# Lindsey v. United States

> Court of Appeals for the D.C. Circuit · December 1, 1942 · 133 F.2d 368

URL: https://www.frixlaw.com/law-library/cases/9650655

## Case

- **Full name:** Lindsey v. United States
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** December 1, 1942
- **Citations:** 133 F.2d 368; 77 U.S. App. D.C. 1; 1942 U.S. App. LEXIS 2507
- **Precedential status:** Published
- **Opinion:** Concurrence by Rutledge
- **Judges:** Stephens, Edgerton, Rutledge
- **Cited by:** 45 later opinions in the Frix Law Library

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## Opinion text

RUTLEDGE, Associate Justice
(concurring).
I concur with Judge Stephens that the judgment should be reversed and a new trial had. My reasons are somewhat different from his.
Issues of identification, use of force and lack of consent in the rape, and self-defense in the assault upon the woman’s male companion were proven clearly against appellant. There was sufficient evidence to sustain the finding, implicit in the verdict, that the assault was with intent to kill. In my opinion the instructions were not reversibly erroneous in any respect, and the contention is not valid that the statute is unconstitutional which empowers the jury to add the words “with the death penalty” to the verdict in cases of rape. D.C.Code (1940) § 22 — 2801.
However, I am in accord with Judge Stephens’ view that cross-examination by the defense was unduly limited in one vital respect. This was when the court refused to permit it to question Drs. Lind and Schneider, expert witnesses for the Government, concerning the grounds for their conclusion that defendant was lying or malingering at the time when they, with Dr. Williams, defense expert, applied the mental test known as the Kent test. The circumstances of this limitation have been set forth fully in Judge Stephens’ opinion. In my judgment it was highly prejudicial in the state of the evidence prevailing when it was made.
The crucial issue was appellant’s sanity. As presented by the evidence it was, not whether he is a person of high or even of average intelligence, but whether he falls on one side or the other of the line which divides imbecility, a mental age of from three to seven years, from the mental level immediately above it. Upon this, expert opinion was squarely and evenly divided. There was little conflict in the facts from which the opposing conclusions were drawn. Clinical evidence, including historical information, combined with the results of four mental tests to support the conclusion of the defense experts that appellant is an imbecile and insane. The opposite conclusion of the experts for the Government, though supported by clinical evidence, was contradicted by the results of all the mental tests, including the Kent test, which was the only one they applied.
They discarded the results of this test. Their reason was belief that appellant was lying or malingering. They based this on the fact he was not cooperative when the test was given, evidenced by noncommittal answers to simple questions and answers inconsistent with others given at previous interviews. Dr. Schneider coüpled these reasons with the fact appellant “had one of the strongest reasons in the world to profit by a diagnosis of insanity.” Dr. Williams, who also was present when the Kent test was applied, disagreed that appellant was lying, attributing his noncooperation to depression.
In this state of the evidence it became crucial for the defense to test the validity of the Government experts’ conclusion that defendant was lying. Without that their ultimate opinion that he was not an imbecile and was sane could not have stood or, standing, would have been seriously impeached. We cannot speculate what their judgment might have been, absent this belief, or what might have been the effect on the jury if the basis for it had been destroyed or seriously impaired.
The defense attempted to test the validity of the grounds for this belief by cross-examination in the manner set forth in Judge Stephens’ opinion. This was by showing that similarly inconsistent statements had been made, in response to similarly simple questions, when appellant had no reason to profit by a diagnosis of insanity, in fact when he would profit by one of sanity. The excluded questions were limited to a single instance, namely, that appellant had given his birthplace once as North Carolina, another time as New Jersey, while he was under treatment at the Crownsville hospital about five months before his offense was committed. However, the record is replete with evidence of similarly inconsistent statements about the simplest matters, made by appellant both at Crownsville and elsewhere and both before and after the offense. Shutting the door upon the first inquiry closed it upon all.
The court apparently thought the witnesses’ “credibility” could not be tested in this manner. The questions went, not to test their veracity, but to test the soundness of the foundation or one of the reasons assigned by them for believing appellant was lying, and thus for discarding the results of the test which showed him an imbeGile. *378 They offered, if not the only, then one obvious method of destroying or impairing the assigned basis for that conclusion. It may be that the witnesses would have vindicated their conclusion, if full inquiry had been allowed. But it was cut off with effects, upon a matter so vital, which can only be guessed, not known.
Taking account of the state of the evidence, the even balance of expert opinion, the absence of impeachment of any of thg witnesses for veracity or expertness, the equality of opportunity for examination and investigation, the consistency of scientific and clinical evidence in support of the defense alienists, the conflict between the conclusions of the experts for the Government and the results of all the mental tests including their own, the importance in this setting of their conclusion appellant was lying and of their reasons for it, and the conflict in expert opinion whether this was true, I am unable to conclude that the limitation was not erroneous or was without substantial prejudice to the defense.
I think also that it was error to admit the opinion of Dr. Gross that appellant was not an imbecile and was sane, and to rule, as the court did, that Dr. Ogden, tendered as an expert witness by the defense, was not qualified to testify as an expert in mental matters. The latter had signed appellant’s commitment certificate at Crowns-ville. Called by the defense, he testified to his general medical qualifications and experience, stated he had “interned in psychiatrical work,’ 5 and since that time had been “doing a good bit of committing work for the insane for the Department of Public Welfare.” After he had 'stated he had done no more than this as a mental specialist, the court ruled, when the Government objected, that he was not qualified as an expert. Although his qualifications may not have been the highest, it would seem that, upon the training and experience stated, his opinion should have been admitted for whatever it may have been worth.
In contrast with exclusion of Dr. Ogden’s opinion was reception of that of Dr. Gross. He was called by the defense merely to produce and identify the Crownsville records. Upon cross-examination, the Government elicited from him testimony concerning the effects of marijuana, the alleged cause of appellant’s commitment at Crownsville, and the opinion that appellant is not an imbecile and is sane. On redirect examination the defense demonstrated conclusively that .the witness was not qualified to give expert opinion concerning marijuana and its effects. It showed also, over difficulty created by the prosecution’s objections, that the witness’ only examination of appellant was during a brief, staff conference just before he was paroled. The official minute of the conference shows that hardly more than half a dozen questions were asked. In view of his position, Dr. Gross was qualified initially, perhaps, as a mental expert. But in view of the cursory nature of his “examination,” as disclosed by his own testimony, no sufficient foundation was laid for permitting him to express the opinion that appellant is not an imbecile and is sane. Yet it was allowed to remain in the record as evidence against the defendant, and possibly with prejudicial effect.
Whether or not these errors, standing alone, would be sufficient to require reversal, they are so, in my opinion, when coupled with the limitation of cross-examination of Drs. Lind and Schneider, discussed above. When account is taken of the entire state of the evidence upon the issue of sanity, it cannot be assumed that the combined effect of these errors was not prejudicial or did not turn the scales against the appellant upon that issue.
Accordingly, I think the judgment should be reversed, and the cause remanded to the District Court for another trial.
40 App.D.C. 426 , 46 L.R.A.,N.S., 1117.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9650655. Public record. Not legal advice.