Thomas H. Washington, Jr. v. United States

FAHY, Circuit Judge

(concurring specially in affirmance).

Part I

I have no serious problem with Part I of the opinion of the court, though I am not convinced of the accuracy of the view there implied that after Durham some doctors in defining mental illness were, though perhaps unwittingly, advancing their own notions about blame. I agree, however, that McDonald was helpful in clarifying the respective role of witness and jury; and I shall comment later with respect to blame in this type of case.

Part II

As to Part II of the opinion I too would have welcomed fuller information *459 about the defendant. 1 I do not feel justified, however, in joining in the court’s appraisal of the testimony on the issue of defendant’s mental condition. It is true that labels were used by the psychiatrists but the record I think discloses rather full explanations of their medical terminology.

In addition to the opinion’s excerpt from Dr. Owens’ explanation of “passive-aggressive personality,” which seems to me to clarify his views, the doctor went further in explanation. I dislike to burden the opinion with lengthy quotations from his testimony, but do need to be indicative. Thus, the following appears during his examination:

Q Now, doctor, do you feel that Mr. Washington has any personality de-defect?

A Not in the sense of “defect.” I would prefer to say he has personality problems, that is a difficulty in getting along or adjusting, that probably the difficulties that he experiences in relating adequately to other people are more severe or more extreme than the average person has.

Q Is it accurate to say that he has a personality disorder?

A I generally would prefer not to say “disorder,” because when you say “disorder,” this denotes that you mean something is wrong, that is a disease or an illness or some disorder. I would prefer to say that he has a personality, a type of personality.

Q What type of personality do you think he has?

A My opinion would be that he was generally or would generally be described as somewhat schizoid, that is, he has difficulty relating to people.

He gets angry if he does not have his way. He tends at times to spend his time alone, or has difficulty relating to people with some aggression when he does not — when things do not go exactly his way, he acts out in an aggressive manner.

* *****

Q Doctor, do you believe, based upon the examination of Mr. Washington and the records that he would be classified with this terribly ambiguous term “normal” — is he normal?

A Well, a lot depends, if you mean by “normal,” that he has no mental illness, then he would be normal in my opinion.

However if you mean normal by his behavior, being socially acceptable, then he would not be normal.

This was pursued still further in ordinary language of explanation.

When the doctor used the term “socio-pathic symptomology” he was asked its meaning and replied:

A By sociopath, we mean an individual who is antisocial. That is a type of personality who acts out in an anti-social way, has little control over his desires and his needs.

He is constantly repetitiously being involved in criminal activity. He has little guilt. He does not feel that things are wrong. The only time he feels it is wrong is when he gets caught.

Q Little anxiety?

A Very little. They usually act out, behave in an anti-social manner before they get anxiety.

Q Rape is consistent with a soeio-pathic personality, is not that correct?

A Any crime would be consistent with it. There are sociopaths who commit crimes and sociopaths who do not.

During Dr. Hamman’s testimony for the United States he was asked, “Could you tell us in psycho-dynamic terms how you analyze Mr. Washington’s personality?” He responded:

*460 A I think he is an individual, it is my opinion that he is an individual who does have impulses. He does have drives. Who has very little regard for the people. And when he wants something, he takes it.

Q He will act out these impulses?

A Yes.

Q The impulses, if they are strong, he will act strongly ?

A Yes.

******

Q Psychiatrically considering this picture of Mr. Washington, don’t you think he has a personality difficulty or personality disorder?

A No. I think he has personality problems. But I don’t think they are marked to the extent that I would call them character neurotic.

Q I don’t understand what you mean, doctor. Would you explain?

A Well, he is not the best adjusted person in the world.

******

A He is a very aggressive individual, there is no question about that. But I do not think he has a mental illness. I do not think he has — I do not think he shows symptoms that would justify a diagnosis of a character disorder, personality disorder, or a neurosis.

Q Doctor, isn’t it all a question of degree in reaching your diagnostic impression ?

A Absolutely right.

******

Q And isn’t this behavior, which is this aggressive behavior, directly caused by this personality problem which is of a sociopathie nature ?

A It is caused — no.

Q No?

A Look, anything that any of us do is caused by our personality, by our character. I would not know whether you want to call this illness or not.

It seems to me the witnesses’ explanations of their opinions were understandable. One might not be persuaded by them, but that is a different matter. Doctors Owens and Hamman, both witnesses for the Government, readily conceded impulsive conduct by defendant, his “lack of brakes” in his sexual urge; but in their opinion this was not due to mental disease and they explained in understandable language the situation as they saw it. I think it was fairly put to the jury on the evidence to decide whether defendants’ weakness in sexual matters amounted to mental disease excusing him from criminal responsibility, or, on the other hand, was a character or personality weakness which did not absolve him of such responsibility. I agree with the court that we should seek improvement, and that the witnesses should inform the jury clearly of the meaning of their medical terms, and of the basis for their opinions; but I do not feel justified in saying that the use of labels, when considered with all the testimony, left the jury confused in this ease.

Part III

I have no particular comment upon the court’s analysis of the development of the law in this jurisdiction which led to our unanimous McDonald decision. There we pointed out the needed distinction between a courtroom test and a clinical test, to be made clear to the jury in deciding the issue of criminal responsibility.

As to this part of the opinion I add: (1) I have no difficulty in adhering to our decision permitting the psychiatrist to give his opinion as to the existence of a mental disease or defect, provided the basis for the opinion is explained to the jury in understandable terms and has substantial factual basis of which the jury is also advised by the witness; and (2) I think it probable as matters have developed that to permit the witness to give his opinion in exact “product” language is likely to give undue weight to his view on the ultimate issue, tending to detract from the responsibility of the jury. But I do not wish to decide in the abstract that in a particular case, in explaining the relation of the disease or defect, if any, to the conduct charged, *461 should the witness find it useful to speak in “causal” language, or use the term “product” in that connection, I would for that reason alone find error. We have not in the past, and I do not now, construe United States v. Spaulding, 293 U.S. 498, 506 , 55 S.Ct. 273 , 79 L.Ed. 617 , to bar such testimony in this type of case. The issue there was whether Spaulding was totally and permanently disabled within the meaning of a federal policy of insurance and statute. The record was replete with factual evidence as to his physical condition and his activities. The Court stated that the issue of total and permanent disability was the ultimate question to be decided by the jury, was not a question to be resolved by opinion evidence, and the experts ought not to have been asked or allowed to state their conclusions “on the whole case.” The particular scope of this ruling, however, is indicated by the decisions the Court cites, of which Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U.S. 469, 472 , 24 L.Ed. 256 is illustrative. There the Court said:

The subject of proposed inquiry was a matter of common observation, upon which the lay or uneducated mind is capable of forming a judgment. In regard to such matters, experts are not permitted to state their conclusions. On questions of science their opinions are received, for in such questions scientific men have superior knowledge, and generally think alike. Not so in matters of common knowledge.

And see our own case of Henkel v. Var-ner, 78 U.S.App.D.C. 197 , 138 F.2d 934 .

In the present case to give an opinion in terms of product or cause 2 is not to state an expert conclusion on “the whole case,” for independent evidence supporting the existence of mental disease or defect is required before the causal issue is reached. For the same reason the product or causal issue is not the whole of the ultimate issue, which is a combination of the two factors, the factor of mental condition and of its relation to the act charged. More important, such an opinion does not relate to a matter of common knowledge or observation as to which the expert in psychiatry does not often have knowledge superior to that of the “lay or uneducated mind.” True it is that the jury of laymen must form a judgment on the issue of criminal responsibility, but this does not bar from the jury such assistance in forming that judgment as a person specially qualified by education and experience in psychiatry might afford. Such a problem as we now consider is not like a case of physical disability, as was Spaulding . While I think for the reason I have given the expert ordinarily should avoid testifying in the language of “product,” I do not think such testimony is barred by Spaulding .

I join in the requirement of an instruction to the witness, referred to in Part III of the opinion. This seems to me a very desirable and helpful development which I hope the trial judges as well as counsel and witnesses will welcome. ' I assume the substance rather than the exact form of instruction as it appears in Appendix A would suffice.

A few remarks are offered upon the court’s reference to blameworthiness and moral judgment. Blame, in the sense and to the extent of criminal responsibility, does not attach where, under the standards applicable to the defense of insanity, 3 the jury has at least a reasonable *462 doubt that the act stemmed from a mind free of any mental disease or defect which was causally related to the commission of the act. But this basic moral decision is made by society, not by juries. Society, acting through law, has established the defense of insanity, which relieves the accused of criminal responsibility for an act which results from a mental disease or defect. 4 Whether or not this defense is established in a particular case is a factual decision to be made by the jury on the evidence bearing on the mental condition of the accused and on the relation of that condition to the conduct charged. In reaching this factual decision the jury is aware that blame — to the extent of criminal responsibility — will or will not attach under the law. In this very limited sense perhaps the jury’s decision can be said to be a moral judgment, but only because the jury’s factual decision does or does not bring the defendant within the coverage of the law’s moral decision. The jury is called upon to decide on evidence respecting the defense of insanity. The jury is not free to express by its verdict its view of blame or morals unrelated to its appraisal of the evidence on the issue of insanity.

Juries generally, not only in these cases, are influenced by what they think is right and just in the context of the facts and law of the case they decide. Their task is different here only because they are required often in these cases to make a difficult and subjective factual decision about the state of a person’s mind, and its relation to particular conduct, “a subtle issue of a person’s mental condition in relation to criminal responsibility.” Douglas v. United States, 99 U.S.App.D.C. 232 , 239, 239 F.2d 52, 59 . It was this nature of the issue no doubt that led the court in Holloway, swpra n. 3, to state that in a “borderline case” the application of the tests “can be nothing more than a moral judgment that it is just or unjust to blame the defendant * * *»

. As to the Cedar Knolls record, it is clear that counsel’s decision not to press for its admission in evidence was deliberate and well considered. I have no basis for concluding that a different decision would have been helpful to defendant.

. As to the meaning of these terms and their relationship one to the other see Carter v. United States, 102 U.S.App.D.C. 227 , 236, 252 F.2d 608, 617 .

. In Holloway v. United States, 80 U.S.App.D.C. 3 , 148 F.2d 665 , in referring to the tests of criminal responsibility in these cases, the court said that the application of “these tests, however they are phrased, to a borderline case can be nothing more than a moral judgment that it is just or unjust to blame the defendant for what he did * * In Durham we said that our traditions require that where the otherwise criminal acts stem from and are the product of a mental disease or defect “moral blame shall not attach, and hence there will not be criminal responsibility.”

. See Durham v. United States, 94 U.S.App.D.C. 228 , 242, 214 F.2d 862, 876 .