a standard of this particular type regardless of the weight of the evidence?

Justice Felix Frankfurter: You're reading a totally different question.

That's the -- that's like our recent Thompson case.

What you've now said was -- there was no basis for such a finding by the court.

I can understand that claim but as I also understand it, we haven't got the basis on which to pass on it.

Mr. Richard Arens: Mr. --

Justice William O. Douglas: I thought your point was that there's no finding at all.

Mr. Richard Arens: There is no finding in this case at all by the judge that the individual was insane as of the time of the adjudication.

Implicit of course an acquittal by reason of insanity is there was a reasonable doubt as to the defendant's mental health as of the time of the commission of the crimes alleged in the information.

And I respectfully submit that forfeiture of human liberty upon the basis of a reasonable doubt in a proceeding in which the defense is forced upon the defendant without notice as to the consequences and without an opportunity to rebut what is not a defense but an offense --

Justice John M. Harlan: Is there --

Mr. Richard Arens: -- offends due process.

Justice John M. Harlan: Do you find anything in the legislative history of this statute that would prevent a reading that it was intended to apply only in a situation where there had been a defense of insanity interposed?

Mr. Richard Arens: Yes, Your Honor.

The Senate and House Reports --

Justice John M. Harlan: What are you reading from?

Mr. Richard Arens: I'm reading from page 53 --

Justice John M. Harlan: Of your --

Mr. Richard Arens: -- of my brief.

Justice John M. Harlan: Your brief?

Mr. Richard Arens: If Your Honor please, refer to the situation where the accused has pleaded insanity as the defense to a crime and the jury has found the defendant was in fact insane at the time the crime was committed.

May I say that at the time of the enactment of Section 301, Congress knew of no single example in which an involuntary imposition of an insanity defense had been tolerated by the courts and it's concerned at that time as its well-known, was that the liberal laws rule of criminal responsibility presented by the Durham case would enable numerous dangerous criminals who had affirmatively taken advantage of what was thought to be a possible loophole to roam the streets and endanger the public safety.

Justice John M. Harlan: Was the Durham case the mode of power behind the statute?

Mr. Richard Arens: I believe without any question, Your Honor.

Justice William J. Brennan: Well that mode of power behind making it mandatory.

Mr. Richard Arens: That's right.

Justice William J. Brennan: That's required, that I gather, to the discretion.

Mr. Richard Arens: That is completely correct.

Justice Felix Frankfurter: Mr. Arens, would you please enlighten me.

You answer Justice Douglas a minute ago that there was no finding that the judge didn't find that he was not guilty.

Mr. Richard Arens: No, I did not say that Mr. Justice Frankfurter.

Justice Felix Frankfurter: What did you say?

Mr. Richard Arens: I said no -- there wasn't --

Justice William O. Douglas: No, there has been -- no finding of insanity.

Mr. Richard Arens: That is completely correct, Mr. Justice --

Justice Felix Frankfurter: But that's what the -- page 9, please explain what that means.

Is it the direction that the superintendent think of then?

The court having found the accused not guilty on the ground that he was insane at the time of the commission of the offense.

Isn't that a finding of insanity?

Mr. Richard Arens: No, Your Honor.

I've --

Justice Felix Frankfurter: I'm not saying that there's a -- that it's justified that there was proof of it but there is certainly as a finding, if I understand what that word means.

Mr. Richard Arens: I believe, if it please the Court, that this comports nothing more than a finding of the reasonable doubt concerning insanity as of the time of the commission of the alleged offense as distinct from the time of the petitioner's commitment to St. Elizabeths hospital.

Justice William J. Brennan: Does the Government agree with you?

Mr. Richard Arens: I'm quite sure the Government does not agree with me on this point.

Justice Charles E. Whittaker: Mr. Arens --

Chief Justice Earl Warren: Well, the hospital agrees with you to some extent at least, did it not?

Didn't they make a differentiation between his mental condition at the time of the commission of the offense and as of the time of the trial?

Mr. Richard Arens: Yes, indeed --

Chief Justice Earl Warren: Did they say that he had improve greatly and that he was then able to understand his surroundings and to cooperate with counsel in the conduct of his defense?

Mr. Richard Arens: Yes, indeed, Mr. Chief Justice Warren.

The D.C. General Hospital, after having originally declared this individual to be too sick to stand trial subsequently announced that he was then free of such mental disease as would render him incompetent to participate in proceedings.

Justice Potter Stewart: That's on page 24 of the record (Inaudible)

Mr. Richard Arens: That is correct, Your Honor.

Justice Felix Frankfurter: And What you are saying is that it's unconstitutional for the Congress of the United States to say if a man is found insane at the time of the -- insane for the transaction for which he's tried and he's acquitted because of that mental state, Congress of the United States can't say you -- that the judge should send him for observation at a hospital for his mental state.

That's your ultimate position, is it?

Mr. Richard Arens: No, Your Honor.

I don't think it is.

The situation would be very different if the statute were to provide for example, that after an acquittal by reason of insanity, an individual defendant were to be committed for an extremely short period of observation, after which a report had to be returned to the Court certifying as to what his mental state then was, the commitment which not to express after an insanity acquittal is indefinite and to establish it --

Justice Felix Frankfurter: It is separate because there's always the opportunity for relief --

Mr. Richard Arens: The opport --

Justice Felix Frankfurter: -- in terms of his commitment so states, “each in your custody on guilty shall be discharged by due course of law.”

As always, an accessibility to the Court as to -- in every case of mental confinement.

Mr. Richard Arens: I believe, Mr. Justice Frankfurter, it will not do to say that because habeas corpus may be resorted to in the future, liberty may be deprived at a particular time without due process of law and --

Unknown Speaker: (Inaudible)

Justice Felix Frankfurter: Must you say 10 days, a month?

The whole point is that this is an observation in the hospital.

Justice Byron R. White: (Inaudible)

Justice Felix Frankfurter: Well, I know, but in order to determine what to treat or how to treat, you must observe.

This is an effort to ascertain facts on the basis of which rational judgments can be based.

Mr. Richard Arens: Well, if Your Honor please, the District Court has refused to consider habeas corpus petitions which have been filed as long as six months after an acquittal on the ground --

Justice Felix Frankfurter: Well, that isn't the case we have before us.

We have this statute and this action.

Justice Byron R. White: I was wondering if we have before us at all the release part of this statute about which I for one, would have considerable doubts, but do we have that before us here?

Mr. Richard Arens: Insofar as this particular individual has been forced into what the Court of Appeals has called a special class of individuals who may not be released in the manner in which individuals who'd been committed pursuant to civil commitment law may be released.

We do have --

Justice Potter Stewart: But has it -- this man hasn't tried to be released, has he?

Mr. Richard Arens: Yes, Your Honor, he has tried twice to be released.

There's no longer mentally ill and he has not been able to meet the exacting standards of the Court of Appeals' standards which require that he prove beyond reasonable doubt that St. Elizabeths was arbitrary and capricious in failing to certify that his psychoneurotic propensity will not in the reasonably foreseeable future result in further check writing.

Justice Potter Stewart: Now, if we were reviewing his --

Justice Felix Frankfurter: There's no (Voice Overlap) --

Justice Potter Stewart: -- the denial of his release, it would be one thing.

We'd have that before us.

We have those release provisions before us and I under -- you just said he's been denied at least twice and has he tested this out judicially?

Mr. Richard Arens: No, Your Honor, that has not been tested.

I merely --

Justice Potter Stewart: Then we'd have those provisions before us but we'd have now before us something quite different, don't we?

We don't have those before us.

Mr. Richard Arens: I believe we have an individual who has been forced into an intolerable position as a result of the involuntary imposition of the insanity defense.

Part of the realities of this position is his inability to secure a release under standards prevailing in the civil commitment field.

Justice Felix Frankfurter: When you say “involuntary” all you're saying is that before a judge accepted a plea of guilty, he wanted to have established and put upon the prosecution the burden of establishing that he's to send to jail a man of a charge, may have been mentally irresponsible.

That's what you mean by involuntary.

That's all you can mean in the context of these facts.

Of course, that's involuntary, in that entire control of the judicial proceedings are not in the hands of the defendant where an issue is his mental responsibility.

Mr. Richard Arens: That is certainly correct, Mr. Justice Frankfurter.

But that is both extraordinary and unprecedented for this or any other court to countenance the imposition of the defense which is spurned by the defendant.

And no rule appears to be better settled but that constitutional defenses and privileges are subject to waiver.

And may I say, if the privilege against self-incrimination were not subject to waiver, we would be preventing defendants from taking the stand and testifying their own behalf and providing a rational account of the transaction.

I believe we would be striking a due process of law.

Justice Felix Frankfurter: It isn't so extraordinary to me since this is exactly the English provision as a result of the most thorough investigation by a royal conviction, a thorough examination of the House of Commerce before the Act of 1959 was passed.

Mr. Richard Arens: Well, if Your Honor please, I respectfully take issue with Mr. Justice Frankfurter on the English position, which is set forth in our brief and which his quite unmistakable.

The Eng --

Justice Felix Frankfurter: It decided Section 60 Subsection 2 of that statute?

Mr. Richard Arens: If the Court will indulge me for a moment, I will attempt to -- I have cited, if Your Honor please, Section 443 of the Royal Commission Report on Capital Punishment.

Justice Felix Frankfurter: I am talking about the Act of 1978 Elizabeth Protecting Chapter 72, Section 60 Subdivision 2.

Mr. Richard Arens: I'm not --

Justice Felix Frankfurter: In which gives exactly what you've -- so far as I can read it, so should I read it.

The first one deals with the powers of court after conviction, Section 2 Subdivision 2, where a person is charged before a magistrate's court with any act or omission of a -- as an offense, the Court would have power on convicting him of that offense to make an order under Subsection 1 of this Section.

Then, if the court is satisfied that the accused did the act or made the omission charged, the court may if it sees fit make such an order without convicting him.

Chief Justice Earl Warren: Well after all we're not trying him under English procedure, are we?

Mr. Richard Arens: Well, I --

Chief Justice Earl Warren: May I ask you this question?

Referring back to the question of Mr. Justice Stewart about whether this case might more properly be here on a writ of habeas corpus to release him because of his penal -- present mental condition, would you be in any better position in that kind of a proceeding to raise these questions that you are now raising here than you are in this proceeding?

Mr. Richard Arens: Yes, undoubtedly.

We could make a frontal attack upon the release procedures of the district commitment law if we had alleged in the case which finally came before this Court that he had recovered from all mental illness.

All we can allege at this particular time is that he was put in a position of severe disadvantage and that -- but one of the disadvantages is the difficulty which he would inevitably encounter if he were to seek release at a future time.

Chief Justice Earl Warren: Yes.

Mr. Richard Arens: The release procedure --

Chief Justice Earl Warren: My point Mr. Arens is this.

Could you in such a proceeding raise these procedural questions as to his commitment to the institution?

Mr. Richard Arens: I don't believe so.

I believe this would be independent --

Chief Justice Earl Warren: I don't believe you could, so if you can't raise it in this kind of a proceeding, you couldn't raise it in any proceeding, could you?

Mr. Richard Arens: I believe that is stating the position of petitioner with perfect precision.

Justice Potter Stewart: I wasn't suggesting Mr. Arens that you couldn't raise most of the questions you've raised.

I was simply suggesting that the release provisions of the statute are not directly an issue in this case.

Mr. Richard Arens: Not directly an issue.

Justice Potter Stewart: If you brought the kind of action suggested by the Chief Justice, you could raise those but you couldn't probably raise some of the ones that you're raising in this case --

Mr. Richard Arens: That's correct, Your Honor.

Justice Potter Stewart: -- (Inaudible) to the other cases.

Chief Justice Earl Warren: Mr. Arens, we've taken so much of your time in argument that I'm (Inaudible) answering -- passing you questions that I'm going to give you five more minutes in rebuttal to --

Mr. Richard Arens: Thank you very much, Your Honor.

Chief Justice Earl Warren: -- in which you may be able to sum up your argument.

Mr. Marshall.

Argument of Marshall

Mr. Marshall: Mr. Chief Justice, may it please the Court.

There are a number of issues that are raised in the brief by Mr. Arens' argument.

I would like to separate them into two categories because I think that they will be easier to deal with in that fashion.

One category has to do with the trial court's conduct, what the Chief Justice just referred to as the claimed procedural irregularities in the case.

These issues have been put by Mr. Arens largely in constitutional terms.

But I think that the fact is that many or most of them are not necessarily constitutional, that is that the Court could deal with them in the matter of administering federal judicial system and the system of justice in the federal courts without giving them a constitutional dimension.

The other issues have to do with the constitutionality of the statute and these are necessarily constitutional.

They depend -- they turn on the question of whether Congress acted so irrationally in passing the mandatory commitment statute in the district that the statute has to be declared unconstitutional under the Due Process Clause of the Fifth Amendment.

Now, turning first to the procedural side of the case, I think it should be kept in mind that there is no question but that this procedure against Mr. Lynch started with the commission of two criminal acts.

There is --

Justice Potter Stewart: Well, that's begging the question as to they're criminal if he was sane, they're not criminal if he was insane.

Mr. Marshall: Well, Mr. Justice Stewart, I should say two acts which were criminal unless he was not responsible --

Justice Potter Stewart: Unless he had defenses --

Mr. Marshall: -- criminal (Voice Overlap) --

Justice Potter Stewart: -- which made them non-criminal.

Mr. Marshall: They are two acts prohibited by a criminal statute, Mr. Justice Stewart, and the question was whether or not he was criminally responsible for them.

I meant that they did not start with him sitting in his home and being brought in to a -- by the Government.

They started with a commission of an act which is prohibited by a criminal statute and the question was what consequences resulted from that.

The other fact is that there is no question on this record as to the -- Mr. Lynch's insanity at the time (Voice Overlap) --

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of Burke Marshall

Mr. Burke Marshall: To clear up this point of the way that I worded my statement about the commission of a crime, I think that on the record, there is no challenge to the fact that the government proved in this trial all the material elements of the criminal acts except sanity and that's all that I meant is that there's no question but that it started with the commission of acts which would be criminal were not it for depe -- for the defendant's insanity.

Chief Justice Earl Warren: (Inaudible)

Mr. Burke Marshall: There is no record, Mr. Chief Justice.

I think there is a presumption of regularity and, as I say, the -- there is no challenge to it.

Chief Justice Earl Warren: (Inaudible)

Mr. Burke Marshall: There is no transcript of the trial proceedings.

Justice Felix Frankfurter: (Inaudible)

Mr. Burke Marshall: No, there was no suggestion by the Court of Appeals, Mr. Justice Frankfurter.

Justice Felix Frankfurter: (Inaudible)

Mr. Burke Marshall: Well, I do not think that, in this particular case, there's any dispute as to what happened in the Municipal Court, any basic dispute.

The record does show that when the case came on to trial before the chief judge of the Municipal Court, he had before him two reports from the hospital on the mental condition of Mr. Lynch.

One was about three weeks old.

That one said that, at that time, Mr. Lynch was incompetent, unable to understand the proceedings against him, unable to assist counsel, and that that report recommended commitment and further treatment at the time.

The other report was dated just the day before the trial.

That said that he had made improvement.

That he was now able to understand the nature of the charge and to assist counsel, but that at the time the crimes were committed, he had been suffering from a mental disease, which the report diagnosed as a manic depressive psychosis, which is a very serious mental disease and that, in the opinion of the psychiatrist who wrote the report, the crimes or the criminal acts had been a product of that mental disease.

Those two reports were before the judge.

Justice Felix Frankfurter: Are they (Inaudible)

Mr. Burke Marshall: Yes, they are, Mr. Justice Frankfurter.

Chief Justice Earl Warren: Mr. Marshall, who made -- who made the decision that (Inaudible)

Mr. Burke Marshall: Mr. Chief Justice, it is -- the record simply doesn't show what happened on that point.

In fact, the record doesn't show whether the court, on its own motion, called the psy -- psychiatrist or whether the government called him or even whether or not it was on the case on -- in chief.

It does show -- all that it shows is that there were these two reports before the judge and that it was in the context of those two reports that the judge rejected the plea of guilty and proceeded to trial.

Unknown Speaker: (Inaudible)

Mr. Burke Marshall: At the trial, yes, Mr.--

Unknown Speaker: (Inaudible)

Mr. Burke Marshall: No, it is not.

Unknown Speaker: (Inaudible)

Mr. Burke Marshall: Well --

Unknown Speaker: (Inaudible)

Mr. Burke Marshall: But the --

Justice Felix Frankfurter: (Inaudible)

Mr. Burke Marshall: Mr. Justice Frankfurter, I'm afraid that I just can't answer that question in general because I'm not familiar enough with the proceedings before the Municipal Court.

Justice Felix Frankfurter: (Inaudible)

Mr. Burke Marshall: I think it --

Justice Felix Frankfurter: (Inaudible)

Mr. Burke Marshall: I think that's correct, Mr. Justice Frankfurter, but I don't think that it raises a problem in this case because the petitioner, as I understand this case, does not really challenge anything that went on in the Municipal Court, except it --

Justice Felix Frankfurter: (Inaudible)

Mr. Burke Marshall: No, Mr. --

Justice Felix Frankfurter: (Inaudible)

Mr. Burke Marshall: Well, I think the point is this, Mr. Justice Frankfurter, that he was not tried on a question of sanity or insanity.

He was tried for the commission of two criminal acts and in that trial there was evidence of his mental condition and on the basis --

Justice Felix Frankfurter: (Inaudible)

Mr. Burke Marshall: Mental condition at the time of the commission of the crimes.

Justice Potter Stewart: The fact that he was tried at all raises the presumption that there was a finding that he was competent at the time of the trial, doesn't it?

Mr. Burke Marshall: Yes sir, he was competent at the time of the trial.

The judge necessarily had to find that before he put him to trial.

Justice Potter Stewart: And, therefore, presumably he entered the trial at the time of the commitment.

Mr. Burke Marshall: That's correct Mr. Justice Stewart, but on that point, of course, there is a great difference between being competent in the sense of being triable, of being able to understand the proceedings and being under the District of Columbia rules legally --

Justice Potter Stewart: Responsible --

Mr. Burke Marshall: -- responsible criminally.

Justice Potter Stewart: I understand, I understand.

Justice Felix Frankfurter: Therefore, if one man before him, the testimony of the petitioner, testified regarding the responsibility (Inaudible) and make it sufficiently, implicitly (Inaudible) to what he testified, is one because you say that the commitment as of now was not without justification?

Mr. Burke Marshall: Well, Mr. Justice Frankfurter, I think that I'd better clear up this confusion.

The -- Mr. Arens did not say -- I did not understand him to say and there's nothing in the record that alleges that Lynch was or was not competent at the time of the trial.

Lynch, on his petition for habeas corpus, does not allege sanity right now.

There is no claim that he has recovered from the mental disease which existed at the time of the commission of the crimes, but that does not mean that the court had, in order to make this commitment, make a finding at the trial that he was then insane.

The court proceeded under the statute and the statute operates from a finding of not guilty by reason of insanity.

Once that finding is made by a court or by a jury in a criminal proceeding, under the statute in the District of Columbia, the commitment follows as a matter of law.

Unknown Speaker: Well--

Justice Felix Frankfurter: (Inaudible) the meaning that whether that is perfectly proved that at the time of commitment, he was sane.

He was (Inaudible) and, having no evidence or having evidence the other way (Inaudible) as he is not under the statute, but the statute is applied.

That might make one result on the validity of the statute which gives presumption (Inaudible) mental health irresponsibility at the time of the commission of this act and write another (Inaudible)

Mr. Burke Marshall: Well, I do not think, Mr. Justice Frankfurter, that on this record it could be said that there was any affirmative evidence of sanity at all, of any court -- of any kind at any point, but I don't want to give the impression that the court found him to be insane at the time of his trial because that would be a misstatement of what the court did.

Justice William J. Brennan: But you do say, I gather, that the court did find him insane at the time of the commission of the offense that -- or that the verdict implies an affirmative finding of insanity at the time of the commission of the offense.

Do you say he --

Mr. Burke Marshall: No, Mr. Justice Brennan, I don't say that.

The -- under the Davis case in the federal system and under the Tatum case in the District of Columbia, once the evidence of insanity is introduced, put in issue at all, either by the government or by the defense, then there is a burden on the government to prove sanity at the time of the commission of the offense beyond a reasonable doubt.

Justice William J. Brennan: So that all that we actually have here then, indeed we have no finding of any kind on this record that at the time of the commission of the offense, he was in fact insane.

All that we have is that there is a reasonable doubt of his sanity which is implicit in the verdict and also is all that we're to take the finding of the judge to mean.

Mr. Burke Marshall: That's right.

That's the only finding, Mr. Justice Brennan.

On the other hand, as I say there is no allegation of sanity either at the time of the commission of the offense or at the time of trial or now.

He does not on this record, raise the question of insanity.

Unknown Speaker: What is the date of the offense being charged?

Mr. Burke Marshall: I believe that the offenses were in October and the trial was in December.

Justice Felix Frankfurter: (Inaudible)

Mr. Burke Marshall: That's I think correct, Mr. Justice Frankfurter, and I think the --

Justice William J. Brennan: Well, that isn't true that that's not the premise, Mr. Marshall, as I understood it.

The premise is not that there was any finding of insanity in October.

Justice Felix Frankfurter: There is.

Mr. Burke Marshall: No --

Justice William J. Brennan: But, Mr. Marshall had just said that there it is not.

Mr. Burke Marshall: Mr. Justice Frankfurter, the effect of the finding of not guilty by reason of insanity is to find that there was -- the government has not proved his sanity at the time of the commission of the offense.

It is not an affirmative finding under the statute of insanity.

Justice Felix Frankfurter: (Inaudible)

Mr. Burke Marshall: Well, with that amendment, I think that your statement is correct that the carryover, the time lag, between what -- the finding that the court did make as to mental competence was from October which was the time of the commission of the offense until December.

Justice Felix Frankfurter: But, I might have a different case.

I might have a different case if the crime for which he has been charged and as to which he was indicating (Inaudible)

Mr. Burke Marshall: That's right, Mr. Justice Frankfurter.

Of course, unless he disappeared or something, there would normally not be a --

Justice Felix Frankfurter: But there might be a finding that (Inaudible)

Mr. Burke Marshall: That's right.

Chief Justice Earl Warren: Mr. Marshall, from the standpoint of procedural due process finding the evidence here (Inaudible), when does the record show that he first had not been (Inaudible) for his sanity.

Mr. Burke Marshall: Well, Mr. Chief Justice, the first knowledge, I suppose, that he had -- that he was actually going to try -- trial was when the court rejected the plea of guilty.

Now, that --

Chief Justice Earl Warren: That's on the day of the trial.

Mr. Burke Marshall: That's on the day of trial, Mr. Chief Justice.

Of course, I would not accept that characterization of what went on.

The trial court did have before it, when it was faced with this defendant in this case, it did have before it these two psychiatric reports which indicated -- which really constituted overwhelming, I think, evidence of his innocence at that time.

The psychiatric reports showed that it was the opinion of the psychiatrist who examined him that at the time of the commission of the offenses, he was the victim of a manic depressive psychosis which is a very serious mental disease in any terms and that, as a result of that, he did what he did which was the criminal acts and, so that, it was in that context that that was the situation the trial judge was faced with and --

Chief Justice Earl Warren: Do you mean the trial judge prejudged him before the he got to trial?

Mr. Burke Marshall: No.

I -- Mr. Chief Justice, I mean that when the court -- when the trial judge came in and was faced with this change in plea in the entrance of a plea of guilty, he had before him these two psychiatric reports and the psychiatric reports I think, as I say, indicated to the trial judge really very, very strong evidence of innocence, of innocence of the crimes with which this man was charged.

So that, the court was faced with a position of having to accept, if he did what the defense counsel wanted to do -- him to do, accept the plea of guilty under situation when he knew that the man who was pleading guilty was not in fact guilty or at least, Mr. Chief Justice, he is -- he had overwhelming reason to believe that from what was plainly in front of him at that time.

I think that it's in that context that we have to look at the -- at the propriety of what the trial judge did.

Chief Justice Earl Warren: Mr. Marshall, are you sure (Inaudible) the only -- the only thing that got to my mind is, is the procedure that he'd gotten.

The one that should and can be followed in the federal cases in order to deprive the man (Inaudible) he had the burden of proving beyond a reasonable doubt (Inaudible) defense?

Mr. Burke Marshall: Well, Mr. Chief Justice, I would -- I don't know what would happen in that case.

I don't know what would happen either at the trial court or, even more importantly, at the time of the release procedures under the statute.

There is no doubt that the statute covers all kinds of crime.

I mean, the mandatory commitment statute of the District of Columbia covers crimes that are brought -- are charged by indictment and crimes that are charged by information and crimes that are brought before the juvenile court, so that there isn't any limitation in the statute based upon the magnitude of the crime, but we are dealing with a series of procedures that starts with the trial judge.

Now, the trial judge, in considering a plea of guilty in the Municipal Court of the District of Columbia has, under the rules of that court an area of discretion.

In this case, with the evidence before him, which was not a very minor mental aberration but of a very serious mental disease and with the crimes before him -- that were before him, exercised his discretion in that case in the way that he did.

I think it's very difficult to tell how a trial judge would exercise his discretion in another case.

And --

Chief Justice Earl Warren: (Inaudible) in this case have accomplished his purpose if he had said that this is probably a minor offense.

To me (Inaudible), he's mentally ill.

I'm not going to try him this time for this crime.

We'll dismiss this proceeding and I'll instruct (Inaudible) simple insanity proceeding against him.

And then, if on that jury, he was found to be not mentally ill, then the prosecution who will give the charge for this (Inaudible)

Mr. Burke Marshall: I think Mr. Chief Justice that no that course of action was not opened to the trial judge.

Chief Justice Earl Warren: Why?

Mr. Burke Marshall: Because I don't think that the trial judge has the authority or power just to dismiss a criminal proceeding when the government has proof that the man did it -- did the act.

I don't think that that was a course.

Now --

Chief Justice Earl Warren: Suppose the judge had offered a dismissal.

Mr. Burke Marshall: No, Mr. Chief Justice, I don't.

I think that the judge has to proceed to trial if the government wants to bring it to trial.

Justice Potter Stewart: That's -- you're getting into the next case.

[Laughter]

Mr. Burke Marshall: Well, I'm not acquainted with the next case, Mr. Justice.

[Laughter]

Maybe that's fortunate.

Justice Felix Frankfurter: (Inaudible)

Mr. Burke Marshall: Well --

Justice Felix Frankfurter: I know --

Mr. Burke Marshall: We don't have a Burge's law, Mr. Justice Frankfurter, in this case.

I can answer the question in terms of this case.

I can't answer it in terms of every criminal trial in the District of Columbia because I don't know, it may vary.

But, in this case, the psychiatrists that testified were all clearly independent witnesses in the sense that their testimony in any normal case would've been contrary to the best interest of the prosecution.

They testified -- usually if the government calls a psychiatrist, it does so in rebuttal and it does so to rebut defense testimony of other psychiatrist who says that a man is insane.

The testimony in this case, though it is not in the record, I think, presumably must be of all had been to the effect that the defendant was insane at the time of the commission of the offenses.

Justice Potter Stewart: Mr. Marshall, while we're little a field, we're dealing here of course with a statute applicable only to the District of Columbia.

Am I right in understanding that the generally applicable federal statutory scheme provides that in the -- in criminal cases tried anywhere in the United States, except the United -- District of Columbia, that if a person pleads not guilty by reason of insanity and is acquitted by the judge or by the jury upon that plea, that he walks right out of the courtroom and that the district judge has no duty and no power to do anything about it.

Mr. Burke Marshall: That, I think, Mr. Justice Stewart is a necessarily -- necessary result of the federal system, except in the District of --

Justice Potter Stewart: Because these are matters of state concern --

Mr. Burke Marshall: That's right.

Justice Potter Stewart: -- and not federal concern.

Mr. Burke Marshall: That's right.

It's -- the District of Columbia is, as this Court has recognized, is a peculiar mixed jurisdiction --

Justice Potter Stewart: Yes.

Mr. Burke Marshall: -- and the matters that we're dealing with in this case are matters of District of Columbia law and it's --

Justice Potter Stewart: So, the answer to my question is yes.

My understanding is correct, he walks right out --

Mr. Burke Marshall: That's correct.

Justice Potter Stewart: -- a freeman subject of course to any commitment procedures which anybody might want to invoke under this applicable state law.

Mr. Burke Marshall: That's right.

Justice Potter Stewart: Now --

Mr. Burke Marshall: I believe that, normally, it is the practice to refer the matter to the state civil authorities to -- for a commitment proceeding, but there is no -- nothing under the statute and I'm not sure that there is anything constitutional that the federal government could do in those circumstances.

Justice Potter Stewart: Let me ask you another question.

Is there any -- is there any state statute which is like this District of Columbia statute which makes commitment absolutely inflexibly imposable --

Mr. Burke Marshall: I believe --

Justice Potter Stewart: -- and doesn't allow the judge any discretion at all.

Mr. Burke Marshall: I believe, Mr. Justice Stewart, that there are 11 states that have mandatory commitment statutes that are like this and the British statute is like this.

There are other statutes where, although they do not require a present finding of insanity, leave the judge -- the trial judge some discretion.

If you add it up, the states which have either an inflexible mandatory commitment law or a commitment law which does not in by its terms, require a present hearing and finding on the issue of insanity, I think there are about 29 or 30 states like that.

As I say, that's the British practice.

Before this statute was --

Chief Justice Earl Warren: (Inaudible)

Mr. Burke Marshall: Where there is a finding of not guilty by reason of insanity, which is what we have here, that either the statute requires commitment right then and there, as does this statute which is 11 states, or it permits the trial judge to commit him without any intervening hearing, but as a matter of discretion and not as a mandatory matter, as is true under this statute.

That's a general summary, Mr. Chief Justice.

There may be minor variations in it.

Chief Justice Earl Warren: (Inaudible)

Mr. Burke Marshall: There are, Mr. Chief Justice.

There are some that require a full hearing.

I think that's only three states, but there are about 18 additional states which require some kind of an intervening hearing.

I think that in this case, speaking to the Municipal Court's discretion and his exercise of discretion, that he did -- that the existence of the statute in the District of Columbia affected the exercise of his discretion in that he did have a statute before him.

The statute had been passed by Congress in a specific situation by reason of the developments of the Durham rule.

The intent of the statute to apply to acquittals by reason of insanity was very specific and I think that, as I say, in exercising his discretion under the rule, he did have to take into account this congressional intent in the statutory situation.

In addition, it seems to me that it is in a way remarkable that we have the petitioner and we have the American Civil Liberties Union, here, arguing for a rigid rule of law, a rigid rule of law that would require a trial judge faced with this kind of a situation to ignore evidence of insanity, which is evidence of innocence, and proceed to accept a plea of guilty.

In fact, the cases -- some of the cases in the District of Columbia, in this area, have suggested that that -- it would be an abuse by the trial judge to accept a plea of guilty under the -- those circumstances, that failure of trial counsel to raise the point under those circumstances would be an ineffective assistance of counsel.

Justice William J. Brennan: Well, as I understand it, Mr. Marshall --

Mr. Burke Marshall: Now, I am speaking --

Justice William J. Brennan: It goes even beyond this, doesn't it?

Do I correctly understand the District of Columbia cases to say that if the prosecution has knowledge of facts which might indicate mental disability at the time of the offense, the prosecution is bound to follow that contention in the case?

Mr. Burke Marshall: Well, Mr. Justice Brennan, I think that that would be the duty on government prosecution.

Justice William J. Brennan: Well, my question was --

Mr. Burke Marshall: But --

Justice William J. Brennan: -- is there anything in any of the District of Columbia cases which suggest that that is the view?

Mr. Burke Marshall: I was going to go on and say I don't know -- I don't know that to be true in the District of Columbia cases.

I may be wrong about that, but I don't know of any statement to that effect, but I must say that I think it would be unconscionable on the part of the government not to bring evidence of this nature to the attention of the trial judge.

We are talking at this point simply of his discretion in doing what he did.

Thurman Arnold, when he was on the Court of Appeals here, said that it offended the collective conscience of our society to impose a punishment where we could not impose blame.

If this rule of law is -- that is being contended for were to operate it would be a necessary result of it.

The trial judges would not have discretion but would be required by this Court to accept plea of guilty and to impose punishment where it could not impose blame or at least where it would have overwhelming reason to believe that it should not impose blame.

Chief Justice Earl Warren: But, Mr. Marshall (Inaudible) and he's only charged with a misdemeanor, shouldn't either the court or the prosecution notify at the trial it is not going to contend his guilt but only the fact that he is insane, thus, giving him an opportunity to prepare his defense to get the witnesses, that he needs to get the psychiatrist that he needs, and then (Inaudible) but the prosecution couldn't get to court in the abnormal way.

We must concede that it's abnormal for the prosecution to offer evidence in sanctity of the penalty in this case in chief.

Wouldn't the offense, in the nature of the prosecution, given that notice of (Inaudible) prepare if he wanted to contest the question of his insanity?

Mr. Burke Marshall: Well, Mr. Chief Justice, if there were any suggestion here, any allegation, that the defendant had been in -- had been prejudiced by this or if the -- his lawyer had asked for a continuance at the time that the re -- plea of guilty was rejected, I think that maybe the Court of Appeals for the District of Columbia might have reversed if the trial court had refused to grant a continuance, but this came up in a context where the man had been confined in the District of Columbia General Hospital for observation.

He really had no -- there is no suggestion at all that he hadn't done these acts that were defined as being criminal in the District of Columbia Code and I just think that the possible prejudice of that sort is not presented in this case and, as I say, it was not raised.

There is no suggestion of that raised in the trial court.

Chief Justice Earl Warren: May I ask you what (Inaudible) if the petitioner did prevail in this case and which position he was released from custody to Saint Elizabeths Hospital from the authorities that the hospital thought that he was still insane.

Could they then initiate (Inaudible)?

Mr. Burke Marshall: I believe, Mr. Chief Justice, that under the District of Columbia law when he is confined in a hospital, including Saint Elizabeths, because of mental illness, that the superintendent of that hospital can initiate civil commitment proceedings.

Chief Justice Earl Warren: (Inaudible)

Mr. Burke Marshall: I'm not fully acquainted with all the procedures under the civil commitment, but I think that would certainly be a basic and maybe the relevant difference in this case.

Justice Felix Frankfurter: (Inaudible)

Mr. Burke Marshall: The --

Justice Felix Frankfurter: Are you suggesting that (Inaudible)?

Mr. Burke Marshall: No, I don't think so, Mr. Justice Frankfurter.

He did make the point about not having enough time to prepare.

Justice Felix Frankfurter: (Inaudible)

Mr. Burke Marshall: But I don't think that Chief -- Judge Fahey's basic point was that the commitment was unlawful.

Justice Felix Frankfurter: I know, but he said that what was an unfair -- an unfair trial turning a proceeding for a commitment.

Mr. Burke Marshall: That's right.

Justice Felix Frankfurter: Now, in that case (Inaudible) case, but that issue is not handled (Inaudible)

Mr. Burke Marshall: That's right.

He states the opposite, I believe.

Justice Felix Frankfurter: Yes.

Now on that assumption or assuming that (Inaudible) and I hope you'd say something as to what this Court would do assuming that this, otherwise, mean that (Inaudible)

Mr. Burke Marshall: Well, Mr. Justice Frankfurter, if -- if it were solely a question of his not having time or something, I believe in the district, he could've raised that question by appeal.

His petition for habeas --

Justice Felix Frankfurter: I'm not talking about how to correct an error.

I guess you say what the judge did here all points (Inaudible)

Mr. Burke Marshall: Well, if we pass that point and pass the peculiarity of the question of time and whether or not he had time to prepare or to meet the government's case here, I think we are straight up against the provisions in the constitutionality of the District of Columbia Statute of Section 301.

That statute does provide for mandatory commitment.

It does apply to anyone who has been acquitted by reason of insanity on any charge for any offense in the District of Columbia, whether by indictment or by information or in the juvenile court.

The basic con --

Justice Felix Frankfurter: (Inaudible)

Mr. Burke Marshall: On its face, Mr. Justice Frankfurter, irrespective of the timeline as well.

Justice Felix Frankfurter: (Inaudible)

Mr. Burke Marshall: Well, Mr. Justice Frankfurter, the District of Columbia statute is really in two parts, one part dealing with the commitment procedures and the other part with release procedures.

How you get out once you're in?

The part dealing with commitment procedures in my judgment does not have any leeway on this point.

It is a mandatory commitment statute and it applies to anyone acquitted by reason of insanity, and I don't know of anything in either the language of the statute or in the history of the statute that the court could rely on to say that it didn't apply to everyone acquitted by reason of insanity.

Justice Felix Frankfurter: (Inaudible)

Chief Justice Earl Warren: Mr. Marshall, is it making any difference at all under the presentation of the Court of Appeals had put on this statute whether the trial is two months or two years after the commission of the offense because, as I understood you to say a little earlier, the finding of the court is not (Inaudible) at the time of trial.

The finding is what it was at the time of the commission of the offense.

So, no matter how long after the offense, the evidence can still be insane or the finding insane as to what his mental condition was at that moment.

Is that right?

Mr. Burke Marshall: That's correct, Mr. Chief Justice.

Justice Felix Frankfurter: hat does not meet my point that if a finding of his mental condition at the time of the offense is a week before the time of the trial, the statute may indulge the presumption of continuity which it might not (Inaudible) here.

Mr. Burke Marshall: Mr. Justice Frankfurter, the experience under this statute, as far as I know, there is no case where it has proved to be the fact that someone committed under the statute was in fact not insane at the time that he was committed.

That is, the experience under the statute, I think, has been such that there has never been an instance where the timeline was so great.

And you can see, in a way, why that would be so because under normal situations, unless the defendant can't be found, he would be brought in and if he's incompetent to stand trial at that time, he'd be submitted to the hospital for treatment.

The treatment of these diseases takes an appreciable amount of time.

It isn't like getting over something with a defined beginning and defined end like measles.

The time that it takes normally in order to make improvement requires hospitalization and treatment.

Justice Felix Frankfurter: (Inaudible)

Mr. Burke Marshall: Well, Mr. Justice Frankfurter, I don't think there would be that long a delay unless the defendant was, in the meantime, in a hospital receiving treatment until he became mentally competent to stand trial.

Justice William J. Brennan: As a matter of fact here, Mr. Marshall, but for the fortuitous circumstance that within two months, the psychiatrist would say he had improved after he had been confined on a conclusion that he was not competent to stand on trial, he might still have been there and not been brought to trial.

As of today, nobody knows and that period might have been much longer than two months that have been factored in.

Mr. Burke Marshall: That's correct -- that is correct --

Justice William J. Brennan: And that (Voice Overlap)

Mr. Burke Marshall: -- Mr. Justice Brennan, but, under all that time, he would be under the treatment of doctors and the doctors during all that time would be faced with a statutory responsibility of informing the judge -- informing the court as soon as he became competent to stand trial.

The hospital is, of course, very crowded and the staff of the hospital is conscious of this statutory duty.

He isn't -- the way that it is set up, I think that it is not -- it's at least unlikely that he would sit there because of inertia on the part of the hospital staff.

Justice William J. Brennan: No, I'm not suggesting that but I assume there must be some instances of commitment that this one was made initially because they felt he was not competent to stand trial where a long period of treatment, hospitalization is required before there is a certification.

Well, now, he is competent to stand trial.

Mr. Burke Marshall: But my point, Mr. Justice Brennan, is that I don't think that would affect Mr. Justice Frankfurter's concern because if the delay was by that reason, it would all the time be delay while he was in a hospital and while doctors were watching him to see if he became competent to stand trial, so that the delay between the time of that finding and the trial itself would be very short.

Justice Felix Frankfurter: (Inaudible) the question might not be raised.

Mr. Burke Marshall: Well, it is possible, Mr. Justice Frankfurter, that in some case in the district for some reason or another, that if he left the jurisdiction that there might be a substantial period of time between the commission of the crime and the trial on that charge and --

Justice Felix Frankfurter: When was the statute first passed?

Mr. Burke Marshall: It was passed in 1955.

The Durham rule was -- was handed down in the District of Columbia in 1954 by the Court of Appeals.

Justice Felix Frankfurter: Are you now defending the constitutionality of the (Inaudible) on the ground that there were numerous (Inaudible) where ever they were committed at the time that the defendant (Inaudible)

Mr. Burke Marshall: I think that the experience under the statute, as I know of, Mr. Justice Frankfurter, was relevant to your question which was --

Justice Felix Frankfurter: (Inaudible) in the administration here --

Mr. Burke Marshall: I think that --

Justice Felix Frankfurter: (Inaudible) it was happening here, giving through judgment by declaration or judgment by experience.

Mr. Burke Marshall: Well, I think judgment by experience in this instance, Mr. Justice Frankfurter, is relevant because the challenge to the statute -- this part of the statute is upon the basis that it was irrational, irrational for Congress to make the judgment.

Justice Felix Frankfurter: (Inaudible)

Mr. Burke Marshall: And, I would -- I do not have them firmly in my head but I think there must have been --

Justice Felix Frankfurter: (Inaudible)

Mr. Burke Marshall: There are a large number -- there are a large number of them.

I would -- there are over 200 or 300, Mr. Justice Frankfurter.

They all appear in some hearings in Congress last year and I can get you that figure.

I can get you a figure.

Justice Felix Frankfurter: (Inaudible) without seeing how the statute actually operates.

Mr. Burke Marshall: On the operation of the statute and the general context of the statute, the context in which it is -- was passed, I think that it is also relevant and that the Court should give some weight to the fact that it is in opposite or a result, a consequence, as a matter of legislative history of the Durham rule.

The Durham rule, the direction of the Durham rule, the movement of the Durham rule was in treating mentally ill as being mentally ill and not as being insane.

I think that that movement is generally accepted as having been a good one.

It is a result, one consequence of that, necessarily, is that more people are acquitted by a reason of insanity under the District of Columbia than they would be under the tests of insanity or criminal responsibility that are applied in other jurisdictions, and another consequence of it is that the consequence of having been tried that -- the consequence of this rule of criminal administration is a treatment rather than imprisonment and it's a corollary of that or another consequence of the Durham rule and the statute that followed the Durham rule that the length of time which someone might spend in confinement is not necessarily related to the -- to the magnitude of the offense with which he is charged.

As I say, that seems to me to be a necessary and inevitable consequence of a rule in the District of Columbia which permits the advance in the administration of criminal justice by the use of psychiatrists, by the recognition that insanity and responsibility is not necessarily related to specific or certain mental diseases.

And, I think that it is the frustration with this fact, the frustration with the fact that the treatment for someone who is mentally ill is not necessarily related at all to the length of imprisonment which he would suffer if he had been found guilty.

It's that frustration which gives rise to this case.

Chief Justice Earl Warren: Mr. Marshall, if we were -- if were to hold in this case that the statute itself would require (Inaudible) by insanity was constituted but that the rights of this particular defendant had been violated (Inaudible)

Mr. Burke Marshall: I think, Mr. Chief Justice, the answer to that is that in no practical way would it be injured.

I think it would injured in that -- I think in no practical way that would be injured, I think that it would be sort of unrelated to the contentions advanced by the petitioner in this case.

Chief Justice Earl Warren: Yes but you're representing this man (Inaudible)

Mr. Burke Marshall: Well, Mr. Chief Justice, I agree with you about that but I just, as I say, don't think that it's raised in this case.

He -- the defendant, if he had asked for a continuance, if he had asked for more time, if he had -- if he now even claimed that he could've proved sanity at that time, which is not a claim that he makes on the record, if any of those things were true, I don't think this case would've come to the Supreme Court of the United States.

I think that that kind of error and I think it might have been an abuse of the discretion of the trial judge, not to grant a continuance, but the trial judge was not asked for a continuance.

Chief Justice Earl Warren: (Inaudible)

Justice John M. Harlan: Could I put a question to you, this concession which perhaps has been answered before the white light or red light goes on.

Bearing in mind that our duty is to construe this statute if we can avoid constitutional question on the basis of our constitutional evidence, I wish you would explain to me what the insurmountable obstacles are to construing the statute as not applied or as applying only in the case where a plea of insanity has been imposed?

Mr. Burke Marshall: A plea of insanity has been imposed?

Justice John M. Harlan: Has been interposed by the defendant?

Mr. Burke Marshall: Well, the statute, Mr. Justice Harlan, reads as follows.

It says when any person tried upon an indictment or information --

Justice John M. Harlan: Literally, I agree with you.

You don't have to take time on that, but are we excluded from reading the statute in a way to avoid constitutional questions by -- is this statute so inconsistent, so impermissible, so inconsistent that instruction is impermissible?

Mr. Burke Marshall: I think, Mr. Justice Harlan, the best I can say -- the best way I can answer that is that -- is that it would -- it has no basis at all in the statutory language.

The statutory language talks about people who are acquitted by reason of insanity.

It does not talk about it in terms of whether or not there was a defense imposed and the law in the District of Columbia and the law in the federal system at that time was that the issue of insanity could be raised by evidence introduced by either side.

Justice John M. Harlan: In other words, if there was a gap construing the statute, as I suggest that it might be construed, if there was a gap in fulfilling -- left a gap in fulfilling the congressional purpose, I would say that was impermissible.

But, as I understand the type of operation of this, if the statute was construed as I'm now hypothesizing and the man were sent to Saint Elizabeths and the superintendent looked him over and said “well, this no -- man is no longer insane.

He has recovered.”

It would be his duty to release him.

Now, if the judge, faced with that kind of a limited construction of the statute, said “well, alright, there's been no plea of insanity here but I've looked at this man and he seems to be very insane and I will send him to prison, as I have to do, and tip off the warden.

He better take a look at him” and, the warden sends him over to Saint Elizabeths for examination and Saint Elizabeths said “we believe that the man is not insane at the moment” and out he goes.

What's the difference between the two things as a practical result?

What gap is left in the administration of the statute?

Mr. Burke Marshall: Well, Mr. Justice Harlan, the principal gap that would be left in the procedure that you suggested is that the time for his treatment in the hospital would necessarily be related to the punishment, the length of punishment for the offense that he's been cre -- he committed.

The -- among other things --

Justice John M. Harlan: I'm hypothesizing in both instances that the man -- the only justification that under either procedure the war -- the -- Saint Elizabeths who have obtained with or above the sentence would be if he is found then un-recovered from his insanity both instances if they found him sane at the time, even though insane at the time of his -- at the time of the commission of the offense or would it be duty to release?

Mr. Burke Marshall: Well, of course, that's -- Mr. Justice Harlan, if he found him ins-- found him sane at the time that the sentence would've expired, it's his duty to release him under this statute.

Justice John M. Harlan: I'm talking before the sentence expired.

Mr. Burke Marshall: Well, it is a duty -- it is the duty of the superintendent of the hospital to certify him as ready for release whether -- if he has a 99-year sentence and he recovers in 9 months, he gets released under the statute.

Justice John M. Harlan: Exactly.

Mr. Burke Marshall: And, I'm afraid I haven't grasped your question.

Justice John M. Harlan: Where is this gap?

Justice Felix Frankfurter: Mr. Marshall, I do not --

Mr. Burke Marshall: The gap occurs, Mr. Justice Harlan, as to prisoners who would -- whose term had not expired.

If -- if the court handed down a rule of law which would forbid a -- yes, sir?

Justice Felix Frankfurter: I'd like to (Inaudible)

Mr. Burke Marshall: Well --

Justice Felix Frankfurter: And, thereby, (Inaudible)

Mr. Burke Marshall: Mr. Justice Frankfurter, I don't know what kind of a choice that would leave the trial judge in this circumstance.

Now, if the trial judge accepted the plea of guilty, he could do what Mr. Justice Harlan suggests, and that is that he could sentence him and then suggest to the warden that the man ought to be looked at and, perhaps, sent to Saint Elizabeths.

But, if he did that, he did that, he would be finding a man whom the government and the court and defense counsel, all knew to be innocent and he would be imposing a finding of guilty and imposing a sentence, a con -- a sentence of conviction under those circumstances.

On the other hand, if he proceeded to do what I would think would be his duty as a judge and under conscience, which would be to take in the evidence of insanity, then -- and have a trial and not accept the plea of guilty, then the man would -- the defendant would be acquitted on the grounds of insanity and there would be no commitment statute in the District of Columbia that would be applicable to the case, which I think would defeat the intent of Congress.

Justice Felix Frankfurter: You worry about this situation.

That is what I'm worried about.

I'm worried about the statute being unconstitutional against a man (Inaudible) and you would think --

Mr. Burke Marshall: Well --

Justice Felix Frankfurter: (Inaudible)

Mr. Burke Marshall: Well, I think a very few of them, Mr. Justice Frankfurter, but there was an implication in your question which I would like to remove and that is that you said I believe that if necessary to change -- to save the constitutionality of the statute.

Of course, I do not think such a construction is necessary to change -- save the constitutionality of the statute.

I think that the statute is a rational act of Congress in equating treatment of the mentally ill --

Justice Felix Frankfurter: (Inaudible)

Chief Justice Earl Warren: (Inaudible)

Mr. Burke Marshall: That's correct.

Chief Justice Earl Warren: Even if these two affidavits before him as to the competency of the defendant, the judge would've said, could he not, “I'm going to determine whether in my own judgment this man is competent to stand trial” could be all the difference?

Mr. Burke Marshall: Well, Mr. Chief Justice, I suppose that he could have, as a matter of procedure and power, but he would've been doing something for which there would be no justification in fact.

I do not think anyone contends, starting with Mr. Lynch and on to the government or the court that Lynch was not at that time competent to stand trial.

He was competent to stand trial in that he understood the nature of the charges against him and he was competent to talk to his lawyer and tell his lawyer what had happened.

The -- that is very different from not -- from being responsible in the criminal law sense.

Chief Justice Earl Warren: Mr. Arens.

Argument of Richard Arens

Mr. Richard Arens: Mr. Chief Justice and may it please the Court.

In summarizing what I've already said, may I state the question emerging in this case, is not essentially whether an insanity defense may be forced upon a recalcitrant and competent defendant with a view of spearing him life or loss of liberty.

The question is whether an insanity defense may be forced upon a recalcitrant and competent defendant with the view to depriving him of his liberty without adequate safeguards and I respectfully submit that the safeguards emerging from the situation confronting this Court were not adequate.

The government concedes that there was no formal notice.

The opportunity to defend effectively, in terms of psychiatric assistance was nonexistent and the standard of proof was clearly and explicitly that of reasonable doubt, and reasonable doubt alone.

There was no finding that petitioner was insane as of the time he was committed and, when committed, he was committed under circumstances that made his release subject to an onerous oppressive and, I submit, unconstitutional standard, a matter which is not all together relevant in considering his present plight.

The hypothetical situation applied by the Chief Justice strikes me as precisely the situation which would become common place if the Lynch rule were to be maintained.

We've suggested that the application of the Lynch doctrine would enable the prosecution to assert by no means implosively that almost any traffic violation was attributable to the tension generated by a mild and perhaps a very widespread mental disorder.

Such assertion backed by evidence presenting no more than a reasonable doubt concerning the mental health of a defendant as of the time of that violation would result in the commitment of that defendant to Saint Elizabeths Hospital for an indefinite period of time and one might add without any assurance of adequate treatment because the Court of Appeals in Auburn against Overholser declared the question of the adequacy of psychiatric treatment at Saint Elizabeths to be a matter of legislative and not a judicial concern.

I conclude, with the observation of a legal publicist, undoubtedly known to this Court, Aristotle observed long ago that punishment is a sort of medicine.

We have considerable cause today to observe that medicine can be a sort of punishment sans due process of law.

The use of medicine as punishment now calls for the correcting hand of this Court.