error for prosecution to make assertions of fact to the jury, in form of question, without basis in evidence
How later courts described this case
- error for prosecution to make assertions of fact to the jury, in form of question, without basis in evidence
Written by the judges who cited it.
The opinion
WILBUR K. MILLER, Senior Circuit Judge
(concurring in part and dissenting in part):
I concur in the result of Part I of the majority opinion: that the testimony in support of the insanity defense was not sufficient to require a directed verdict of not guilty by reason of insanity. There was no real evidence that the appellant suffered from a mental illness in the legal sense. The two psychiatrists testified that she had a “passive-aggressive personality” with organic and alcoholic features. 1 They agreed in the main with the following excerpt from the official hospital report filed with the court before the trial began:
“The possible relationship between the alleged offense and the patient’s personality disorder is best described in the following manner. The patient has extreme difficulty in getting her dependency needs met and tends to respond to aggression by passive obstructionism and by using alcohol to excess. However, when intoxicated her aggression is liberated and violent acts may occur such as the stabbing of her brother. Along with this, her lowered intellectual quotient causes her to display very poor judgment and not to consider alternative ways of dealing with situations.”
It is indeed “very poor judgment” to do another human being to death, but poor judgment does not indicate mental illness. The same may be said of any killer.
One of the psychiatrists testified that the appellant was generally able to recognize the difference between right and wrong, but that at the time of the stabbing she was “probably overwhelmed by emotion” and was “certainly emotional and pretty much out of control of herself.” It seems to me absurd to say a killer has a mental disease because at the time of killing he was “probably overwhelmed by emotion.”
The jurors were entitled to reject and may have rejected the diagnosis and *399 “probable relationship” between the crime and the “personality disorder” as pure poppycock; but whether they did so or not, they were quite justified in rejecting the insanity defense because there was no evidence of causation: one psychiatrist thought causation was “possible” and the other thought is “probable.” Neither opinion was a sufficient basis for a jury finding of causation.
I dissent from Part II of the majority opinion and protest vigorously against my colleagues’ holding that the prosecutor was guilty of improper conduct requiring reversal. The Assistant United States Attorney involved, Victor W. Ca-puty, is an able, experienced prosecuting attorney who, I think, is thoroughly conscientious in the performance of his duties.
The Assistant Clinical Director of Dix Pavilion at St. Elizabeths Hospital testified that the skull X-ray and electroencephalogram (which he said “were to rule out any organic findings”) were negative, as was the neurological examination. Yet he testified that organic brain damage had been determined on psychological testing. This was based on appellant’s inability or refusal to subtract 7 from 100, her inability to give much information on current events, and her refusal to estimate the distance between Los Angeles and Washington! To say that such tests can reveal an organic injury to or disease of the brain which is not revealed by the recognized physical tests is unfounded speculation. Caputy thought that, when organic impairment of the brain — a physical condition — is not shown by the standard physical examinations, it cannot be determined to exist by the theorizing of psychiatrists based on such factors as the patient’s refusal to estimate the distance between Los Angeles and Washington. He cross-examined and argued on that basis, and I think he was fully warranted in doing so. Yet that is the ground of the majority opinion’s charge of such improper conduct on Caputy’s part that reversal is required.
My colleagues say the evidence that organic damage or disease existed, which was based on the so-called “psychological tests,” was undisputed and that Caputy acted unfairly in taking a contrary position. Thus, in effect, they say the theorizing of psychiatrists, if undisputed, must be accepted, no matter how incredible or farcical that theorizing may be. It is significant that the able counsel appointed by us to represent appellant did not discern any unfairness in the prosecutor’s conduct and did not request reversal on that ground. The idea was not suggested to the majority by anybody who had a part in the presentation of the case.
The alcoholic “feature” of the psychiatrists’ passive-aggressive personality theory simply means that the appellant’s consumption of alcoholic drink made her a potential killer. But the majority admit that intoxication is not an excuse for this kind of violent crime.
I particularly disagree with the closing paragraph of the majority opinion. To me, this is a relatively simple case in which a woman of latent vicious tendencies, whose inhibitions were released by her intake of wine and beer, fatally stabbed her brother when he slapped her in reproof of her excessive use of alcohol and consequent boisterous conduct. My colleagues have treated the case much more expansively than it deserves, and apparently have attempted to make it into a cause celebre. I would affirm by order.
. I shall discuss these “features” later in this opinion.