United States v. Hinckley Jr., John W

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 16, 1998 Decided April 14, 1998

No. 97-3094

John W. Hinckley, Jr.,

Appellant

v.

United States of America,

Appellee

Appeal from the United States District Court

for the District of Columbia

(No. 81cr00306-01)

Barry Wm. Levine argued the cause for appellant, with

whom John T. Kotelly, Adam Proujansky and Sarah M.

Mortenson were on the briefs.

Helen M. Bollwerk, Assistant United States Attorney, ar-

gued the cause for appellee, with whom Wilma A. Lewis,

United States Attorney, John R. Fisher, Thomas J. Tourish,

Jr., Robert R. Chapman, and Thomas E. Zeno, Assistant

United States Attorneys, were on the brief.

John M. Ferren, Corporation Counsel, Charles Reischel

and Janet L. Maher, Deputy Corporation Counsel, and Mau-

reen W. Zaniel, Assistant Corporation Counsel, were on the

brief for amicus curiae District of Columbia.

Before: Wald, Silberman and Henderson, Circuit Judges.

Opinion for the Court filed by Circuit Judge Wald.

Opinion concurring in the judgment filed by Circuit Judge

Henderson.

Wald, Circuit Judge: John W. Hinckley, Jr., an insanity

acquittee presently committed to St. Elizabeths Hospital in

Washington, D.C. ("Hospital"), filed a motion with the United

States District Court seeking a conditional release under D.C.

Code Ann. s 24-301(k) (1981). This release would have per-

mitted him to spend approximately one twelve-hour period

per month in the community, with his parents but otherwise

unsupervised. The Hospital did not support Hinckley's mo-

tion, and had already denied a similar request from him. The

United States also opposed the motion. See United States v.

Hinckley, 967 F. Supp. 557, 558-59 (D.D.C. 1997). After a

four-day evidentiary hearing, the district court, Judge June

L. Green, found that Hinckley continues to present a danger

to himself or others. It accordingly denied his motion for

conditional release. See id. at 558.

In the present appeal, Hinckley argues that the district

court's order should be vacated because, in a pre-hearing

evidentiary ruling, the district court held that the deliberative

process privilege shielded the discussion that took place be-

tween members of the Hospital's Review Board as they

considered whether to support Hinckley's conditional release.

Hinckley claims that this ruling prevented him from testing

the propriety of the Review Board's ultimate decision (made

before the present case began) to deny Hinckley a conditional

release. We reject this argument and affirm the district

court's opinion.

I. Background

Hinckley attempted to assassinate then-President Ronald

Reagan on March 30, 1981. In the process, he shot and

wounded four people: Reagan, Presidential Press Secretary

James Brady, Secret Service Agent Timothy McCarthy, and

Metropolitan Police Officer Thomas Delahanty. At his crimi-

nal trial, Hinckley presented evidence that he was suffering

from a mental disease and that his criminal actions were the

result of that disease. On June 21, 1982, the jury found

Hinckley not guilty by reason of insanity. The district court

then committed Hinckley to St. Elizabeths Hospital, where he

has remained to this day. See id.

During the course of his commitment, Hinckley has sought

various forms of release from the U.S. District Court. All of

these requests were either denied or withdrawn. In addition,

in 1987 and 1988, the Hospital asked the district court to

release Hinckley into the community under the supervision of

Hospital staff, but subsequently withdrew those requests.

See id.

The district court held a four-day hearing on Hinckley's

present motion for conditional release. Hinckley presented

five witnesses: two psychologists, two psychiatrists, and

Hinckley's father. See id. Hinckley's four experts all testi-

fied that Hinckley suffers from a psychotic disorder and

major depression, both of which are in remission, and from

narcissistic personality disorder, which is active. They also

testified that Hinckley would present a very low risk of

danger to himself or others if the district court granted his

request for conditional release. They further agreed that, if

Hinckley had a recurrence of his prior active mental illnesses,

any symptoms would develop slowly enough that they would

be detectable before an unescorted visit. See id. at 559.

The United States presented one fact witness, Commander

Jeanette Wick, and one expert psychiatrist, Dr. Raymond

F. Patterson. See id. at 558. Wick, who is Chief Pharmacist

at the Hospital, testified about her interactions with Hinckley.

She stated that she first met Hinckley when she offered to

lend him a book in late February or early March 1995. Wick

testified that Hinckley then began making fairly frequent,

and always unannounced, visits to her office. Over the course

of these visits, Hinckley gave Wick audio tapes of music he

had recorded, including one " 'love song' " that contained

Wick's pet name for her daughter. Wick also discovered that

Hinckley had been gathering information about her personal

schedule with her daughter. Id. at 559.

This continued for about three weeks, until Wick's staff

members told her that they believed she was spending too

much time with Hinckley. Wick testified that she then

informed Hinckley that he could not come to her office

without calling first. Hinckley nonetheless continued to make

unannounced visits, and Wick had to repeat her instruction.

At that point, the Hospital pharmacy began to receive a high

volume of hang up calls. When Wick answered the phone,

Hinckley would identify himself as the caller. Wick testified

that she reported these problems to Dr. Maureen Christian,

Hinckley's therapist, and then began to avoid Hinckley com-

pletely. See id. at 559-60.

According to Wick's testimony, however, she had to file an

incident report with the Hospital in September 1995 because

Hinckley had disobeyed instructions by delivering a package

to her. After the Hospital investigated, it imposed three

restrictions on Hinckley: (1) Hinckley was prohibited from

being in the general vicinity of the building in which Wick

worked; (2) Hinckley could have no social relationship with

Wick; and (3) whenever Hinckley planned to walk around the

Hospital grounds, he had to tell a member of his treatment

team what he was going to do and where he was going to be.

See id. at 560.

Wick further testified that she now sees Hinckley on the

third Monday of each month, when she attends a meeting in

the Acute Care Hospital building. Wick stated that Hinckley

is frequently standing in the lobby when she arrives, and

described one such encounter that took place in March 1996:

" '[Hinckley] glares at me. He stares at me. I guess the

kids would say, he stares me down.... I went to the

elevator, and as I went to the elevator, [Hinckley] re-situated

himself so he could keep me in his line of vision apparently.' "

Id.

The district court credited Wick's testimony, and found

that Hinckley had offered no evidence to rebut it. See id.

The government's expert witness, Dr. Patterson, also testi-

fied. Patterson agreed with Hinckley's experts that Hinck-

ley's psychotic disorder and major depression are in remis-

sion. However, he did not agree that Hinckley would not be

dangerous to himself or others if allowed to have unaccompa-

nied visits in the community with his parents. See id. Here,

Patterson cited a number of factors. Patterson explained:

"The last time Mr. Hinckley was in the Community,

unattended or unsupervised, the risk of dangerousness

was extremely high. That was 16 years ago. Therefore,

you have to consider past history and what factors went

into his having committed that offense, and his subse-

quent improvement as observed by hospital staff and as

reported by himself and by others, and the psychological

testing that demonstrates some improvements in some

areas and some concerns that some very core personality

issues remain unchanged."

Id. Patterson also based his opinion on Hinckley's "relation-

ship" with Wick, stating that it bore some " 'striking similari-

ties to the 'relationship' ... that he had with Ms. [Jodie]

Foster' " and raised questions about whether Hinckley was

obsessively infatuated with Wick. Id. at 560-61. The doctor

stated that Hinckley's behavior toward Wick was significant

because of Hinckley's history of stalking people, including

President Carter, President Reagan, and Jodie Foster. Pat-

terson described this past stalking as ultimately leading to

Hinckley's assassination attempt on Reagan. See id. at 561.

But, in the district court's judgment, Patterson's descrip-

tion of Hinckley's past and continued propensity for deception

and secretiveness, especially with respect to those responsible

for treating him, was the most important factor that the

doctor cited. Patterson observed that Hinckley's treatment

team did not know about his "relationship" with Wick until

nearly six months after the two had met. Patterson believed

that this was consistent with Hinckley's history, including the

failure of several mental health professionals who were treat-

ing Hinckley prior to his assassination attempt to detect

Hinckley's psychosis and the failure of the Hospital on several

occasions during Hinckley's commitment to detect behavior

that represented continuing symptoms of his mental illness.

See id. As Patterson elaborated:

"There have been in the Mid-'80's, let's say in '83 to '88, a

number of situations where Mr. Hinckley has not told

people that are his treaters what he's actually thinking or

doing. They relate to collecting pictures of Jodie Foster.

They relate to requesting a nude caricature of Jodie

Foster. Even up into the day before a hearing on the

matter, Mr. Hinckley stat[ed] that it had no sexual

content, was not nude.

They relate to his writing Ted Bundy, his writings

about Adolf Hitler, Charles Manson. And none of his

treaters knew that from Mr. Hinckley telling them until

he was confronted with it by third parties revealing that

information to Hospital staff."

Id.

Based on this evidence, the district court made the follow-

ing findings of fact: (1) "Petitioner's current diagnosis is

psychotic disorder not otherwise specified, in remission; ma-

jor depression, in remission; and, narcissistic personality

disorder"; (2) "Petitioner has a history of deception and a

record of screening information he is otherwise obligated to

provide to treating and examining clinicians"; (3) "[a]s re-

cently as March 1995-March 1996, Petitioner has engaged in

conduct with the Chief Pharmacist at the Hospital, Jeanette

Wick, that has disturbing parallels to the conduct leading up

to the shooting of President Reagan including the stalking of

President Carter and Jodie Foster"; and (4) "[t]he psycholog-

ical testing results indicate that Petitioner has made progress

but continues to be 'very defensive and represses a lot of his

feelings.' " Id. at 561-62. The court therefore concluded

that Hinckley would present a danger to himself or others if

granted a conditional release. See id. at 558.

II. Analysis

When Hinckley's motion for conditional release was before

the district court, his arguments relating to the Hospital

Review Board focused on the assertion that all evidence of

the Review Board's decisionmaking and opinions should be

inadmissible, because the Hospital had asserted that the

Review Board's deliberations were privileged. With consid-

erably less emphasis, Hinckley also contended that the deli-

berative process privilege did not apply to the Review Board's

deliberations at all.1 The district court disagreed on both

counts. It found that the deliberative process privilege did

protect the Review Board from having to disclose the sub-

stance of its deliberations. The district court also rejected

Hinckley's argument that all Hospital Review Board evidence

should accordingly be excluded, explaining:

[T]he Review Board's decision should not be excluded

simply because the privilege has been invoked. As dis-

__________

1 We reject the United States' argument that because Hinckley

did not expressly raise the deliberative process challenge in the

district court this court should apply a plain error standard in

considering whether the privilege protects the Hospital Review

Board's internal deliberations. Although Hinckley's motions before

the district court certainly concentrated on the contention that all

evidence relating to the Review Board should be inadmissible,

Hinckley clearly, if briefly, stated the essence of his present claim.

See Joint Appendix ("J.A.") at 157-58 ("Mr. Hinckley disputes the

application of those privileges [the deliberative process privilege

and the peer review privilege] in this context. Mr. Hinckley

believes the deliberative process privilege applies only to policy-

making, which was not at issue when the Review Board deliberated

on Mr. Hinckley's request ...."); id. at 222 ("[T]he deliberative

process privilege is what Congress does, it's what boards do when

they are formulating policy. And of course that has nothing to do

here either. So we believe the citation to those privileges and the

invocation of those privileges is spurious. So we object on the

grounds that there is no such privilege.").

cussed in United States v. Ecker, supra, the District

Court has a responsibility to consider all relevant evi-

dence. As the Ecker court stated, "[T]hese are truly

investigatory proceedings in which traditional notions of

proof are simply inapplicable. The district court, the

hospital, the patient, and the government share an obli-

gation to elucidate and explore all the relevant facts."

Id. at 193. Accordingly, the Court will not exclude the

Review Board decision from the evidentiary hearing. In

so ruling, the Court notes that all of the information and

records available to the Review Board are also available

to the parties here. If, in fact, the Government attempts

to introduce the actual decision into evidence, the Court

will give it such weight as it deserves.

J.A. at 164-65.

Ultimately, however, the district court's opinion mentioned

the Hospital Review Board's decision to deny Hinckley a

conditional release only twice. The second mention is clearly

irrelevant to the present appeal. It concerned Hinckley's

attempt to have the district court vacate an order requiring

the Hospital to give two weeks of advance notice to the

district court and the United States Attorney's Office before

taking Hinckley on supervised excursions into the community.

The district court denied this request on the ground, inter

alia, that it was moot because "the Hospital has not extended

'B-City' privileges to the Petitioner," which would allow him

to make supervised excursions into the community, "so the

notice requirement is not even an issue at this stage."

Hinckley, 967 F. Supp. at 563.

The first mention of the Hospital Review Board's decision

appears in the district court opinion's discussion of the "stan-

dard of review." To be understood properly, this discussion

must be read in full:

As a motion for conditional release made pursuant to

D.C. Code s 24-301(k), the Court is required to make

findings of fact and conclusions of law with regard to

whether the proposed release will benefit the patient and

be safe for the public. United States v. Ecker, II, 543

F.2d 178, 191 (D.C. Cir. 1976). In order for the Petition-

er to be successful, the Court must, after weighing all of

the evidence, find (by a preponderance of the evidence)

that the Petitioner "will not, in the reasonable future,

endanger himself or others." Id. at 187. The Court in

Ecker II noted that it is not "sufficient for the district

court merely to find that the patient 'is no longer likely

to injure himself or other persons because of mental

illness.' " Id. The Court must make an "affirmative

finding that it is at least more probable than not that

[Petitioner] will not be violently dangerous in the future."

Id.

In receiving and weighing the evidence, the Court is

not bound to accept the opinion of any expert witness but

is free to consider other evidence including "the patient's

hospital file, the court files and records in the case, and

whatever illumination is provided by counsel." Id. at

184-185.

In examining the evidence here, the Court notes that

the request for conditional release has not come from the

Hospital, but from the Petitioner and that the Hospital

has, in fact, denied a similar request made by the Peti-

tioner. Such a posture makes an exacting review of the

evidence that much more important.

Id. at 559. The district court's opinion proceeded to offer a

thorough description and analysis of the expert testimony and

evidence that was before it. The district court never men-

tioned the Review Board's decision in this discussion.

Hinckley argues that this court should vacate the district

court's order because the lower court improperly shielded the

Review Board's deliberations under the deliberative process

privilege. In our view, however, there are no grounds for

vacating the district court's opinion, even if the court's ruling

on the deliberative process privilege was mistaken--which we

do not believe to be the case. The most plausible reading of

the district court's opinion is that its review of the evidence

did not rely on the Review Board's decision denying Hinckley

a conditional release, much less on the Review Board's prede-

cisional deliberations.

The most plausible reading of the recited passage is that it

means exactly what it says. The fact that the Hospital did

not support Hinckley's conditional release did affect the dis-

trict court's standard of review. Under the relevant District

of Columbia statute, it meant that Hinckley bore the burden

of proof by a preponderance of the evidence, see D.C. Code

Ann. s 24-301(k)(3) (1981), whereas he would not have borne

that burden if the Hospital had supported his conditional

release and gone to the district court on his behalf, see id.

s 24-301(e). But after the district court established the

burden of proof, there is no indication that the district court

actually relied on the fact that the Hospital Review Board had

denied Hinckley a conditional release when the court was

independently evaluating the evidence in order to decide

whether it should release Hinckley. Indeed, the district

court's sole comment relating to that subject, which appears

in the last two sentences of the passage quoted above, states

only that the court undertook its de novo review extremely

carefully in light of the Hospital's denial of a conditional

release, a perfectly appropriate posture. Moreover, it is

clearer still that the district court did not rely on the sub-

stance of the Review Board's internal deliberations in coming

to its decision, precisely because the district court had no

knowledge of the content of those deliberations.

This, however, is not our only ground for affirming the

district court's opinion. We also find that, even if the district

court did rely on the Hospital Review Board's denial of a

conditional release when the court was conducting its review

of the evidence, the district court properly held that the

deliberative process privilege protects the internal delibera-

tions of the Review Board. Here, it is important to stress the

extraordinary nature of Hinckley's discovery request and the

consequently limited scope of our holding. Hinckley had

access to every piece of evidence that was before the Hospital

Review Board and to a written statement explaining the

Review Board's ultimate decision to deny him a conditional

release. The only part of the Hospital's entire process that

the district court protected under the deliberative process

privilege was the discussion that took place between members

of the Hospital Review Board as they reviewed the evidence

amongst themselves and came to their final decision. We

break no new ground with regard to the scope of the deliber-

ative process privilege in rejecting Hinckley's discovery re-

quest and affirming the district court's holding that the

predecisional deliberations of the Hospital Review Board are

protected under the deliberative process privilege.

A review of the steps that the Hospital followed in consid-

ering Hinckley's conditional release, and of the access that

Hinckley had to this information, makes that clear. Hinck-

ley's "treatment team" at the Hospital consists of a group of

mental health professionals who are directly responsible for

Hinckley's treatment and who make recommendations that

they believe will advance his therapy. Hinckley had full

access to the medical records that recount his treatment at

the Hospital. In June 1996, Hinckley's treatment team rec-

ommended that the Hospital grant him a conditional release,

which would allow him to spend one twelve-hour period per

month in the community, with his parents but otherwise

unsupervised. The treatment team also recommended that

Hinckley receive "B-City" privileges, which would permit him

to take excursions into the community under the supervision

of Hospital staff. See J.A. at 87. The treatment team

prepared a written report that made this recommendation

and explained the psychological assessment behind it. Hinck-

ley had access to this report, which appears in full in the joint

appendix. See id. at 78-94.

Under Hospital procedure, the Hospital Review Board,

which consists of every section head at the Hospital, has the

ultimate responsibility for deciding on behalf of the Hospital

whether to support a conditional release. The treatment

team accordingly presented its written report to the Hospital

Review Board. It also made an oral presentation to the

Review Board and answered questions from Review Board

members. The Hospital never asserted that any privilege

covered this presentation, or the questions and answers that

followed. In fact, Hinckley called Dr. John Kelley, a Hospital

psychiatrist who was part of Hinckley's treatment team and

who had made an oral presentation to the Review Board

about Hinckley's conditional release, to testify before the

district court. Kelley testified about who attended the meet-

ing between the Review Board and the treatment team and

what various people said, whether in making presentations,

responding to questions, or asking questions.

After this meeting between the treatment team and the

Review Board, the presenters and anyone who was directly

responsible for Hinckley's therapy left the room. The Re-

view Board deliberated on its own. The Hospital asserted a

deliberative process privilege, and the district court recog-

nized one, only with respect to these deliberations. See Brief

of the District of Columbia as Amicus Curiae at 4 ("The

District [of Columbia] is asserting that only the confidential

discussion of the Review Board, that occurs after the treat-

ment team finishes its presentation and after the Review

Board examines the record and questions the team, is privi-

leged."); Final Brief for Appellee at 36 ("[T]he only informa-

tion withheld from [Hinckley] by the Hospital was the sub-

stance of the Review Board's deliberations as its members

debated the appropriateness of the treatment team's recom-

mendations.").2 Once the Review Board came to a conclusion,

it made a note in Hinckley's medical chart recording its

decision and the reasons for its denial of a conditional release.

Hinckley had access to this note, and it is included in the joint

appendix. See J.A. at 215-16.

__________

2 At oral argument, the United States again confirmed the very

limited scope of the Hospital's assertion of privilege. The argument

proceeded as follows:

Q. What kind of material, I'm just sort of asking.... What

kind of material, generically, what kind of material didn't he

[Hinckley] get?

A. The only thing that he did not have access to was the

mental process of the Review Board members as they debated

the appropriateness of the conditional release.

Q. But no documents, no no no documents were withheld by

the Hospital [and] are not part of the record. But their

discussion, back and forth, is [withheld].

A. That is correct, your Honor. That is our position.

We find that the deliberative process privilege protects the

deliberations of the Review Board as it evaluated the evi-

dence before it in order to come to a decision about Hinck-

ley's conditional release.

This court has identified two prerequisites to the assertion

of the deliberative process privilege: In deciding whether

material is protected under this privilege, we consider wheth-

er the material is "predecisional" and whether it is "delibera-

tive." See, e.g., American Federation of Government Em-

ployees, Local 2782 v. U.S. Dep't of Commerce, 907 F.2d 203,

207 (D.C. Cir. 1990); Formaldehyde Institute v. Dep't of

Health and Human Services, 889 F.2d 1118, 1121 (D.C. Cir.

1989); Senate of the Commonwealth of Puerto Rico v. U.S.

Dep't of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987); Coastal

States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C.

Cir. 1980).

"A document [or information in another form] is 'predeci-

sional' if it precedes, in temporal sequence, the 'decision' to

which it relates. Accordingly, to approve exemption of a

document as predecisional, a court must be able to pinpoint

an agency decision or policy to which the document contribut-

ed." Senate of the Commonwealth of Puerto Rico, 823 F.2d

at 585 (citation and internal quotation marks omitted); see

also Formaldehyde Institute, 889 F.2d at 1122. In this case,

it is undisputed that the information Hinckley seeks concerns

the discussions that the Hospital Review Board had prior to

its decision on Hinckley's conditional release. These discus-

sions, moreover, were precisely designed to help the Review

Board reach its final conclusion on Hinckley's conditional

release. Accordingly, we find that the Review Board's delib-

erations are predecisional.

Communications are "deliberative" if they are "part of the

agency give-and-take by which the decision itself is made.

The agency must establish what deliberative process is in-

volved, and the role played by the documents in issue in the

course of that process." Senate of the Commonwealth of

Puerto Rico, 823 F.2d at 585-86 (citations, internal quotation

marks, and alterations omitted). Hinckley does not dispute

the fact that the information he seeks concerns the delibera-

tions of the Hospital Review Board as it arrived at its

decision about Hinckley's conditional release. However, he

contends that the deliberations of the Hospital Review Board

are nonetheless not "deliberative" within the meaning of the

deliberative process privilege because the Review Board's

decision about whether to grant Hinckley a conditional re-

lease allegedly constituted nothing more than "the routine

application of already-formulated Hospital policy." Brief for

John W. Hinckley, Jr. at 12. Hinckley is surely right in that

the Hospital does not claim to have adopted new general

policies to govern Hinckley's case; the Hospital claims only to

have applied its standard decisionmaking procedures in re-

viewing the possibility of supporting Hinckley's conditional

release. Nevertheless, we find Hinckley's argument unper-

suasive.

First, this court has applied the deliberative process privi-

lege to protect materials that concern individualized decision-

making, rather than the development of generally applicable

policy. Mapother v. Dept. of Justice, 3 F.3d 1533 (D.C. Cir.

1993), for instance, involved the "Waldheim Report," which

Justice Department experts had prepared in order to help the

Attorney General decide whether to bar Kurt Waldheim from

entering the United States because of evidence that he may

have participated in Nazi war crimes. See id. at 1535. The

Justice Department did not develop new policies of exclusion

in the course of deciding Waldheim's case; rather, it applied

the existing law governing the exclusion of Nazi war crimi-

nals. See id. Moreover, substantial portions of the Wal-

dheim Report consisted simply of factual material culled from

historical archives. See id. at 1538. Nonetheless, this court

protected almost all of the report under the deliberative

process privilege. See id. at 1537-40.

Second, the Review Board's decision about Hinckley's con-

ditional release cannot be appropriately characterized as

"routine." To be sure, the Review Board was determining in

Hinckley's case, as in all such cases, the likelihood that the

patient would pose a danger to himself or others if condition-

ally released into the community. But any such determina-

tion has to revolve around the facts and circumstances in each

instance. It necessarily involves the exercise of predictive

judgment, based on case-specific discussion and debate.

Moreover, it is easy to see how different Review Board

members could disagree in their interpretation and analysis

of the relevant information and in their final judgment. In

sum, knowing the standards by which the Hospital judges the

appropriateness of a conditional release tells us relatively

little about whether any particular patient should actually be

granted such a release. The Hospital Review Board's deci-

sion denying Hinckley a conditional release was not a "rou-

tine" one.

Moreover, the foundational policy concern underlying the

deliberative process privilege supports the privilege's applica-

tion in this case. "[T]he privilege rests most fundamentally

on the belief that were agencies forced to operate in a

fishbowl, ... the frank exchange of ideas and opinions would

cease and the quality of administrative decisions would conse-

quently suffer." First Eastern Corp. v. Mainwaring, 21 F.3d

465, 468 (D.C. Cir. 1994) (citation and internal quotation

marks omitted); see also Mapother, 3 F.3d at 1537 ("[T]he

deliberative process privilege ... protects the decisionmaking

processes of government agencies and encourages the frank

discussion of legal and policy issues by ensuring that agencies

are not forced to operate in a fishbowl.") (citation, internal

quotation marks, and alterations omitted). The Hospital

Review Board's deliberations as it considered whether to

grant Hinckley a conditional release constitute precisely the

sort of situation in which governmental decisionmakers need

to know that their internal discussions will not be eventually

exposed to public review. As this court has long recognized,

insanity acquittees are an "exceptionally dangerous class."

United States v. Ecker, 543 F.2d 178, 186 (D.C. Cir. 1976).

Deliberations about whether to allow them back into the

community may accordingly attract substantial public interest

and perhaps become the center of public controversy. More-

over, Review Board members might potentially be concerned

for their personal safety in some instances, if the content of

their internal deliberations were released to the insanity

acquittee. The possibility of this sort of outside scrutiny of

the Review Board's deliberations would almost certainly ham-

per the candor of future discussions, and perhaps even

change the decisions that the Review Board reaches. In

addition, Review Board members might be unwilling to criti-

cize the proposals or assessments of other Hospital profes-

sionals not included in the deliberations, such as the members

of the treatment team, if they knew that the Review Board's

discussions could be made public.

As Hinckley notes, "[t]he deliberative process privilege is a

qualified privilege and can be overcome by a sufficient show-

ing of need." In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir.

1997). "For example, where there is reason to believe the

documents sought may shed light on government misconduct,

the privilege is routinely denied, on the grounds that shield-

ing internal government deliberations in this context does not

serve the public's interest in honest, effective government."

Id. at 738 (citation and internal quotation marks omitted); see

also In re Subpoena Served Upon the Comptroller of the

Currency, 967 F.2d 630, 634 (D.C. Cir. 1992). Hinckley

asserts that his attempt to access the deliberations of the

Hospital Review Board falls within this exception to the

deliberative process privilege, on the ground that he suspects

that the Hospital Review Board had improper motivations

when it denied him a conditional release. Hinckley contends

that whatever showing he needs to make in this regard is

satisfied by the mere fact that his treatment team unanimous-

ly recommended his conditional release.

We disagree on several grounds. First, this sort of argu-

ment appears to have no logical stopping point. The deliber-

ative process privilege would soon be meaningless, if all

someone seeking information otherwise protected under the

privilege had to establish is that there was disagreement

within the governmental entity at some point in the decision-

making process. One of the key insights behind this privilege

is that governmental decisionmakers will frequently disagree

and debate many options before they reach any final conclu-

sion, and that such predecisional and deliberative discussions

and disputes should be protected from public review. Sec-

ond, the simple fact that Hinckley's treatment team and the

Hospital's Review Board came to different conclusions does

not suggest, in our view, any improper motivations on the

part of the Review Board. As indicated above, Hinckley's

treatment team and the Review Board have different func-

tions and concerns. Whereas members of the treatment

team are directly responsible for Hinckley's therapy and are

charged with advocating the treatment program that they

believe will best advance Hinckley's therapy, the Hospital

Review Board is drawn from all sections of the Hospital and

considers a wider array of issues, including most notably the

danger that a conditional release would pose to the communi-

ty.

Hinckley also contends that the district court improperly

invoked the deliberative process privilege because it failed to

balance the government's interest in nondisclosure against

Hinckley's need to obtain the Review Board's deliberations

as evidence to support his motion for conditional release. As

this court recently noted, adjudicating such an assertion of

need requires a "balancing of the competing interests, taking

into account factors such as the relevance of the evidence,

the availability of other evidence, the seriousness of the

litigation, the role of the government, and the possibility of

future timidity by government employees." In re Sealed

Case, 121 F.3d at 737-38 (citation and internal quotation

marks omitted). In this case, the balance weighs strongly

against granting Hinckley access to the Review Board's in-

ternal deliberations, notwithstanding the seriousness of the

present litigation. First and most importantly, we see no

reason to believe that these internal deliberations are partic-

ularly relevant to Hinckley's motion before the district court

for conditional release. Hinckley has made no colorable

showing that the Review Board acted improperly. More-

over, the district court conducted a de novo review of the

evidence, rather than simply reviewing the Review Board's

denial of Hinckley's request for conditional release. Second,

the Hospital has already given Hinckley access to a tremen-

dous amount of information, including all of the evidence that

was before the Review Board as well as the Review Board's

final decision and explanation for it. Third, Hinckley has not

even suggested that the United States has acted to thwart

his motion before the district court in an improper or unto-

ward manner. Fourth, granting Hinckley access to the Re-

view Board's internal deliberations would seriously endanger

the future candor of such discussions.

III. Conclusion

The most plausible interpretation of the district court's

opinion in this case is that its de novo review of the evidence

did not rely on the Hospital Review Board's decision to refuse

Hinckley a conditional release. Even if the district court did

rely to some extent on the Review Board's decision, however,

we find that the court properly protected the deliberations of

the Review Board under the deliberative process privilege.

The decision of the district court is accordingly

Affirmed.

Karen LeCraft Henderson, Circuit Judge, concurring in the

judgment:

I agree with the majority that "there is no indication that

the district court actually relied on the fact that the Hospital

Review Board had denied Hinckley a conditional release" and

that "it is clearer still that the district court did not rely on

the substance of the Review Board's internal deliberations in

coming to its decision, precisely because the district court had

no knowledge of the content of those deliberations." Maj.

Op. at 10 (emphasis original). In United States v. Ecker, 543

F.2d 178 (D.C. Cir. 1976), this Court emphasized the district

court's expanded role in resolving a conditional release peti-

tion pursuant to D.C. Code s 24-301:

Thus, in conditional release proceedings (as well as

unconditional release proceedings) the role of the district

court (i.e., the standard of review)

... is not simply to review the hospital's decision for

unreasonableness, but rather itself to decide the

ultimate question: whether the present status of the

patient is such that continued confinement [without

conditional release] is justifiable.

... In order to approve a conditional release, we hold

that the district court must independently weigh the

evidence and make a de novo determination that the

patient will not in the reasonable future endanger himself

or others.

Id. at 186-87 (internal footnote and quotations omitted) (em-

phasis and brackets original). This is so because, as the

Ecker court recognized, "when a district court is asked to

review a conditional release certification the basic policy

underlying section 301(e) comes into play, and the court must

decide whether the hospital's proposal 'provide[s] treatment

and cure for the individual in [sic] manner which affords

reasonable assurance for the public safety.' " Id. at 182-83

(internal footnote omitted) (brackets original). The record

reveals that the district court followed Ecker to the letter,

"independently weigh[ing] and evaluat[ing] the evidence."

Id. at 184. The district court relied heavily upon the opinion

of the government's psychiatrist, Dr. Raymond F. Patterson,

who described Hinckley's "past and continued propensity for

deception and secretiveness, especially to those responsible

for treating him." United States v. Hinckley, 967 F. Supp.

557, 560 (D.D.C. 1997). And in evaluating the opinions of

Hinckley's experts, the district court looked to Hinckley's own

words:

Moreover, in considering the opinions of his experts,

the Court is reminded of a journal entry made by Mr.

Hinckley in 1987 in which he wrote:

I dare say that not one psychiatrist who has ana-

lyzed me knows any more about me than the average

person on the street who has read about me in the

newspapers. Psychiatry is a guessing game and I do

my best to keep the fools guessing about me. They

will never know the true John Hinckley. Only I fully

understand myself.

Tr. 156-157; (stipulated to by counsel for Petitioner).

What is particularly disturbing is that this statement was

written at a time when the Petitioner had already under-

gone five years of treatment and had convinced his

treatment clinicians that he had recovered sufficiently for

conditional release. Statements such as these cause the

Court to proceed carefully in weighing current assess-

ments of the Petitioner by his experts.

Id. at 562. As the majority observes, the district court

"never mentioned the Review Board's decision in this discus-

sion." Maj. Op. at 9. The record plainly manifests that the

district court did not rely on the Hospital Review Board's

recommendation (indeed, the court did not deem it relevant

except insofar as it caused the court to conduct an even more

"exacting" review, 967 F. Supp. at 559). Accordingly, there is

no need to reach the extraneous deliberative process privilege

claim and I respectfully decline to join the majority's discus-

sion of it.