Charles C. Rouse v. Dale C. Cameron, Superintendent, Saint Elizabeths Hospital

DANAHER, Circuit Judge

(dissenting).

Since the majority opinion on its face may seem plausible, members of the court who have not seen the record may wonder why I do not join my sitting colleagues. The immediate comment is'that they are deciding a case which is not before us.

I

In the first place, this appellant, as I shall develop, was contending on his pleadings and at trial that he was not insane and that he needed no treatment. His own expert, Dr. Marland, testified that Rouse was not mentally ill and that he should have been sent to jail in the first place. Appellant’s knowledgeable trial counsel, no longer in the case, concluded his final argument:

“Mr. Ehrlich: I think the evidence is clear from this [Mental Health] Commission and from Dr. Marland that this patient is no longer dangerous to himself and to others, and I believe that from the evidence Your Honor ought to release him.”

At the outset of the trial appellant’s counsel had informed the court that he had witnesses “to show that [Rouse] is not of unsound mind and he ought not to be kept in St. Elizabeths Hospital, at least John Howard Pavilion.” So it was that the judge commented as will be mentioned in note 1, infra.

II

Next, my colleagues say they do not reach “the question whether the'record would have supported a finding of present mental illness and dangerous propensities.” By this simple device they undertake to pose as the “principal issues”

“whether a person involuntarily committed to a mental hospital on being acquitted of an offense by reason of ■insanity has a right to treatment that is cognizable in habeas corpus, and if so, how violation of this right may be established.”

But what was the position urged by counsel for Rouse? His habeas .complaint had alleged that he was' being unlawfully detained in

“that there now exists no necessity for the treatment of the mental condition which led to the acquittal by reason of insanity and in fact no such treatment has been administered to petitioner for approximately six months.” (Emphasis added.)

The “no such treatment” language clearly was mere make-weight in support of his claim that his detention had become incarceration — unlawful because he had recovered and was allegedly entitled to release. His position is emphasized further in that on appeal the appellant poses as the question for decision the following:

“Where one committed under D.G.Code § 24-301, which does not require a *463 finding of insanity at the time of commitment, has not been found insane during the three years following his commitment and evidences to the court that he is not now insane, has no necessity for psychiatric treatment and has received no treatment for some eighteen (18) months past, is his continued commitment illegal and unconstitutional?” (Emphasis added.) 1

III

Further I think my colleagues disregard our precedents. The trial judge, altogether appropriately, deemed the primary inquiry to be whether or not Rouse had so far recovered from his abnormal mental condition that he would no longer be dangerous to himself or to the community in the reasonably foreseeable future. 2 And certainly, the burden rested upon Rouse to establish his eligibility for release. 3

So it was that the District Judge made certain specific findings of fact:

“4. The evidence shows that petitioner is suffering from a mental disease, Antisocial Reaction, and would be dangerous, to himself or others if released into the community.

“5. The Superintendent of St. Elizabeths Hospital has not certified to the court that petitioner is eligible for release in accordance with the provisions of 24 D.C.Code section 301(e).”

Additionally the trial judge reached certain conclusions of law. He observed that the petitioner had “failed to sustain the burden of proving his eligibility for release under the statute,” and had not shown that the refusal of the Superintendent to certify .him for release was arbitrary or capricious.

IV

Just see what we are getting into, especially when we consider the language of our statute, not dissimilar in principle from 18 U.S.C. § 4248 . That section provides in pertinent part that

“commitment shall run until the sanity or mental competency * * * shall be restored or until the mental condition of the person is so improved that if he be released he will not endanger the safety of the officers * * * or other interests of the United States.” ,

Discussing the problem in Greenwood v. United States, Mr. Justice Frankfurter wrote 4 :

“The record shows that two court-appointed psychiatrists found petitioner sane and competent for trial. While the District Court did not accept their conclusion, their testimony illustrates the uncertainty of diagnosis in this field and the tentativeness of professional judgment. The only certain thing that can be said about the pres *464 ent state of knowledge and therapy regarding mental disease is that science has not reached finality of judgment, even about a situation as unpromising as petitioner’s * *

The judgment of the District Court in Greenwood was affirmed, for that court, as was within its proper province, had rejected the testimony of the experts. In our case, the appellant called as his expert one Dr. Marland. He testified that the appellant’s “home is not one of poverty, definitely not.” The psychiatrist said that Rouse “had several attorneys and several of them have requested me to examine him.” The doctor had done so on eight occasions. He found that Rouse

“suffers from a personality disorder * * * but I do not think that this constitutes mental disease simply because it is in the Diagnostic Manual and since 1950 (sic, 1955?) because by fiat, as it were, St. Elizabeths declares it is. I have always contended that personality disorders are not mental disease in the true sense of the term.” 5

The doctor, the appellant’s- own witness, added that he would take the responsibility of having Rouse released only if he were released conditionally, adding

“I would supervise him.”

The judge asked, “In other words, you recommend a conditional release, not an unconditional release?

“The witness: Precisely.”

Amply demonstrating 6 the cogency of Justice Frankfurter’s observations, supra, the Government’s expert here testified that the appellant was suffering from a personality disorder with antisocial reaction. He explained:

“This is a recognized mental illness and it is a disorder of the character of the personality.”

A person so afflicted shows a preponderance of symptoms which prevents him from making an adequate adjustment in normal living, he added. It became clear, as the judge later brought out from the appellant’s expert, that there are two schools of thought among psychiatrists as to whether personality disorders are or are not mental diseases. The appellant’s expert specified that at least exhibitionism is “definitely” a mental disease.

The appellant when admitted to St. Elizabeths had told the examining physicians that he had been in difficulty with the law since the age of 14, that “he had had numerous charges on safecracking, housebreaking.” The officer in the latest case had arrested Rouse at 1:45. A.M. at 14th ’ and Harvard ■ Streets. Rouse was carrying a suitcase’in'which were a .45 caliber Colt automatic pistol -loaded with seven rounds of ammunition. 7 He also had 100 rounds of .45 caliber bullets, 500 rounds of .22 caliber ammunition, two electric drills, a hacksaw and hacksaw blades.

The Government’s doctor may, perhaps, be pardoned for thinking Rouse had displayed little awareness of his function in society and that an antisocial reaction was part of his personality disorder.

*465 v

So it was that the Government’s expert had caused Rouse to receive treatment. He personally saw Rouse at least 20 times on the ward; had talked with him on a dozen occasions, sometimes up to two or three hours; and he finally concluded that Rouse “exhibits frank overt anti-social behavior.” A person so situated “can, when he decompensates even more, become schizophrenic.” The expert testified that “This man is sick.” He believed that Rouse is dangerous to himself and others. If placed at liberty

“at the present time it would be a precipitous thing to do and he would be dangerous to himself and to other people by virtue of this mental illness. I think he needs supervision over the long haul.”

Rouse had participated in group therapy for a total of 50 sessions. He announced to the group on February 16, 1965, “that he was terminating on the 18th. When this premature termination was discussed with him, he stated that he * * did not want to experience the discomfort that is necessary for change to occur.”

The doctor transferred him to an open ward in an effort to induce Rouse to assume normal exposure to other people. “Over and over and over again I have pleaded with him to make attempts to be more comfortable” in an environment “where he will have more privileges.” Rouse rejected such efforts and asked to be sent back to the security ward. Rouse had “experienced a great deal of anxiety, panic, nervousness, discomfort. * * * He couldn’t tolerate the increasing privileges and responsibility.” He had denied himself occupational and recreational therapy, “these obvious pleasures, these obvious benefits, these very therapeutic things which are human things to do, because his anxiety is so great that he can’t avail himself of the humanizing influence that exists in this building.”

VI

The judge in view of the conflict between the experts continued the case. He caused an examination to be made by a member of the Mental Health Commission. That expert two weeks later testified that Rouse had been' suffering from a mental disorder at the time of his arrest but that he “is no longer suffering from any mental disorder at all.” 8 As for future psychiatric care, he testified, “I would like to see him get some supporting help as he reestablishes himself in society.”

I think the trial judge correctly concluded: “There is no doubt in the mind of the Court that this patient has improved and that he' is continuing to progress.” The judge stated that if Rouse demonstrated his capacity to make use of the opportunities afforded him by the hospital, the staff might recommend a conditional release. If not, he added, the “Court would consider a renewal of the application with a view to possibly granting a conditional release.” He dismissed the petition “with leave to renew after a reasonable time.” 9

My study of this record has convinced me that the result reached by the trial judge was fully supported. His findings are proof-positive against challenge. His conclusions accord with the objectives of the statute and are entirely consistent with our precedents. Rouse had failed to sustain his burden of proving his eligibility for release under the statute. I think the judgment dismissing the petition should be affirmed, without more.

VII

Now, my majority colleagues remand “for a hearing and findings on whether *466 appellant is receiving adequate treatment, and, if not, the details and circumstances underlying the reason why he is not.” I reject any such disposition as outside the scope of our appellate review function. If some of us are to devise what we say are “issues” upon which to promulgate our views in this highly nebulous area, why should District Judges pay any more attention to what we say by way of dictum 10 than we seem to be according to our own precedents ?

Mr. Justice Frankfurter observed:

“Sanity and insanity are concepts of incertitude. They are given varying and conflicting content at the same time and from time to time by specialists in the field. Naturally there has always been conflict between the psychological views absorbed by law and the contradictory views of students of mental health at a particular time.” 11

How. cogent his observations! No member of this court has ever suggested that a person committed because of mental illness should not receive “treatment.” 12 That this appellant received extensive treatment was overwhelmingly established of record, and so successful had it been, that the Mental Health Commission’s expert could say that in his opinion, Rouse had recovered from the mental illness which led to his commitment. Even so, he added as to the need for further psychiatric help, “I would like to see him get some supporting help as he re-establishes himself in society.”

Now, where the experts differ so widely on the nature and the degree of the appellant’s mental illness, the trial judge is commanded to hold a hearing and prepare findings on whether or not Rouse is receiving “adequate” treatment.

Yet Rouse was really claiming 13 that he no longer was mentally ill.

Once again I suggest the judgment of the District Court' should be affirmed. 14

*467 APPENDIX

The opinion of the trial judge, deliver- ' ed at the close of the hearing,, was as follows :

OPINION OF THE COURT

The Court:

There is no doubt in the mind of the Court that this patient has improved and that he is continuing to progress. The only question is whether he has reached a point at which he should be released.

The staff of St. Elizabeths Hospital say no and they support their views by a showing -that he refuses to accept opportunities for a greater degi’ee of free *468 dom within the hospital than he has today and that that hampers and handicaps the staff of St. Elizabeths Hospital in determining or reaching a conclusion that it is safe to release him. I think in that sense he is his own worst enemy.

I was very much impressed by Dr. Bunge’s testimony, but I was also impressed at the first hearing by the fact that Dr. Marland, who testified in behalf of the petitioner, did not recommend an unconditional release. He recommended a conditional release. In other words, the physician who testified in his behalf would hesitate to express the opinion that it is safe to release him unconditionally. I think that the petitioner should take advantage, first, of the opportunities of greater .freedom in the hospital and, if he shows that he is capable of making use of those opportunities it may well be that the hospital will admit him to conditional release; but even if it does not, the Court would consider a renewal of the application with a view to possibly granting a conditional release. But I do think that he sho'uld first cooperate with the hospital and take advantage of the opportunities which they are willing to accord to him for greater freedom within its walls.

Writ discharged and petition dismissed, with leave to renew after a reasonable time.

. It is certainly so that as the trial judge sought from counsel an outline of the case he was about to hear, he gratuitously remarked :

“I don’t think I have a right to consider whether he is getting enough treatment or not enough treatment because, after all, treatment of a mental disease ordinarily is only talking to a person. That is what treatment consists of, you know.”

But the appellant was not thereafter or thereby inhibited in any way respecting his treatment; indeed, the treatment afforded him proved so successful that the expert from the Mental Health Commission testified that while at St. Elizabeths, Rouse had recovered his sanity.

. He acted completely in accordance with the requirements of D.C.Code § 24-301 (1961) and with the pronouncements of this court in construing the statute. See, e.g., Hough v. United States, 106 U.S.App. D.C. 192, 195, 271 F.2d 45S, 461 (1959); Miller v. Cameron, 118 U.S.App.D.C. 323 , 335 F.2d 9S6 (1964).

. Overholser v. Leach, 103 U.S.App.D.C. 289 , 291-292, 257 F.2d 667, 669-670 (1958), cert. denied, 359 U.S. 1013 , 79 S. Ct. 1152 , 3 L.Ed.2d 1038 (1959). Leach, we held on the Government’s appeal, had failed to carry his burden of showing that the refusal of the Superintendent' of St. Elizabeths to issue the statutory certificate was arbitrary and capricious.

. 350 U.S. 366, 375 , 76 S.Ct. 410, 415 , 100 L.Ed. 412 (1956); he also pointed out at p. 374, 76 S.Ct. at p. 415 that a wag had it that “ * * * when the legislative history is doubtful, go to the statute.” We should do no less.

. So my majority colleagues draw upon selected passages from works they name, perhaps never read by more than one or two members of the court. Such references are not of record; they are untested; they were not the subject of cross-examination; they, possibly, have never been accepted by the discipline they purport to reflect.

We as a court are now being asked to utilize such unproved tools in determining first, presumably, what degree of mental imbalance here obtains, and next, whether a particular course of treatment is “adequate.”

. And underscoring our own ineptitude in embarking upon appellate review in this vague area where the, “experts” show such divergence.

. Appellant’s expert said Rouse should have gone to jail in the first place, and if he were to be released and thereafter duplicated such conduct, he should go .to jail and not be regarded as mentally ill.

. If this testimony were to be taken as absolute, would my colleagues say that Rouse had not received “adequate” treatment at St. Elizabeths?

. And that is exactly in accord with the opportunity this court sitting en banc decided should be available in such situations. Stewart v. Overholser, 87 U.S. App.D.C. 402, 186 F.2d 239 (1950). And see the attached appendix which incorporates the opinion of the trial judge.

. See, e. g., Caplan v. Cameron, 125 U.S. App.D.C. -, 369 F.2d 195 (1966); Holmes v. United States, 124 U.S.App. D.C. 152, 363 F.2d 281 (1966) ; Hansford v. United States, 124 U.S.App.D.C. 387 , 365 F.2d 920 (1966), and compare dissenting opinion, note 11 and related text.

. Leland v. State of Oregon, 343 U.S. 790, 803 , 72 S.Ct. 1002, 1010 , 96 L.Ed. 1302 (1952) (dissenting opinion).

. To the extent that the majority strains to rely upon the “District of Columbia Hospitalization of the Mentally Ill Act,” 78 Stat. 044 , as amended,'an observation or two may be pertinent. That Act was intended to up-date our Code relating to the Commission on Mental Health and the administration of our civil commitment procedures. Not even remotely was it the purpose of the legislation to supplant the provisions of D.C.Code § 24-301 (1961).

The 1964 Act defined “mental illness” as a psychosis or other disease which substantially impairs the mental health of an individual, and then expressly provided that “the term ‘mentally ill person’ means any person who has a mental illness, but shall not include a person committed to a private or public hospital in the District of Coltimbia by order of the court in a criminal proceeding.” (Emphasis added.).

. Prior to the instant case, Rouse had twice previously sought his release. In habeas corpus No. 232-64, the second last of his applications, Rouse had specifically alleged that he was unlawfully detained “for the reason that petitioner is now of sound mind and has never in fact been of unsound mind.” He further then contended that the Superintendent’s refusal to certify Rouse for release was arbitrary and capricious. Judge Hart conducted a hearing, and made findings of • fact after Rouse himself had testified. Judge Hart concluded that Rouse was “suffering from an abnormal mental condition, Antisocial Reaction, and would be dangerous to himself or others if released into the community.” Rouse did not testify in the instant casé.

. This court’s opinion was rendered October 10,1966. The majority had purported to find a predicate for its result in the “District of Columbia Hospitalization of the Mentally Ill Act,” D.C.Code § 21-501 (Supp. V, 1966), 78 Stat. 944 . That legislation, the majority noted, had been sponsored in the Senate by Senator Ervin.

In my dissent, footnote 12, I had then noted that the majority “strains” in its purported reliance upon the Mentally Ill *467 Act as a prop for the majority conclusion. The legislation not only had defined various terms such as “mental illness” and “mentally ill person,” but in so many words had specifically provided that the latter term “shall not include a person committed to a private or public hospital in the District of Columbia Try order of the court in a criminal proceeding.” (Emphasis added.)

The significance of my reference and my comment perhaps had earlier been unrecognized, for a week later the majority interpolated an amendment designed to meet the effectiveness of my footnote. Our court records show that on October 17, 1966, the majority entered its sua sponte order amending its opinion by the interpolation of a new footnote reference “18a.” In that amendment, the majority undertook to justify its interpretation of the Mentally Ill Act.

As time has passed, it seems obvious that the majority has become the more certainly aware of the fundamental weakness of its extension of the Mentally Ill Act to the issue here presented.

Thus it is that we find the majority, sua sponte, as of April 4, 1967, further amending its opinion by the insertion of footnote 18a, supra, 125 U.S.App.D.C. at -, -, 378 F.2d at 454, 455. Hence I add this explanatory footnote 14.

The majority, as will be seen, concedes as it is bound to do, that “The House Committee Report did make the broad statement that the bill applied only to those committed in civil proceedings,” but there is more.

My colleagues had correctly noted that Senator Ervin was the sponsor of S. 935, P.L. 88-597, 78 Stat. 944 . Testifying in support of that legislation before the House Committee on the District of Columbia on August 10, 1964, Senator Ervin explained that the legislation “is intended to apply to civil hospitalization proceedings. It has no application to hospitalization arising out of criminal proceedings." (Emphasis supplied.) Not only that, but on February 10, 1965 he introduced in the S9th Congress, 1st Sess., S. HOD. That proposed legislation was designed, as he explained to the Senate, to deal with problems arising under section 24-301 of the District of Columbia Code which, as we all know, treats of the subject matter pertinent to “Insane Criminals.”

In his statement, having taken note of problems which had arisen under the commitment provisions of section 24-301, Senator Ervin pointed out that “The mandatory commitment law deprives the trial judge who may be the person best qualified to make the decision concerning the hospitalization of the defendant, from exercising any judgment on the commitment issue.” He emphasized the hope that hearings on S. 1109 might also afford an appropriate forum for examination of constitutional problems related to criminal cases where the defendant's mental ..'condition' is at issue, with particular reference t o

“Whether insanity should be made an affirmative defense in the District of Columbia; and

“Whether provision should he made to provide independent psychiatric assistance to indigents attempting to establish their sanity.”*

How my colleagues’ amended order can be said to reflect a congressional purpose to apply the provisions of the Mentally Ill Act to persons coming within the scope of D.C.Code § 24-301 is beyond me. Mr. Justice Frankfurter once observed that an interpretation of statutory language by his colleagues amounted to saying that when Congress votes a proposition down, it is the same as saying that Congress has voted it up. As Mr. Justice Cardozo put it, statutory-construction should not “be pressed to the point of disingenuous evasion.” Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 . 53 S.Ct. 620, 622 , 77 L.Ed. 1265 (1933).

I mention such matters only to suggest that, once again, the Mentally Ill Act according to its express language and in the mind of its sponsor had and has no applicability whatever to commitments under D.C.Code § 24-301. In my view, attenuated circumlocutions appearing in various of this court’s opinions concern *468 ing problems of criminals who are or may be mentally ill have carried our courts so far afield that it is time for a change.

I add only that in my view Baxstrom v. Herold, 383 U.S. 107 , 86 S.Ct. 760 , 15 L.Ed.2d 620 (1966) in no way applies either to the circumstances of this case or to the pertinent sections of the District of Columbia Code.

* In Senate Report No. 31 to the 90th Congress, 1st Sess., appears the report of Senator Ervin as chairman of the Subcommittee on Constitutional Rights. He there pointed out that at the previous session, the Congress had adopted the Hospitalization of the Mentally Ill Act. His report continued :

“Due to Subcommittee concentration on the civil aspects of this issue, no hearings were hold on S. 1109, a bill dealing with the rights of the mentally ill in criminal cases. Senator Ervin, the sponsor of the original measure, plans to introduce this legislation again in the First Session of the 90th Congress. It is anticipated that hearings will also be held on this aspect of the rights of the mentally ill.” (Emphasis added.)

It is reasonable to assume that Senator Ervin, a former Justice of the Supreme Court of North Carolina, was quite aware of the two aspects of the problems of the mentally ill, one dealing with civil phases, and the other with the problems of the mentally ill in criminal cases. For my part, I think he knew what he was talking about.