Frendak v. United States

GALLAGHER, Associate Judge,

concurring in the result:

I do not have the difficulty the majority opinion has with the United States Circuit Court’s decision in Whalem, 1 especially when one examines the way it has been later applied in the progeny of Whalem by the United States District Courts in this jurisdiction. After all, except as an academic exercise, it does not now matter so much what a landmark decision may have stated many years ago if it has been interpreted and honed over the succeeding years. The more important thing at this juncture is to look at the present state of the law as it has emanated from the landmark decision.

I will discuss first what genuine effect, if any, Alford and Faretta have had on the issue in this case. I will then look briefly at Whalem to determine whether it has the shortcomings the majority attributes to it, and then examine whether in the succeeding 15 years the United States District Court appears to have had any real difficulty applying it as it pertains to a defendant’s declination to plead insanity.

What apparently triggered the re-examination of Whalem in this case is the conten *383 tion that Whalem was shaken by the decisions in North Carolina v. Alford, 400 U.S. 25 , 91 S.Ct. 160 , 27 L.Ed.2d 162 (1970), where the Supreme Court decided that it was not unconstitutional to accept a guilty plea from a defendant who nevertheless protests his innocence, and in Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975), where the Supreme Court decided that under the Sixth Amendment a defendant has the right to represent himself at his trial, no matter how ill-advised the choice may appear. Actually, neither Alford nor Faretta approaches the different considerations laid bare in Whalem :

One of the major foundations for the structure of the criminal law is the concept of responsibility, and the law is clear that one whose acts would otherwise be criminal has committed no crime at all if because of incapacity due to age or mental condition he is not responsible for those acts. If he does not know what he is doing or cannot control his conduct or his acts are the product of a mental disease or defect, he is morally blameless and not criminally responsible. The judgment of society and the law in this respect is tested in any given case by an inquiry into the sanity of the accused. In other words, the legal definition of insanity in a criminal case is a codification of the moral judgment of society as respects a man’s criminal responsibility; and if a man is insane in the eyes of the law, he is blameless in the eyes of society and is not subject to punishment in the criminal courts.

In the courtroom confrontations between the individual and society the trial judge must uphold this structural foundation by refusing to allow the conviction of an obviously mentally irresponsible defendant, and when there is sufficient question as to a defendant’s mental responsibility at the time of the crime, that issue must become part of the case. Just as the judge must insist that the corpus delicti be proved before a defendant who has confessed may be convicted, so too must the judge forestall the conviction of one who in the eyes of the law is not mentally responsible for his otherwise criminal acts. We believe then that, in the pursuit of justice, a trial judge must have the discretion to impose an unwanted defense on a defendant and the consequent additional burden of proof on the Government prosecutor. So, our query is whether in this case there was a combination of factors which required the trial judge to inject the insanity issue for, if such factors existed, his failure to do so is an abuse of discretion and constitutes error. [Id. 120 U.S.App.D.C., at 337-38, 346 F.2d at 819-20; emphasis added; footnotes omitted.]

We have previously rejected the contention that Faretta overrules Whalem in the matter of a sua sponte hearing. We said in Clyburn v. United States, D.C.App., 381 A.2d 260 , 263-64 n.7 (1977), cert. denied, 435 U.S. 999 , 98 S.Ct. 1656 , 56 L.Ed.2d 90 (1978):

Faretta does not hold that a court must recognize an incompetent or insane defendant’s right to represent himself. The right to conduct one’s own defense would indeed be hollow under such circumstances. Moreover, the right to counsel and the defense of insanity rest on different considerations; the former affords protection against the sovereign, while the latter, if successful, removes culpability in the absence of the requisite mental state.

I see no reason to disturb this conclusion, even if a division of this court might properly do so, as it seems to me to be not seriously in doubt. I might say the Supreme Court commented in Faretta that “the right of self-representation has been protected by statute since the beginnings of our Nation. . . . With few exceptions, each of the several States also accords a defendant the right to represent himself . . . .” 422 U.S. at 812-13 , 95 S.Ct. at 2530 . Consequently, there is scarcely anything new or startling about the concept of Faretta .

The majority complains that, among other things, Whalem does not show sufficient sensitivity to the desire of the defendant to *384 refrain from an insanity defense. The fact of the matter is that Whalem necessarily respected the desire of the defendant in holding there was no abuse of discretion on the part of the trial court in not sua sponte injecting the insanity defense. 120 U.S. App.D.C. at 338, 346 F.2d at 819.

Later on, in United States v. Robertson, 165 U.S.App.D.C. 325 , 507 F.2d 1148 (1974), a progeny of Whalem, the same court stated what seems to be inherent from Wha-lem :

[SJince it is a defendant’s rejection which triggers a Whalem inquiry, that rejection should not have been controlling. [Id. 165 U.S.App.D.C. at 377 , 507 F.2d at 1160 ; emphasis in original.]

The court goes on to say that [the defendant’s] rejection and his reasons for it should have been weighed with evidence derived from a full presentation of testimony relevant to the issue of criminal responsibility. [Id.; emphasis added.]

That seems plain enough. True it is that Whalem expressly declined to lay down a rigid standard to bind the trial court in deciding whether to require the insanity issue to be submitted, and instead left the problem to the trial court to resolve — as a matter of discretion on a case to case basis. However, contrary to the majority opinion, I do not view that as manifesting insensitivity to the wishes of the defendant. Certainly it does not appear to have been construed insensitively by the United States District Court in this jurisdiction. On remand in United States v. Robertson, 430 F.Supp. 444 (D.D.C.1977), for example, the District Court fashioned what strikes me as sensible, workable criteria which might well be utilized by the trial court on remand in this case in resolving the issue:

(a) “the quality of the evidence supporting the insanity defense;”

(b) “the defendant’s wish in the matter;”

(c) “the quality of defendant's decision not to raise the defense;”

(d) “the reasonableness of defendant’s motives in opposing presentation of the defense;”

(e) “the Court’s personal observations of the defendant throughout the course of the proceedings against him.” [Id. at 446.]

It seems to me that Whalem has not caused any difficulty of implementation over the years in the District Court in this jurisdiction. That court seems to have gone about its business in doing so, as has the Circuit Court of Appeals. As the majority opinion points out, in cases posing the problem sometimes the trial judges have decided to raise sua sponte the insanity defense and sometimes they have not. The Circuit Court has almost always affirmed. 2 There is an established body of law in this jurisdiction on this question which seems entirely reasonable, and is there for guidance. I see no reason not to utilize it.

. Whalem v. United States, 120 U.S.App.D.C. 331 , 346 F.2d 812 , cert. denied, 382 U.S. 862 , 86 S.Ct. 124 , 15 L.Ed.2d 100 (1965).

. See note 14 in the majority opinion, supra.